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Exhibit 4.3
EXECUTION COPY
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ASSOCIATES CREDIT CARD MASTER NOTE TRUST
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TRANSFER AND SERVICING AGREEMENT
among
ASSOCIATES CREDIT CARD RECEIVABLES CORP.,
Transferor,
ASSOCIATES NATIONAL BANK (DELAWARE),
Servicer,
and
ASSOCIATES CREDIT CARD MASTER NOTE TRUST,
Issuer
Dated as of April 1, 2000
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ARTICLE I
DEFINITIONS
Section 1.02. Other Definitional Provisions.....................................................14
ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables.........................................................16
Section 2.02. Acceptance by Trust...............................................................17
Section 2.03. Representations and Warranties of Each Transferor Relating to Such
Transferor........................................................................18
Section 2.04. Representations and Warranties of each Transferor Relating to the
Agreement and Any Participation Interest Supplement and the Receivables...........19
Section 2.05. Reassignment of Ineligible Receivables............................................21
Section 2.06. Reassignment of Trust Portfolio...................................................22
Section 2.07. Covenants of each Transferor......................................................23
Section 2.08. Covenants of each Transferor with Respect to the Applicable Transferor
Purchase Agreement................................................................26
Section 2.09. Addition of Accounts..............................................................27
Section 2.10. Removal of Accounts and Participation Interests...................................31
Section 2.11. Account Allocations...............................................................33
Section 2.12. Discount Option...................................................................34
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01. Acceptance of Appointment and Other Matters Relating to the Servicer..............35
Section 3.02. Servicing Compensation............................................................36
Section 3.03. Representations, Warranties and Covenants of the Servicer.........................36
Section 3.04. Reports and Records for the Owner Trustee and the Indenture Trustee...............39
Section 3.05. Annual Certificate of Servicer....................................................39
Section 3.06. Annual Servicing Report of Independent Public Accountants; Copies of
Reports Available.................................................................39
Section 3.07. Tax Treatment.....................................................................40
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Section 3.08. Notices to ANB....................................................................40
Section 3.09. Adjustments.......................................................................40
Section 3.10. Reports to the Commission.........................................................41
ARTICLE IV
OTHER MATTERS RELATING TO EACH TRANSFEROR
Section 4.01. Liability of each Transferor......................................................42
Section 4.02. Merger or Consolidation of, or Assumption of the Obligations of, a
Transferor........................................................................42
Section 4.03. Limitations on Liability of Each Transferor.......................................43
ARTICLE V
OTHER MATTERS RELATING TO THE SERVICER
Section 5.01. Liability of the Servicer.........................................................44
Section 5.02. Merger or Consolidation of, or Assumption of the Obligations of, the
Servicer..........................................................................44
Section 5.03. Limitation on Liability of the Servicer and Others................................44
Section 5.04. Servicer Indemnification of the Trust, the Owner Trustee and the Indenture
Trustee...........................................................................45
Section 5.05. Resignation of the Servicer.......................................................45
Section 5.06. Access to Certain Documentation and Information Regarding the Receivables.........46
Section 5.07. Delegation of Duties..............................................................46
Section 5.08. Examination of Records............................................................46
ARTICLE VI
INSOLVENCY EVENTS
Section 6.01. Rights upon the Occurrence of an Insolvency Event.................................47
ARTICLE VII
SERVICER DEFAULTS
Section 7.01. Servicer Defaults.................................................................48
Section 7.02. Indenture Trustee To Act; Appointment of Successor................................50
Section 7.03. Notification to Noteholders.......................................................51
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ARTICLE VIII
TERMINATION
Section 8.01. Termination of Agreement..........................................................52
ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment; Waiver of Past Defaults................................................53
Section 9.02. Protection of Right, Title and Interest to Trust..................................54
Section 9.03. Governing Law.....................................................................55
Section 9.04. Notices; Payments.................................................................56
Section 9.05. Severability of Provisions........................................................56
Section 9.06. Further Assurances................................................................56
Section 9.07. No Waiver; Cumulative Remedies....................................................56
Section 9.08. Counterparts......................................................................57
Section 9.09. Third-Party Beneficiaries.........................................................57
Section 9.10. Actions by Noteholders............................................................57
Section 9.11. Rule 144A Information.............................................................57
Section 9.12. Merger and Integration............................................................57
Section 9.13. Headings..........................................................................57
Section 9.14. Limitation of Liability...........................................................57
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EXHIBITS
EXHIBIT A Form of Assignment of Receivables in Additional Accounts..................................A-1
EXHIBIT B Form of Reassignment of Receivables in Removed Accounts...................................B-1
EXHIBIT C Form of Annual Servicer's Certificate.....................................................C-1
EXHIBIT D-1 Form of Opinion of Counsel with Respect to Amendments...................................D-1-1
EXHIBIT D-2 Form of Opinion of Counsel with Respect to Accounts.....................................D-2-1
EXHIBIT D-3 Provisions to be Included in Annual Opinion of Counsel..................................D-3-1
SCHEDULES
SCHEDULE 1 List of Accounts..........................................................................S-1
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TRANSFER AND SERVICING AGREEMENT, dated as of April 1, 2000
among ASSOCIATES CREDIT CARD RECEIVABLES CORP., a Delaware corporation, as
Transferor; ASSOCIATES NATIONAL BANK (DELAWARE), a national banking association,
as Servicer; and ASSOCIATES CREDIT CARD MASTER NOTE TRUST, a Delaware business
trust, as Issuer.
In consideration of the mutual agreements herein contained,
each party agrees as follows for the benefit of the other parties, the
Noteholders and any Series Enhancer (as defined below) to the extent provided
herein, in the Indenture and in any Indenture Supplement:
ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Agreement,
the following words and phrases shall have the following meanings, and the
definitions of such terms are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such terms.
"Account" shall mean (a) each Initial Account, (b) each
Additional Account (but only from and after the Addition Date with respect
thereto), (c) each Related Account, and (d) each Transferred Account, but shall
exclude (e) any Account all the Receivables in which are either: (i) after the
Removal Date, removed by the Transferor pursuant to Section 2.10, (ii)
reassigned to the Transferor pursuant to Section 2.05 or (iii) assigned and
transferred to the Servicer pursuant to Section 3.03.
"Account Owner" shall mean ANB or any Affiliate which is the
issuer of the credit card relating to an Account pursuant to a Credit Card
Agreement.
"ACCR" shall mean Associates Credit Card Receivables Corp., a
Delaware corporation, and its successors and permitted assigns.
"ACCS" shall mean Associates Credit Card Services, Inc., a
Delaware corporation, and its successors and permitted assigns.
"ACCS Receivables Purchase Agreement" shall mean the
receivables purchase agreement, dated as of April 1, 2000, between ACCS and
ACCR, as amended from time to time.
"Addition Date" shall mean (i) with respect to Aggregate
Addition Accounts, the date from and after which such Aggregate Addition
Accounts are to be included as Accounts pursuant to subsection 2.09(a) or (b),
(ii) with respect to Participation Interests, the date from and after which such
Participation Interests are to be included as assets of the Trust pursuant to
subsection 2.09(a) or (b), and (iii) with respect to New Accounts, the first
Distribution Date following the later of the dates on which such New Accounts
are originated or designated pursuant to subsection 2.09(d).
"Additional Account" shall mean each New Account and each
Aggregate Addition Account.
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"Additional Cut-Off Date" shall mean (i) with respect to
Aggregate Addition Accounts or Participation Interests, the date specified as
such in the notice delivered with respect thereto pursuant to subsection 2.09(c)
and (ii) with respect to New Accounts, the later of the dates on which such New
Accounts are originated or designated pursuant to subsection 2.09(d).
"Additional Transferors" shall have the meaning specified in
subsection 2.09(g).
"Adverse Effect" shall mean, with respect to any action, that
such action will (a) result in the occurrence of a Pay Out Event or an Event of
Default or (b) materially and adversely affect the amount or timing of
distributions to be made to the Noteholders of any Series or Class pursuant to
this Agreement, the Indenture or the related Indenture Supplement.
"AFCC" shall mean Associates First Capital Corporation, a
Delaware corporation, and its successors and permitted assigns.
"Affiliate" shall mean, with respect to any specified Person,
any other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "CONTROL" shall mean the
power to direct the management and policies of a Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "CONTROLLING" and "CONTROLLED" have meanings correlative to the
foregoing.
"Affinity Agreement" shall mean (a) a written agreement
between ANB or other Account Owner, as the case may be, and any merchant
pursuant to which such merchant sells, assigns or otherwise transfers to ANB or
other Account Owner, as the case may be, certain Credit Card Agreements between
such merchant and Obligors, including all such merchant's rights and interests
in the Accounts and Receivables arising under such Credit Card Agreements, or
(b) a written agreement between ANB or other Account Owner, as the case may be,
and any merchant or co-branding participant establishing co-branded credit card
programs pursuant to which ANB will enter into Credit Card Agreements with
Obligors.
"Aggregate Addition" shall mean the designation of additional
Eligible Accounts, other than New Accounts, to be included as Accounts or of
Participation Interests to be included as Trust Assets pursuant to subsection
2.09(a) or (b).
"Aggregate Addition Account" shall mean each Eligible Account
designated pursuant to subsection 2.09(a) or (b) to be included as an Account
and identified in the computer file or microfiche list delivered to the Owner
Trustee by the Transferor pursuant to Section 2.01 and subsection 2.09(h).
"Agreement" shall mean this Transfer and Servicing Agreement,
as the same may be amended, supplemented or otherwise modified from time to
time.
"ANB" shall mean Associates National Bank (Delaware), a
national banking association, and its successors and permitted assigns.
"Appointment Date" shall have the meaning specified in Section
6.01.
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"Assignment" shall have the meaning specified in subsection
2.09(h).
"Authorized Newspaper" shall mean any newspaper or newspapers
of general circulation in the Borough of Manhattan, the City of New York,
printed in the English language (and, with respect to any Series or Class, if
and so long as the Notes of such Series are (i) listed on the Luxembourg Stock
Exchange and such Exchange shall so require, in Luxembourg, printed in any
language satisfying the requirements of such Exchange or (ii) Bearer Notes, in
such place as may be specified in the applicable Indenture Supplement) and
customarily published on each business day at such place, whether or not
published on Saturdays, Sundays or holidays.
"Average Principal Receivables" shall mean, for any period, an
amount equal to (a) the sum of the aggregate amount of Principal Receivables at
the end of each day during such period divided by (b) the number of days in such
period.
"Average Rate" shall mean, as of any date of determination and
with respect to any Group, the percentage equivalent of a decimal equal to the
sum of the amounts for each outstanding Series (or each Class within any Series
consisting of more than one Class) within such Group obtained by multiplying (a)
the Note Interest Rate (reduced to take into account the payments received
pursuant to any interest rate agreements net of any amounts payable under such
agreements, or, if such agreements result in a net amount payable, increased by
such net amount payable) for such Series or Class, by (b) a fraction, the
numerator of which is the aggregate unpaid principal amount of the Notes of such
Series or Class and the denominator of which is the aggregate unpaid principal
amount of all Notes within such Group.
"Bearer Notes" shall have the meaning specified in the
Indenture.
