Addition of Accounts. (a) If, during any Monthly Period ending on or after the Certificate Trust Termination Date, Transferor Interest averaged over that period is less than the Minimum Transferor Interest (calculated using the Average Principal Receivables for such Monthly Period as the Aggregate Principal Receivables on the date of determination), Transferor shall designate additional eligible MasterCard or VISA accounts ("Additional Accounts") to be included as Accounts in a sufficient amount such that the average of Transferor Interest as a percentage of the Average Principal Receivables for such Monthly Period, computed by assuming that the amount of the Average Principal Receivables of such Additional Accounts shall be deemed to be outstanding in the Trust during each day of such Monthly Period, is at least equal to the Minimum Transferor Interest. For purposes of the preceding sentence, the terms "Transferor Interest" and "Minimum Transferor Interest" shall have the meanings assigned to such terms in the Pooling and Servicing Agreement with respect to any day prior to the Certificate Trust Termination Date. Receivables from such Additional Accounts shall be transferred to Issuer on or before the tenth Business Day following such Monthly Period; provided, however, that to the extent Transferor designates Additional Accounts with Principal Receivables substantially in excess of the amount of Principal Receivables required under this subsection 2.06(a), such excess shall be deemed to be optional Additional Accounts under subsection 2.06(b) below and will be permitted to be so designated solely to the extent permitted by subsection 2.06(b). (b) In addition to its obligation under subsection 2.06(a), Transferor may, but shall not be obligated to, designate from time to time certain Additional Accounts (the "Automatic Additional Accounts") to be included as Accounts, provided that Transferor shall not make more than one such designation in any one Monthly Period; and provided, further, that such Automatic Additional Accounts shall not exceed the Maximum Addition Amount or include Financial Institutions Accounts unless Transferor shall have received the notice from the Rating Agencies required by subsection 2.06(c)(vii) below. (c) Transferor agrees that any such transfer of Receivables from Additional Accounts under subsection 2.06(a) or (b) shall satisfy the following conditions (to the extent provided below): (i) on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 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) (the "Notice Date"), Transferor shall give Issuer, Indenture Trustee, each Rating Agency and Servicer written notice that such Additional Accounts will be included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred; (ii) on or before the Addition Date, Transferor shall have delivered to Indenture Trustee, a written assignment (including an acceptance by Issuer) in substantially the form of Exhibit B (the "Assignment") and Transferor shall direct Servicer to indicate in its computer files (and to cause FNBO to indicate in its computer files) that the Receivables created in connection with the Additional Accounts have been transferred to Issuer and, within five Business Days thereafter, Servicer shall have delivered to Issuer, with a copy delivered to Indenture 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 in such Additional Accounts, as of the Addition Date, which computer file or microfiche list shall be as of the date of such Assignment, shall be incorporated into and made a part of such Assignment and this Agreement, and shall be subject to the confidentiality obligations under Section 2.02 hereof; (iii) Transferor shall represent and warrant that (A) 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, (B) no selection procedures believed by Transferor to be materially adverse to the interests of the Noteholders were utilized in selecting the Additional Accounts from the available Eligible Accounts (or, in the case of Financial Institutions Accounts, from the available Financial Institutions Accounts constituting Eligible Accounts) and (C) as of the Addition Date, Transferor is not insolvent; (iv) Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (A) a valid transfer and assignment to Issuer of all right, title and interest of Transferor in and to the Receivables then existing and thereafter created in the Additional Accounts, and all proceeds (as defined in the UCC) of such Receivables and Insurance Proceeds relating thereto and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be held by Issuer free and clear of any Lien, except for (1) Liens permitted under subsection 2.05(b), (2) the interest of the Holder of Transferor Interest and (3) Servicer's right, if any, to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account, the Collection Account, the Principal Account, or any Series Account as provided in the Indenture and any related Indenture Supplement or (B) a grant of a first priority perfected security interest (as defined in the UCC) in such property to Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to Issuer, 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) thereof and Insurance Proceeds relating thereto upon such creation; (v) Transferor shall deliver an Officer's Certificate substantially in the form of Schedule 2 to Exhibit B to Issuer and Indenture Trustee (with a copy thereof to each Rating Agency); it being understood that Issuer and 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; (vi) Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Issuer and Indenture Trustee (with a copy to any of the Rating Agencies which shall have requested in writing such copies) substantially in the form of Exhibit E; and (vii) with respect to Financial Institutions Accounts or Accounts in excess of the Maximum Addition Amount, Transferor shall have received notice from each Rating Agency that the inclusion of such accounts as Additional Accounts pursuant to subsection 2.06(b) will not result in the reduction or withdrawal of its then existing rating of any Series of Notes then issued and outstanding.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (First Bankcard Master Credit Card Trust)
Addition of Accounts. (a) (i) If, (A) during any Monthly Period ending on or after period of thirty consecutive days, the Certificate Trust Termination Date, Transferor Interest averaged over that period is less than the Minimum Transferor Interest (calculated using for that period the Average Principal Receivables for such Monthly Period as the Aggregate Principal Receivables on the date of determination), Transferor shall designate additional eligible MasterCard MasterCard,® VISA® or VISA American Express® accounts from the Bank Portfolio ("“Additional Accounts"”) to be included as Accounts in a sufficient amount such that the average of the Transferor Interest as a percentage of the Average Principal Receivables for such Monthly Period30 day period, computed by assuming that the amount of the Average Principal Receivables of such Additional Accounts shall be deemed to be outstanding in the Trust during each day of such Monthly Period30-day period, is at least equal to the Minimum Transferor Interest. For purposes , or (B) on any Record Date the aggregate amount of Principal Receivables is less than the preceding sentenceMinimum Aggregate Principal Receivables (as adjusted for any Series having a Companion Series as described in the Supplement for such Series), the terms "Transferor Interest" and "shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the aggregate amount of Principal Receivables will be equal to or greater than the Minimum Transferor Interest" shall have the meanings assigned to such terms in the Pooling and Servicing Agreement with respect to any day prior to the Certificate Trust Termination DateAggregate Principal Receivables. Receivables from such Additional Accounts shall be transferred to Issuer the Trustee on or before the tenth Business Day following such Monthly Period; providedthirty-day period or Record Date, howeveras the case may be.
(ii) In lieu of, that or in addition to, designating Additional Accounts pursuant to clause (i) above, the Transferor may, subject to any applicable conditions specified in paragraph (c) below, convey to the extent Transferor designates Additional Accounts with Principal Receivables substantially Trustee participations representing undivided interests in excess a pool of assets primarily consisting of receivables arising under revolving credit card accounts owned by the Account Owner or any Affiliate of the amount Account Owner and collections thereon (“Participations”). The addition of Principal Receivables required under Participations in the Trust pursuant to this subsection 2.06(a), such excess paragraph (a) or paragraph (b) below shall be deemed effected by an amendment hereto, dated as of the applicable Addition Date, pursuant to be optional Additional Accounts under subsection 2.06(b) below and will be permitted to be so designated solely to the extent permitted by subsection 2.06(bSection 13.01(a).
(b) In addition to its obligation under subsection 2.06(a), the Transferor may, but shall not be obligated to, designate from time to time certain Additional Accounts (the "Automatic Additional Accounts") to be included as AccountsAccounts or Participations to be included as property of the Trust, provided that Transferor shall not make more than one such designation in any one Monthly Period; and provided, further, that such Automatic Additional Accounts shall not exceed either case as of the Maximum applicable Addition Amount or include Financial Institutions Accounts unless Transferor shall have received the notice from the Rating Agencies required by subsection 2.06(c)(vii) belowDate.
