Addition of Accounts. (a) If, on any day after the SMT Termination Date, the Aggregate Principal Balance is less than the Minimum Aggregate Principal Balance, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller shall designate additional Eligible Accounts ("Additional Accounts") to be ------------------- included as Accounts and shall transfer the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so that the Aggregate Principal Balance on such day would have, if the Receivables from such Additional Accounts had been transferred to the Issuer on or prior to such day, at least equaled the Minimum Aggregate Principal Balance. (b) In addition to its obligation under Section 2.6(a), Seller may, -------------- but shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts, so long as after giving effect to such addition not more than 20% of the Receivables, by outstanding balance, will be 30 or more days delinquent (and for this purpose, Receivables in an Account shall be considered delinquent if less than 100% of a required payment was received). (c) Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Issuer under Section 2.6(a), (b) or (e) -------------- --- --- upon and subject to the following conditions: (i) On or before the fifth Business Day (the "Notice Date") ----------- prior to the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller shall give the Owner Trustee -------------- --- and the Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred; (ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) if such designation of Additional Accounts is made pursuant to Section 2.6(b) or (e) and if the addition -------------- --- of such Additional Accounts (1) would cause the quotient (the "Annual Quotient") of --------------- (x) the sum of the Annual Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.20, or (2) would cause the quotient (the "Quarterly Quotient") ------------------ of (x) the sum of the Quarterly Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts; (iii) On or prior to the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller shall have -------------- --- delivered to the Owner Trustee a written Assignment Agreement (including an acceptance by the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment Agreement") and shall have indicated in its --------- -------------------- books and records, including the computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number, and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), which computer file -------------- --- or microfiche list shall be marked as Schedule 1 to the Assignment ---------- Agreement, delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and incorporated into and made a part of such Assignment Agreement and this Agreement; (iv) Seller shall be deemed to represent and warrant that (w) as of the Addition Date, Schedule 1 to the Assignment Agreement and ---------- the computer file or microfiche list delivered pursuant to Section ------- 2.6
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Spiegel Master Trust)
Addition of Accounts. (a) If, on any day after the SMT FCMT Termination Date, the Aggregate Principal Balance is less than the Minimum Aggregate Principal Balance, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller shall designate additional Eligible Accounts ("Additional Accounts") to be ------------------- included as Accounts ------------------- and shall transfer the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so that the Aggregate Principal Balance on such day would have, if the Receivables from such Additional Accounts had been transferred to the Issuer on or prior to such day, at least equaled the Minimum Aggregate Principal Balance.
(b) In addition to its obligation under Section 2.6(a), Seller may, but -------------- but shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts, so long as after giving effect to such addition not more than 20% of the Receivables, by outstanding balance, will be 30 or more days delinquent (and for this purpose, Receivables in an Account shall be considered delinquent if less than 100% of a required payment was received).
(c) Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Issuer under Section 2.6(a), (b) or (e) upon and -------------- --- --- upon and subject to the following conditions:
(i) On or before the fifth Business Day (the "Notice Date") ----------- prior to ----------- the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller shall give the Owner Trustee -------------- --- and the Servicer -------------- --- (if a Person other than Seller) written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall, if such designation of Additional Accounts is made pursuant to Section 2.6(b) or (e) and if the addition of -------------- --- of such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of --------------- (x) the --------------- sum of the Annual Account Additions after giving effect to such addition addition, plus the related Base Amount Amount, divided by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") ------------------ of (x) ------------------ the sum of the Quarterly Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts;
(iii) On or prior to the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller shall have -------------- --- -- delivered to the Owner Trustee a written Assignment Agreement (including an acceptance by the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment --------- ---------- Agreement") and shall have indicated in its --------- -------------------- books and records, including --------- the computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number, and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), which computer file or -------------- --- or microfiche list shall be marked as Schedule 1 to the Assignment ---------- Agreement, ---------- delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and incorporated into and made a part of such Assignment Agreement and this Agreement;
(iv) Seller shall be deemed to represent and warrant that (wx) each Additional Account is, as of the Addition Date, an Eligible Account, (y) no selection procedures reasonably believed by Seller to be materially adverse to the interests of the Noteholders were utilized in selecting the Additional Accounts from the available Eligible Accounts, and (z) as of the Addition Date, Schedule 1 Seller is not insolvent and will not be rendered insolvent by adding any such Additional Account;
(v) Seller shall be deemed to represent and warrant that, as of the Addition Date, the Assignment Agreement constitutes either (x) a valid transfer to the Issuer of all right, title and ---------- interest of Seller in, to and under the computer file Receivables then existing and thereafter arising in respect of the Additional Accounts, all monies due or microfiche list delivered to become due with respect thereto (including all Finance Charge Receivables), and all proceeds of such Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the Seller -------------- Interest and (iii) Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account, as provided in this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer in such property, upon the filing of a financing statement as described in Section -------
2.1 with respect to such Additional Accounts and in the case of the --- Receivables of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such Receivables, upon such transfer, the Issuer shall have a first priority perfected security interest in such property, except for Liens permitted under Section 2.5(b), -------------- the Seller Interest and Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account, as provided in this Agreement and any Indenture Supplement;
(vi) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section 2.6(a) or (b), deliver a certificate of a Vice -------------- --- President or more senior officer confirming the items set forth in paragraphs (ii), (iii), (iv) and (v) above; and ---- ----- ---- ---
(vii) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section 2.6(a) or (b), deliver an Opinion of Counsel with -------------- --- respect to the Receivables in the Additional Accounts to the Owner Trustee substantially in the form of Exhibit F-2, and which shall be reasonably ----------- acceptable to the Rating Agencies.
(d) Seller shall provide to each Rating Agency and to each Enhancement Provider prior written notice each time Additional Accounts are added pursuant to Section 2.6(a) or (b). -------------- ---
(e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new MasterCard or VISA account originated in the normal course of Seller's business after the FCMT Termination Date shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the date on which such account is created; provided, -------- however, that such automatic inclusion and transfer shall not occur with respect ------- 2.6to any such account if: (i) such account does not qualify as an Eligible Account, (ii) the transfer to the Issuer of the Receivables in such Account, if such Accounts had been designated by Seller pursuant to Section 2.6(b), would -------------- have caused the limitations set forth in Section 2.6(c)(ii) to be exceeded ------------------ (unless there shall have been delivered to the Indenture Trustee a letter from each Rating Agency confirming the Rating Agency Condition has been satisfied with respect to the addition of such Additional Account), or (iii) Seller otherwise designates such account as an account which is not to be included as an Account pursuant to this Section 2.6(e). On or before the fifth Business Day -------------- of each month next succeeding a calendar month in which Accounts were included pursuant to the preceding sentence, Seller shall indicate in its computer files of the receivables that the Receivables created in connection with such included Accounts have been transferred to the Issuer. Seller, at its option, may, by providing written notice to the Owner Trustee and the Servicer, terminate or suspend the inclusion of Additional Accounts added pursuant to Section 2.6(e) at -------------- any time.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (First Consumers Master Trust)
Addition of Accounts. (a) If, as of the end of any Collection Period beginning on any day or after the SMT Certificate Trust Termination Date or as of any Distribution Date occurring on or after the Certificate Trust Termination Date, (i) the Transferor Amount (after giving effect to any amounts deposited in the Excess Funding Account) is less than the Minimum Transferor Amount or (ii) the Aggregate Principal Balance is Principalis less than the Minimum Aggregate Principal BalanceReceivables Receivables, either Seller then the Transferor shall, before the close of business on the following Transfer Date (in the case of any deficiency as of the end of any Collection Period) or before the Servicer end of the Collection Period in which such deficiency occurs (whichever shall first become aware in the case of same) promptly shall give the Owner Trustee written notice thereofany deficiency as of any Distribution Date), and as soon as practicable (but in no event later than 10 days thereafter) Seller shall designate additional Eligible Accounts (the "Additional Accounts") to be ------------------- included as Accounts and shall transfer the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so that such that, after giving effect to such designation, the Transferor Amount at least equals the Minimum Transferor Amount and the Aggregate Principal Balance on such day would have, if the Receivables from such Additional Accounts had been transferred to the Issuer on or prior to such day, at least equaled equals the Minimum Aggregate Principal BalanceReceivables; provided, however, that the Transferor need not make any such designation to the extent that the deficiencies described in clauses (i) and (ii) above have been eliminated on or before such Transfer Date or before the end of such Collection Period, as applicable, through reductions in the Aggregate Invested Amount or through increases in the amount on deposit in the Excess Funding Account.