"Business Day" shall mean any day other than (a) a Saturday or
Sunday or (b) any other day on which national banking associations or state
banking institutions in New York, New York, Delaware or any other state in which
the principal executive offices of ANB, the Owner Trustee, the Indenture Trustee
or other Account Owner, as the case may be, are located, are authorized or
obligated by law, executive order or governmental decree to be closed or (c) for
purposes of any particular Series, any other day specified in the related
Indenture Supplement.
"Cash Advance Fees" shall mean cash advance transaction fees
and cash advance late fees, if any, as specified in the Credit Card Agreement
applicable to each Account.
"Class" shall have the meaning specified in the Indenture.
"Closing Date" shall mean, with respect to any Series, the
closing date specified in the related Indenture Supplement.
"Collections" shall mean all payments by or on behalf of
Obligors (including Insurance Proceeds) received in respect of the Receivables,
in the form of cash, checks, wire transfers, electronic transfers, ATM transfers
or any other form of payment in accordance with a Credit Card Agreement in
effect from time to time and all other amounts specified by this Agreement, the
Indenture or any Indenture Supplement as constituting Collections. As specified
in any Participation Interest Supplement or Indenture Supplement, Collections
shall include amounts received with respect to Participation Interests. All
Recoveries with respect to
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Receivables previously charged off as uncollectible will be treated as
Collections of Finance Charge Receivables. Collections with respect to any
Monthly Period shall include a portion, calculated pursuant to subsection
2.07(i), of Interchange paid to the Trust with respect to such Monthly Period,
to be applied as if such amount were Collections of Finance Charge Receivables
for all purposes.
"Corporate Trust Office" shall have the meaning (a) when used
in respect of the Owner Trustee, specified in the Trust Agreement and (b) when
used in respect of the Indenture Trustee, specified in the Indenture.
"Coupon" shall have the meaning specified in the Indenture.
"Credit Card Agreement" shall mean, with respect to a
revolving credit card account, the agreements between an Account Owner and the
Obligor governing the terms and conditions of such account, as such agreements
may be amended, modified or otherwise changed from time to time and as
distributed (including any amendments and revisions thereto) to holders of such
account.
"Credit Card Guidelines" shall mean the respective policies
and procedures of ANB or any other Account Owner, as the case may be, as such
policies and procedures may be amended from time to time, (a) relating to the
operation of its credit card business, which generally are applicable to its
portfolio of revolving credit card accounts or, in the case of an Account Owner
that has only a portion of its portfolio subject to a Receivables Purchase
Agreement, applicable to such portion of its portfolio, and in each case which
are consistent with prudent practice, including the policies and procedures for
determining the creditworthiness of credit card customers and the extension of
credit to credit card customers, and (b) relating to the maintenance of credit
card accounts and collection of credit card receivables.
"Date of Processing" shall mean, with respect to any
transaction or receipt of Collections, the date on which such transaction is
first recorded on the Servicer's computer file of revolving credit card accounts
(without regard to the effective date of such recordation).
"Defaulted Amount" shall mean, with respect to any Monthly
Period, an amount (which shall not be less than zero) equal to (a) the amount of
Principal Receivables which became Defaulted Receivables in such Monthly Period,
minus (b) the amount of any Defaulted Receivables of which the Transferor or the
Servicer became obligated to accept reassignment or assignment in accordance
with the terms of this Agreement during such Monthly Period; provided, however,
that, if an Insolvency Event occurs with respect to the Transferor, the amount
of such Defaulted Receivables which are subject to reassignment to the
Transferor in accordance with the terms of this Agreement shall not be added to
the sum so subtracted and, if any of the events described in subsection 7.01(d)
occur with respect to the Servicer, the amount of such Defaulted Receivables
which are subject to reassignment or assignment to the Servicer in accordance
with the terms of this Agreement shall not be added to the sum so subtracted.
"Defaulted Receivables" shall mean, with respect to any
Monthly Period, all Principal Receivables which are charged off as uncollectible
in such Monthly Period in accordance with the Credit Card Guidelines and the
Servicer's customary and usual servicing
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procedures for servicing revolving credit card accounts. A Principal Receivable
shall become a Defaulted Receivable on the day on which such Principal
Receivable is recorded as charged-off on the Servicer's computer file of
revolving credit card accounts.
"Discount Option Collections" shall have the meaning specified
in Section 2.12. The aggregate amount of Discount Option Collections on any Date
of Processing shall equal the product of (a) the amount of any Collections of
Principal Receivables received on such Date of Processing and (b) the Discount
Percentage, if any, in effect on such Date of Processing.
"Discount Option Date" shall have the meaning specified in
Section 2.12.
"Discount Percentage" shall have the meaning specified in
Section 2.12.
"Distribution Date" shall mean, with respect to any Series,
the date specified in the applicable Indenture Supplement.
"Document Delivery Date" shall have the meaning specified in
subsection 2.09(h).
"Dollars," "$" or "U.S. $" shall mean United States dollars.
"Early Accumulation Period" shall have the meaning, with
respect to any Series, specified in the related Indenture Supplement.
"Eligible Account" shall mean a consumer revolving credit card
account owned by ANB in the case of the Initial Accounts on the Initial Cut-Off
Date, or ANB or other Account Owner, in the case of Additional Accounts after
the Initial Cut-Off Date which, as of the Initial Cut-Off Date with respect to
an Initial Account or as of the Additional Cut-Off Date with respect to an
Additional Account meets the following requirements:
(a) is a revolving credit card account in existence and
maintained by ANB or other Account Owner, as the case may be;
(b) is payable in Dollars;
(c) has a cardholder who has provided, as his or her most
recent billing address, an address located in the United States or its
territories or possessions or a military address;
(d) except as provided below, has a cardholder who has not
been identified by the Servicer in its computer files as being involved in a
voluntary or involuntary bankruptcy proceeding;
(e) has not been identified as an account with respect to
which the related card has been lost or stolen;
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(f) has not been sold or pledged to any other party except for
any sale to another Account Owner that has either entered into a Receivables
Purchase Agreement or is an Additional Transferor;
(g) does not have receivables which have been sold or pledged
by ANB or any other Account Owner, as the case may be, to any other party other
than ANB or ACCS pursuant to a Receivables Purchase Agreement;
(h) with respect to the Initial Accounts, is an account in
existence and maintained by ANB as of the Initial Cut-Off Date or the Additional
Cut-Off Date with respect to Additional Accounts;
(i) except as provided below, does not have any Receivables
that are Defaulted Receivables;
(j) does not have any Receivables that have been identified by
the Servicer or the relevant Obligor as having been incurred as a result of
fraudulent use of any related credit card; and
(k) except as provided below, does not have any Receivables
that are more than 180 days past due from the date of the initial billing
statement.
Eligible Accounts may include Accounts, the Receivables of
which have been charged off, or with respect to which the Servicer believes the
related Obligor is bankrupt, in each case as of the Initial Cut-Off Date, with
respect to the Initial Accounts, and as of the related Additional Cut-Off Date,
with respect to Additional Accounts; provided that (a) the balance of all
Receivables included in such Accounts is reflected on the books and records of
such Transferor (and is treated for purposes of this Agreement) as "zero" and
(b) charging privileges with respect to all such Accounts have been canceled in
accordance with the relevant Credit Card Guidelines.
"Eligible Receivable" shall mean each Receivable, including,
where applicable, the underlying receivable:
(a) which has arisen in an Eligible Account;
(b) which was created in compliance in all material respects
with all Requirements of Law applicable to the institution which owned such
Receivable at the time of its creation and pursuant to a Credit Card Agreement
which complies in all material respects with all Requirements of Law applicable
to ANB or other Account Owner, as the case may be;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given in connection with the
creation of such Receivable or the execution, delivery and performance by ANB or
other Account Owner, as the case may be, of the Credit Card Agreement pursuant
to which such Receivable was created, have been duly obtained, effected or given
and are in full force and effect;
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(d) as to which at the time of the transfer of such Receivable
to the Trust, the Transferor or the Trust will have good and marketable title
thereto and which itself is, and the underlying receivables are, free and clear
of all Liens (other than any Lien for municipal or other local taxes if such
taxes are not then due and payable or if the Transferor is then contesting the
validity thereof in good faith by appropriate proceedings and has set aside on
its books adequate reserves with respect thereto);
(e) which has been the subject of either a valid transfer and
assignment from the Transferor to the Trust of all the Transferor's right, title
and interest therein (including any proceeds thereof), or the grant of a first
priority perfected security interest therein (and in the proceeds thereof),
effective until the termination of the Trust;
(f) which at all times will be the legal, valid and binding
payment obligation of the Obligor thereon enforceable against such Obligor in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity);
(g) which, at the time of transfer to the Trust, has not been
waived or modified except as permitted in accordance with the Credit Card
Guidelines and which waiver or modification is reflected in the Servicer's
computer file of revolving credit card accounts;
(h) which, at the time of transfer to the Trust, is not
subject to any right of rescission, setoff, counterclaim or any other defense
(including defenses arising out of violations of usury laws) of the Obligor,
other than defenses arising out of applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights in general;
(i) as to which, at the time of transfer to the Trust, ANB or
other Account Owner, as the case may be, has satisfied all of its obligations
required to be satisfied by such time;
(j) as to which, at the time of transfer to the Trust, none of
the Transferor, ACCS, ANB or any other Account Owner, as the case may be, has
taken any action which would impair, or omitted to take any action the omission
of which would impair, the rights of the Trust or the Noteholders therein; and
(k) which constitutes either an "account" or a "general
intangible" under and as defined in Article 9 of the UCC as then in effect in
the State of Delaware and any other state where the filing of a financing
statement is required to perfect the Trust's interest in the Receivables and the
proceeds thereof.
"Eligible Servicer" shall mean the Indenture Trustee or, if
the Indenture Trustee is not acting as Servicer, an entity which, at the time of
its appointment as Servicer, (a) is servicing a portfolio of revolving credit
card accounts, (b) is legally qualified and has the capacity to service the
Accounts, (c) in the sole determination of the Indenture Trustee, which
determination shall be conclusive and binding, has demonstrated the ability to
service professionally and
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competently a portfolio of similar accounts in accordance with high standards of
skill and care, (d) is qualified to use the software that is then being used to
service the Accounts or obtains the right to use or has its own software which
is adequate to perform its duties under this Agreement and (e) has a net worth
of at least $50,000,000 as of the end of its most recent fiscal quarter.
"Event of Default" shall have the meaning specified in the
Indenture.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any successor.
"Finance Charge Receivables" shall mean all amounts billed to
the Obligors on any Account in respect of (a) all Periodic Rate Finance Charges,
(b) Cash Advance Fees, (c) annual membership fees and annual service charges,
(d) Late Fees, (e) Overlimit Fees, and (f) any other fees with respect to the
Accounts designated by the Transferor at any time and from time to time to be
included as Finance Charge Receivables. Finance Charge Receivables shall also
include the interest portion of Participation Interests as shall be determined
pursuant to, and only if so provided in, the applicable Participation Interest
Supplement or Indenture Supplement for any Series.
"Fitch" shall mean Fitch IBCA, Inc. or its successors.
"Governmental Authority" shall mean the United States of
America, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Indenture" shall mean the Master Indenture, dated as of April
1, 2000, between the Issuer and the Indenture Trustee, as the same may be
amended, supplemented or otherwise modified from time to time.
"Indenture Supplement" shall have the meaning specified in the
Indenture.
"Indenture Trustee" shall mean The Bank of New York, in its
capacity as trustee under the Indenture, its successors in interest and any
successor indenture trustee under the Indenture.