(c) The Transferor agrees that any such transfer of Receivables from Additional Accounts Accounts, under subsection 2.06(a) or (b) shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 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) (the "“Notice Date"”), the Transferor shall give Issuer, Indenture the Trustee, each Rating Agency and the Servicer written notice that such Additional Accounts or Participations will be included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) on or before the Addition Date, the Transferor shall have delivered to Indenture Trustee, the Trustee a written assignment (including an acceptance by Issuerthe Trustee on behalf of the Trust for the benefit of the Investor Certificateholders) in substantially the form of Exhibit B (the "“Assignment"”) and the Transferor shall direct Servicer to indicate have indicated in its computer files (and to cause FNBO to indicate in its computer files) that the Receivables created in connection with the Additional Accounts have been transferred to Issuer the Trust and, within five Business Days thereafter, Servicer or as otherwise agreed upon among the Servicer, the Transferor and the Trustee, the Transferor shall have delivered to Issuerthe Trustee the updated Account Schedule, with a copy delivered to Indenture Trustee, a computer file or microfiche list containing a which Account Schedule is true and complete list of all Additional Accounts, identified by account number and the aggregate amount of the Receivables in such Additional Accounts, as of the related Addition Date, Date and which computer file or microfiche list shall be as of the date of such Assignment, shall be Assignment incorporated into and made a part of such Assignment and this Agreement, and shall be subject to the confidentiality obligations under Section 2.02 hereof;
(iii) the Transferor shall represent and warrant that (Ax) with respect to Additional Accounts, each Additional Account is, as of the Addition Date, an Eligible Account, and each existing Receivable in such Additional Account, Account is, as of the Addition Date, an Eligible Receivable, (By) no it has not used any selection procedures believed by the Transferor to be materially adverse to the interests of the Noteholders were utilized Investor Certificateholders in selecting the related Additional Accounts from the available Eligible Accounts (or, in the case of Financial Institutions Accounts, from the available Financial Institutions Accounts constituting Eligible Accounts) and (Cz) as of the Addition Date, the Transferor is not insolvent;
(iv) the Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (Ax) a valid transfer and assignment to Issuer of all right, title and interest of Transferor in and sale to the Trustee of the Receivables then existing and thereafter created in the Additional Accounts, or (y) a grant of a security interest in favor of the Trustee in the Receivables in the Additional Accounts, and all proceeds (as defined in the UCC) of such Receivables and Insurance Proceeds relating thereto and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be held by Issuer free and clear of any Lien, except for (1) Liens permitted under subsection 2.05(b), (2) the interest of the Holder of Transferor Interest and (3) Servicer's right, if any, to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account, the Collection Account, the Principal Account, that sale or any Series Account as provided in the Indenture and any related Indenture Supplement or (B) a grant of a first priority perfected security interest (as defined in is perfected under the Delaware UCC) in such property to Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to Issuer, 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) thereof and Insurance Proceeds relating thereto upon such creation;
(v) the Transferor shall deliver an Officer's ’s Certificate substantially in the form of Schedule 2 to Exhibit B to Issuer and Indenture the Trustee (with a copy thereof to each Rating Agency); it being understood that Issuer and Indenture Trustee may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to confirming the matters items set forth therein in paragraphs (ii), (iii) and shall incur no liability in so relying(iv) above;
(vi) the Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Issuer and Indenture the Trustee (with a copy to any of the Rating Agencies which shall have requested in writing such copies▇▇▇▇▇’▇, Standard & Poor’s and Fitch) substantially in the form of Exhibit E; and;
(vii) (A) with respect to Financial Institutions Accounts or Accounts accounts in excess of the Maximum Addition AmountAmount and with respect to Participations, the Transferor shall have received notice from each Rating Agency Standard & Poor’s, ▇▇▇▇▇’▇ and Fitch that the inclusion of such accounts as Additional Accounts pursuant to subsection subsections 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 Transferor 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 Fitch 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 Notes Investor Certificates then issued and outstanding; and
(viii) the Transferor 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 (BA Master Credit Card Trust II)
Addition of Accounts. (a) If, during at the end of any Monthly Period ending on or after Period, the Certificate Trust Termination Date, Transferor Interest averaged over that period Free Equity Amount is less than the Minimum Transferor Interest (calculated using the Average Principal Receivables for such Monthly Period as the Aggregate Principal Receivables on the date of determination)Free Equity Amount, Transferor Seller shall require Originator to designate additional eligible MasterCard or VISA accounts ("Additional Accounts") Eligible Accounts to be included as “Accounts” under (and as defined in) the Bank Receivables Sale Agreement, and Seller shall in turn designate such accounts (“Additional Accounts”) as Accounts for purposes of this Agreement in a sufficient amount such that the average Free Equity Amount at the end of Transferor Interest as a percentage of the Average Principal Receivables for such Monthly Period, computed by assuming that on a pro forma basis as if the amount of the Average Principal Receivables of such Additional Accounts shall be deemed had been designated prior to be outstanding in the Trust during each day end of such Monthly Period, is at least equal to the Minimum Transferor InterestFree Equity Amount (if any). For In addition, if, at the end of any Monthly Period, the Note Trust Principal Balance is less than the Required Principal Balance, Seller shall require Originator to designate additional Eligible Accounts to be included as “Accounts” under the Bank Receivables Sale Agreement, and Seller shall in turn designate such accounts as Additional Accounts for purposes of this Agreement in a sufficient amount such that the preceding sentence, Note Trust Principal Balance will be equal to or greater than the terms "Transferor Interest" and "Minimum Transferor Interest" shall have the meanings assigned to such terms in the Pooling and Servicing Agreement with respect to any day prior to the Certificate Trust Termination DateRequired Principal Balance. Receivables from such Additional Accounts shall be transferred to Issuer Buyer on or before the tenth Business Day following such Monthly Period; provided, however, that to . To the extent Transferor Seller designates Additional Accounts with Principal Receivables substantially in excess of the amount of Principal Receivables required under this subsection 2.06(a2.6(a), such excess shall be deemed to be optional Additional Accounts under subsection 2.06(b2.6(b) below and will be permitted to be so designated solely to the extent permitted by subsection 2.06(b2.6(b).
(b) In addition to its obligation under subsection 2.06(a), Transferor may, but shall not be obligated to, designate from time to time certain Additional Accounts (the "Automatic Additional Accounts") to be included as Accounts, provided that Transferor shall not make more than one such designation in any one Monthly Period; and provided, further, that such Automatic Additional Accounts shall not exceed the Maximum Addition Amount or include Financial Institutions Accounts unless Transferor shall have received the notice from the Rating Agencies required by subsection 2.06(c)(vii) below.
(c) Transferor agrees that any such transfer of Receivables from Additional Accounts under subsection 2.06(a) or (b) shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 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) (the "Notice Date"), Transferor shall give Issuer, Indenture Trustee, each Rating Agency and Servicer written notice that such Additional Accounts will be included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) on or before the Addition Date, Transferor shall have delivered to Indenture Trustee, a written assignment (including an acceptance by Issuer) in substantially the form of Exhibit B (the "Assignment") and Transferor shall direct Servicer to indicate in its computer files (and to cause FNBO to indicate in its computer files) that the Receivables created in connection with the Additional Accounts have been transferred to Issuer and, within five Business Days thereafter, Servicer shall have delivered to Issuer, with a copy delivered to Indenture 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 in such Additional Accounts, as of the Addition Date, which computer file or microfiche list shall be as of the date of such Assignment, shall be incorporated into and made a part of such Assignment and this Agreement, and shall be subject to the confidentiality obligations under Section 2.02 hereof;
(iii) Transferor shall represent and warrant that (A) 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, (B) no selection procedures believed by Transferor to be materially adverse to the interests of the Noteholders were utilized in selecting the Additional Accounts from the available Eligible Accounts (or, in the case of Financial Institutions Accounts, from the available Financial Institutions Accounts constituting Eligible Accounts) and (C) as of the Addition Date, Transferor is not insolvent;
(iv) Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (A) a valid transfer and assignment to Issuer of all right, title and interest of Transferor in and to the Receivables then existing and thereafter created in the Additional Accounts, and all proceeds (as defined in the UCC) of such Receivables and Insurance Proceeds relating thereto and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be held by Issuer free and clear of any Lien, except for (1) Liens permitted under subsection 2.05(b), (2) the interest of the Holder of Transferor Interest and (3) Servicer's right, if any, to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account, the Collection Account, the Principal Account, or any Series Account as provided in the Indenture and any related Indenture Supplement or (B) a grant of a first priority perfected security interest (as defined in the UCC) in such property to Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to Issuer, 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) thereof and Insurance Proceeds relating thereto upon such creation;
(v) Transferor shall deliver an Officer's Certificate substantially in the form of Schedule 2 to Exhibit B to Issuer and Indenture Trustee (with a copy thereof to each Rating Agency); it being understood that Issuer and 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;
(vi) Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Issuer and Indenture Trustee (with a copy to any of the Rating Agencies which shall have requested in writing such copies) substantially in the form of Exhibit E; and
(vii) with respect to Financial Institutions Accounts or Accounts in excess of the Maximum Addition Amount, Transferor shall have received notice from each Rating Agency that the inclusion of such accounts as Additional Accounts pursuant to subsection 2.06(b) will not result in the reduction or withdrawal of its then existing rating of any Series of Notes then issued and outstanding.
Appears in 1 contract
Sources: Receivables Purchase and Contribution Agreement (GE Capital Credit Card Master Note Trust)
Addition of Accounts. (a) If, (A) during any Monthly Period ending on or after period of twenty consecutive days, the Certificate Trust Termination Date, Transferor Interest averaged over that period is less than the Minimum Transferor Interest (calculated using for that period the Average Principal Receivables for such Monthly Period as the Aggregate Principal Receivables on the date of determination), Transferor shall designate additional eligible MasterCard or VISA accounts from the Bank Portfolio ("together with all other Accounts transferred to the Trust pursuant to this Section 2.06, “Additional Accounts"”) to be included as Accounts in a sufficient amount such that the average of the Transferor Interest as a percentage of the Average Principal Receivables for such Monthly Period20-day period, computed by assuming that the amount of the Average Principal Receivables of such Additional Accounts shall be deemed to be outstanding in the Trust during each day of such Monthly Period20-day period, is at least equal to the Minimum Transferor Interest. For purposes , or (B) on any Record Date the aggregate amount of Principal Receivables is less than the preceding sentenceMinimum Aggregate Principal Receivables (as adjusted for any Series having a Companion Series as described in the Supplement for such Series), the terms "Transferor Interest" shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the aggregate amount of Principal Receivables will be equal to or greater than the Minimum Aggregate Principal Receivables. Such Accounts shall be limited to Accounts originated by the Credit Card Originator and "Minimum created in connection with the Cabela’s card program unless the Transferor Interest" shall have the meanings assigned to received written confirmation from each Rating Agency that such terms designation will not result in the Pooling and Servicing Agreement with respect to a downgrade or withdrawal of its then existing rating of any day prior to the Certificate Trust Termination Dateoutstanding Series of Investor Certificates. Receivables from such Additional Accounts shall be transferred to Issuer the Trustee on or before the tenth Business Day following such Monthly Period; provided20-day period or Record Date, however, that to as the extent Transferor designates Additional Accounts with Principal Receivables substantially in excess of the amount of Principal Receivables required under this subsection 2.06(a), such excess shall be deemed to be optional Additional Accounts under subsection 2.06(b) below and will be permitted to be so designated solely to the extent permitted by subsection 2.06(b)case may be.