(b) In addition to its obligation under Section 2.6(a), Seller the Transferor may, -------------- but shall not be obligated to, designate from time to time, designate time Additional Accounts to be included as Accounts, so long Accounts as after giving effect to such addition not more than 20% of the Receivables, by outstanding balance, will be 30 or more days delinquent (and for this purpose, Receivables in an related Additional Account shall be considered delinquent if less than 100% of a required payment was received)Closing Date.
(c) Seller The Transferor agrees that any Receivables from designation of Additional Accounts shall be transferred by Seller to the Issuer under Section 2.6(a), (b) and any designation of Additional Accounts made on or (eafter the Certificate Trust Termination Date under Section 2.6(b) -------------- --- --- upon and subject to shall satisfy the following conditions:
(i) On or before the fifth Business Day (the "Notice Date") ----------- prior to the Addition Date in respect of Additional Accounts added Account Closing Date, the Transferor shall have given the Owner Trustee, the Indenture Trustee, the Servicer, each Rating Agency and each other Person entitled thereto pursuant to Section 2.6(a) or (b), Seller shall give the Owner Trustee -------------- --- and the Servicer related Indenture Supplement written notice that such the Additional Accounts will be included as Accounts and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) if such designation of Additional Accounts is made pursuant to Section 2.6(b) or (e) and if the addition -------------- --- of such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of --------------- (x) the sum of the Annual Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") ------------------ of (x) the sum of the Quarterly Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts;
(iii) On or prior to before the Addition Additional Account Closing Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller the Transferor shall have -------------- --- delivered to the Owner Trustee a written Assignment Agreement (including an acceptance by and the Owner Trustee shall have accepted on behalf of the Issuer for the benefit of the NoteholdersNoteholders and any Enhancement Provider) a written assignment substantially in substantially the form of Exhibit A (the "Assignment AgreementAssignment") and shall have clearly indicated in its --------- -------------------- books and records, including the computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Issuer; Issuer and the Transferor shall have delivered to the Owner Trustee and the Indenture Trustee a computer file or microfiche list containing represented by the Transferor to contain a true and complete list of all the Additional Accounts identified by account number, number and by Receivable balance in the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, Accounts as of the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b)Account Cut-Off Date, which computer file -------------- --- or microfiche list shall be marked as Schedule 1 to the Assignment ---------- Agreement, delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and incorporated into and made a part of such Assignment Agreement and this Agreement;
(iviii) Seller The Transferor shall be deemed to represent and warrant that (wx) each Additional Account was, as of the Additional Account Cut-Off Date, an Eligible Account, (y) no selection procedures believed by the Transferor to be materially adverse to the interests of any outstanding Series of Notes or any Enhancement Provider were used in selecting the Additional Accounts from the available Eligible Accounts in the Transferor's portfolio of MasterCard and VISA credit card accounts; and (z) as of the Addition Additional Account Closing Date, Schedule 1 the Transferor is not insolvent and will not be made insolvent by the transfer of the Receivables in the Additional Accounts;
(iv) The Transferor shall represent and warrant that, as of the Additional Account Closing Date, the Assignment constitutes either (A) a valid transfer and assignment to the Issuer of all right, title and interest of the Transferor in and to the Receivables then existing and thereafter created in the Additional Accounts, all monies due or to become due and all amounts received with respect thereto on or after the Additional Account Cut-Off Date and all proceeds thereof (to the extent set forth in Section 9-315 of the UCC as in effect in the Relevant UCC State), and such Receivables and all proceeds thereof will be transferred to the Issuer free and clear of any Lien of any Person claiming through or under the Transferor or any of its Affiliates, except for (x) Liens permitted under Section 2.5(b), (y) the interest of the Transferor as holder of the Exchangeable Transferor Certificate or any other Class held by the Transferor from time to time and (z) any right of the holder of the Exchangeable Transferor Certificate to receive interest accruing on, and investment earnings with respect to, the Collection Account or any other account or accounts maintained for the benefit of the Noteholders or any Enhancement Provider as provided in this Agreement and any Indenture Supplement or (B) a grant of a security interest (as defined in the UCC as in effect in the Relevant UCC State) in such property to the Issuer.
(v) If the Assignment constitutes the grant of a security interest in such property to the Issuer, the Transferor shall represent and warrant, as of the Additional Account Closing Date, that:
(A) the Assignment creates a valid and continuing security interest (as defined in the UCC of the Relevant UCC State) in such property in favor of the Issuer, which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from the Transferor;
(B) the Receivables transferred by the Transferor pursuant to the Assignment constitute "accounts" within the meaning of the UCC of the Relevant UCC State;
(C) the Transferor owns and has good and marketable title to the property transferred under the Assignment free and clear of any Lien, claim or encumbrance of any Person (other than any Lien described in clause (x), (y) or (z) of paragraph (iv) above);
(D) the Transferor has caused or will have caused, within ten (10) days of the execution of the Assignment, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest in the Receivables and the proceeds thereof granted to the Issuer pursuant to the Assignment;
(E) other than the security interest granted to the Issuer pursuant to this Agreement or an Assignment, the Transferor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Receivables in the Additional Accounts or the proceeds thereof;
(F) the Transferor has not authorized the filing of and ---------- is not aware of any financing statements filed against the Transferor that include a description of the Receivables in the Additional Accounts other than any financing statement relating to the transfer of the Receivables to the Transferor pursuant to the Receivables Purchase Agreement or the security interest granted to the Issuer pursuant to this Agreement or an Assignment or any financing statement that has been terminated; and
(G) the Transferor is not aware of any judgment or tax lien filings against the Transferor.
(vi) The Transferor shall deliver to the Indenture Trustee (with a copy to the Rating Agencies) an Officer's Certificate confirming the items set forth in paragraphs (ii) through (v) above and paragraph (viii) below (and the Indenture Trustee may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to the matters set forth therein and shall incur no liability in so relying);
(vii) The Transferor shall deliver to the Indenture Trustee, with a copy to each Rating Agency, an Opinion of Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Exhibit F-2;
(viii) The Transferor shall record and file (and does hereby authorize the Issuer to record and file) financing statements with respect to the Receivables then existing and thereafter created in the Additional Accounts for the transfer of accounts (as defined in the UCC as in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer and assignment of the Receivables in the Additional Accounts by the Transferor to the Issuer; and
(ix) The Rating Agencies shall have received from the Transferor five Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(a), and ten Business Days' notice, in the case of Additional Accounts being added pursuant to Section 2.6(b), of such proposed addition of Additional Accounts and, in the event that Additional Accounts are being added pursuant to Section 2.6(b), the Rating Agency Condition shall have been satisfied.