"Independent Director" shall have the meaning specified in
subsection 2.07(h)(vii).
"Ineligible Receivables" shall have the meaning specified in
subsection 2.05(a).
"Initial Account" shall mean each MasterCard(R) and VISA(R)(1)
consumer revolving credit card account established pursuant to a Credit Card
Agreement between ANB and any Person, which account is identified in the
computer file or microfiche list delivered to the Owner Trustee by the
Transferor pursuant to Section 2.01 on the Initial Issuance Date.
"Initial Cut-Off Date" shall mean April 5, 2000.
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(1) / MasterCard and VISA are registered trademarks of MasterCard International
Incorporated and VISA USA, Inc., respectively.
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"Initial Issuance Date" shall mean April 7, 2000, the date the
Transferor's Certificate is delivered by the Trust to the Transferor pursuant to
the Trust Agreement.
"Insolvency Event" shall have the meaning specified in Section
6.01.
"Insurance Proceeds" shall mean any amounts received pursuant
to the payment of benefits under any credit life insurance policies, credit
disability or unemployment insurance policies covering any Obligor with respect
to Receivables under such Obligor's Account.
"Interchange" shall mean interchange fees payable to ANB or
any other Account Owner, in its capacity as credit card issuer, through
MasterCard or VISA in connection with cardholder charges for goods or services
with respect to the Accounts, as calculated pursuant to the related Indenture
Supplement for any Series. Any reference in this Agreement, the Indenture or any
Indenture Supplement to Interchange shall refer to only the fractional undivided
interest in the interchange fees that are transferred by ANB or another Account
Owner to ACCS pursuant to a Receivables Purchase Agreement that are thereafter
transferred by ACCS to a Transferor pursuant to a Transferor Purchase Agreement
(or if such other Account Owner is an Additional Transferor, transferred
directly to the Trust pursuant to this Agreement), which fractional undivided
interest may be less than a 100% interest therein.
"Invested Amount" shall mean, with respect to any Series and
for any date, an amount equal to the invested amount or adjusted invested
amount, as applicable, specified in the related Indenture Supplement.
"Issuer" shall mean the Trust.
"Late Fees" shall have the meaning specified in the Credit
Card Agreement applicable to each Account for late fees or similar terms.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, equity interest, encumbrance,
lien (statutory or other), preference, participation interest, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever,
including any conditional sale or other title retention agreement, any financing
lease having substantially the same economic effect as any of the foregoing and
the filing of any financing statement under the UCC or comparable law of any
jurisdiction to evidence any of the foregoing; provided, however, that any
assignment permitted by subsection 3.06(b) of the Trust Agreement or Section
4.02 of, and the lien created by, this Agreement shall not be deemed to
constitute a Lien.
"MasterCard" shall mean MasterCard International Incorporated,
and its successors in interest.
"Monthly Period" shall have the meaning specified in the
Indenture.
"Monthly Servicing Fee" shall have the meaning specified in
Section 3.02.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or its
successor.
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"New Account" shall mean each MasterCard and VISA consumer
revolving credit card account established pursuant to a Credit Card Agreement,
which account is designated pursuant to subsection 2.09(d) to be included as an
Account and is identified in the computer file or microfiche list delivered to
the Owner Trustee by the Transferor pursuant to Section 2.01 and subsection
2.09(h).
"Note Interest Rate" shall have the meaning specified in the
Indenture.
"Note Owner" shall have the meaning specified in the
Indenture.
"Note Register" shall have the meaning specified in the
Indenture.
"Noteholder" or "Holder" shall have the meaning specified in
the Indenture.
"Notices" shall have the meaning specified in subsection
9.04(a).
"Obligor" shall mean, with respect to any Account, the Person
or Persons obligated to make payments with respect to such Account, including
any guarantor thereof, but excluding any merchant.
"Officer's Certificate" shall have the meaning specified in
the Indenture.
"Opinion of Counsel" shall have the meaning specified in the
Indenture.
"Overlimit Fees" shall have the meaning specified in the
Credit Card Agreement applicable to each Account for overlimit fees or similar
terms if such fees are provided for with respect to such Account.
"Owner Trustee" shall mean Wilmington Trust Company, not in
individual its capacity, but solely as owner trustee under the Trust Agreement,
its successors in interest and any successor owner trustee under the Trust
Agreement.
"Participation Interest Supplement" shall mean a supplement to
this Agreement entered into pursuant to subsection 2.09(a)(ii) or (b) in
connection with the conveyance of Participation Interests to the Trust.
"Participation Interests" shall have the meaning specified in
subsection 2.09(a)(ii).
"Pay Out Event" shall have the meaning specified in the
Indenture.
"Paying Agent" shall have the meaning specified in the
Indenture.
"Periodic Rate Finance Charges" shall have the meaning
specified in the Credit Card Agreement applicable to each Account for finance
charges (due to periodic rate) or any similar term.
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"Person" shall mean any legal person, including any
individual, corporation, limited liability company, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization,
governmental entity or other entity of any nature.
"Portfolio Yield" shall have the meaning specified in the
Indenture Supplement.
"Principal Funding Account" shall have the meaning, with
respect to any Series, specified in the related Indenture Supplement.
"Principal Funding Account Balance" shall have the meaning,
with respect to any Series, specified in the related Indenture Supplement.
"Principal Receivables" shall mean all Receivables other than
Finance Charge Receivables or Defaulted Receivables. Principal Receivables shall
also include the principal portion of Participation Interests as shall be
determined pursuant to, and only if so provided in, the applicable Participation
Interest Supplement or Indenture Supplement for any Series. In calculating the
aggregate amount of Principal Receivables on any day, the amount of Principal
Receivables shall be reduced by the aggregate amount of credit balances in the
Accounts on such day. Any Principal Receivables which the Transferor is unable
to transfer as provided in Section 2.11 shall not be included in calculating the
amount of Principal Receivables.
"Rating Agency" shall have the meaning specified in the
Indenture.
"Rating Agency Condition" shall have the meaning specified in
the Indenture.
"Reassignment" shall have the meaning specified in Section
2.10.
"Receivables" shall mean all amounts shown on the Servicer's
records as amounts payable by Obligors on any Account from time to time,
including amounts payable for Principal Receivables and Finance Charge
Receivables. Receivables which become Defaulted Receivables will cease to be
included as Receivables as of the day on which they become Defaulted
Receivables. Unless the context otherwise requires (whether or not there is a
specific reference to the underlying receivable), any reference in this
Agreement, the Indenture or any Indenture Supplement to a Receivable (including
any Principal Receivable, Finance Charge Receivable or Defaulted Receivable) and
any Collections thereon or other amounts recoverable with respect thereto
(including any Insurance Proceeds or Recoveries with respect thereto) shall
refer to only the fractional undivided interest in the amounts paid or payable
by Obligors on the Accounts that are transferred by ANB or another Account Owner
to ACCS pursuant to a Receivables Purchase Agreement and that are thereafter
transferred by ACCS to a Transferor pursuant to a Transferor Purchase Agreement,
which undivided interest may be less than a 100% undivided interest therein. Any
reference in this Agreement, the Indenture or any Indenture Supplement to the
"underlying receivable" with respect to a Receivable shall refer to the
receivable in which such Receivable represents an undivided interest.
"Receivables Purchase Agreement" shall mean the receivables
purchase agreement, dated as of April 1, 2000, between ANB and ACCS, as amended
from time to time, and the receivables purchase agreements, substantially in the
form of such agreement, entered into between ACCS and another Account Owner in
the future, if any.
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"Recoveries" shall mean all amounts received (net of
out-of-pocket costs of collection) including Insurance Proceeds, which is
reasonably estimated by the Servicer to be attributable to Defaulted
Receivables, including the net proceeds of any sale of such Defaulted
Receivables by the Transferor.
"Registered Notes" shall have the meaning specified in the
Indenture.
"Related Account" shall mean an Account with respect to which
a new credit account number has been issued by the applicable Account Owner or
Servicer or the applicable Transferor under circumstances resulting from a lost
or stolen credit card and not requiring standard application and credit
evaluation procedures under the Credit Card Guidelines.
"Removal Date" shall have the meaning specified in Section
2.10.
"Removed Accounts" shall have the meaning specified in Section
2.10.
"Removed Participation Interests" shall have the meaning
specified in Section 2.10.
"Required Designation Date" shall mean, for purposes of
subsection 2.09(a)(i)(A), the tenth Business Day following any period of thirty
consecutive days and, for purposes of subsection 2.09(a)(i)(B), the tenth
Business Day following any Monthly Period.
"Required Minimum Principal Balance" shall mean, unless
otherwise provided in an Indenture Supplement relating to any Series, as of any
date of determination, an amount equal to the sum of the numerators used in the
calculation of the Investor Percentages with respect to Principal Receivables
for all outstanding Series on such date; provided that with respect to any
Series in its Early Accumulation Period or such other period as designated in
the related Indenture Supplement with an Invested Amount as of such date of
determination equal to the Principal Funding Account Balance relating to such
Series taking into account any deposit to be made to the Principal Funding
Account on the Distribution Date following such date of determination, the
numerator used in the calculation of the Investor Percentage with respect to
Principal Receivables relating to such Series shall, solely for the purpose of
the definition of Required Minimum Principal Balance, be deemed to equal zero.
"Required Transferor Interest" shall have the meaning
specified in the Indenture.
"Requirements of Law" shall mean any law, treaty, rule or
regulation, or determination of an arbitrator or Governmental Authority, whether
Federal, state or local (including usury laws, the Federal Truth in Lending Act
and Regulation B and Regulation Z of the Board of Governors of the Federal
Reserve System), and, when used with respect to any Person, the certificate of
incorporation and by-laws or other organizational or governing documents of such
Person.
"Revolving Credit Agreement" shall mean the revolving credit
agreement by and between the Transferor and AFCC, dated as of April 1, 2000, as
such agreement may be amended from time to time in accordance therewith, and any
substantially similar agreement entered into between any lender and the
Transferor or any Additional Transferor in the future in
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accordance with the provisions hereof; provided that with respect to any
amendment or new agreement, the Rating Agency Condition shall have been
satisfied with respect thereto.
"Series" shall have the meaning specified in the Indenture.
"Series Account" shall have the meaning specified in the
Indenture.
"Series Enhancement" shall have the meaning specified in the
Indenture.
"Series Enhancer" shall have the meaning specified in the
Indenture.
"Service Transfer" shall have the meaning specified in Section
7.01.
"Servicer" shall mean ANB, in its capacity as Servicer
pursuant to this Agreement, and, after any Service Transfer, the Successor
Servicer.
"Servicer Default" shall have the meaning specified in Section
7.01.
"Servicing Fee" shall have the meaning specified in Section
3.02.
"Servicing Fee Rate" shall mean, with respect to any Series,
the servicing fee rate specified in the related Indenture Supplement.
"Special Funding Account" shall have the meaning specified in
the Indenture.
"Special Funding Amount" shall have the meaning specified in
the Indenture.
"Standard & Poor's" shall mean Standard & Poor's Ratings
Services, or its successor.
"Successor Servicer" shall have the meaning specified in
subsection 7.02(a).
"Supplemental Certificate" shall have the meaning specified in
the Trust Agreement.
"Tax Opinion" shall have the meaning specified in the
Indenture.