(b) In addition to its obligation under subsection 2.06(a), the Transferor may, but shall not be obligated to, designate from time to time certain Additional Accounts (of the "Automatic Additional Accounts") Transferor to be included as Accounts, provided that Transferor shall not make more than one such designation in any one Monthly Period; and provided, further, that such Automatic Additional Accounts as of the applicable Addition Date. Such Accounts shall not exceed be limited to Accounts originated by the Maximum Addition Amount or include Financial Institutions Accounts Credit Card Originator and created in connection with the Cabela’s card program unless the Transferor shall have received the notice written confirmation from the each Rating Agencies required by subsection 2.06(c)(vii) belowAgency that such designation will not result in a downgrade or withdrawal of its then current rating of any outstanding Series of Investor Certificates.
(c) The Transferor agrees that any such transfer of Receivables from Additional Accounts under subsection 2.06(a) or (b) shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 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) (the "“Notice Date"”), the Transferor shall give Issuer, Indenture the Trustee, each Rating Agency and the Servicer written notice that such Additional Accounts will be included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) on or before the Addition Date, the Transferor shall have delivered to Indenture Trustee, the Trustee a written assignment (including an acceptance by Issuerthe Trustee on behalf of the Trust for the benefit of the Investor Certificateholders and each Credit Enhancement Provider (as each’s interests may appear herein or in a related Supplement)) in substantially the form of Exhibit B (the "“Assignment"”) and the Transferor shall direct Servicer to indicate have indicated in its computer files (and to cause FNBO have caused WFB and the Servicer to indicate in its their computer files) that the Receivables created in connection with the Additional Accounts have been transferred to Issuer the Trustee and, within five Business Days thereafteron or prior to the Addition Date, Servicer the Transferor shall have delivered to Issuer, with a copy delivered to Indenture Trustee, the Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts, identified Accounts and identifying each Account by account number and the aggregate amount of the Receivables in such Additional Accounts, as of the Addition Date, which computer file or microfiche list shall be as of the date of such Assignment, shall be Assignment incorporated into and made a part of such Assignment and this Agreement, and shall be subject to the confidentiality obligations under Section 2.02 hereof;
(iii) the Transferor shall represent and warrant that (Ax) with respect to Additional Accounts, each Additional Account is, as of the Addition Date, an Eligible Account, and each Receivable in such Additional Account, Account is, as of the Addition Date, an Eligible Receivable, (By) no selection procedures believed by the Transferor to be materially adverse to the interests of the Noteholders Investor Certificateholders or any Credit Enhancement Provider were utilized in selecting the Additional Accounts from the available Eligible Accounts (or, in the case of Financial Institutions Accounts, from the available Financial Institutions Accounts constituting Eligible Accounts) Bank Portfolio, and (Cz) as of the Addition Date, the Transferor is not insolvent;
(iv) the Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (Ax) a valid transfer and assignment to Issuer the Trustee 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 with respect to such Receivables (including all Finance Charge Receivables), all amounts received with respect thereto, all Insurance Proceeds relating to such Receivables and all proceeds (as defined in the UCCUCC as in effect in the applicable jurisdiction) of such Receivables and Insurance Proceeds relating thereto and such Receivables any of the foregoing and all proceeds thereof and Insurance Proceeds relating thereto of such property will be held by Issuer the Trust free and clear of any Lien, Lien except for (1i) Liens permitted under subsection 2.05(b), (2ii) the interest of the Transferor as Holder of the Transferor Interest Certificate and (3iii) Servicer's right, if any, the Transferor’s right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account, the Collection Account, the Principal Account, Account or any Series Account Account, as provided in the Indenture this Agreement and any related Indenture Supplement or (By) a grant of a first priority perfected security interest (as defined in the UCC) UCC as in effect in the applicable jurisdiction), in such property to Issuerthe Trustee, which is enforceable with respect to then existing Receivables of the Additional Accounts, the all monies due or to become due with respect to such Receivables (including all Finance Charge Receivables), all amounts received with respect thereto, all Insurance Proceeds relating to such Receivables and all proceeds (as defined in the UCCUCC as in effect in the applicable jurisdiction) thereof and Insurance Proceeds relating thereto of any of the foregoing upon the conveyance of such Receivables to Issuerthe Trustee, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts conveyed on such Addition Date, the all Insurance Proceeds relating to such Receivables and all proceeds (as defined in the UCCUCC as in effect in the applicable jurisdiction) thereof of any of the foregoing upon such creation; and (z) if the Assignment constitutes the grant of a security interest to the Trustee in such property, upon the filing of the financing statements as described in Section 2.01 with respect to such Additional Accounts, all monies due or to become due with respect to such Receivables (including all Finance Charge Receivables), all amounts received with respect thereto, all Insurance Proceeds relating thereto to such Receivables and all proceeds of any of the foregoing, upon such creation, the Trustee shall have a first priority perfected security interest in such property (subject to Section 9-315(c) of the UCC as in effect in the applicable jurisdiction), except for Liens permitted under subsection 2.05(b);
(v) the Transferor shall deliver an Officer's ’s Certificate substantially in the form of Schedule 2 to Exhibit B to Issuer and Indenture the Trustee (with a copy thereof to each Rating Agency); it being understood that Issuer and Indenture Trustee may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to confirming the matters items set forth therein in paragraphs (ii), (iii) and shall incur no liability in so relying(iv) above;
(vi) the Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Issuer and Indenture the Trustee (with a copy to any of the Rating Agencies which shall have requested in writing such copiesMoody’s and Standard & Poor’s) substantially in the form of Exhibit E; and;
(vii) with respect to Financial Institutions Accounts or Accounts accounts in excess of the Maximum Addition Amount, the Transferor shall have received notice from each Rating Agency Standard & Poor’s and Moody’s that the inclusion of such accounts as Additional Accounts pursuant to subsection 2.06(b) will not result in the reduction or withdrawal of its then existing rating of any Series of Notes Investor Certificates then issued and outstanding; and
(viii) if any such transfer of Receivables shall include business cards (as “business card” is customarily defined in the credit card industry), the Transferor shall (x) provide each Rating Agency 30 days’ prior notice of the inclusion of any such business cards, (y) obtain the written consent of each Credit Enhancement Provider, and (z) the Transferor shall have received written confirmation from each Rating Agency that such designation will not result in a downgrade or withdrawal of its then current rating of any outstanding Series of Investor Certificates.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Cabela's Master Credit Card Trust)
Addition of Accounts. (a) If, (A) during any Monthly Period ending on or after period of twenty consecutive days, the Certificate Trust Termination Date, Transferor Interest averaged over that period is less than the Minimum Transferor Interest (calculated using for that period the Average Principal Receivables for such Monthly Period as the Aggregate Principal Receivables on the date of determination), Transferor shall designate additional eligible MasterCard or VISA accounts from the Bank Portfolio ("together with all other Accounts transferred to the Trust pursuant to this Section 2.06, “Additional Accounts"”) to be included as Accounts in a sufficient amount such that the average of the Transferor Interest as a percentage of the Average Principal Receivables for such Monthly Period20-day period, computed by assuming that the amount of the Average Principal Receivables of such Additional Accounts shall be deemed to be outstanding in the Trust during each day of such Monthly Period20-day period, is at least equal to the Minimum Transferor Interest. For purposes , or (B) on any Record Date the aggregate amount of Principal Receivables is less than the preceding sentenceMinimum Aggregate Principal Receivables (as adjusted for any Series having a Companion Series as described in the Supplement for such Series), the terms "Transferor Interest" shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the aggregate amount of Principal Receivables will be equal to or greater than the Minimum Aggregate Principal Receivables. Such Accounts shall be limited to Accounts originated by the Credit Card Originator and "Minimum created in connection with the Cabela’s card program unless the Transferor Interest" shall have the meanings assigned to received written confirmation from each Rating Agency that such terms designation will not result in the Pooling and Servicing Agreement with respect to a downgrade or withdrawal of its then existing rating of any day prior to the Certificate Trust Termination Dateoutstanding Series of Investor Certificates. Receivables from such Additional Accounts shall be transferred to Issuer the Trustee on or before the tenth Business Day following such Monthly Period; provided20-day period or Record Date, however, that to as the extent Transferor designates Additional Accounts with Principal Receivables substantially in excess of the amount of Principal Receivables required under this subsection 2.06(a), such excess shall be deemed to be optional Additional Accounts under subsection 2.06(b) below and will be permitted to be so designated solely to the extent permitted by subsection 2.06(b)case may be.
(b) In addition to its obligation under subsection 2.06(a), the Transferor may, but shall not be obligated to, designate from time to time certain Additional Accounts (of the "Automatic Additional Accounts") Transferor to be included as Accounts, provided that Transferor shall not make more than one such designation in any one Monthly Period; and provided, further, that such Automatic Additional Accounts as of the applicable Addition Date. Such Accounts shall not exceed be limited to Accounts originated by the Maximum Addition Amount or include Financial Institutions Accounts Credit Card Originator and created in connection with the Cabela’s card program unless the Transferor shall have received the notice written confirmation from the each Rating Agencies required by subsection 2.06(c)(vii) belowAgency that such designation will not result in a downgrade or withdrawal of its then current rating of any outstanding Series of Investor Certificates.