(d) The Transferor may, but shall not be obligated to, designate from time to time additional consumer revolving credit card accounts (the "Automatic Additional Accounts") to be included as Accounts by causing such Accounts to be identified pursuant to Section 2.2(d) of the Receivables Purchase Agreement in the Bank's master computer files by the four digit identifying code number 2003, 2004, 2009, 3101, 3102, 3103, 3104, 3312, 3313, 3314, 3315, 3316, 3317, 4951, 4952, 4954, 4955, 4957 or 4969 and (i) in the case of Automatic Additional Accounts designated before the Certificate Trust Termination Date, in the computer file or microfiche list delivered to the trustee of the FNANB Credit Card Master Trust by the Transferor with respect to such Accounts pursuant to Section ------- 2.62.1(b) of the Pooling and Servicing Agreement, and (ii) in the case of Automatic Additional Accounts designated on or after the Certificate Trust Termination Date, in the computer file or microfiche list delivered to the Indenture Trustee by the Transferor with respect to such Accounts pursuant to Section 2.1(c). For purposes of this Section 2.6(d), Automatic Additional Accounts shall be deemed to include only Eligible Accounts designated on or after the Certificate Trust Termination Date (x) of a type included as Accounts on the Certificate Trust Termination Date or any Additional Account Closing Date (but only if such Additional Account Closing Date related to Additional Accounts added pursuant to Section 2.6(b)) or consented to in writing by each Rating Agency and (y) not prohibited from being included as Accounts pursuant to the terms of any Indenture Supplement. If the number of Automatic Additional Accounts designated during any calendar quarter or any period of twelve consecutive months (including Automatic Additional Accounts designated pursuant to the Pooling and Servicing Agreement during either such period) exceeds the applicable Aggregate Automatic Addition Limit, then, upon discovery of such excess designation, (x) the Excess Automatic Additional Accounts shall be deemed to be Removed Accounts and (y) the Issuer shall, without further action, be deemed to transfer, assign, set-over and otherwise convey to the Transferor, without recourse, representation or warranty, all right, title and interest of the Issuer in and to the Receivables in the Excess Automatic Additional Accounts, all monies due or to become due and all amounts received with respect thereto and all proceeds thereof. The Owner Trustee shall execute such documents and instruments of transfer or assignment as are prepared by the Transferor and take such other actions as shall be reasonably requested by the Transferor to effect the conveyance of such Receivables pursuant to this Section 2.6(d). If the removal of Excess Automatic Additional Accounts causes the Transferor Amount to be less than the Minimum Transferor Amount or the Aggregate Principal Receivables to be less than the Minimum Aggregate Principal Receivables, then the Transferor shall, no later than 10 Business Days after such removal, designate Additional Accounts to be included as Accounts in accordance with Section 2.6(a) in an amount such that, after giving effect to such designation, the Transferor Amount at least equals the Minimum Transferor Amount and the Aggregate Principal Receivables at least equals the Minimum Aggregate Principal Receivables; provided, however, that the Transferor need not make any such designation to the extent that such deficiencies have been eliminated on or before such tenth Business Day through reductions in the Aggregate Invested Amount or through increases in the amount on deposit in the Excess Funding Account. The removal of Excess Automatic Additional Accounts in accordance with this Section 2.6(d) shall be deemed to cure any violation of the Aggregate Automatic Addition Limit, and such removal shall constitute the sole remedy respecting any such violation available to the Issuer, the Noteholders or the Indenture Trustee on behalf of the Noteholders. The Transferor shall record and file (and does hereby authorize the Issuer to record and file), at the expense of the Transferor, financing statements (and continuation statements with respect to such financing statements when applicable) with respect to the Receivables then existing and thereafter created in the Automatic Additional Accounts for the transfer of accounts (as defined in the UCC as in effect in the Relevant UCC State) meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect the transfer and assignment of such Receivables by the Transferor to the Issuer, and to deliver a file-stamped copy of such financing statements or other evidence of such filings to the Indenture Trustee.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (Dc Funding International Inc)
Addition of Accounts. (a) If, on (i) as of the end of any day after the SMT Termination DateCollection Period, the Aggregate Transferor Amount as a percentage of the Trust Principal Balance Component is less than the Minimum Aggregate Principal BalanceTransferor Percentage specified in the Series Supplement for any Series, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller Transferor shall designate additional Eligible Accounts eligible VISA accounts from the Bank Portfolio ("Additional Accounts") to be ------------------- included as Accounts and shall transfer the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so such that the Aggregate Transferor Amount after giving effect to such addition will be at least equal to the Minimum Transferor Amount, or (ii) as of the end of any Collection Period, the sum of the Trust Principal Balance on Component and the Excess Funding Amount is less than the Minimum Trust Principal Component, the Transferor shall designate Additional Accounts to be included as Accounts in a sufficient amount such day would have, if that the sum of the Trust Principal Component and the Excess Funding Amount will be equal to or greater than the Minimum Trust Principal Component. Receivables from such Additional Accounts had been shall be transferred to the Issuer Trust on or prior to before the tenth Business Day following the end of such day, at least equaled the Minimum Aggregate Principal BalanceCollection Period.
(b) In addition to its obligation under Section subsection 2.6(a), Seller the Transferor may, -------------- but shall not be obligated to, designate from time to time, designate time Additional Accounts of the Transferor to be included as Accounts to be included as Accounts, so long as after giving effect to such addition not more than 20% property of the ReceivablesTrust, by outstanding balance, will be 30 or more days delinquent (and for this purpose, Receivables in an Account shall be considered delinquent if less than 100% as of a required payment was received)the applicable Addition Date.
(c) Seller The Transferor agrees that any Receivables from Additional Accounts shall be transferred by Seller designation pursuant to the Issuer under Section subsection 2.6(a), ) or (b) or shall satisfy the following conditions (e) -------------- --- --- upon and subject to the following conditions:extent provided below):
(i) On on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(a) and on or before the tenth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(b) (the "Notice Date") ----------- prior to the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller the Transferor shall give the Owner Trustee -------------- --- Trustee, each Rating Agency and the Servicer written notice that such Additional Accounts will be included and specifying included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) if such designation of Additional Accounts is made pursuant to Section 2.6(b) on or (e) and if the addition -------------- --- of such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of --------------- (x) the sum of the Annual Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") ------------------ of (x) the sum of the Quarterly Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts;
(iii) On or prior to before the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller the Transferor shall have -------------- --- delivered to the Owner Trustee a written Assignment Agreement assignment (including an acceptance by the Owner Trustee on behalf of the Issuer Trust for the benefit of the NoteholdersInvestor Certificateholders) in substantially the form of Exhibit A B (the "Assignment AgreementAssignment") and the Transferor shall have indicated in its --------- -------------------- books and records, including the computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Issuer; Trust and, within five Business Days thereafter, or as otherwise agreed upon between the Transferor and the Trustee, the Transferor shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified and identifying each Account by account number, number and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b)Date, which computer file -------------- --- or microfiche list shall be marked as Schedule 1 to the Assignment ---------- Agreement, delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and incorporated into and made a part of such Assignment Agreement and this Agreement;
(iviii) Seller the Transferor shall be deemed to represent and warrant that (wx) with respect to Additional Accounts, each Additional Account is, as of the Addition Date, an Eligible Account, and each Receivable in such Additional Account is, as of the Addition Date, an Eligible Receivable, (y) the selection of the Additional Accounts by the Transferor has been made in a manner which it reasonably believes will not materially adversely affect the interests of the Investor Certificateholders, and (z) as of the Addition Date, Schedule 1 the Transferor is not insolvent;
(iv) the Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (x) a valid transfer, assignment, set-over and conveyance to the Trust of all right, title and interest of the Transferor in and to the Receivables then existing and thereafter created in connection with the Additional Accounts, all proceeds (as defined in the UCC as in effect in the State of South Dakota) of such Receivables and Insurance Proceeds relating thereto, and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be held by the Trust free and clear of any Lien of any Person claiming through or under the Transferor or any of its Affiliates, except for (i) Liens permitted under subsection 2.5(b), (ii) the interest of the Transferor as Holder of the Exchangeable Transferor Certificate and (iii) the Transferor's right, if any, to receive interest accruing on, and investment earnings, if any, in respect of any Account, Series Account, as provided in any related Supplement or (y) a grant of a security interest (as defined in the UCC as in effect in the State of South Dakota) in such property to the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC as in effect in the State of South Dakota) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts conveyed on such Addition Date, the proceeds (as defined in the UCC as in effect in the State of South Dakota) thereof and Insurance Proceeds relating thereto, upon such creation; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Trust in such property, upon the filing of a financing statement as described in Section 2.1 with respect to such Additional Accounts and ---------- in the computer file or microfiche list delivered pursuant case of the Receivables thereafter created in such Additional Accounts and the proceeds (as defined in the UCC as in effect in the State of South Dakota) thereof and Insurance Proceeds relating thereto, upon such creation, the Trust shall have a first priority perfected security interest in such property (subject to Section ------- 2.69-306 of the UCC as in effect in the State of South Dakota), except for Liens permitted under subsection 2.5(b);
(v) the Transferor shall deliver an Officer's Certificate substantially in the form of Schedule 2 to Exhibit B to the Trustee confirming the items set forth in paragraphs (ii), (iii) and (iv) above and that the Transferor has filed (or will file within the time required by the applicable UCC) any financing statements required under the applicable UCC with respect to the Receivables in the Additional Accounts; and
(vi) the Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to the Trustee (with a copy to each Rating Agency) substantially in the form of Exhibit E.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Bank Corporate Card Master Trust)
Addition of Accounts. (a) If, on (1) as of the end of any day after the SMT Termination Datetwo consecutive Due Periods, the Aggregate Transferor Amount as a percentage of the Trust Principal Balance Component is less than the Minimum Aggregate Principal BalanceTransferor Percentage, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller Transferors shall designate additional Eligible Accounts (the "Additional Accounts") to be ------------------- included as Accounts and shall transfer the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so such that the Aggregate Transferor Amount as a percentage of the Trust Principal Balance on Component after giving effect to such day would haveaddition at least equals the Minimum Transferor Percentage, if or (2) as of the end of any Due Period, the Trust Principal Component is less than the Minimum Trust Principal Component, then the Transferor shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the Trust Principal Component will be equal to or greater than the Minimum Trust Principal Component. Receivables from such Additional Accounts had been shall be transferred to the Issuer Trust, in the case of subclause (i), on or prior before 15 days following the Determination Date related to the second of such dayDue Periods and, at least equaled in the Minimum Aggregate Principal Balancecase of subclause (2), on or before 15 days following such Determination Date (the "Additional Account Closing Date").