"Termination Notice" shall have the meaning specified in
subsection 7.01(d).
"Transfer Agent and Registrar" shall have the meaning
specified in the Indenture.
"Transfer Restriction Event" shall have the meaning specified
in Section 2.11.
"Transferor" shall mean (a) ACCR, a wholly owned special
purpose subsidiary of ACCS and incorporated in the State of Delaware, or its
successor under this Agreement and (b) any Additional Transferor or Transferors.
References to "EACH TRANSFEROR" shall refer to each entity mentioned in the
preceding sentence and references to "THE TRANSFEROR" shall refer to all of such
entities.
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"Transferor Certificates" shall have the meaning specified in
the Trust Agreement.
"Transferor Interest" shall have the meaning specified in the
Indenture.
"Transferor Purchase Agreement" shall mean the ACCS
Receivables Purchase Agreement and the receivables purchase agreements,
substantially in the form of such agreement, entered into between a Transferor
and ACCS in the future, if any.
"Transferred Account" shall mean each account into which an
Account shall be transferred; provided that (i) such transfer was made in
accordance with the Credit Card Guidelines and (ii) such account can be traced
or identified as an account into which an Account has been transferred.
"Trust" shall mean the Associates Credit Card Master Note
Trust.
"Trust Agreement" shall mean the Trust Agreement relating to
the Trust, dated as of April 1, 2000, between ACCR and the Owner Trustee, as the
same may be amended, supplemented or otherwise modified from time to time.
"Trust Assets" shall have the meaning specified in Section
2.01.
"UCC" shall mean the Uniform Commercial Code, as amended from
time to time, as in effect in any specified jurisdiction.
"VISA" shall mean VISA USA, Inc., and its successors in
interest.
Section 1.02. Other Definitional Provisions.
(a) With respect to any Series, all terms used herein and not
otherwise defined herein shall have meanings ascribed to them in the Trust
Agreement, the Indenture or the related Indenture Supplement, as applicable.
(b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under GAAP. To the extent that the definitions of accounting terms
in this Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under GAAP, the definitions contained in this
Agreement or in any such certificate or other document shall control.
(d) The agreements, representations and warranties of ACCR and
ACCS in this Agreement in each of their respective capacities as Transferor and
Servicer shall be deemed
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to be the agreements, representations and warranties of ACCR and ACCS solely in
each such capacity for so long as ACCR and ACCS act in each such capacity under
this Agreement.
(e) Any reference to each Rating Agency shall only apply to
any specific rating agency if such rating agency is then rating any outstanding
Series.
(f) Unless otherwise specified, references to any amount as on
deposit or outstanding on any particular date shall mean such amount at the
close of business on such day.
(g) The words "HEREOF," "HEREIN," "HEREUNDER" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; references to any
subsection, Section, Schedule or Exhibit are references to subsections,
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "INCLUDING" means "INCLUDING WITHOUT LIMITATION."
[END OF ARTICLE I]
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ARTICLE II
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables. By execution of this
Agreement, each of ACCR and, in the case of Additional Accounts, ACCR or, if
applicable, any Additional Transferor does hereby transfer, assign, set over and
otherwise convey to the Trust, without recourse except as provided herein, all
its right, title and interest in, to and under the Receivables existing at the
close of business on the Initial Cut-Off Date, in the case of Receivables
arising in the Initial Accounts, and on each Additional Cut-Off Date, in the
case of Receivables arising in the Additional Accounts, and in each case
thereafter created from time to time until the termination of the Trust, all
Interchange and Recoveries allocable to the Trust as provided herein, all monies
due or to become due and all amounts received or receivable with respect thereto
and all proceeds (including "proceeds" as defined in the UCC) thereof. The
Transferor does hereby further transfer, assign, set over and otherwise convey
to the Trust all of its right, title and interest in and under the Transferor
Purchase Agreements. The property described in the two preceding sentences,
together with all monies and other property credited to the Collection Account,
the Series Accounts and the Special Funding Account (including any subaccounts
of such account), the rights of the Trust under this Agreement and the Trust
Agreement, the property conveyed to the Trust under any Participation Interest
Supplement and the right to receive Recoveries attributed to cardholder charges
for merchandise and services in the Accounts shall constitute the assets of the
Trust (the "TRUST ASSETS"). The foregoing does not constitute and is not
intended to result in the creation or assumption by the Trust, the Owner Trustee
(as such or in its individual capacity), the Indenture Trustee or any Noteholder
of any obligation of ANB or other Account Owner or the Transferor, any
Additional Transferor, the Servicer or any other Person in connection with the
Accounts or the Receivables or under any agreement or instrument relating
thereto, including any obligation to Obligors, merchant banks, merchants
clearance systems, VISA, MasterCard or insurers. The Obligors shall not be
notified in connection with the creation of the Trust of the transfer,
assignment, set-over and conveyance of the Receivables to the Trust.
Each Transferor agrees to record and file, at its own expense,
financing statements (and continuation statements when applicable) with respect
to the Receivables conveyed by such Transferor existing on the Initial Cut-Off
Date and thereafter created meeting the requirements of applicable state law in
such manner and in such jurisdictions as are necessary to perfect, and maintain
the perfection of, the transfer and assignment of its interest in such
Receivables to the Trust, and to deliver a file stamped copy of each such
financing statement or other evidence of such filing to the Owner Trustee as
soon as practicable after the first Closing Date, in the case of Receivables
arising in the Initial Accounts, and (if any additional filing is so necessary)
as soon as practicable after the applicable Addition Date, in the case of
Receivables arising in Additional Accounts. The Owner Trustee shall be under no
obligation whatsoever to file such financing or continuation statements or to
make any other filing under the UCC in connection with such transfer and
assignment.
Each Transferor further agrees, at its own expense, on or
prior to (x) the first Closing Date, in the case of the Initial Accounts, (y)
the applicable Addition Date, in the case of Additional Accounts with respect to
such Transferor, if any, and (z) the applicable Removal
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Date, in the case of Removed Accounts with respect to such Transferor, (a) to
indicate in the appropriate computer files that Receivables created (or
reassigned, in the case of Removed Accounts) in connection with the Accounts
have been conveyed to the Trust pursuant to this Agreement (or conveyed to each
such Transferor or its designee in accordance with Section 2.10, in the case of
Removed Accounts) by including (or deleting in the case of Removed Accounts) in
such computer files the code "02" in the field "CHD-PORTFOLIO-NO" that
identifies each such Account and (b) to deliver to the Owner Trustee a computer
file or microfiche list containing a true and complete list of all such Accounts
specifying for each such Account, as of the Initial Cut-Off Date, in the case of
the Initial Accounts, the applicable Additional Cut-Off Date in the case of
Additional Accounts, and the applicable Removal Date in the case of Removed
Accounts, its account number and, other than in the case of New Accounts, the
aggregate amount outstanding in such Account and the aggregate amount of
Principal Receivables outstanding in such Account. Each such file or list, as
supplemented, from time to time, to reflect Additional Accounts and Removed
Accounts, shall be marked as SCHEDULE 1 to this Agreement and is hereby
incorporated into and made a part of this Agreement. Each Transferor further
agrees not to alter the code referenced in this paragraph with respect to any
Account during the term of this Agreement unless and until such Account becomes
a Removed Account.
If the arrangements with respect to the Receivables hereunder
shall constitute a loan and not a purchase and sale of such Receivables, it is
the intention of the parties hereto that this Agreement shall constitute a
security agreement under applicable law, and that each Transferor shall be
deemed to have granted to the Trust a first priority perfected security interest
in all of such Transferor's right, title and interest, whether owned on the
Initial Cut-Off Date or thereafter acquired, in, to and under the Receivables
and the other Trust Assets conveyed by such Transferor, and all money, accounts,
general intangibles, chattel paper, instruments, documents, goods, investment
property, deposit accounts, certificates of deposit, letters of credit, and
advices of credit consisting of, arising from or related to the Trust Assets,
and all proceeds thereof, to secure its obligations hereunder.
Section 2.02. Acceptance by Trust.
(a) The Trust hereby acknowledges its acceptance of all right,
title and interest to the property, now existing and hereafter created, conveyed
to the Trust pursuant to Section 2.01. The Trust further acknowledges that,
prior to or simultaneously with the execution and delivery of this Agreement,
the Transferor delivered to the Owner Trustee the computer file or microfiche
list relating to the Initial Accounts described in the penultimate paragraph of
Section 2.01. The Owner Trustee shall maintain a copy of SCHEDULE 1, as
delivered from time to time, at its Corporate Trust Office.
(b) The Owner Trustee and the Trust each hereby agrees not to
disclose to any Person any of the account numbers or other information contained
in the computer files or microfiche lists marked as SCHEDULE 1 and delivered to
the Owner Trustee or the Trust, from time to time, except (i) to a Successor
Servicer or as required by a Requirement of Law applicable to the Owner Trustee,
(ii) in connection with the performance of the Owner Trustee's or the Trust's
duties hereunder, (iii) to the Indenture Trustee in connection with its duties
in enforcing the rights of Noteholders or (iv) to bona fide creditors or
potential creditors of any Account Owner, ANB, ACCS or any Transferor for the
limited purpose of enabling any such
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creditor to identify applicable Receivables or Accounts subject to this
Agreement, the Receivables Purchase Agreements or the Transferor Purchase
Agreements. The Owner Trustee and the Trust each agrees to take such measures as
shall be reasonably requested by any Transferor to protect and maintain the
security and confidentiality of such information and, in connection therewith,
shall allow each Transferor or its duly authorized representatives to inspect
the Owner Trustee's security and confidentiality arrangements as they
specifically relate to the administration of the Trust from time to time during
normal business hours upon prior written notice. The Owner Trustee and the Trust
shall provide the applicable Transferor with notice five (5) Business Days prior
to disclosure of any information of the type described in this subsection
2.02(b).
Section 2.03. Representations and Warranties of Each
Transferor Relating to Such Transferor. Each Transferor hereby severally
represents and warrants to the Trust (and agrees that the Owner Trustee and the
Indenture Trustee may conclusively rely on each such representation and warranty
in accepting the Receivables in trust and in authenticating the Notes,
respectively) as of each Closing Date (but only if it was a Transferor on such
date) that:
(a) Organization and Good Standing. Such Transferor is a
corporation validly existing under the laws of the jurisdiction of its
organization or incorporation and has, in all material respects, full power and
authority to own its properties and conduct its business as presently owned or
conducted, and to execute, deliver and perform its obligations under this
Agreement, the applicable Transferor Purchase Agreement and each applicable
Participation Interest Supplement.
(b) Due Qualification. Such Transferor is duly qualified to do
business and is in good standing as a foreign corporation and has obtained all
necessary licenses and approvals, in each jurisdiction in which failure to so
qualify or to obtain such licenses and approvals would (i) render any Credit
Card Agreement relating to any Receivable conveyed to the Trust by such
Transferor unenforceable by such Transferor or the Trust or (ii) have a material
adverse effect on the Noteholders.
(c) Due Authorization. The execution and delivery of this
Agreement, the applicable Transferor Purchase Agreement and each applicable
Participation Interest Supplement by such Transferor and the order to the Owner
Trustee to have the Notes authenticated and delivered and the consummation by
such Transferor of the transactions provided for in this Agreement, the
applicable Transferor Purchase Agreement and each applicable Participation
Interest Supplement have been duly authorized by such Transferor by all
necessary corporate action on the part of such Transferor.