(c) The Transferor agrees that any such transfer of Receivables from Additional Accounts Accounts, under subsection 2.06(a) or (b) shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 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) (the "“Notice Date"”), the Transferor shall give Issuer, Indenture the Trustee, each Rating Agency and the Servicer written notice that such Additional Accounts will be included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) on or before the Addition Date, the Transferor shall have delivered to Indenture Trustee, the Trustee a written assignment (including an acceptance by Issuerthe Trustee on behalf of the Trust for the benefit of the Investor Certificateholders and each Credit Enhancement Provider (as each’s interests may appear herein or in a related Supplement)) in substantially the form of Exhibit B (the "“Assignment"”) and the Transferor shall direct Servicer to indicate have indicated in its computer files (and to cause FNBO have caused WFB and the Servicer to indicate in its their computer files) that the Receivables created in connection with the Additional Accounts have been transferred to Issuer the Trustee and, within five Business Days thereafteron or prior to the Addition Date, Servicer the Transferor shall have delivered to Issuer, with a copy delivered to Indenture Trustee, the Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts, identified Accounts and identifying each Account by account number and the aggregate amount of the Receivables in such Additional Accounts, as of the Addition Date, which computer file or microfiche list shall be as of the date of such Assignment, shall be Assignment incorporated into and made a part of such Assignment and this Agreement, and shall be subject to the confidentiality obligations under Section 2.02 hereof;
(iii) the Transferor shall represent and warrant that (Ax) with respect to Additional Accounts, each Additional Account is, as of the Addition Date, an Eligible Account, and each Receivable in such Additional Account, Account is, as of the Addition Date, an Eligible Receivable, (By) no selection procedures believed by the Transferor to be materially adverse to the interests of the Noteholders Investor Certificateholders or any Credit Enhancement Provider were utilized in selecting the Additional Accounts from the available Eligible Accounts (or, in the case of Financial Institutions Accounts, from the available Financial Institutions Accounts constituting Eligible Accounts) Bank Portfolio, and (Cz) as of the Addition Date, the Transferor is not insolvent;
(iv) the Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (Ax) a valid transfer and assignment to Issuer the Trustee 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 with respect to such Receivables (including all Finance Charge Receivables), all amounts received with respect thereto, all Insurance Proceeds relating to such Receivables and all proceeds (as defined in the UCCUCC as in effect in the applicable jurisdiction) of such Receivables and Insurance Proceeds relating thereto and such Receivables any of the foregoing and all proceeds thereof and Insurance Proceeds relating thereto of such property will be held by Issuer the Trust free and clear of any Lien, Lien except for (1i) Liens permitted under subsection 2.05(b), (2ii) the interest of the Transferor as Holder of the Transferor Interest Certificate and (3iii) Servicer's right, if any, the Transferor’s right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account, the Collection Account, the Principal Account, Account or any Series Account Account, as provided in the Indenture this Agreement and any related Indenture Supplement or (By) a grant of a first priority perfected security interest (as defined in the UCC) UCC as in effect in the applicable jurisdiction), in such property to Issuerthe Trustee, which is enforceable with respect to then existing Receivables of the Additional Accounts, the all monies due or to become due with respect to such Receivables (including all Finance Charge Receivables), all amounts received with respect thereto, all Insurance Proceeds relating to such Receivables and all proceeds (as defined in the UCCUCC as in effect in the applicable jurisdiction) thereof and Insurance Proceeds relating thereto of any of the foregoing upon the conveyance of such Receivables to Issuerthe Trustee, and which will be enforceable with respect to the Receivables thereafter created in respect of Additional Accounts conveyed on such Addition Date, the all Insurance Proceeds relating to such Receivables and all proceeds (as defined in the UCCUCC as in effect in the applicable jurisdiction) thereof of any of the foregoing upon such creation; and (z) if the Assignment constitutes the grant of a security interest to the Trustee in such property, upon the filing of the financing statements as described in Section 2.01 with respect to such Additional Accounts, all monies due or to become due with respect to such Receivables (including all Finance Charge Receivables), all amounts received with respect thereto, all Insurance Proceeds relating thereto to such Receivables and all proceeds of any of the foregoing, upon such creation, the Trustee shall have a first priority perfected security interest in such property (subject to Section 9-315(c) of the UCC as in effect in the applicable jurisdiction), except for Liens permitted under subsection 2.05(b);
(v) the Transferor shall deliver an Officer's ’s Certificate substantially in the form of Schedule 2 to Exhibit B to Issuer and Indenture the Trustee (with a copy thereof to each Rating Agency); it being understood that Issuer and Indenture Trustee may conclusively rely on such Officer's Certificate, shall have no duty to make inquiries with regard to confirming the matters items set forth therein in paragraphs (ii), (iii) and shall incur no liability in so relying(iv) above;
(vi) the Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Issuer and Indenture the Trustee (with a copy to any of the Rating Agencies which shall have requested in writing such copiesMoody’s and Standard & Poor’s) substantially in the form of Exhibit E; and;
(vii) with respect to Financial Institutions Accounts or Accounts accounts in excess of the Maximum Addition Amount, the Transferor shall have received notice from each Rating Agency Standard & Poor’s and Moody’s that the inclusion of such accounts as Additional Accounts pursuant to subsection 2.06(b) will not result in the reduction or withdrawal of its then existing rating of any Series of Notes Investor Certificates then issued and outstanding; and
(viii) if any such transfer of Receivables shall include business cards (as “business card” is customarily defined in the credit card industry), the Transferor shall (x) provide each Rating Agency 30 days’ prior notice of the inclusion of any such business cards, (y) obtain the written consent of each Credit Enhancement Provider, and (z) the Transferor shall have received written confirmation from each Rating Agency that such designation will not result in a downgrade or withdrawal of its then current rating of any outstanding Series of Investor Certificates.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Cabela's Master Credit Card Trust)
Addition of Accounts. (a) If, during any Monthly Period ending on or after the Certificate Trust Termination Date, Transferor Interest averaged over that period is less than the Minimum Transferor Interest (calculated using the Average Principal Receivables for such Monthly Period as the Aggregate Principal Receivables on the date of determination), Transferor shall The Seller may from time to time offer to voluntarily designate additional eligible MasterCard or VISA accounts ("Additional Accounts") Eligible Accounts to be included as Accounts in a sufficient amount such that the average of Transferor Interest as a percentage of the Average Principal Receivables for such Monthly PeriodAccounts, computed by assuming that the amount of the Average Principal Receivables of such Additional Accounts shall be deemed to be outstanding in the Trust during each day of such Monthly Period, is at least equal subject to the Minimum Transferor Interestconditions specified in paragraph (b) below. For purposes of If any such offer is accepted by the preceding sentenceBuyer, Receivables and the terms "Transferor Interest" and "Minimum Transferor Interest" shall have the meanings assigned to such terms in the Pooling and Servicing Agreement with respect to any day prior to the Certificate Trust Termination Date. Receivables Related Security from such Additional Accounts shall be transferred to Issuer on or before the tenth Business Day following such Monthly Period; provided, however, that sold to the extent Transferor designates Additional Accounts with Principal Receivables substantially Buyer effective on a date (the "Addition Date") specified in excess of a written notice provided by the amount of Principal Receivables required under this subsection 2.06(a), such excess shall be deemed to be optional Additional Accounts under subsection 2.06(bSeller (or the Master Servicer on its behalf) below and will be permitted to be so designated solely to the extent permitted by subsection 2.06(b).
(b) In addition to its obligation under subsection 2.06(a), Transferor may, but shall not be obligated to, designate from time to time certain Buyer and any Enhancement Providers specifying the Additional Cut-Off Date and the Addition Date for such Additional Accounts (the "Automatic Additional AccountsAddition Notice") to be included as Accounts, provided that Transferor shall not make more than one such designation in any one Monthly Period; and provided, further, that such Automatic Additional Accounts shall not exceed the Maximum Addition Amount or include Financial Institutions Accounts unless Transferor shall have received the notice from the Rating Agencies required by subsection 2.06(c)(vii) below.
(c) Transferor agrees that any such transfer of Receivables from Additional Accounts under subsection 2.06(a) or (b) shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day but not more than the 30th day prior to the related Addition Date with respect to additions pursuant to subsection 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) (the "Notice Date"), Transferor .
(b) The Seller shall give Issuer, Indenture Trustee, each Rating Agency be permitted to convey to the Buyer the Receivables and Servicer written notice that such all Related Security related thereto in any Additional Accounts will be included, which notice shall specify designated by the approximate aggregate amount Seller as such pursuant to Section 2.04(a) only upon satisfaction of each of the Receivables following conditions on or prior to the related Addition Date; provided, however, conditions (vi), (viii) and (ix) below shall be transferred;inapplicable to Accounts designated by the Buyer as Automatic Additional Accounts under Section 2.05(b)(ii) of the Pooling and Servicing Agreement:
(i) The Seller shall provide the Buyer and any Enhancement Providers with a timely Addition Notice.
(ii) on or before the Addition Date, Transferor Such Additional Accounts shall all be Eligible Accounts.
(iii) The Seller shall have delivered to Indenture Trustee, the Buyer a duly executed written assignment (including an acceptance by Issuerthe Buyer) in substantially the form of Exhibit B A (the "Assignment") and Transferor shall direct Servicer the computer file or microfiche or written list required to indicate in its computer files be delivered pursuant to Section 2.01.
(and to cause FNBO to indicate in its computer filesiv) that the Receivables created in connection with the Additional Accounts have been transferred to Issuer and, within five Business Days thereafter, Servicer The Seller shall have delivered to Issuer, the Buyer for deposit in the Collection Account all Collections with a copy delivered respect to Indenture 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 in such Additional Accounts, as of Accounts since the Addition Additional Cut-Off Date, which computer file or microfiche list shall be as of the date of such Assignment, shall be incorporated into and made a part of such Assignment and this Agreement, and shall be subject to the confidentiality obligations under Section 2.02 hereof;.