(b) In addition to its obligation under Section 2.6(asubsection 2.06(a), Seller the Transferors may, -------------- but shall not be obligated to, designate from time to time, designate time Additional Accounts to be included as Accounts, so long as after giving effect to such addition not more than 20% of the Receivables, by outstanding balance, will be 30 or more days delinquent (and for this purpose, Receivables in an Account shall be considered delinquent if less than 100% of a required payment was received).
(c) Seller agrees The Transferors agree that any such transfers of Receivables from Additional Accounts shall be transferred by Seller to the Issuer under Section 2.6(a), subsection 2.06(a) or (b) or (e) -------------- --- --- upon and subject to shall satisfy the following conditions:
(i) On or before the fifth tenth Business Day (the "Notice Date") ----------- prior to the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b)Account Closing Date, Seller the Transferors shall give the Owner Trustee -------------- --- and the Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) if such designation of Additional Accounts is made pursuant to Section 2.6(b) or (e) and if the addition -------------- --- of such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of --------------- (x) the sum of the Annual Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") ------------------ of (x) the sum of the Quarterly Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts;
(iii) On or prior to the Addition Additional Account Closing Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller the Transferors shall have -------------- --- delivered to the Owner Trustee a written Assignment Agreement assignment (including an acceptance by and the Owner Trustee shall have accepted such assignment on behalf of the Issuer Trust for the benefit of the NoteholdersInvestor Certificateholders and any Enhancement Provider) in substantially the form of Exhibit A B (the "Assignment AgreementAssignment") and shall have clearly indicated in its --------- -------------------- books and records, including the their respective computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Issuer; Trustee and the Servicer shall have delivered to the Owner Trustee a computer file or microfiche list containing represented by the Servicer to contain a true and complete list of all Additional Accounts identified by account number, number and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables by Receivable balance in such Additional Accounts, Accounts as of the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b)Account Cut-Off Date, which computer file -------------- --- or microfiche list shall be marked as Schedule 1 to the Assignment ---------- Agreement, delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and incorporated into and made a part of such Assignment Agreement and this Agreement;
(iviii) Seller The Transferors shall be deemed to severally represent and warrant that (wx) each Additional Account was, as of the date of its selection (the "Additional Account Selection Date"), an Eligible Account, (y) no selection procedures believed by the Transferors to be materially adverse to the interests of any Series of Investor Certificates or any Enhancement Provider were utilized in selecting the Additional Accounts from the available Eligible Accounts in each Transferor's portfolio; and (z) as of the Addition Additional Account Closing Date, Schedule 1 no Transferor is insolvent or will be made insolvent by the transfer of the Receivables of such Additional Accounts;
(iv) The Transferors shall represent and warrant, that, as of the Additional Account Closing Date, the Assignment constitutes either (x) a valid transfer and assignment to the Assignment Trust of all right, title and interest of the Transferors in and to the Receivables then existing and thereafter created in the Additional Accounts, all monies due or to become due with respect thereto on and after the Additional Account Cut-Off Date, Recoveries and all proceeds of such Receivables to the extent set forth in the UCC as in effect in the Relevant UCC State, and such Receivables and all proceeds thereof will be conveyed to the Trust free and clear of any Lien of any Person claiming through or under a Transferor or any of its Affiliates, except for (i) Liens permitted under subsection 2.05(b) hereunder, (ii) the interest of the holder of the Exchangeable Transferor Certificate and (iii) any right of the holder of the Exchangeable Transferor Certificate to receive interest accruing on, and investment earnings with respect to, the Collection Account and any other account or accounts maintained for the benefit of Certificateholders as provided in this Agreement and ---------- any Supplement or (y) a grant of a security interest (as defined in the computer file or microfiche list delivered UCC as in effect in the Relevant UCC State) in such property to the Trustee on behalf of the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, and the proceeds thereof to the extent set forth in the UCC as in effect in the Relevant UCC State upon the conveyance of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts, and the proceeds (to the extent set forth in the UCC as in effect in the Relevant UCC State) thereof upon such creation; and (z) if the Assignment constitutes the grant of a security interest to the Trust in such property, upon the filing of financing statements as described in Section 2.01 with respect to such Additional Accounts and in the case of such Receivables of Additional Accounts thereafter created and the proceeds thereof to the extent set forth in the UCC in effect in the Relevant UCC State, upon such creation, the Trust shall have a first priority perfected security interest in such property, except for Liens permitted under subsection 2.05(b) hereunder;
(v) Each Transferor shall deliver to the Trustee (with a copy to the Rating Agencies) an Officer's Certificate confirming the items set forth in paragraphs (ii), (iii) and (iv) above and (vii) below and the Trustee may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to the matters set forth therein and shall incur no liability in so relying;
(vi) The Transferors shall deliver to the Trustee and each Rating Agency an Opinion of Counsel with respect to the Receivables in the Additional Accounts substantially in the form of Part One of Exhibit G; and
(vii) The Rating Agencies shall have received ten (10) Business Days' notice of such proposed addition of Additional Accounts; in the event that Additional Accounts are being added pursuant to Section ------- 2.6subsection 2.06(b), the Transferors shall have received written confirmation from Moody's (if Moody's shall then be a Rating Agency) that such addition would not result in a downgrade or withdrawal of its then current rating of any outstanding Series of Investor Certificates; and, in the event that the number of Additional Accounts designated with respect to any three consecutive Due Periods would exceed 15% of the number of Accounts as of the first day of the calendar year during which such Due Periods commence or the number of Additional Accounts designated during any such calendar year would exceed 20% of the number of Accounts as of the first day of such calendar year, the Transferors shall have received written confirmation from Standard & Poor's, (if Standard & Poor's shall then be a Rating Agency) that such addition would not result in a downgrade or withdrawal of its then current rating of any outstanding Series of Investor Certificates.
Appears in 1 contract
Sources: Master Pooling and Servicing Agreement (American Express Credit Account Master Trust)
Addition of Accounts. (a) If, on (i) as of the end of any day after Business Day (or as of the SMT Termination Dateend of any Collection Period, if the Transferor or First Bank System shall have and maintain a certificate of deposit or commercial paper rating of P-1 by Moody's and of at least A-1 by Standard & Poor's), the Aggregate Principal Balance Transferor Amount is less than the Minimum Aggregate Principal BalanceTransferor Amount, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller Transferor shall designate additional Eligible Accounts eligible VISA accounts from the Bank Portfolio ("Additional Accounts") to be ------------------- included as Accounts and shall transfer the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so such that the Aggregate Principal Balance on Transferor Amount after giving effect to such day would haveaddition will be at least equal to the Minimum Transferor Amount, or (ii) as of the end of any Business Day (or as of the end of any Collection Period, if the Transferor or First Bank System shall have and maintain a certificate of deposit or commercial paper rating of P-1 by Moody's and of at least A-1 by Standard & Poor's), the sum of the Trust Principal Component and the Excess Funding Amount is less than the Minimum Trust Principal Component, the Transferor shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the sum of the Trust Principal Component and the Excess Funding Amount will be equal to or greater than the Minimum Trust Principal Component. Receivables from such Additional Accounts had been shall be transferred to the Issuer Trust on or prior to before the tenth Business Day following the end of such dayBusiness Day (or Collection Period, at least equaled as the Minimum Aggregate Principal Balancecase may be).
(b) In addition to its obligation under Section subsection 2.6(a), Seller the Transferor may, -------------- but shall not be obligated to, designate from time to time, designate time Additional Accounts of the Transferor to be included as Accounts to be included as Accounts, so long as after giving effect to such addition not more than 20% property of the ReceivablesTrust, by outstanding balance, will be 30 or more days delinquent (and for this purpose, Receivables in an Account shall be considered delinquent if less than 100% as of a required payment was received)the applicable Addition Date.