(d) No Conflict. The execution and delivery by such Transferor
of this Agreement, the applicable Transferor Purchase Agreement and each
applicable Participation Interest Supplement, and the performance of the
transactions contemplated by this Agreement, the applicable Transferor Purchase
Agreement and each applicable Participation Interest Supplement and the
fulfillment of the terms hereof and thereof applicable to such Transferor, will
not conflict with or violate any Requirements of Law applicable to such
Transferor or conflict with, result in any breach of any of the material terms
and provisions of, or constitute (with or without notice or lapse of time or
both) a material default under, any indenture, contract,
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agreement, mortgage, deed of trust or other instrument to which such Transferor
is a party or by which it or its properties are bound.
(e) No Proceedings. There are no proceedings or
investigations, pending or, to the best knowledge of such Transferor, threatened
against such Transferor before any Governmental Authority (i) asserting the
invalidity of this Agreement, the applicable Transferor Purchase Agreement or
each applicable Participation Interest Supplement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, the
applicable Transferor Purchase Agreement or each applicable Participation
Interest Supplement, (iii) seeking any determination or ruling that, in the
reasonable judgment of such Transferor, would materially and adversely affect
the performance by such Transferor of its obligations under this Agreement, the
applicable Transferor Purchase Agreement or each applicable Participation
Interest Supplement, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement, the applicable Transferor Purchase Agreement or each applicable
Participation Interest Supplement or (v) seeking to affect adversely the income
or franchise tax attributes of the Trust under the United States Federal or any
State income or franchise tax systems.
(f) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by such Transferor in connection with
the execution and delivery by such Transferor of this Agreement, the applicable
Transferor Purchase Agreement and each applicable Participation Interest
Supplement and the performance of the transactions contemplated by this
Agreement, the applicable Transferor Purchase Agreement and each applicable
Participation Interest Supplement by such Transferor have been duly obtained,
effected or given and are in full force and effect.
Section 2.04. Representations and Warranties of each
Transferor Relating to the Agreement and Any Participation Interest Supplement
and the Receivables.
(a) Representations and Warranties. Each Transferor hereby
severally represents and warrants to the Trust as of the Initial Issuance Date,
each Closing Date and, with respect to Additional Accounts, as of the related
Addition Date (but only if, in either case, it was a Transferor on such date and
only with respect to Accounts it has designated on such date and Receivables
arising therein) that:
(i) this Agreement, the applicable Transferor Purchase
Agreement each applicable Participation Interest Supplement and, in the
case of Additional Accounts, the related Assignment, each constitutes a
legal, valid and binding obligation of such Transferor enforceable
against such Transferor in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally from time to time in effect or general principles of
equity;
(ii) as of the Initial Cut-Off Date with respect to the
Initial Accounts (and the Receivables arising therein), and as of the
related Additional Cut-Off Date with respect to Additional Accounts
(and the Receivables arising therein), the portion of SCHEDULE 1 to
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this Agreement under such Transferor's name, as supplemented to such
date, is an accurate and complete listing in all material respects of
all the Accounts the Receivables in which were transferred by such
Transferor as of the Initial Cut-Off Date or such Additional Cut-Off
Date, as the case may be, and the information contained therein with
respect to the identity of such Accounts and the Receivables existing
thereunder is true and correct in all material respects as of the
Initial Cut-Off Date or such Additional Cut-Off Date, as the case may
be;
(iii) on the date each Receivable is conveyed to the Trust by
such Transferor, such Receivable has been conveyed to the Trust free
and clear of any Lien;
(iv) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required
to be obtained, effected or given by such Transferor in connection with
the conveyance by such Transferor of Receivables to the Trust have been
duly obtained, effected or given and are in full force and effect;
(v) either this Agreement or, in the case of Additional
Accounts, the related Assignment constitutes a valid sale, transfer and
assignment to the Trust of all right, title and interest of such
Transferor in the Receivables conveyed to the Trust by such Transferor
and the proceeds thereof and Recoveries and Interchange identified as
relating to the Receivables conveyed to the Trust by such Transferor
which have become Defaulted Receivables or, if this Agreement or, in
the case of Additional Accounts, the related Assignment does not
constitute a sale of such property, it constitutes a grant of a first
priority perfected "security interest" (as defined in the UCC) in such
property to the Trust, which, in the case of existing Receivables and
the proceeds thereof and said Recoveries and Interchange, is
enforceable upon execution and delivery of this Agreement, or, with
respect to then existing Receivables in Additional Accounts, as of the
applicable Addition Date, and which will be enforceable with respect to
such Receivables hereafter and thereafter created and the proceeds
thereof upon such creation. Upon the filing of the financing statements
and, in the case of Receivables hereafter created and the proceeds
thereof, upon the creation thereof, the Trust shall have a first
priority perfected security or ownership interest in such property and
proceeds;
(vi) on the Initial Cut-Off Date, each Initial Account
specified in SCHEDULE 1 with respect to such Transferor is an Eligible
Account and, on the applicable Additional Cut-Off Date, each related
Additional Account specified in SCHEDULE 1 with respect to such
Transferor is an Eligible Account;
(vii) on the Initial Cut-Off Date, each Receivable then
existing and conveyed to the Trust by such Transferor is an Eligible
Receivable and, on the applicable Additional Cut-Off Date, each
Receivable contained in the related Additional Accounts and conveyed to
the Trust by such Transferor is an Eligible Receivable;
(viii) as of the date of the creation of any new Receivable
transferred to the Trust by such Transferor, such Receivable is an
Eligible Receivable; and
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(ix) no selection procedures believed by such Transferor to be
materially adverse to the interests of the Noteholders have been used
in selecting such Accounts.
(b) Notice of Breach. The representations and warranties set
forth in Section 2.03, this Section 2.04 and subsection 2.09(f) shall survive
the transfers and assignments of the Receivables to the Trust, the pledge of the
Receivables to the Indenture Trustee pursuant to the Indenture, and the issuance
of the Notes. Upon discovery by any Transferor, the Servicer or the Owner
Trustee of a breach of any of the representations and warranties set forth in
Section 2.03, this Section 2.04 or subsection 2.09(f), the party discovering
such breach shall give notice to the other parties and to the Indenture Trustee
within three (3) Business Days following such discovery; provided that the
failure to give notice within three (3) Business Days does not preclude
subsequent notice.
Section 2.05. Reassignment of Ineligible Receivables.
(a) Reassignment of Receivables. In the event (i) any
representation or warranty contained in subsection 2.04(a)(ii), (iv), (vi),
(vii), (viii) or (ix) is not true and correct in any material respect as of the
date specified therein with respect to any Receivable or the related Account and
such breach has a material adverse effect on any Receivable (which determination
shall be made without regard to whether funds are then available pursuant to any
Series Enhancement) unless cured within sixty (60) days (or such longer period,
not in excess of 120 days, as may be agreed to by the Indenture Trustee and the
Servicer) after the earlier to occur of the discovery thereof by the Transferor
which conveyed such Receivables to the Trust or receipt by such Transferor of
written notice thereof given by the Owner Trustee, the Indenture Trustee or the
Servicer, (ii) any representation or warranty contained in subsection
2.04(a)(iii) is not true and correct in any material respect as of the date
specified therein with respect to any Receivable and such breach has a material
adverse effect on any Receivable (which determination shall be made without
regard to whether funds are then available pursuant to any Series Enhancement)
or (iii) it is so provided in subsection 2.07(a) or 2.09(d)(iii) with respect to
any Receivables conveyed to the Trust by such Transferor, then such Transferor
shall accept reassignment of all Receivables in the related Account ("INELIGIBLE
RECEIVABLES") on the terms and conditions set forth in paragraph (b) below.
(b) Price of Reassignment. The Servicer shall deduct the
portion of such Ineligible Receivables reassigned to each Transferor which are
Principal Receivables from the aggregate amount of the Principal Receivables
used to calculate the Transferor Interest. In the event that, following the
exclusion of such Principal Receivables from the calculation of the Transferor
Interest, the Transferor Interest would be less than the Required Transferor
Interest, not later than 1:00 p.m., New York City time, on the first
Distribution Date following the Monthly Period in which such reassignment
obligation arises, the applicable Transferor shall make a deposit into the
Special Funding Account in immediately available funds in an amount equal to the
amount by which the Transferor Interest would be below the Required Transferor
Interest (up to the amount of such Principal Receivables).
Upon reassignment of any Ineligible Receivable, the Trust
shall automatically and without further action be deemed to transfer, assign,
set over and otherwise convey to the applicable Transferor or its designee,
without recourse, representation or warranty, all the right,
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title and interest of the Trust in and to such Ineligible Receivable, all
Interchange and Recoveries related thereto, all monies and amounts due or to
become due and all proceeds thereof and such reassigned Ineligible Receivable
shall be treated by the Trust as collected in full as of the date on which it
was transferred. The obligation of each Transferor to accept reassignment of any
Ineligible Receivables conveyed to the Trust by such Transferor, and to make the
deposits, if any, required to be made to the Special Funding Account as provided
in this Section, shall constitute the sole remedy respecting the event giving
rise to such obligation available to the Trust, the Noteholders (or the
Indenture Trustee on behalf of the Noteholders) or any Series Enhancer.
Notwithstanding any other provision of this subsection 2.05(b), a reassignment
of an Ineligible Receivable in excess of the amount that would cause the
Transferor Interest to be less than the Required Transferor Interest shall not
occur if the applicable Transferor fails to make any deposit required by this
subsection 2.05(b) with respect to such Ineligible Receivable. The Trust shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested and provided by the applicable
Transferor to effect the conveyance of such Ineligible Receivables pursuant to
this subsection 2.05(b), but only upon receipt of an Officer's Certificate from
such Transferor that states that all conditions set forth in this Section 2.05
have been satisfied.
Section 2.06. Reassignment of Trust Portfolio. In the event
any representation or warranty of a Transferor set forth in subsection 2.03(a)
or (c) or subsection 2.04(a)(i) or (v) is not true and correct in any material
respect and such breach has a material adverse effect on the Receivables or
Participation Interests conveyed to the Trust by such Transferor or the
availability of the proceeds thereof to the Trust (which determination shall be
made without regard to whether funds are then available pursuant to any Series
Enhancement), then either the Owner Trustee, the Indenture Trustee or the
Holders of Notes evidencing not less than 50% of the aggregate unpaid principal
amount of all outstanding Notes, by notice then given to such Transferor and the
Servicer (and to the Owner Trustee and Indenture Trustee if given by the
Noteholders), may direct such Transferor to accept a reassignment of the
Receivables and any Participation Interests conveyed to the Trust by such
Transferor if such breach and any material adverse effect caused by such breach
is not cured within sixty (60) days of such notice (or within such longer
period, not in excess of 120 days, as may be specified in such notice), and upon
those conditions such Transferor shall be obligated to accept such reassignment
on the terms set forth below; provided, however, that such Receivables and
Participation Interests will not be reassigned to such Transferor if, on any day
prior to the end of such 60-day or longer period (i) the relevant representation
and warranty shall be true and correct in all material respects as if made on
such day and (ii) such Transferor shall have delivered to the Owner Trustee a
certificate of an authorized officer describing the nature of such breach and
the manner in which the relevant representation and warranty has become true and
correct.