(iiiv) Transferor shall represent and warrant that (A) 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, (B) no No selection procedures believed by Transferor the Seller to be materially adverse to the interests of the Noteholders Buyer or the Beneficiaries were utilized used in selecting such Additional Accounts; (B) the list of Additional Accounts delivered pursuant to clause (iii) above is true and correct in all material respects as of the Additional Accounts from the available Eligible Accounts (or, in the case of Financial Institutions Accounts, from the available Financial Institutions Accounts constituting Eligible Accounts) Cut-Off Date and (C) as of each of the Notice Date and the Addition Date, Transferor is not insolvent;neither the Seller, the Buyer nor the Master Servicer are insolvent nor will have been made insolvent by such transfer nor are aware of any pending insolvency.
(ivvi) Transferor The Rating Agency Condition shall represent and warrant that, as have been satisfied with respect to such addition.
(vii) The addition of the Receivables arising in such Additional Accounts shall not result in the occurrence of an Early Amortization Event.
(viii) The Seller shall have delivered to the Buyer and any Enhancement Providers a certificate of a Vice President or more senior officer confirming the items set forth in paragraphs (ii) through (vii) above.
(ix) On or before each Addition Date, the Assignment constitutes either (A) a valid transfer and assignment to Issuer of all right, title and interest of Transferor in and Seller shall deliver to the Receivables then existing and thereafter created in the Additional Accounts, and all proceeds (as defined in the UCC) of such Receivables and Insurance Proceeds relating thereto and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be held by Issuer free and clear of any Lien, except for (1) Liens permitted under subsection 2.05(b), (2) the interest of the Holder of Transferor Interest and (3) Servicer's right, if any, to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account, the Collection Account, the Principal Account, or any Series Account as provided in the Indenture Buyer and any related Indenture Supplement or (B) a grant of a first priority perfected security interest (as defined in the UCC) in such property to Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to Issuer, 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) thereof and Insurance Proceeds relating thereto upon such creation;
(v) Transferor shall deliver an Officer's Certificate substantially in the form of Schedule 2 to Exhibit B to Issuer and Indenture Trustee (with a copy thereof to each Rating Agency); it being understood that Issuer and 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;
(vi) Transferor shall deliver Enhancement Providers an Opinion of Counsel for the Seller with respect to the Receivables in the Additional Accounts to Issuer and Indenture Trustee (with a copy to any of the Rating Agencies which shall have requested in writing such copies) substantially in the form of Exhibit E; andB.
(viic) with respect to Financial Institutions Accounts or Accounts in excess The Seller hereby represents and warrants as of the Maximum applicable Addition AmountDate as to the matters set forth in Section 2.04(b)(v). The representations and warranties set forth in Section 2.04(b)(v) shall survive the sale and assignment of the respective Receivables and the Related Security to the Buyer. Upon discovery by the Seller or the Buyer of a breach of any of the foregoing representations and warranties, Transferor the party discovering the breach shall have received give prompt written notice from to the other party and to any Enhancement Providers.
(d) At least 20 days prior to each Rating Agency that Addition Date in respect of the inclusion designation of such accounts as any Additional Accounts pursuant to subsection 2.06(b) will not result in this Section 2.04, the reduction or withdrawal Seller shall have given written notice of its then existing rating of any Series of Notes then issued and outstandingsuch designation to the Rating Agencies.
Appears in 1 contract
Sources: Receivables Purchase Agreement (Ford Credit Auto Receivables LLC)
Addition of Accounts. (ai) If, during as of the close of business on the last Business Day of any Monthly Period ending on or after Period, the Certificate Trust Termination Date, Transferor Interest averaged over that period aggregate amount of Principal Receivables is less than the Minimum Transferor Interest (calculated using Required Principal Balance on such date, the Average Principal Receivables for Seller shall on or prior to the close of business on the 10th Business Day following the last Business Day of such Monthly Period as (the Aggregate “Required Designation Date”), unless the aggregate amount of Principal Receivables exceeds the Required Principal Balance as of the close of business on any day after the date last Business Day of determination)such Monthly Period and prior to the Required Designation Date, Transferor shall designate additional eligible MasterCard or VISA accounts ("Additional Accounts") Eligible Accounts to be included as Accounts as of the Required Designation Date or any earlier date in a sufficient amount such that that, after giving effect to such addition, the average aggregate amount of Transferor Interest as a percentage Principal Receivables equals or exceeds the Required Principal Balance on such date. Each such addition shall be subject to the same conditions applicable to any Addition required to be made pursuant to Section 2.08(a) of the Average Principal Receivables for such Monthly Period, computed by assuming that the amount Agreement. The failure of any condition set forth in Section 2.08(c) or (d) of the Average Principal Receivables Agreement, as the case may be, shall not relieve the Seller of such Additional Accounts shall be deemed its obligation pursuant to be outstanding in the Trust during each day of such Monthly Period, is at least equal to the Minimum Transferor Interest. For purposes of the preceding sentence, the terms "Transferor Interest" and "Minimum Transferor Interest" shall have the meanings assigned to such terms in the Pooling and Servicing Agreement with respect to any day prior to the Certificate Trust Termination Date. Receivables from such Additional Accounts shall be transferred to Issuer on or before the tenth Business Day following such Monthly Periodthis paragraph; provided, however, that the failure of the Seller to transfer Receivables to the extent Transferor designates Additional Accounts with Principal Receivables substantially Trust as provided in excess this paragraph solely as a result of the unavailability of a sufficient amount of Principal Eligible Receivables required under this subsection 2.06(a), such excess shall be deemed to be optional Additional Accounts under subsection 2.06(b) below and will be permitted to be so designated solely to the extent permitted by subsection 2.06(b).
(b) In addition to its obligation under subsection 2.06(a), Transferor may, but shall not be obligated to, designate from time to time certain Additional Accounts (the "Automatic Additional Accounts") to be included as Accounts, constitute a breach of this Supplement; provided that Transferor shall not make more than one such designation in any one Monthly Period; and provided, further, that such Automatic Additional Accounts shall not exceed the Maximum Addition Amount or include Financial Institutions Accounts unless Transferor shall have received the notice from the Rating Agencies required by subsection 2.06(c)(vii) below.
(c) Transferor agrees further that any such transfer failure which has not been timely cured will nevertheless result in the occurrence of Receivables from Additional Accounts under subsection 2.06(a) or (b) shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date a Pay Out Event with respect to additions pursuant to subsection 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) (the "Notice Date"), Transferor shall give Issuer, Indenture Trustee, each Rating Agency and Servicer written notice that such Additional Accounts will be included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;Series 2001-1.
(ii) on or before the Addition Date, Transferor shall have delivered to Indenture Trustee, a written assignment (including an acceptance by Issuer) in substantially the form of Exhibit B (the "Assignment") and Transferor shall direct Servicer to indicate in its computer files (and to cause FNBO to indicate in its computer files) that the Receivables created in connection with the Additional Accounts have been transferred to Issuer and, within five Business Days thereafter, Servicer shall have delivered to Issuer, with a copy delivered to Indenture 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 in such Additional Accounts, as of the Addition Date, which computer file or microfiche list shall be as of the date of such Assignment, shall be incorporated into and made a part of such Assignment and this Agreement, and shall be subject to the confidentiality obligations under Section 2.02 hereof;
(iii) Transferor shall represent and warrant that (A) 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, (B) no selection procedures believed by Transferor to be materially adverse to the interests of the Noteholders were utilized in selecting the Additional Accounts from the available Eligible Accounts (or, in the case of Financial Institutions Accounts, from the available Financial Institutions Accounts constituting Eligible Accounts) and (C) as of the Addition Date, Transferor is not insolvent;
(iv) Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (A) a valid transfer and assignment to Issuer of all right, title and interest of Transferor in and to the Receivables then existing and thereafter created in the Additional Accounts, and all proceeds (as defined in the UCC) of such Receivables and Insurance Proceeds relating thereto and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be held by Issuer free and clear of any Lien, except for (1) Liens permitted under subsection 2.05(b), (2) the interest of the Holder of Transferor Interest and (3) Servicer's right, if any, to receive interest accruing on, and investment earnings in respect In lieu of, the Finance Charge Accountor in addition to, the Collection Account, the Principal Account, or any Series Account as provided in the Indenture and any related Indenture Supplement or (B) a grant of a first priority perfected security interest (as defined in the UCC) in such property to Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to Issuer, 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) thereof and Insurance Proceeds relating thereto upon such creation;
(v) Transferor shall deliver an Officer's Certificate substantially in the form of Schedule 2 to Exhibit B to Issuer and Indenture Trustee (with a copy thereof to each Rating Agency); it being understood that Issuer and 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;
(vi) Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Issuer and Indenture Trustee (with a copy to any of the Rating Agencies which shall have requested in writing such copies) substantially in the form of Exhibit E; and
(vii) with respect to Financial Institutions Accounts or Accounts in excess of the Maximum Addition Amount, Transferor shall have received notice from each Rating Agency that the inclusion of such accounts as designating Additional Accounts pursuant to subsection 2.06(bclause (i) will not result above, the Seller may, subject to the conditions specified in Section 2.08(d) of the Agreement, convey to the Trust Participation Interests. The addition of Participation Interests in the reduction or withdrawal Trust pursuant to this paragraph shall be effected by an amendment to the Agreement and this Supplement, dated the applicable Addition Date, pursuant to Section 13.01(a) of its then existing rating of any Series of Notes then issued and outstandingthe Agreement.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Capital One Master Trust)
Addition of Accounts. (a) (i) If, (A) during any Monthly Period ending on or after period of twenty consecutive days, the Certificate Trust Termination Date, Transferor Interest averaged over that period is less than the Minimum Transferor Interest (calculated using for that period the Average Principal Receivables for such Monthly Period as the Aggregate Principal Receivables on the date of determination), Transferor shall designate additional eligible MasterCard or VISA accounts from the Bank Portfolio ("together with all other Accounts transferred to the Trust pursuant to this Section 2.06, “Additional Accounts"”) to be included as Accounts in a sufficient amount such that the average of the Transferor Interest as a percentage of the Average Principal Receivables for such Monthly Period20-day period, computed by assuming that the amount of the Average Principal Receivables of such Additional Accounts shall be deemed to be outstanding in the Trust during each day of such Monthly Period20-day period, is at least equal to the Minimum Transferor Interest. For purposes , or (B) on any Record Date the aggregate amount of Principal Receivables is less than the preceding sentenceMinimum Aggregate Principal Receivables (as adjusted for any Series having a Companion Series as described in the Supplement for such Series), the terms "Transferor Interest" shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the aggregate amount of Principal Receivables will be equal to or greater than the Minimum Aggregate Principal Receivables. Such Accounts shall be limited to Accounts originated by the Credit Card Originator and "Minimum created in connection with the Cabela’s card program unless the Transferor Interest" shall have the meanings assigned to received written confirmation from each Rating Agency that such terms designation will not result in the Pooling and Servicing Agreement with respect to a downgrade or withdrawal of its then existing rating of any day prior to the Certificate Trust Termination Dateoutstanding Series of Investor Certificates. Receivables from such Additional Accounts shall be transferred to Issuer the Trustee on or before the tenth Business Day following such Monthly Period; provided20-day period or Record Date, howeveras the case may be.