(c) Seller The Transferor agrees that any Receivables from Additional Accounts shall be transferred by Seller designation pursuant to the Issuer under Section subsection 2.6(a), ) or (b) or shall satisfy the following conditions (e) -------------- --- --- upon and subject to the following conditions:extent provided below):
(i) On on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(a) and on or before the tenth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(b) (the "Notice Date") ----------- prior to the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller the Transferor shall give the Owner Trustee -------------- --- Trustee, each Rating Agency and the Servicer written notice that such Additional Accounts will be included and specifying included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) if such designation of Additional Accounts is made pursuant to Section 2.6(b) on or (e) and if the addition -------------- --- of such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of --------------- (x) the sum of the Annual Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") ------------------ of (x) the sum of the Quarterly Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts;
(iii) On or prior to before the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller the Transferor shall have -------------- --- delivered to the Owner Trustee a written Assignment Agreement assignment (including an acceptance by the Owner Trustee on behalf of the Issuer Trust for the benefit of the NoteholdersInvestor Certificateholders) in substantially the form of Exhibit A B (the "Assignment AgreementAssignment") and the Transferor shall have indicated in its --------- -------------------- books and records, including the computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Issuer; Trust and, within five Business Days thereafter, or as otherwise agreed upon between the Transferor and the Trustee, the Transferor shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified and identifying each Account by account number, number and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b)Date, which computer file -------------- --- or microfiche list shall be marked as Schedule 1 to the Assignment ---------- Agreement, delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and incorporated into and made a part of such Assignment Agreement and this Agreement;
(iviii) Seller the Transferor shall be deemed to represent and warrant that (wx) with respect to Additional Accounts, each Additional Account is, as of the Addition Date, an Eligible Account, and each Receivable in such Additional Account is, as of the Addition Date, an Eligible Receivable, (y) the selection of the Additional Accounts by the Transferor has been made in a manner which it reasonably believes will not materially adversely affect the interests of the Investor Certificateholders, and (z) as of the Addition Date, Schedule 1 the Transferor is not insolvent;
(iv) the Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (x) a valid transfer, assignment, set-over and conveyance to the Trust of all right, title and interest of the Transferor in and to the Receivables then existing and thereafter created in connection with the Additional Accounts, all proceeds (as defined in the UCC as in effect in the Relevant UCC State) of such Receivables and Insurance Proceeds relating thereto, and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be held by the Trust free and clear of any Lien of any Person claiming through or under the Transferor or any of its Affiliates, except for (i) Liens permitted under subsection 2.5(b), (ii) the interest of the Transferor as Holder of the Exchangeable Transferor Certificate and (iii) the Transferor's right, if any, to receive interest accruing on, and investment earnings, if any, in respect of any Series Account, as provided in any related Supplement or (y) a grant of a security interest (as defined in the UCC as in effect in the Relevant UCC State) in such property to the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC as in effect in the Relevant UCC State) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts conveyed on such Addition Date, the proceeds (as defined in the UCC as in effect in the Relevant UCC State) thereof and Insurance Proceeds relating thereto, upon such creation; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Trust in such property, upon the filing of a financing statement as described in Section 2.1 with respect to such Additional Accounts and ---------- in the computer file or microfiche list delivered pursuant case of the Receiv- ▇▇▇▇▇ thereafter created in such Additional Accounts and the proceeds (as defined in the UCC as in effect in the Relevant UCC State) thereof and Insurance Proceeds relating thereto, upon such creation, the Trust shall have a first priority perfected security interest in such property (subject to Section ------- 2.69-306 of the UCC as in effect in the Relevant UCC State), except for Liens permitted under subsection 2.5(b);
(v) the Transferor shall deliver an Officer's Certificate substantially in the form of Schedule 2 to Exhibit B to the Trustee confirming the items set forth in paragraphs (ii), (iii) and (iv) above and that the Transferor has filed (or will file within the time required by the applicable UCC) any financing statements required under the applicable UCC with respect to the Receivables in the Additional Accounts; and
(vi) the Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to the Trustee (with a copy to each Rating Agency) substantially in the form of Exhibit E.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Bank Corporate Card Master Trust)
Addition of Accounts. (a) If, on If during any day after the SMT Termination Dateperiod of thirty consecutive days, the Aggregate Principal Balance Transferor Interest averaged over that period is less than the Minimum Aggregate Principal BalanceTransferor Interest for that period, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller Transferor shall designate additional Eligible Accounts ("Additional Accounts") from the Bank Portfolio to be ------------------- included as Accounts and shall transfer the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so such that the average Transferor Interest for such thirty-day period, computed by assuming that the amount of the Principal Receivables of such Additional Accounts shall be deemed to be outstanding in the Trust during each day of such thirty-day period, is at least equal to the Minimum Transferor Interest. In addition, if on any Record Date the sum of the Aggregate Principal Receivables plus the principal amount on deposit in the Excess Funding Account is less than the Minimum Aggregate Principal Receivables, Transferor shall designate Additional Accounts from the Bank Portfolio to be included as Accounts in a sufficient amount such that the Aggregate Principal Balance Receivables plus the principal amount on such day would have, if deposit in the Receivables from such Additional Accounts had been transferred Excess Funding Account will be equal to the Issuer on or prior to such day, at least equaled greater than the Minimum Aggregate Principal BalanceReceivables. Receivables from all such Additional Accounts shall be transferred to the Trust on or before the tenth Business Day following such thirty-day period or Record Date, as the case may be. In lieu of, or in addition to, designating Additional Accounts as required above, Transferor may (subject to compliance with applicable securities laws), on or before such tenth business day, convey to the Trust participations or trust certificates representing undivided legal or beneficial interests in a pool of assets primarily consisting of receivables arising under revolving credit card accounts or other revolving credit accounts owned by Transferor or any of its Affiliates and collections thereon ("Participations"). Any addition of Participations to the Trust (whether pursuant to this subsection (a) or subsection (b) below) shall be effected by an amendment hereto, dated the applicable Addition Date, pursuant to subsection 13.1(a).
(b) In addition to its obligation under Section subsection 2.6(a), Seller Transferor may, -------------- but shall not be obligated to, from time to time, time designate Additional Accounts or Participations to be included as AccountsTrust Assets, so long in either case as after giving effect to such addition not more than 20% of the Receivables, by outstanding balance, will be 30 or more days delinquent (and for this purpose, Receivables in an Account shall be considered delinquent if less than 100% of a required payment was received)applicable Addition Date.
(c) Seller Additional Accounts that Transferor is required to designate pursuant to subsection 2.6(a), or elects to designate pursuant to subsection 2.6(b), shall be treated as Automatic Additional Accounts (with the result that the Rating Agency Condition will not have to be satisfied with respect to such designation), so long as (x) such Additional Accounts are MasterCard, VISA or Private Label accounts originated by Transferor in the ordinary course of business and (y) the number of such new Additional Accounts would not exceed an amount equal to the lesser of: (i) the excess (if any) of (A) [15]% of the aggregate number of Accounts determined as of the first day of the third Monthly Period prior to the applicable Addition Date (or, if later, as of the Initial Closing Date) over (B) the aggregate number of Automatic Additional Accounts the Addition Date for which has occurred since the first day of such third prior Monthly Period (or, if later, since the Initial Closing Date); and (ii) the excess (if any) of (A) [20]% of the aggregate number of Accounts determined as of the first day of the calendar year in which the Addition Date occurs (or, if later, as of the Initial Closing Date) over (B) the aggregate number of Automatic Additional Accounts the Addition Date for which has occurred since the first day of such calendar year (or, if later, since the Initial Closing Date).