The applicable Transferor shall deposit in the Collection
Account in immediately available funds not later than 1:00 p.m., New York City
time, on the first Distribution Date following the Monthly Period in which such
reassignment obligation arises, in payment for such reassignment, an amount
equal to the sum of the amounts specified therefor with respect to each
outstanding Series in the related Indenture Supplement. Notwithstanding anything
to the contrary in this Agreement, such amounts shall be distributed to the
Noteholders on such Distribution Date in accordance with the terms of each
Indenture Supplement. If the Owner Trustee, the Indenture Trustee or the
Noteholders give notice directing the applicable Transferor
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to accept a reassignment of the Receivables and Participation Interests as
provided above, the obligation of such Transferor to accept such reassignment
pursuant to this Section 2.06 and to make the deposit required to be made to the
Collection Account as provided in this paragraph shall constitute the sole
remedy respecting an event of the type specified in the first sentence of this
Section 2.06 available to the Noteholders (or the Indenture Trustee on behalf of
the Noteholders) or any Series Enhancer. Upon reassignment of the Receivables
and the Participation Interests on such Distribution Date, the Trust shall
automatically and without further action be deemed to transfer, assign, set-over
and otherwise convey to the applicable Transferor, without recourse,
representation or warranty, all the right, title and interest of the Trust in
and to the Receivables and the Participation Interests, all Interchange and
Recoveries allocable to the Trust, and all monies and amounts due or to become
due with respect thereto and all proceeds thereof. The Trust shall execute such
documents and instruments of transfer or assignment and take such other actions
as shall reasonably be requested by the applicable Transferor to effect the
conveyance of such property pursuant to this subsection.
Section 2.07. Covenants of each Transferor. Each Transferor
hereby severally covenants that:
(a) Receivables Not To Be Evidenced by Promissory Notes.
Except in connection with its enforcement or collection of an Account, such
Transferor will take no action to cause any Receivable conveyed by it to the
Trust to be evidenced by any instrument (as defined in the UCC) and if any such
Receivable (or any underlying receivable) is so evidenced it shall be deemed to
be an Ineligible Receivable in accordance with subsection 2.05(a) and shall be
reassigned to such Transferor in accordance with subsection 2.05(b).
(b) Security Interests. Except for the conveyances hereunder,
such Transferor will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur, assume or suffer to exist any Lien on, any Receivable
(or any underlying receivable) or Participation Interest conveyed by it to the
Trust, whether now existing or hereafter created, or any interest therein, and
such Transferor shall defend the right, title and interest of the Trust and the
Indenture Trustee in, to and under the Receivables and any Participation
Interest, whether now existing or hereafter created, against all claims of third
parties claiming through or under such Transferor.
(c) Transferor Interest. Except for (i) the conveyances
hereunder, in connection with any transaction permitted by subsection 4.02(a)(i)
and as provided in subsection 2.09(g) of this Agreement or Section 2.12 of the
Indenture or (ii) conveyances with respect to which the Rating Agency Condition
shall have been satisfied and a Tax Opinion shall have been delivered, such
Transferor agrees not to transfer, sell, assign, exchange or otherwise convey or
pledge, hypothecate or otherwise grant a security interest in the Transferor
Interest, the Transferor Certificate or any Supplemental Certificate and any
such attempted transfer, assignment, exchange, conveyance, pledge,
hypothecation, grant or sale shall be void; provided, however, that nothing in
this subsection 2.07(c) shall prevent the owner of an interest in the Transferor
Interest from granting to an Affiliate a participation interest or other
beneficial interest in the rights to receive cash flows related to the
Transferor Interest, if (i) such interest does not grant such Affiliate any
rights hereunder or delegate to such Affiliate any obligations or duties
hereunder, (ii) the transferor of such interest obtains the prior written
consent of such
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Transferor and (iii) after giving effect to such transfer, the interest in the
Transferor's Interest owned directly by such Transferor represents an undivided
ownership interest in two percent (2.0%) or more of the Trust Assets.
(d) Delivery of Collections or Recoveries. In the event that
such Transferor receives Collections or Recoveries, such Transferor agrees to
pay the Servicer all such Collections and Recoveries as soon as practicable
after receipt thereof.
(e) Notice of Liens. Such Transferor shall notify the Owner
Trustee, the Indenture Trustee and each Series Enhancer promptly after becoming
aware of any Lien on any Receivable (or on the underlying receivable) or
Participation Interest conveyed by it to the Trust other than the conveyances
hereunder and under the applicable Receivables Purchase Agreement, the
applicable Transferor Purchase Agreement and the Indenture.
(f) Amendment of the Certificate of Incorporation. Such
Transferor will not amend in any material respect its certificate of
incorporation without providing the Rating Agency with notice no later than the
fifth Business Day prior to such amendment (unless the right to such notice is
waived by the Rating Agency) and satisfying the Rating Agency Condition.
(g) Other Indebtedness. Such Transferor shall not incur any
additional debt, unless (i) such debt is incurred pursuant to the Revolving
Credit Agreement, (ii) such debt is contemplated by the Transaction Documents or
(iii) the Rating Agency is provided with notice no later than the fifth Business
Day prior to the incurrence of such additional debt (unless the right to such
notice is waived by the Rating Agency) and the Rating Agency Condition is
satisfied with respect to the incurrence of such debt.
(h) Separate Corporate Existence. Such Transferor shall:
(i) Maintain in full effect its existence, rights and
franchises as a corporation under the laws of the state of its
incorporation and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of this
Agreement and the applicable Transferor Purchase Agreement and each
other instrument or agreement necessary or appropriate to proper
administration hereof and permit and effectuate the transactions
contemplated hereby.
(ii) Except as provided herein, maintain its own deposit,
securities and other account or accounts, separate from those of any
Affiliate of such Transferor, with financial institutions. The funds of
such Transferor will not be diverted to any other Person or for other
than the corporate use of such Transferor, and, except as may be
expressly permitted by this Agreement or the applicable Transferor
Purchase Agreement, the funds of such Transferor shall not be
commingled with those of any other person or entity.
(iii) Ensure that, to the extent that it shares the same
officers or other employees as any of its stockholders or Affiliates,
the salaries of and the expenses related to providing benefits to such
officers and other employees shall be fairly allocated among
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such entities, and each such entity shall bear its fair share of the
salary and benefit costs associated with all such common officers and
employees.
(iv) Ensure that, to the extent that it jointly contracts with
any of its stockholders or Affiliates to do business with vendors or
service providers or to share overhead expenses, the costs incurred in
so doing shall be allocated fairly among such entities, and each such
entity shall bear its fair share of such costs. To the extent that such
Transferor contracts or does business with vendors or service providers
where the goods and services provided are partially for the benefit of
any other Person, the costs incurred in so doing shall be fairly
allocated to or among such entities for whose benefit the goods and
services are provided, and each such entity shall bear its fair share
of such costs. All material transactions between such Transferor and
any of its Affiliates shall be only on an arm's-length basis and shall
receive the approval of such Transferor's Board of Directors including
at least one Independent Director (defined below).
(v) Maintain a principal executive and administrative office
through which its business is conducted and a telephone number separate
from those of its stockholders and Affiliates. To the extent that such
Transferor and any of its stockholders or Affiliates have offices in
contiguous space, there shall be fair and appropriate allocation of
overhead costs (including rent) among them, and each such entity shall
bear its fair share of such expenses.
(vi) Conduct its affairs strictly in accordance with its
certificate of incorporation and observe all necessary, appropriate and
customary corporate formalities, including, but not limited to, holding
all regular and special stockholders' and directors' meetings
appropriate to authorize all corporate action, keeping separate and
accurate minutes of such meetings, passing all resolutions or consents
necessary to authorize actions taken or to be taken, and maintaining
accurate and separate books, records and accounts, including, but not
limited to, intercompany transaction accounts. Regular stockholders'
and directors' meetings shall be held at least annually.
(vii) Ensure that its board of directors shall at all times
include at least two Independent Directors (for purposes hereof,
"INDEPENDENT DIRECTOR" shall mean any member of the board of directors
of such Transferor that is not and has not at any time been (x) an
officer, agent, advisor, consultant, attorney, accountant, employee or
shareholder of any Affiliate which is not a special purpose entity of
such Transferor, (y) a director of any Affiliate of such Transferor
other than an independent director of any Affiliate which is a special
purpose entity or (z) a member of the immediate family of any of the
foregoing.
(viii) Ensure that decisions with respect to its business and
daily operations shall be independently made by such Transferor
(although the officer making any particular decision may also be an
officer or director of an Affiliate of such Transferor) and shall not
be dictated by an Affiliate of such Transferor.
(ix) Act solely in its own corporate name and through its own
authorized officers and agents, and no Affiliate of such Transferor
shall be appointed to act as agent
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of such Transferor. Such Transferor shall at all times use its own
stationery and business forms and describe itself as a separate legal
entity.
(x) Other than as provided in the Revolving Credit Agreement,
ensure that no Affiliate of such Transferor shall advance funds to such
Transferor, and no Affiliate of such Transferor will otherwise guaranty
debts of, such Transferor.
(xi) Other than organizational expenses and as expressly
provided herein, pay all expenses, indebtedness and other obligations
incurred by it using its own funds.
(xii) Not enter into any guaranty, or otherwise become liable,
with respect to or hold its assets or creditworthiness out as being
available for the payment of any obligation of any Affiliate of such
Transferor nor shall such Transferor make any loans to any Person.
(xiii) Ensure that any financial reports required of such
Transferor shall comply with generally accepted accounting principles
and shall be issued separately from, but may be consolidated with, any
reports prepared for any of its Affiliates so long as such consolidated
reports contain footnotes describing the effect of the transactions
between the Transferor and such Affiliate and also state that the
assets of the Transferor are not available to pay creditors of the
Affiliate.
(xiv) Ensure that at all times it is adequately capitalized to
engage in the transactions contemplated in its Certificate of
Incorporation.
(i) Interchange. With respect to any Distribution Date, on or
prior to the immediately preceding Determination Date, the Servicer shall notify
the Transferor of the amount of Interchange required to be included as
Collections of Finance Charge Receivables with respect to such Monthly Period,
which amount for any Series shall be specified in the related Indenture
Supplement. Not later than 1:00 p.m., New York City time, on the related
Distribution Date, the Servicer shall deposit, or cause to be deposited, into
the Collection Account, in immediately available funds, the amount of
Interchange to be so included as Collections of Finance Charge Receivables with
respect to such Monthly Period.
Section 2.08. Covenants of each Transferor with Respect to the
Applicable Transferor Purchase Agreement. Each Transferor, in its capacity as
purchaser of Receivables from ACCS pursuant to the applicable Transferor
Purchase Agreement, hereby covenants that such Transferor will at all times
enforce the covenants and agreements of ACCS in such Transferor Purchase
Agreement, including covenants that ACCS will at all times enforce the covenants
and agreements of ANB or any other Account Owner, as the case may be, in any
Receivables Purchase Agreement, including covenants substantially to the effect
set forth below:
(a) Periodic Rate Finance Charges. (i) Except (x) as otherwise
required by any Requirements of Law or (y) as is deemed by ANB or any other
Account Owner, as the case may be, to be necessary in order for it to maintain
its credit card business or a program operated by such credit card business on a
competitive basis based on a good faith assessment by it of the nature of the
competition with respect to the credit card business or such program, it shall
not at any time take any action which would have the effect of reducing the
Portfolio Yield to a level
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that could be reasonably expected to cause any Series to experience any Pay Out
Event or Event of Default based on the insufficiency of the Portfolio Yield or
any similar test and (ii) except as otherwise required by any Requirements of
Law, it shall not take any action which would have the effect of reducing the
Portfolio Yield to be less than the highest current Average Rate for any Group.