(ii) In lieu of, or in addition to, designating Additional Accounts pursuant to clause (i) above, the Transferor may, subject to any applicable conditions specified in paragraph (c) below, convey to the Trustee participations representing undivided interests in a pool of assets primarily consisting of receivables arising under revolving credit card accounts owned by the Credit Card Originator or any Affiliate of the Credit Card Originator and collections thereon (“Participations”). Such Accounts shall be limited to Accounts originated by the Credit Card Originator and created in connection with the Cabela’s card program unless the Transferor shall have received written confirmation from each Rating Agency that such designation will not result in a downgrade or withdrawal of its then existing rating of any outstanding Series of Investor Certificates. 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). Notwithstanding anything in this subsection 2.06(a)(ii) to the contrary, to the extent Transferor designates Additional Accounts with Principal Receivables substantially in excess of the amount of Principal Receivables required under this subsection 2.06(a)that such participations encompass previously issued credit-card or other asset-backed securities, such excess shall be deemed to be optional Additional Accounts securities (i) either will have been previously registered under subsection 2.06(bthe Securities Act or will have been held for the “holding period” prescribed by Rule 144(k) below under the Securities Act and (ii) will be permitted to be so designated solely to have been acquired in a bona fide secondary market transaction, rather than from any Transferor or any Affiliate of any Transferor or such securities will have otherwise been acquired in compliance with the extent permitted by subsection 2.06(b)Securities Act.
(b) In addition to its obligation under subsection 2.06(a), the Transferor may, but shall not be obligated to, designate from time to time certain Additional Accounts (of the "Automatic Additional Accounts") Transferor to be included as Accounts, provided that Transferor shall not make more than one such designation in any one Monthly Period; and provided, further, that such Automatic Additional Accounts shall not exceed the Maximum Addition Amount or include Financial Institutions Accounts unless Transferor shall have received the notice from the Rating Agencies required by subsection 2.06(c)(vii) below.
(c) Transferor agrees that any such transfer of Receivables from Additional Accounts under subsection 2.06(a) or (b) shall satisfy the following conditions (Participations to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 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) (the "Notice Date"), Transferor shall give Issuer, Indenture Trustee, each Rating Agency and Servicer written notice that such Additional Accounts will be included, which notice shall specify the approximate aggregate amount included as property of the Receivables to be transferred;
(ii) on or before Trust, in either case as of the applicable Addition Date, Transferor . Such Accounts or Participations shall have delivered be limited to Indenture Trustee, a written assignment (including an acceptance Accounts or Participations originated by Issuer) in substantially the form of Exhibit B (the "Assignment") Credit Card Originator and Transferor shall direct Servicer to indicate in its computer files (and to cause FNBO to indicate in its computer files) that the Receivables created in connection with the Additional Accounts have been transferred to Issuer and, within five Business Days thereafter, Servicer shall have delivered to Issuer, with a copy delivered to Indenture Trustee, a computer file or microfiche list containing a true and complete list of all Additional Accounts, identified by account number and Cabela’s card program unless the aggregate amount of the Receivables in such Additional Accounts, as of the Addition Date, which computer file or microfiche list shall be as of the date of such Assignment, shall be incorporated into and made a part of such Assignment and this Agreement, and shall be subject to the confidentiality obligations under Section 2.02 hereof;
(iii) Transferor shall represent and warrant that (A) 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, (B) no selection procedures believed by Transferor to be materially adverse to the interests of the Noteholders were utilized in selecting the Additional Accounts from the available Eligible Accounts (or, in the case of Financial Institutions Accounts, from the available Financial Institutions Accounts constituting Eligible Accounts) and (C) as of the Addition Date, Transferor is not insolvent;
(iv) Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (A) a valid transfer and assignment to Issuer of all right, title and interest of Transferor in and to the Receivables then existing and thereafter created in the Additional Accounts, and all proceeds (as defined in the UCC) of such Receivables and Insurance Proceeds relating thereto and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be held by Issuer free and clear of any Lien, except for (1) Liens permitted under subsection 2.05(b), (2) the interest of the Holder of Transferor Interest and (3) Servicer's right, if any, to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account, the Collection Account, the Principal Account, or any Series Account as provided in the Indenture and any related Indenture Supplement or (B) a grant of a first priority perfected security interest (as defined in the UCC) in such property to Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to Issuer, 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) thereof and Insurance Proceeds relating thereto upon such creation;
(v) Transferor shall deliver an Officer's Certificate substantially in the form of Schedule 2 to Exhibit B to Issuer and Indenture Trustee (with a copy thereof to each Rating Agency); it being understood that Issuer and 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;
(vi) Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Issuer and Indenture Trustee (with a copy to any of the Rating Agencies which shall have requested in writing such copies) substantially in the form of Exhibit E; and
(vii) with respect to Financial Institutions Accounts or Accounts in excess of the Maximum Addition Amount, Transferor shall have received notice written confirmation from each Rating Agency that the inclusion of such accounts as Additional Accounts pursuant to subsection 2.06(b) designation will not result in the reduction a downgrade or withdrawal of its then existing current rating of any outstanding Series of Notes then issued and outstandingInvestor Certificates.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Cabela's Master Credit Card Trust)
Addition of Accounts. (a) If, (i) during any Monthly Period ending on or after Period, the Certificate Trust Termination Date, Transferor Interest averaged over that period is less than the Minimum Transferor Interest (calculated using the Average Principal Receivables for such Monthly Period as the Aggregate Principal Receivables on the date of determination), Transferor shall designate additional eligible MasterCard or VISA accounts ("“Additional Accounts"”) to be included as Accounts in a sufficient amount such that the average of Transferor Interest as a percentage of the Average Principal Receivables for such Monthly Period, computed by assuming that the amount of the Average Principal Receivables of such Additional Accounts shall be deemed to be outstanding in the Trust during each day of such Monthly Period, is at least equal to the Minimum Transferor Interest. For purposes of , or (ii) on any Record Date the preceding sentenceAggregate Principal Receivables is less than the Minimum Aggregate Principal Receivables, Transferor shall designate Additional Accounts to be included as Accounts in a sufficient amount such that the terms "Transferor Interest" and "Aggregate Principal Receivables will be equal to or greater than the Minimum Transferor Interest" shall have the meanings assigned to such terms in the Pooling and Servicing Agreement with respect to any day prior to the Certificate Trust Termination DateAggregate Principal Receivables. Receivables from such Additional Accounts shall be transferred to Issuer on or before the tenth Business Day following such Monthly Period; provided, however, that to the extent Transferor designates Additional Accounts with Principal Receivables substantially in excess of the amount of Principal Receivables required under this subsection 2.06(a), such excess shall be deemed to be optional Additional Accounts under subsection 2.06(b) below and will be permitted to be so designated solely to the extent permitted by subsection 2.06(b).
(b) In addition to its obligation under subsection 2.06(a), Transferor may, but shall not be obligated to, designate from time to time certain Additional Accounts (the "“Automatic Additional Accounts"”) to be included as Accounts, provided that Transferor shall not make more than one such designation in any one Monthly Period; and provided, further, that such Automatic Additional Accounts shall not exceed the Maximum Addition Amount or include Financial Institutions Accounts unless Transferor shall have received the notice from the Rating Agencies required by subsection 2.06(c)(vii) below.