(d) Transferor agrees that any transfer of Receivables from Additional Accounts shall be transferred by Seller to the Issuer or Participations under Section subsection 2.6(a), ) or (b) or shall occur only upon satisfaction of the following conditions (e) -------------- --- --- upon and subject to the following conditions:
extent applicable): (i) On on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(a) and on or before the tenth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(b) (the "Notice Date") ----------- prior to the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller Transferor shall give the Owner Trustee -------------- --- Trustee, each Rating Agency and the Servicer written notice that such Additional Accounts or Participations will be included and specifying included, which notice shall specify the approximate aggregate amount of the Receivables or Participations to be transferred;
; (ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) if such designation of Additional Accounts is made pursuant to Section 2.6(b) on or (e) and if the addition -------------- --- of such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of --------------- (x) the sum of the Annual Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") ------------------ of (x) the sum of the Quarterly Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts;
(iii) On or prior to before the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller Transferor shall have -------------- --- delivered to the Owner Trustee a written Assignment Agreement assignment (including an acceptance by the Owner Trustee on behalf of the Issuer Trust for the benefit of the NoteholdersInvestor Holders) in substantially the form of Exhibit A B (the "Assignment AgreementAssignment") and Transferor shall have indicated in its --------- -------------------- books and records, including the computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Issuer; and Trust and, within ten Business Days thereafter, Transferor shall have delivered to Trustee an Account Schedule relating to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number, and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), which computer file -------------- --- or microfiche Account Schedule list shall be marked as Schedule 1 to the Assignment ---------- Agreementdeemed automatically, delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and Assignment, incorporated into and made a part of such Assignment Agreement and this Agreement;
; (iviii) Seller Transferor shall be deemed to represent and warrant that (wA) each Additional Account is an Eligible Account, and each Receivable in such Additional Account is an Eligible Receivable, in each case as of the Addition Cut-Off Date, (B) no selection procedures believed by Transferor to be materially adverse to the interests of the Investor Holders were utilized in selecting the Additional Accounts from the available Eligible Accounts from the Bank Portfolio, (C) as of the Addition Date, Schedule 1 Transferor is not insolvent and (D) in the reasonable belief of Transferor, the transfer of the Receivables from such Additional Accounts shall not cause a Pay Out Event to occur; (iv) Transferor shall represent and warrant that (A) as of the Addition Date, the Assignment constitutes either (x) a valid transfer and assignment to Trustee, on behalf of the Trust, of all right, title and interest of Transferor in and to the Assignment Receivables then existing and thereafter created in the Additional Accounts, and all monies due or to become due with respect to such Receivables (including all Finance Charge Receivables and Recoveries), and Insurance Proceeds relating to such Receivables and all proceeds of all of the foregoing, all of which will be held by Trustee on behalf of the Trust, free and clear of any Lien of any Person claiming through or under Transferor or any of its Affiliates, except for (i) Liens permitted under subsection 2.5(b), (ii) the interest of Transferor as Holder of the Transferor Certificate and (iii) Transferor's right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account, the Excess Funding Account and any Series Account, as provided in this Agreement and ---------- any related Supplement, or (y) a grant of a security interest in such property to Trustee, for the computer file or microfiche list delivered pursuant benefit of the Investor Holders, which is enforceable with respect to then existing Receivables in the Additional Accounts, the proceeds thereof and any Insurance Proceeds and Recoveries relating thereto upon the conveyance of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts conveyed on such Addition Date, the proceeds thereof and any Insurance Proceeds and Recoveries relating thereto upon such creation; and (B) if the Assignment constitutes the grant of a security interest to Trustee in such property, upon the filing of financing statements as described in Section 2.1 with respect to such Additional Accounts and in the case of the Receivables thereafter created in such Additional Accounts and the proceeds thereof, and any Insurance Proceeds and Recoveries relating thereto, upon such creation, Trustee shall have a first priority perfected security interest in such property (subject to Section ------- 2.69-306 of the UCC as in effect in the State of Louisiana), except for Liens permitted under subsection 2.5(b); (v) Transferor shall deliver to Trustee an Officer's Certificate confirming the items set forth in clauses (ii) through (iv); (vi) Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Trustee (with a copy to each Rating Agency for any outstanding Series) substantially in the form of Exhibit E; and (vii) the Rating Agency Condition shall have been satisfied as to the initial transfer of Receivables from such Additional Accounts (other than Automatic Additional Accounts) or Participations.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First National Bank of Commerce)
Addition of Accounts. (a) (i) If, (A) during any period of thirty consecutive days, the Seller Interest averaged over that period is less than the Minimum Seller Interest for that period the Seller shall designate additional eligible MasterCard, VISA or American Express accounts from the Bank Portfolio (“Additional Accounts”) to be included as Accounts in a sufficient amount such that the average of the Seller Interest as a percentage of the Average Principal Receivables for such 30 day period, computed by assuming that the amount of the Principal Receivables of such Additional Accounts shall be deemed to be outstanding in the Trust during each day of such 30-day period, is at least equal to the Minimum Seller Interest, or (B) on any day after Record Date the SMT Termination Date, the Aggregate aggregate amount of Principal Balance Receivables is less than the Minimum Aggregate Principal BalanceReceivables (as adjusted for any Series having a Companion Series as described in the Supplement for such Series), either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller shall designate additional Eligible Additional Accounts ("Additional Accounts") to be ------------------- included as Accounts and shall transfer the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so such that the aggregate amount of Principal Receivables will be equal to or greater than the Minimum Aggregate Principal Balance on such day would have, if the Receivables. Receivables from such Additional Accounts had been shall be transferred to the Issuer Trust on or prior before the tenth Business Day following such thirty-day period or Record Date, as the case may be.
(ii) In lieu of, or in addition to, designating Additional Accounts pursuant to such dayclause (i) above, at least equaled the Minimum Aggregate Principal BalanceSeller may, subject to any applicable conditions specified in paragraph (c) below, convey to the Trust participations representing undivided interests in a pool of assets primarily consisting of receivables arising under revolving credit card accounts owned by the Seller or any Affiliate of any Seller and collections thereon (“Participations”). The addition of Participations in the Trust pursuant to this paragraph (a) or paragraph (b) below shall be effected by an amendment hereto, dated as of the applicable Addition Date, pursuant to Section 13.01(a).
(b) In addition to its obligation under Section 2.6(asubsection 2.06(a), the Seller may, -------------- but shall not be obligated to, designate from time to time, designate time Additional Accounts of the Seller to be included as Accounts, so long Accounts or Participations to be included as after giving effect to such addition not more than 20% property of the ReceivablesTrust, by outstanding balance, will be 30 or more days delinquent (and for this purpose, Receivables in an Account shall be considered delinquent if less than 100% either case as of a required payment was received)the applicable Addition Date.
(c) The Seller agrees that any such transfer of Receivables from Additional Accounts shall be transferred by Seller to the Issuer Accounts, under Section 2.6(a), subsection 2.06(a) or (b) or shall satisfy the following conditions (e) -------------- --- --- upon and subject to the following conditions:extent provided below):
(i) On on or before the fifth Business Day (the "Notice Date") ----------- prior to the Addition Date in with respect of Additional Accounts added to additions pursuant to Section 2.6(asubsection 2.06(a) and on or before the tenth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.06(b) (bthe “Notice Date”), the Seller shall give the Owner Trustee -------------- --- Trustee, each Rating Agency and the Servicer written notice that such Additional Accounts or Participations will be included and specifying included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) if such designation of Additional Accounts is made pursuant to Section 2.6(b) on or (e) and if the addition -------------- --- of such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of --------------- (x) the sum of the Annual Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") ------------------ of (x) the sum of the Quarterly Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts;
(iii) On or prior to before the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), the Seller shall have -------------- --- delivered to the Owner Trustee a written Assignment Agreement assignment (including an acceptance by the Owner Trustee on behalf of the Issuer Trust for the benefit of the NoteholdersInvestor Certificateholders) in substantially the form of Exhibit A B (the "Assignment Agreement"“Assignment”) and the Seller shall have indicated in its --------- -------------------- books and records, including the computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Issuer; Trust and, within five Business Days thereafter, or as otherwise agreed upon between the Seller and the Trustee, the Seller shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified and identifying each Account by account number, number and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b)Date, which computer file -------------- --- or microfiche list shall be marked as Schedule 1 to the Assignment ---------- Agreement, delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and incorporated into and made a part of such Assignment Agreement and this Agreement;
(iviii) the Seller shall be deemed to represent and warrant that (wx) with respect to Additional Accounts, each Additional Account is, as of the Addition Date, an Eligible Account, and each Receivable in such Additional Account is, as of the Addition Date, an Eligible Receivable, (y) no selection procedures believed by the Seller to be materially adverse to the interests of the Investor Certificateholders were utilized in selecting the Additional Accounts from the available Eligible Accounts from the Bank Portfolio, and (z) as of the Addition Date, Schedule 1 the Seller is not insolvent;
(iv) the Seller shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (x) a valid transfer and assignment to the Assignment Trust of all right, title and interest of the Seller in and to the Receivables then existing and thereafter created in the Additional Accounts, and all proceeds (as defined in the UCC as in effect in the State of Delaware) of such Receivables and Insurance Proceeds and Recoveries relating thereto and such Receivables and all proceeds thereof and Insurance Proceeds and Recoveries relating thereto will be held by the Trust free and clear of any Lien of any Person claiming through or under the Seller or any of its Affiliates, except for (i) Liens permitted under subsection 2.05(b), (ii) the interest of the Seller as Holder of the Seller Certificate and (iii) the Seller’s right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account and the Principal Account, or any Series Account as provided in this Agreement and ---------- any related Supplement or (y) a grant of a security interest (as defined in the computer file or microfiche list delivered UCC as in effect in the State of Delaware), in such property to the Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC as in effect in the State of Delaware), thereof and Insurance Proceeds and Recoveries relating thereto upon the conveyance of such Receivables to the Trust, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts conveyed on such Addition Date, the proceeds (as defined in the UCC as in effect in the State of Delaware), thereof and Insurance Proceeds and Recoveries relating thereto upon such creation; and (z) if the Assignment constitutes the grant of a security interest to the Trust in such property, upon the filing of a financing statement as described in Section 2.01 with respect to such Additional Accounts and in the case of the Receivables thereafter created in such Additional Accounts and the proceeds (as defined in the UCC as in effect in the State of Delaware), thereof, and Insurance Proceeds and Recoveries relating thereto, upon such creation, the Trust shall have a first priority perfected security interest in such property (subject to Section 9-306 of the UCC as in effect in the State of Delaware), except for Liens permitted under subsection 2.05(b);
(v) the Seller shall deliver an Officer’s Certificate substantially in the form of Schedule 2 to Exhibit B to the Trustee confirming the items set forth in paragraphs (ii), (iii) and (iv) above;
(vi) the Seller shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to the Trustee (with a copy to Moody’s and Standard & Poor’s) substantially in the form of Exhibit E;
(vii) (A) with respect to accounts in excess of the Maximum Addition Amount and with respect to Participations, the Seller shall have received notice from Standard & Poor’s and Moody’s that the inclusion of such accounts as Additional Accounts pursuant to Section ------- 2.6subsections 2.06(a) and 2.06(b) or the inclusion of such Participations to be included as property of the Trust pursuant to subsections 2.06(a) and 2.06(b), as the case may be, will not result in the reduction or withdrawal of its then existing rating of any Series of Investor Certificates then issued and outstanding; and (B) with respect to accounts not in excess of the Maximum Addition Amount added during the last quarterly period (such quarterly period beginning on and including the fifteenth day of January, April, July, and October and ending on and excluding the fifteenth day of April, July, October, and January, respectively), if applicable, the Seller shall have received, to the extent not previously received, not later than twenty days after the relevant quarterly period, notice from Standard & Poor’s and Moody’s that the inclusion of such accounts as Additional Accounts pursuant to subsections 2.06(a) and 2.06(b) will not result in the reduction or withdrawal of its then existing rating of any Series of Investor Certificates then issued and outstanding; and
(viii) the Seller shall provide each Rating Agency 30 days’ prior notice of the inclusion of any business cards as Additional Accounts pursuant to subsection 2.06(b).