(b) Credit Card Agreements and Guidelines. Subject to
compliance with all Requirements of Law and paragraph (a) above, ANB or other
Account Owner, as the case may be, may change the terms and provisions of the
applicable Credit Card Agreements or the applicable Credit Card Guidelines in
any respect (including the calculation of the amount or the timing of
charge-offs and the Periodic Rate Finance Charges to be assessed thereon).
Notwithstanding the above, unless required by Requirements of Law or as
permitted by paragraph (a) above, ANB or other Account Owner, as the case may
be, will not take any action unless (i) at the time of such action, ANB or other
Account Owner, as the case may be, reasonably believes that such action will not
cause a Pay Out Event or Event of Default to occur, and (ii) is made applicable
to the comparable segment of the revolving credit card accounts owned by ANB or
other Account Owner which have characteristics the same as, or substantially
similar to, the Accounts that are the subject of such change, except as
otherwise restricted by an endorsement, sponsorship, or other agreement between
ANB or other Account Owner, as the case may be, and an unrelated third party or
by the terms of the Credit Card Agreements.
Section 2.09. Addition of Accounts.
(a) Required Aggregate Additions
(i) Required Additional Accounts. If, (A) during any
period of thirty (30) consecutive days, the Transferor Interest
averaged over that period is less than the Required Transferor Interest
for that period, the Transferor shall on or prior to the close of
business on the Required Designation Date, unless on any day following
such period of thirty consecutive days and prior to the Required
Designation Date the Transferor Interest averaged over the then-prior
thirty (30) consecutive days (inclusive of such date of determination)
exceeds the Required Transferor Interest for such period, cause to be
designated additional Eligible Accounts to be included as Accounts as
of the Required Designation Date or any earlier date in a sufficient
amount such that, after giving effect to such addition and the addition
by each other Transferor, the average of the Transferor Interest as a
percentage of the Average Principal Receivables for such 30-day period,
computed by assuming that the amount of Principal Receivables of such
additional Eligible Accounts shall be deemed to be outstanding in the
Trust during each day of such 30-day period, is at least equal to the
Required Transferor Percentage on such date, or (B) as of the close of
business on the last Business Day of any calendar month, the sum of (x)
the total amount of Principal Receivables plus (y) the then outstanding
principal amount of any Participation Interests theretofore conveyed to
the Trust is less than the Required Minimum Principal Balance (as
adjusted for any Series having a Paired Series as described in the
Indenture Supplement for such Series) on such date, the Transferor
shall on or prior to the close of business on the Required Designation
Date, unless the sum of (x) the total amount of Principal Receivables
plus (y) the then outstanding principal amount of any Participation
Interests theretofore conveyed to the Trust exceeds the
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Required Minimum Principal Balance as of the close of business on any
day after the last Business Day of such calendar month and prior to the
Required Designation Date, cause to be designated additional Eligible
Accounts to be included as Accounts as of the Required Designation Date
or any earlier date in a sufficient amount such that, after giving
effect to such addition and the addition by each other Transferor, the
sum of the aggregate principal balance of Principal Receivables plus
the then outstanding principal amount of any Participation Interests
conveyed to the Trust as of the close of business on the Addition Date
is at least equal to the Required Minimum Principal Balance on such
date. The failure of the Transferor to transfer Receivables to the
Trust as provided in this clause (i) solely as a result of the
unavailability to the Transferor of a sufficient amount of Eligible
Receivables shall not constitute a breach of this Agreement; provided
that any such failure which has not been timely cured may nevertheless
result in the occurrence of a Pay Out Event.
(ii) Participation Interests. In lieu of, or in addition to,
causing the designation of Additional Accounts pursuant to clause (i)
above, the Transferor may (but shall not be required), subject to the
conditions specified in paragraph (c) below, convey to the Trust
participations (including 100% participations) representing undivided
interests in a pool of assets primarily consisting of revolving credit
card receivables and any interests in any of the foregoing, including
securities representing or backed by such receivables and collections,
together with all earnings, revenue, dividends, distributions, income,
issues and profits thereon ("PARTICIPATION INTERESTS"). Receivables
shall not be treated as a Participation Interest for purposes of this
Agreement. The addition of Participation Interests in the Trust
pursuant to this paragraph (a) or paragraph (b) below shall be effected
by a Participation Interest Supplement, dated the applicable Addition
Date and entered into pursuant to subsection 9.01(a).
(iii) Any Additional Accounts or Participation Interests
designated to be included as Trust Assets pursuant to clause (i) or
(ii) above may only be so included if the applicable conditions
specified in paragraph (c) below have been satisfied.
(b) Permitted Aggregate Additions. Each Transferor may from
time to time, in its sole discretion, subject to the conditions specified in
paragraph (c) below, voluntarily cause the designation of additional Eligible
Accounts to be included as Accounts or Participation Interests to be included as
Trust Assets, in either case as of the applicable Addition Date.
(c) Conditions to Aggregate Additions. On the Addition Date
with respect to any Aggregate Additions, the Trust shall acquire the Receivables
in Aggregate Addition Accounts (and such Aggregate Addition Accounts shall be
deemed to be Accounts for purposes of this Agreement) or shall acquire such
Participation Interests existing as of the close of business on the applicable
Additional Cut-Off Date, subject to the satisfaction of the following
conditions:
(i) on or before the eighth Business Day immediately preceding
the Addition Date, the applicable Transferor shall have given the Owner
Trustee, the Indenture Trustee, the Servicer and each Rating Agency
notice (unless such notice requirement is
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otherwise waived) that the Aggregate Addition Accounts or Participation
Interests will be included and specifying the applicable Addition Date
and Additional Cut-Off Date;
(ii) as of the applicable Additional Cut-Off Date, such
Aggregate Addition Accounts shall be Eligible Accounts;
(iii) such Transferor shall have delivered to the Owner
Trustee and Indenture Trustee copies of UCC-1 financing statements
covering such Aggregate Addition Accounts or Participation Interests,
if necessary to perfect the Trust's interest in the Receivables arising
therein and a schedule of such Aggregate Addition Accounts;
(iv) to the extent required by Section 8.04 of the Indenture,
such Transferor shall have deposited in the Collection Account all
Collections with respect to such Aggregate Addition Accounts or
Participation Interests since the Additional Cut-Off Date;
(v) as of each of the Additional Cut-Off Date and the Addition
Date, no Insolvency Event with respect to ANB or any other Account
Owner, as applicable, ACCS or such Transferor shall have occurred nor
shall the transfer to the Trust of the Receivables arising in the
Aggregate Addition Accounts or of the Participation Interests have been
made in contemplation of the occurrence thereof;
(vi) solely with respect to Aggregate Additions designated
pursuant to subsection 2.09(b) and with respect to any addition of
Accounts not initially originated by an Account Owner, the Rating
Agency Condition shall have been satisfied;
(vii) such Transferor shall have delivered to the Owner
Trustee and the Indenture Trustee an Officer's Certificate, dated the
Addition Date, confirming, to the extent applicable, the items set
forth in clauses (ii) through (vi) above and clause (x) below;
(viii) the acquisition by the Trust of the Receivables arising
in the Aggregate Addition Accounts or of the Participation Interests
will not result in an Adverse Effect and such Transferor shall have
delivered to the Owner Trustee and the Indenture Trustee an Officer's
Certificate, dated the Addition Date, stating that such Transferor
reasonably believes that the acquisition by the Trust of the
Receivables arising in the Aggregate Addition Accounts or of the
Participation Interests will not have an Adverse Effect; and
(ix) such Transferor shall have delivered to the Owner
Trustee, the Indenture Trustee and each Rating Agency an Opinion of
Counsel, dated the Addition Date, in accordance with subsection
9.02(d)(ii) or (iv), as applicable.
(x) unless each Rating Agency otherwise consents, the number
of Aggregate Addition Accounts designated pursuant to subsection
2.09(a) with respect to any of the three (3) consecutive Monthly
Periods commencing in December, March, June and September of each
calendar year, commencing June 2000, shall not exceed 15% of the number
of Accounts as of the first day of the calendar year during which such
Monthly Periods commence and the number of Aggregate Addition Accounts
designated pursuant
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to subsection 2.09(a) during any calendar year shall not exceed 20% of
the number of Accounts as of the first day of such calendar year.
(d) New Accounts.
(i) Each Transferor may from time to time, at its sole
discretion, subject to and in compliance with the limitations specified
in clause (ii) below and the conditions specified in paragraph (e)
below, voluntarily designate newly originated Eligible Accounts to be
included as New Accounts. For purposes of this paragraph, Eligible
Accounts shall be deemed to include only MasterCard and VISA revolving
credit card accounts of the same nature as those included as Initial
Accounts or which have previously been included in any Aggregate
Addition if the Assignment related to such Aggregate Addition expressly
provides that such type of revolving credit card account is permitted
to be designated as a New Account.
(ii) Unless and until each Rating Agency otherwise consents in
writing, the number of New Accounts designated with respect to any of
the three (3) consecutive Monthly Periods commencing in December,
March, June and September of each calendar year, commencing June 2000,
shall not exceed 15% of the number of Accounts as of the first day of
the calendar year during which such Monthly Periods commence and the
number of New Accounts designated during any such calendar year shall
not exceed 20% of the number of Accounts as of the first day of such
calendar year.
(iii) With respect to each Distribution Date with respect to
each Monthly Period in which New Accounts are added as Accounts, the
failure of such Transferor to deliver an Opinion of Counsel
substantially in the form of EXHIBIT D-2 with respect to the New
Accounts included as Accounts shall result in all Receivables arising
in the New Accounts to which such failure relates to be deemed to be
Ineligible Receivables in accordance with subsection 2.05(a) and all
such Receivables shall be reassigned to such Transferor in accordance
with subsection 2.05(b). The opinion delivery requirement set forth in
the immediately preceding sentence may be modified; provided that the
Rating Agency Condition is satisfied.
(e) Conditions to Addition of New Accounts. On the Addition
Date with respect to any New Accounts, the Trust shall acquire the Receivables
in such New Accounts (and such New Accounts shall be deemed to be Accounts for
purposes of this Agreement) as of the close of business on the applicable
Addition Date, subject to the satisfaction of the following conditions:
(i) the New Accounts shall all be Eligible Accounts;
(ii) the applicable Transferor shall have delivered to the
Owner Trustee and Indenture Trustee copies of UCC-1 financing
statements covering such New Accounts, if necessary to perfect the
Trust's interest in the Receivables arising therein and a schedule of
such New Accounts;
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(iii) to the extent required by Section 8.04 of the Indenture,
the applicable Transferor shall have deposited in the Collection
Account all Collections with respect to such New Accounts since the
Additional Cut-Off Date;
(iv) as of each of the Additional Cut-Off Date and the
Addition Date, no Insolvency Event with respect to ANB or any other
Account Owner, as applicable, ACCS or such Transferor shall have
occurred nor shall the transfer to the Trust of the Receivables arising
in the New Accounts have been made in contemplation of the occurrence
thereof; and
(v) the transfer of the Receivables arising in the New
Accounts to the Trust will not result in the occurrence of a Pay Out
Event or Event of Default.