(c) Transferor agrees that any such transfer of Receivables from Additional Accounts under subsection 2.06(a) or (b) shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 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) (the "“Notice Date"”), Transferor shall give Issuer, Indenture Trustee, each Rating Agency and Servicer written notice that such Additional Accounts will be included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) on or before the Addition Date, Transferor shall have delivered to Indenture Trustee, a written assignment (including an acceptance by Issuer) in substantially the form of Exhibit B (the "“Assignment"”) and Transferor shall direct Servicer to indicate in its computer files (and to cause FNBO to indicate in its computer files) that the Receivables created in connection with the Additional Accounts have been transferred to Issuer and, within five Business Days thereafter, Servicer shall have delivered to Issuer, with a copy delivered to Indenture 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 in such Additional Accounts, as of the Addition Date, which computer file or microfiche list shall be as of the date of such Assignment, shall be incorporated into and made a part of such Assignment and this Agreement, and shall be subject to the confidentiality obligations under Section 2.02 hereof;
(iii) Transferor shall represent and warrant that (A) 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, (B) no selection procedures believed by Transferor to be materially adverse to the interests of the Noteholders were utilized in selecting the Additional Accounts from the available Eligible Accounts (or, in the case of Financial Institutions Accounts, from the available Financial Institutions Accounts constituting Eligible Accounts) and (C) as of the Addition Date, Transferor is not insolvent;
(iv) Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (A) a valid transfer and assignment to Issuer of all right, title and interest of Transferor in and to the Receivables then existing and thereafter created in the Additional Accounts, and all proceeds (as defined in the UCC) of such Receivables and Insurance Proceeds relating thereto and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be held by Issuer free and clear of any Lien, except for (1) Liens permitted under subsection 2.05(b), (2) the interest of the Holder of Transferor Interest and (3) Servicer's ’s right, if any, to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account, the Collection Account, the Principal Account, or any Series Account as provided in the Indenture and any related Indenture Supplement or (B) a grant of a first priority perfected security interest (as defined in the UCC) in such property to Issuer, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to Issuer, 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) thereof and Insurance Proceeds relating thereto upon such creation;
(v) Transferor shall deliver an Officer's ’s Certificate substantially in the form of Schedule 2 to Exhibit B to Issuer and Indenture Trustee (with a copy thereof to each Rating Agency); it being understood that Issuer and Indenture Trustee may conclusively rely on such Officer's ’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) Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Issuer and Indenture Trustee (with a copy to any of the Rating Agencies which shall have requested in writing such copies) substantially in the form of Exhibit EG; and
(vii) with respect to Financial Institutions Accounts or Accounts in excess of the Maximum Addition Amount, Transferor shall have received notice from each Rating Agency that the inclusion of such accounts as Additional Accounts pursuant to subsection 2.06(b) will not result in the reduction or withdrawal of its then existing rating of any Series of Notes then issued and outstanding.
Appears in 1 contract
Sources: Transfer and Servicing Agreement (First National Master Note Trust)
Addition of Accounts. (a) If, (i) during any Monthly Period ending on or after Period, the Certificate Trust Termination Date, Transferor Interest averaged over that period is less than the Minimum Transferor Interest (calculated using the Average Principal Receivables for such Monthly Period as the Aggregate aggregate Principal Receivables on the date of determination), the Transferor shall designate additional eligible MasterCard or VISA accounts ("Additional Accounts") to be included as Accounts in a sufficient amount such that the average of the Transferor Interest as a percentage of the Average Principal Receivables for such Monthly Period, computed by assuming that the amount of the Average Principal Receivables of such Additional Accounts shall be deemed to be outstanding in the Trust during each day of such Monthly Period, is at least equal to the Minimum Transferor Interest. For purposes , or (ii) on any Record Date the aggregate amount of the preceding sentence, the terms "Transferor Interest" and "Minimum Transferor Interest" shall have the meanings assigned to such terms Principal Receivables in the Pooling and Servicing Agreement with respect Trust is less than the Minimum Aggregate Principal Receivables, Transferor shall designate Additional Accounts to any day prior be included as Accounts in a sufficient amount such that the aggregate amount of Principal Receivables will be equal to or greater than the Certificate Trust Termination DateMinimum Aggregate Principal Receivables. Receivables from such Additional Accounts shall be transferred to Issuer the Trust on or before the tenth Business Day following such Monthly PeriodPeriod or Record Date; provided, however, that to the extent the Transferor designates Additional Accounts with Principal Receivables substantially in excess of the amount of Principal Receivables required under this subsection 2.06(a), such excess shall be deemed to be optional Additional Accounts under subsection 2.06(b) below and will be permitted to be so designated solely to the extent permitted by subsection 2.06(b).
(b) In addition to its obligation under subsection 2.06(a), the Transferor may, but shall not be obligated to, designate from time to time certain Additional Accounts (the "Automatic Additional Accounts") to be included as Accounts, provided that the Transferor shall not make more than one such designation in any one Monthly Period; and provided, further, that such Automatic Additional Accounts shall not exceed the Maximum Addition Amount or include Financial Institutions Accounts unless the Transferor shall have received the notice from the Rating Agencies required by subsection 2.06(c)(vii) below.
(c) The Transferor agrees that any such transfer of Receivables from Additional Accounts Accounts, under subsection 2.06(a) or (b) shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 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) (the "Notice Date"), the Transferor shall give Issuer, Indenture the Trustee, each Rating Agency and the Servicer written notice that such Additional Accounts will be included, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) on or before the Addition Date, the Transferor shall have delivered to Indenture Trustee, the Trustee a written assignment (including an acceptance by Issuerthe Trustee on behalf of the Trust for the benefit of the Investor Certificateholders) in substantially the form of Exhibit B (the "Assignment") and the Transferor shall direct the Servicer to indicate in its computer files (and to cause FNBO to indicate in its computer files) that the Receivables created in connection with the Additional Accounts have been transferred to Issuer the Trust and, within five Business Days thereafter, the Servicer shall have delivered to Issuer, with a copy delivered to Indenture Trustee, the 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 in such Additional Accounts, as of the Addition Date, which computer file or microfiche list shall be as of the date of such Assignment, shall be incorporated into and made a part of such Assignment and this Agreement, and shall be subject to the Trustee's confidentiality obligations under Section 2.02 hereof;
(iii) the Transferor shall represent and warrant that (A) 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, (B) no selection procedures believed by the Transferor to be materially adverse to the interests of the Noteholders Investor Certificateholders were utilized in selecting the Additional Accounts from the available Eligible Accounts (or, in the case of Financial Institutions Accounts, from the available Financial Institutions Accounts constituting Eligible Accounts) and (C) as of the Addition Date, the Transferor is not insolvent;
(iv) the Transferor shall represent and warrant that, as of the Addition Date, the Assignment constitutes either (A) a valid transfer and assignment to Issuer the Trust of all right, title and interest of the Transferor in and to the Receivables then existing and thereafter created in the Additional Accounts, and all proceeds (as defined in the UCC) of such Receivables and Insurance Proceeds relating thereto and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto will be held by Issuer the Trust free and clear of any Lien, except for (1) Liens permitted under subsection 2.05(b), (2) the interest of the Transferor as Holder of the Exchangeable Transferor Interest Certificate and (3) the Servicer's right, if any, to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account, the Collection Account, the Principal Account, or any Series Account as provided in the Indenture this Agreement and any related Indenture Supplement or (B) a grant of a first priority perfected security interest (as defined in the UCC) in such property to Issuerthe Trust, which is enforceable with respect to then existing Receivables of the Additional Accounts, the proceeds (as defined in the UCC) thereof and Insurance Proceeds relating thereto upon the conveyance of such Receivables to Issuerthe 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) thereof and Insurance Proceeds relating thereto upon such creation;
(v) the Transferor shall deliver an Officer's Certificate substantially in the form of Schedule 2 to Exhibit B to Issuer and Indenture the Trustee (with a copy thereof to each Rating Agency)) confirming the items set forth in paragraph (ii) above; it being understood that Issuer and Indenture 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 Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Issuer and Indenture the Trustee (with a copy to any of the Rating Agencies which shall have requested in writing such copies) substantially in the form of Exhibit E; and
(vii) with respect to Financial Institutions Accounts or Accounts in excess of the Maximum Addition Amount, the Transferor shall have received notice from each Rating Agency that the inclusion of such accounts as Additional Accounts pursuant to subsection 2.06(b) will not result in the reduction or withdrawal of its then existing rating of any Series of Notes Investor Certificates then issued and outstanding.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (First Bankcard Master Credit Card Trust)
Addition of Accounts. (a) If, during any Monthly Period ending on or after the Certificate Trust Termination Dateperiod of 30 consecutive days, Transferor Interest averaged over that period Average Aggregate Net Principal Receivables is less than the Minimum Transferor Interest (calculated using the Average Principal Receivables Aggregate Investor Amount averaged for such Monthly Period period, either Seller or the Servicer (whichever shall first become aware of same) promptly shall give the Trustee written notice thereof, and as the Aggregate Principal Receivables on the date of determination), Transferor soon as practicable (but in no event later than 10 Business Days thereafter) Seller shall designate additional eligible MasterCard or VISA accounts Eligible Accounts ("Additional Accounts") to be included as Accounts and shall transfer the Receivables in such Additional Accounts to the Trust, in a sufficient amount such so that the average of Transferor Interest as a percentage of the Average Aggregate Net Principal Receivables for during such Monthly Period30-day period would have, computed by assuming that if the amount of the Average Principal Receivables of such Additional Accounts shall be deemed to be outstanding in the Trust during each day of such Monthly Period, is at least equal to the Minimum Transferor Interest. For purposes of the preceding sentence, the terms "Transferor Interest" and "Minimum Transferor Interest" shall have the meanings assigned to such terms in the Pooling and Servicing Agreement with respect to any day prior to the Certificate Trust Termination Date. Receivables from such Additional Accounts shall be had been transferred to Issuer on or before the tenth Business Day following Trust during such Monthly Period; provided30- day period, however, that to at least equalled the extent Transferor designates Additional Accounts with Principal Receivables substantially in excess of the amount of Principal Receivables required under this subsection 2.06(a), Aggregate Investor Amount averaged for such excess shall be deemed to be optional Additional Accounts under subsection 2.06(b) below and will be permitted to be so designated solely to the extent permitted by subsection 2.06(b)period.