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Mbna America Bk Nat Assoc Mbna Master Credit Card Trust Ii)
Addition of Accounts. (a) If, on any day after the SMT FCMT Termination Date, the Aggregate Principal Balance is less than the Minimum Aggregate Principal Balance, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller shall designate additional Eligible Accounts ("Additional Accounts") to be ------------------- included as Accounts ------------------- and shall transfer the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so that the Aggregate Principal Balance on such day would have, if the Receivables from such Additional Accounts had been transferred to the Issuer on or prior to such day, at least equaled the Minimum Aggregate Principal Balance.
(b) In addition to its obligation under Section 2.6(a), Seller may, but -------------- but shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts, so long as after giving effect to such addition not more than 20% of the Receivables, by outstanding balance, will be 30 or more days delinquent (and for this purpose, Receivables in an Account shall be considered delinquent if less than 100% of a required payment was received).
(c) Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Issuer under Section 2.6(a), (b) or (e) upon and -------------- --- --- upon and subject to the following conditions:
(i) On or before the fifth Business Day (the "Notice Date") ----------- prior to ----------- the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller shall give the Owner Trustee -------------- --- and the Servicer -------------- --- (if a Person other than Seller) written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall, if such designation of Additional Accounts is made pursuant to Section 2.6(b) or (e) and if the addition of -------------- --- of such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of --------------- (x) the --------------- sum of the Annual Account Additions after giving effect to such addition addition, plus the related Base Amount Amount, divided by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") ------------------ of (x) the ------------------ sum of the Quarterly Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts;
(iii) On or prior to the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller shall have -------------- --- delivered to the -------------- --- Owner Trustee a written Assignment Agreement (including an acceptance by the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment Agreement") and shall have --------- -------------------- indicated in its --------- -------------------- books and records, including the computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number, and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), which computer file -------------- --- or microfiche list shall be marked as Schedule 1 to the Assignment ---------- Agreement, ---------- delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and incorporated into and made a part of such Assignment Agreement and this Agreement;
(iv) Seller shall be deemed to represent and warrant that (wx) each Additional Account is, as of the Addition Date, an Eligible Account, (y) no selection procedures reasonably believed by Seller to be materially adverse to the interests of the Noteholders were utilized in selecting the Additional Accounts from the available Eligible Accounts, and (z) as of the Addition Date, Schedule 1 Seller is not insolvent and will not be rendered insolvent by adding any such Additional Account;
(v) Seller shall be deemed to represent and warrant that, as of the Addition Date, the Assignment Agreement constitutes either (x) a valid transfer to the Issuer of all right, title and ---------- interest of Seller in, to and under the computer file Receivables then existing and thereafter arising in respect of the Additional Accounts, all monies due or microfiche list delivered to become due with respect thereto (including all Finance Charge Receivables), and all proceeds of such Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for
(i) Liens permitted under Section 2.5(b), (ii) the Seller Interest and -------------- (iii) Seller's right to receive accruing on, and investment earnings in respect of the Collection Account or any Series Account provided in this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer in such property, upon the filing of a financing statement as described in Section 2.1 with respect to such ----------- Additional Accounts and in the case of the Receivables of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such Receivables, upon such transfer, the Issuer shall have a first priority perfected security interest in such property, except for Liens permitted under Section 2.5(b), the Seller Interest and Seller's -------------- right to receive interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account, as provided in this Agreement and any Indenture Supplement;
(vi) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section 2.6(a) or (b), deliver a certificate of a Vice -------------- --- President or more senior officer confirming the items set forth in paragraphs (ii), (iii), (iv) and (v) above; and ---- ----- ---- ---
(vii) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section 2.6(a) or (b), deliver an Opinion of Counsel with -------------- --- respect to the Receivables in the Additional Accounts to the Owner Trustee substantially in the form of Exhibit F-2, and which shall be reasonably ----------- acceptable to the Rating Agencies.
(d) Seller shall provide to each Rating Agency and to each Enhancement Provider prior written notice each time Additional Accounts are added pursuant to Section 2.6(a) or (b). -------------- ---
(e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new MasterCard or VISA account originated in the normal course of Seller's business after the FCMT Termination Date shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Issuer) effective on the date on which such account is created; provided, -------- however, that such automatic inclusion and transfer shall not occur with respect ------- 2.6to any such account if: (i) such account does not qualify as an Eligible Account, (ii) the transfer to the Issuer of the Receivables in such Account, if such Accounts had been designated by Seller pursuant to Section 2.6(b), would -------------- have caused the limitations set forth in Section -------
Appears in 1 contract
Sources: Transfer and Servicing Agreement (First Consumers Master Trust)
Addition of Accounts. (a) If, as of the close of business on the last day of any day after the SMT Termination DateCollection Period, the Aggregate Principal Balance Transferor Interest is less than the Minimum Aggregate Principal BalanceTransferor Interest, either Seller or then the Servicer Transferor shall, within 10 Business Days following the end of such Collection Period, designate and transfer to the Trust the Receivables (whichever shall first become aware and the related Collateral Security) of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller shall designate additional Eligible Accounts ("Additional Accounts") of the Transferor to be ------------------- included as Accounts and shall transfer the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so such that the Aggregate Principal Balance on such day would have, if the Receivables from such Additional Accounts had been transferred to the Issuer on or prior to such day, at least equaled the Minimum Aggregate Principal Balance.
(b) In addition to its obligation under Section 2.6(a), Seller may, -------------- but shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts, so long as after giving effect to such addition not more than 20% of the ReceivablesTransferor Interest exceeds the Minimum Transferor Interest.
(b) The Transferor may from time to time, by outstanding balanceat its sole discretion, will subject to the conditions specified in paragraph (d) below, voluntarily designate additional Eligible Accounts to be 30 or more days delinquent included as Accounts and transfer to the Trust the Receivables (and for this purpose, Receivables in an Account shall be considered delinquent if less than 100% the related Collateral Security) of a required payment was received)such Additional Accounts.
(c) Seller agrees that any Receivables and Collateral Security from such Additional Accounts shall be transferred by Seller sold to the Issuer under Section 2.6(a), Trust effective on a date (beach an "Addition Date") specified in a written notice provided by the Transferor (or (ethe Servicer on its behalf) -------------- --- --- upon and subject to the following conditions:
Trustee, the Rating Agencies, any Agent and any Enhancement Providers specifying the Additional Cut-off Date and the Addition Date for such Additional Accounts (ieach an "Addition Notice") On on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date or, if the Automatic Addition Condition is satisfied, on the Determination Date following the Monthly Period in which such Addition Dates occur (the "Notice Date"). An Addition Notice may relate to one or more Accounts added on one or more Addition Dates.
(d) ----------- prior The Transferor shall be permitted to convey to the Addition Date Trust the Receivables and all Collateral Security related thereto in respect of any Additional Accounts added designated by the Transferor as such pursuant to Section 2.6(a) or (b) only upon satisfaction of each of the following conditions on or prior to the related Notice Date (except for the condition in clause (vii), Seller if applicable, which shall give be satisfied on or before the Owner Trustee -------------- --- tenth Business Day after such Notice Date):
(i) the Transferor shall have provided the Trustee, any Agent, the Rating Agencies and the Servicer written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferredany Enhancement Providers with a timely Addition Notice;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) if such designation of Additional Accounts is made pursuant to Section 2.6(b) or (e) and if the addition -------------- --- of such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of --------------- (x) the sum of the Annual Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly Quotient") ------------------ of (x) the sum of the Quarterly Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional shall all be Eligible Accounts;
(iii) On or prior to the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller Transferor shall have -------------- --- delivered to the Owner Trustee a duly executed written Assignment Agreement assignment (including an acceptance by the Owner Trustee on behalf of the Issuer for the benefit of the NoteholdersTrustee) in substantially the form of Exhibit A F (the "Assignment AgreementAssignment") and shall have indicated in its --------- -------------------- books and records, including the computer files of the Receivables, that covering the Receivables created in connection with the Additional Accounts have been transferred by Seller to specified in the Issuer; Addition Notice and shall have delivered to the Owner Trustee a computer file or microfiche or written list containing a true and complete list of all Additional Accounts identified by account number, and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added required to be delivered pursuant to Section 2.6(a) or (b), which computer file -------------- --- or microfiche list shall be marked as Schedule 1 to the Assignment ---------- Agreement, delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and incorporated into and made a part of such Assignment Agreement and this Agreement2.1;
(iv) Seller the Transferor shall, to the extent required by Section 4.3, have deposited in the Collection Account all Collections with respect to such Additional Accounts since the Additional Cut-off Date;
(v) (A) no selection procedures reasonably believed by the Transferor to be adverse to the interests of the Beneficiaries shall have been used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii) above shall be deemed to represent true and warrant that correct in all material respects as of the Additional Cut-off Date and (wC) as of the Addition Date, Schedule 1 to the Assignment Agreement and ---------- the computer file or microfiche list delivered pursuant to Section ------- 2.6each of the
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Green Tree Financial Corp)
Addition of Accounts. (a) If, on any day after the SMT FCMT Termination Date, the Aggregate Principal Balance is less than the Minimum Aggregate Principal Balance, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Owner Trustee written notice thereof, and as soon as practicable (but in no event later than 10 days thereafter) Seller shall designate additional Eligible Accounts ("Additional Accounts") to be ------------------- included as Accounts ------------------- and shall transfer the Receivables in such Additional Accounts to the Issuer, in a sufficient amount so that the Aggregate Principal Balance on such day would have, if the Receivables from such Additional Accounts had been transferred to the Issuer on or prior to such day, at least equaled the Minimum Aggregate Principal Balance.
(b) In addition to its obligation under Section 2.6(a), Seller may, but -------------- but shall not be obligated to, from time to time, designate Additional Accounts to be included as Accounts, so long as after giving effect to such addition not more than 20% of the Receivables, by outstanding balance, will be 30 or more days delinquent (and for this purpose, Receivables in an Account shall be considered delinquent if less than 100% of a required payment was received).
(c) Seller agrees that any Receivables from Additional Accounts shall be transferred by Seller to the Issuer under Section 2.6(a), (b) or (e) upon and -------------- --- --- upon and subject to the following conditions:
(i) On or before the fifth Business Day (the "Notice Date") ----------- prior to the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller shall give the Owner Trustee -------------- --- and the Servicer (if a Person other than Seller) written notice that such Additional Accounts will be included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) Seller (A) shall transfer to the Issuer Receivables only in Eligible Accounts, and (B) shall, if such designation of Additional Accounts is made pursuant to Section 2.6(b) or (e) and if the addition -------------- --- of such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") --------------- of --------------- (x) the sum of the Annual Account Additions after giving effect to such addition addition, plus the related Base Amount Amount, divided by (y) the related Base Amount to exceed 1.20, or
(2) would cause the quotient (the "Quarterly --------- Quotient") ------------------ of (x) the sum of the Quarterly Account Additions -------- after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15; in either case, deliver a letter from each Rating Agency to the Indenture Trustee by the Addition Date confirming that the Rating Agency Condition has been satisfied with respect to the addition of such Additional Accounts;
(iii) On or prior to the Addition Date, in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), Seller -------------- --- shall have -------------- --- delivered to the Owner Trustee a written Assignment Agreement (including an acceptance by the Owner Trustee on behalf of the Issuer for the benefit of the Noteholders) in substantially the form of Exhibit A (the "Assignment Agreement") and shall have indicated --------- -------------------- in its --------- -------------------- books and records, including the computer files of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to the Issuer; and shall have delivered to the Owner Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts identified by account number, and the aggregate amount of the Receivables and the aggregate amount of Principal Receivables in such Additional Accounts, as of the Addition Date in respect of Additional Accounts added pursuant to Section 2.6(a) or (b), which computer file -------------- --- or microfiche list shall be marked as Schedule 1 to the Assignment ---------- Agreement, delivered to the Owner Trustee as confidential and proprietary, shall be as of the date of such Assignment Agreement and incorporated into and made a part of such Assignment Agreement and this Agreement;
(iv) Seller shall be deemed to represent and warrant that (wx) each Additional Account is, as of the Addition Date, an Eligible Account, (y) no selection procedures reasonably believed by Seller to be materially adverse to the interests of the Noteholders were utilized in selecting the Additional Accounts from the available Eligible Accounts, and (z) as of the Addition Date, Seller is not insolvent and will not be rendered insolvent by adding any such Additional Account;
(v) Seller shall be deemed to represent and warrant that, as of the Addition Date, the representations and warranties set out in Schedule 1 to 2 are correct; and, without limiting the generality of the ---------- foregoing, the Assignment Agreement constitutes either (x) a valid transfer to the Issuer of all right, title and ---------- interest of Seller in, to and under the computer file Receivables then existing and thereafter arising in respect of the Additional Accounts, all monies due or microfiche list delivered to become due with respect thereto (including all Finance Charge Receivables), and all proceeds of such Receivables and Insurance Proceeds relating thereto, and such property will be owned by the Issuer free and clear of any Lien of any Person, except for (i) Liens permitted under Section 2.5(b), (ii) the Seller Interest and (iii) -------------- Seller's right to receive interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account, as provided in this Agreement and any Indenture Supplement, or (y) a grant of a security interest in such property to the Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, all monies due or to become due with respect thereto, the proceeds thereof and Recoveries and Insurance Proceeds relating thereto upon the transfer of such Receivables to the Issuer, and which will be enforceable with respect to the Receivables thereafter transferred in respect of Additional Accounts, the proceeds thereof and Insurance Proceeds relating thereto upon such transfer; and (z) if the Assignment Agreement constitutes the grant of a security interest to the Issuer in such property, upon the filing of a financing statement as described in Section 2.1 with respect to such Additional Accounts and in the case of ----------- the Receivables of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to such Receivables, upon such transfer, the Issuer shall have a first priority perfected security interest in such property, except for Liens permitted under Section 2.5(b), the Seller Interest and Seller's right to receive -------------- interest accruing on, and investment earnings in respect of, the Collection Account or any Series Account, as provided in this Agreement and any Indenture Supplement;
(vi) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section ------- 2.62.6(a) or (b), deliver a certificate of a -------------- --- Vice President or more senior officer confirming the items set forth in paragraphs (ii), (iii), (iv) and (v) above; and ---- ----- ---- ---
(vii) Seller shall, on the Addition Date for Additional Accounts added pursuant to Section 2.6(a) or (b), deliver an Opinion of Counsel -------------- --- with respect to the Receivables in the Additional Accounts to the Owner Trustee substantially in the form of Exhibit F-2, and which shall be ----------- reasonably acceptable to the Rating Agencies.
(d) Seller shall provide to each Rating Agency and to each Enhancement Provider prior written notice each time Additional Accounts are added pursuant to Section 2.6(a) or (b). -------------- ---
(e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to Sections 2.6(a) and (b), Seller agrees that --------------- --- each new MasterCard or VISA account originated in the normal course of FCNB's business
Appears in 1 contract
Sources: Transfer and Servicing Agreement (First Consumers Master Trust)