(b) In in addition to its obligation under subsection 2.06(a2.6(a), Transferor Seller may, but shall not be obligated to, designate from time to time certain time, designate Additional Accounts (the "Automatic Additional Accounts") to be included as Accounts, provided that Transferor shall not make more than one such designation in any one Monthly Period; and provided, further, that such Automatic Additional Accounts shall not exceed the Maximum Addition Amount or include Financial Institutions Accounts unless Transferor shall have received the notice from the Rating Agencies required by subsection 2.06(c)(vii) below.
(c) Transferor Seller agrees that any such transfer of Receivables from Additional Accounts shall be transferred by Seller to the Trust under subsection 2.06(a2.6(a), (b) or (be) shall satisfy upon and subject to the following conditions (to the extent provided below):conditions:
(i) on On or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 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) (the "Notice Date") prior to the Addition Date in respect of Additional Accounts added pursuant to subsection 2.6(a) or (b), Transferor Seller shall give Issuer, Indenture Trustee, each Rating Agency the Trustee and the Servicer written notice that such Additional Accounts will be included, which notice shall specify included and specifying the approximate aggregate amount of the Receivables to be transferred;
(ii) on Seller (A) shall transfer to the Trust Receivables only in Eligible Accounts, and (B) shall satisfy the applicable condition in accordance with subsection 2.6(f) if such designation of Additional Accounts is made pursuant to subsection 2.6(b) or before (e) and if the addition of such Additional Accounts
(1) would cause the quotient (the "Annual Quotient") of (x) the sum of the Annual Net 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 Net Account Additions after giving effect to such addition plus the related Base Amount divided by (y) the related Base Amount to exceed 1.15;
(iii) On or prior to the Addition Date, Transferor in respect of Additional Accounts added pursuant to subsection 2.6(a) or (b), Seller shall have delivered to Indenture Trustee, the Trustee a written assignment transfer agreement (including an acceptance by Issuerthe Trustee on behalf of the Trust for the benefit of the Investor Certificateholders) in substantially the form of Exhibit B (the --------- "AssignmentTransfer Agreement") and Transferor shall direct Servicer to indicate have indicated in its books and records, including the computer files (and to cause FNBO to indicate in its computer files) of the Receivables, that the Receivables created in connection with the Additional Accounts have been transferred by Seller to Issuer and, within five Business Days thereafter, Servicer the Trust; and shall have delivered to Issuer, with a copy delivered to Indenture Trustee, the Trustee a computer file or microfiche list containing a true and complete list of all Additional Accounts, Accounts identified by account number and the aggregate amount of the Receivables in such Additional Accounts, by Receivable balance as of the Addition DateDate in respect of Additional Accounts added pursuant to subsection 2.6(a) or (b), which computer file or microfiche list shall be marked as Schedule I to the Transfer Agreement, delivered to the Trustee as ---------- confidential and proprietary, shall be as of the date of such Assignment, shall be Transfer Agreement and incorporated into and made a part of such Assignment Transfer Agreement and this Agreement, and shall be subject to the confidentiality obligations under Section 2.02 hereof;
(iiiiv) Transferor Seller shall be deemed to represent and warrant that (Aw) as of the Addition Date, Schedule 1 to the Transfer Agreement and the computer file or microfiche list delivered pursuant to subsection 2.6(c) is an accurate and complete listing in all material respects of all the Additional Accounts as of the Addition Date and the information contained therein with respect to the identity of such Additional Accounts and the Receivables existing thereunder is true and correct in all material respects as of the Addition Date, (x) 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, (By) no selection procedures reasonably believed by Transferor Seller to be materially adverse to the interests of the Noteholders Investor Certificateholders were utilized in selecting the Additional Accounts from the available Eligible Accounts (or, in the case of Financial Institutions Accounts, from the available Financial Institutions Accounts constituting Eligible Accounts) and (Cz) as of the Addition Date, Transferor Seller is not insolventinsolvent and will not be rendered insolvent by adding any such Additional Account to any Cycle;
(ivv) Transferor Seller shall be deemed to represent and warrant that, as of the Addition Date, the Assignment Transfer Agreement constitutes either (Ax) a valid transfer and assignment to Issuer the Trust of all right, title and interest of Transferor in Seller in, to and to under the Receivables then existing and thereafter created arising in respect of the Additional Accounts, all monies due or to become due with respect thereto (including all Finance Charge Receivables), and all proceeds (including, without limitation, as defined in the UCCUCC as in effect in the State of Illinois) of such Receivables and Insurance Proceeds relating thereto thereto, and such Receivables and all proceeds thereof and Insurance Proceeds relating thereto property will be held owned by Issuer the Trust free and clear of any LienLien of any Person, except for (1i) Liens permitted under subsection 2.05(b2.5(b), (2ii) the interest of Seller as holder of the Holder of Transferor Interest Exchangeable Seller Certificate and (3iii) ServicerSeller's right, if any, right to receive interest accruing on, and investment earnings in respect of, the Finance Charge Account, the Collection Account, the Principal Account, Account or any Series Account as provided in the Indenture this Agreement and any related Indenture Supplement Supplement, or (By) a grant of a first priority perfected security interest (as defined in the UCCUCC as in effect in the State of Illinois) in such property to Issuerthe Trust, 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 (as defined in the UCC) thereof and Recoveries and Insurance Proceeds relating thereto upon the conveyance transfer of such Receivables to Issuerthe Trust, and which will be enforceable with respect to the Receivables thereafter created transferred in respect of Additional Accounts conveyed on such Addition DateAccounts, the proceeds (as defined in the UCC) thereof and Insurance Proceeds relating thereto upon such creation;
transfer; and (vz) Transferor shall deliver an Officer's Certificate substantially if the Transfer 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 form case of Schedule 2 the Receivables of Additional Accounts thereafter transferred and the proceeds thereof, and Insurance Proceeds relating to Exhibit B to Issuer and Indenture Trustee (with a copy thereof to each Rating Agency); it being understood that Issuer and Indenture Trustee may conclusively rely on such Officer's CertificateReceivables, upon such transfer, the Trust shall have no duty a first priority perfected security interest in such property, except for Liens permitted under subsection 2.5(b), the interest of Seller as holder of the Exchangeable Seller Certificate and Seller's right to make inquiries with regard to receive interest accruing on, and investment earnings in respect of, the matters set forth therein Collection Account or any Series Account, as provided in this Agreement and shall incur no liability in so relyingany Supplement;
(vi) Transferor shall Seller shall, on the Addition Date for Additional Accounts added pursuant to subsection 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 subsection 2.6(a) or (b), deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Issuer and Indenture the Trustee (with a copy to any of the Rating Agencies which shall have requested in writing such copies) substantially in the form of Exhibit E; andC. ---------
(viid) Seller shall provide to each Rating Agency and to each Enhancement Provider prior written notice each time Additional Accounts are added pursuant to subsection 2.6(a) or (b).
(e) In addition to the occasional designation of Additional Accounts as required or permitted pursuant to subsections 2.6(a) and (b) above, Seller agrees that each new Charge Account originated in the normal course of FCNB's business and assigned to an Included Cycle after the Cut Off Date and purchased by Seller pursuant to the Receivables Purchase Agreement shall automatically be included as an Account (and the Receivables arising thereunder automatically transferred to the Trust) effective on the tenth Business Day following the end of the monthly Period in which such account is assigned to such billing cycle; provided, however, that such automatic inclusion and transfer shall not occur with respect to Financial Institutions Accounts or Accounts any such account if: (i) such account does not qualify as an Eligible Account, (ii) the inclusion in excess the Trust of the Maximum Addition AmountReceivables in such Account, Transferor if such Accounts had been designated by Seller pursuant to subsection 2.6(b), would have caused the limitations set forth in subsection 2.6(c)(ii) to be exceeded (unless the Seller shall have received satisfied any applicable condition to such addition), or (iii) Seller otherwise designates such account as an account which is not to be included as an Account pursuant to this subsection 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 (i) indicate in its books and records, including the computer files of the receivables, that the Receivables created in connection with such included Accounts have been transferred to the Trust, and (ii) shall deliver to the Trustee a computer file or microfiche list containing a true and complete list of all such included Accounts identified by account number and by the Receivables balance as of the end of such calendar month, which computer file or microfiche list shall be delivered to the Trustee as confidential and proprietary and incorporated into and made a part of this Agreement. The Seller, at its option, may, by providing written notice from each Rating Agency that to the Trustee and the Servicer, terminate or suspend the inclusion of such accounts as Automatic Additional Accounts pursuant at any time.
(i) The Rating Agency Condition shall be applicable and must be satisfied whenever the Quarterly Quotient exceeds the amount set forth in subsection 2.6(c)(ii)(B)(2) or whenever the Annual Quotient exceeds 1.30.
(ii) If the Annual Quotient exceeds 1.20 but is less than or equal to subsection 2.06(b1.30 the Seller may at its option satisfy either the Rating Agency Condition or the Additional Accounts Enhancement Increase Condition. If no outstanding Series specifies an Additional Accounts Enhancement Increase Condition, then this clause (ii) will shall not result in be applicable to the reduction or withdrawal addition of its then existing rating of any Series of Notes then issued and outstandingAdditional Accounts.
Appears in 1 contract
Sources: Pooling and Servicing Agreement (Spiegel Credit Corp Iii)