(f) Representations and Warranties. Each Transferor conveying
Additional Accounts or Participation Interests hereby represents and warrants to
the Trust as of the related Addition Date as to the matters set forth in clauses
(v) and (viii) of subsection 2.09(c) above and that, in the case of Additional
Accounts, the list delivered pursuant to subsection 2.09(h) is, as of the
applicable Additional Cut-Off Date, true and complete in all material respects.
(g) Additional Transferors. The Transferor may designate
Affiliates of the Transferor to be included as Transferors ("ADDITIONAL
TRANSFERORS") under this Agreement in an amendment hereto pursuant to subsection
9.01(a) and, in connection with such designation, the Transferor shall surrender
the Transferor Certificate to the Owner Trustee in exchange for a newly issued
Transferor Certificate modified to reflect such Additional Transferor's interest
in the Transferor Interest; provided, however, that prior to any such
designation and exchange the conditions set forth in clauses (iii) and (v) of
subsection 3.06(b) of the Trust Agreement shall have been satisfied with respect
thereto.
(h) Delivery of Documents. In the case of the designation of
Additional Accounts, the Transferor designating such Accounts shall deliver to
the Owner Trustee (i) the computer file or microfiche list required to be
delivered pursuant to Section 2.01 with respect to such Additional Accounts on
the date such file or list is required to be delivered pursuant to Section 2.01
(the "DOCUMENT DELIVERY DATE") and (ii) a duly executed, written Assignment
(including an acceptance by the Trust), substantially in the form of EXHIBIT A
(the "ASSIGNMENT"), on the Document Delivery Date. In addition, in the case of
the designation of New Accounts, the Transferor designating such Accounts shall
deliver to the Owner Trustee on the Document Delivery Date an Officer's
Certificate confirming, to the extent applicable, the items set forth in clauses
(i) through (v) of subsection 2.09(e) above.
Section 2.10. Removal of Accounts and Participation Interests.
(a) On any day of any Monthly Period each Transferor shall have the right to
require the reassignment to it or its designee of all the Trust's right, title
and interest in, to and under the Receivables then existing and thereafter
created, all Interchange and Recoveries related thereto after the Removal Date,
all monies due or to become due and all amounts received or receivable with
respect thereto, and all proceeds thereof in or with respect to the Accounts
(the "REMOVED ACCOUNTS") or Participation Interests conveyed to the Trust by
such Transferor (the "REMOVED PARTICIPATION INTERESTS") (unless otherwise set
forth in the applicable Participation Interest Supplement or Indenture
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Supplement) and designated for removal by the Transferor, upon satisfaction of
the conditions in clauses (i) through (vi) below; provided, however, that the
conditions listed in clauses (iv) and (v) below need not be satisfied if the
Removed Accounts relate to a terminated Affinity Agreement and the related
merchant or co-branding participant has elected to purchase the Receivables in
such Removed Accounts:
(i) on or before the eighth Business Day immediately preceding
the Removal Date, such Transferor shall have given written notice to
the Owner Trustee, the Indenture Trustee, the Servicer, the Rating
Agency and each Series Enhancer (unless such notice requirement is
otherwise waived) of such removal and specifying the date for removal
of the Removed Accounts and removed Participation Interests (the
"REMOVAL DATE");
(ii) on or prior to the date that is five (5) Business Days on
or before the Removal Date, such Transferor shall amend SCHEDULE 1 by
delivering to the Owner Trustee a computer file or microfiche list
containing a true and complete list of the Removed Accounts specifying
for each such Account, as of the date notice of the Removal Date is
given, its account number, the aggregate amount outstanding in such
Account and the aggregate amount of Principal Receivables outstanding
in such Account;
(iii) such Transferor shall have represented and warranted as
of the Removal Date that the list of Removed Accounts delivered
pursuant to paragraph (ii) above, as of the Removal Date, is true and
complete in all material respects;
(iv) the Rating Agency Condition shall have been satisfied
with respect to the removal of the Removed Accounts and removed
Participation Interests;
(v) such Transferor shall have delivered to the Owner Trustee
and the Indenture Trustee an Officer's Certificate, dated the Removal
Date, to the effect that such Transferor reasonably believes that (A)
such removal will not have a material adverse effect on the
Noteholders, (B) such removal will not result in the occurrence of a
Pay Out Event or Event of Default, and (C) no selection procedures
believed by such Transferor to be materially adverse to the interests
of the Noteholders have been used in selecting the Removed Accounts;
and
(vi) any other conditions specified in the related Indenture
Supplement.
Upon satisfaction of the above conditions, the Trust shall
execute and deliver to such Transferor a written reassignment in substantially
the form of EXHIBIT B (the "REASSIGNMENT") and shall, without further action, be
deemed to transfer, assign, set over and otherwise convey to such Transferor or
its designee, effective as of the Removal Date, without recourse, representation
or warranty, all the right, title and interest of the Trust in and to the
Receivables arising in the Removed Accounts and Removed Participation Interests,
all Interchange and Recoveries related thereto, all monies due and to become due
and all amounts received or receivable with respect thereto after the Removal
Date and all proceeds thereof and any Insurance Proceeds relating thereto. The
Owner Trustee may conclusively rely on the Officer's Certificate delivered
pursuant to this Section 2.10 and shall have no duty to make
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inquiries with regard to the matters set forth therein and shall incur no
personal liability in so relying.
In addition to the foregoing, on the date when any Receivable
in an Account becomes a Defaulted Receivable, the Trust shall automatically and
without further action or consideration be deemed to transfer, set over and
otherwise convey to the Transferor with respect to such Account, without
recourse, representation or warranty, all right, title and interest of the Trust
in and to the Defaulted Receivables in such Account, all Interchange related
thereto, all monies and amounts due or to become due with respect thereto and
all proceeds thereof; provided that Recoveries of such Account shall be applied
as provided herein.
(b) Anything to the contrary herein notwithstanding, the
Transferor shall be entitled to purchase all Receivables in Accounts designated
for purchase or re-purchase by a merchant or co-branding participant pursuant to
the termination of an Affinity Agreement to which such merchant or co-branding
participant is a party. Any repurchase of Receivables pursuant to this
subsection 2.10(b) shall be effected in the manner, and at a price determined in
accordance with subsection 2.05(b) as if the Receivables being repurchased were
Ineligible Receivables. Amounts deposited in the Collection Account in
connection therewith shall be deemed to be Collections of Principal Receivables
and shall be applied in accordance with Article VIII of the Indenture and the
terms of each Indenture Supplement.
Section 2.11. Account Allocations. In the event that any
Transferor is unable for any reason to transfer Receivables to the Trust in
accordance with the provisions of this Agreement, including by reason of the
application of the provisions of Section 6.01 or any order of any Governmental
Authority (a "TRANSFER RESTRICTION EVENT"), then, (a) such Transferor and the
Servicer agree (except as prohibited by any such order) to allocate and pay to
the Trust, after the date of such inability, all Collections, including
Collections of Receivables transferred to the Trust prior to the occurrence of
such event, and all amounts which would have constituted Collections but for
such Transferor's inability to transfer Receivables (up to an aggregate amount
equal to the amount of Receivables transferred to the Trust by such Transferor
in the Trust on such date), (b) such Transferor and the Servicer agree that such
amounts will be applied as Collections in accordance with Article VIII of the
Indenture and the terms of each Indenture Supplement and (c) for so long as the
allocation and application of all Collections and all amounts that would have
constituted Collections are made in accordance with clauses (a) and (b) above,
Principal Receivables and all amounts which would have constituted Principal
Receivables but for such Transferor's inability to transfer Receivables to the
Trust which are charged off as uncollectible in accordance with this Agreement
shall continue to be allocated in accordance with Article VIII of the Indenture
and the terms
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of each Indenture Supplement. For the purpose of the immediately preceding
sentence, such Transferor and the Servicer shall treat the first received
Collections with respect to the Accounts as allocable to the Trust until the
Trust shall have been allocated and paid Collections in an amount equal to the
aggregate amount of Principal Receivables in the Trust as of the date of the
occurrence of such event. If such Transferor and the Servicer are unable
pursuant to any Requirements of Law to allocate Collections as described above,
such Transferor and the Servicer agree that, after the occurrence of such event,
payments on each Account with respect to the principal balance of such Account
shall be allocated first to the oldest principal balance of such Account and
shall have such payments applied as Collections in accordance with Article VIII
of the Indenture and the terms of each Indenture Supplement. The parties hereto
agree that Finance Charge Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Trust shall continue to be
a part of the Trust notwithstanding any cessation of the transfer of additional
Principal Receivables to the Trust and Collections with respect thereto shall
continue to be allocated and paid in accordance with Article VIII of the
Indenture and the terms of each Indenture Supplement.
Section 2.12. Discount Option.
(a) The Transferor shall have the option to designate at any
time and from time to time a percentage or percentages, which may be a fixed
percentage or a variable percentage based on a formula (the "DISCOUNT
PERCENTAGE"), of all or any specified portion of Collections of Principal
Receivables to be treated as Collections of Finance Charge Receivables
("DISCOUNT OPTION COLLECTIONS"). Subject to the conditions specified below, the
Transferor may, without notice to or the consent of any Noteholder, from time to
time, increase, reduce or eliminate the Discount Percentage for all or any
specified portion of Collections of Principal Receivables on or after a
specified date (each, a "DISCOUNT OPTION DATE"). The Transferor shall provide
thirty (30) days prior written notice of any such change in the Discount
Percentage and the related Discount Option Date to the Servicer, the Owner
Trustee, the Indenture Trustee and any Rating Agency and such change in the
Discount Percentage shall become effective on such Discount Option Date (i)
unless such designation in the reasonable belief of the Transferor would cause a
Pay Out Event or Event of Default with respect to any Series to occur, or an
event which, with notice or lapse of time or both, would constitute a Pay Out
Event or Event of Default with respect to any Series and (ii) only if the Rating
Agency Condition shall have been satisfied with respect to such designation.
(b) On each Date of Processing, Discount Option Collections,
if any, shall be treated as Collections of Finance Charge Receivables.
[END OF ARTICLE II]
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ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.01. Acceptance of Appointment and Other Matters
Relating to the Servicer.
(a) ANB agrees to act as the Servicer under this Agreement and
the Noteholders by their acceptance of Notes consent to ANB acting as Servicer.
(b) As agent for each Transferor and the Trust, the Servicer
shall service and administer the Receivables (including the underlying
receivables) and any Participation Interests, shall collect and deposit into the
Collection Account amounts received under the Receivables (including the
underlying receivables) and any Participation Interests and shall charge off as
uncollectible Receivables, all in accordance with its customary and usual
servicing procedures for servicing credit card receivables comparable to the
Receivables and in accordance with the Credit Card Guidelines. As agent for each
Transferor and the Trust, the Servicer shall have full power and authority,
acting alone or through any party properly designated by it hereunder, to do any
and all things in connection with such servicing and administration which it may
deem necessary or desirable; provided, however, that subject to the rights of
the Owner Trustee, the Indenture Trustee and the Noteholders hereunder, ACCR
shall have the absolute right to direct the Servicer with respect to any power
conferred on the Servicer hereunder in accordance with any such direction.
Without limiting the generality of the foregoing and subject to Section 7.01,
the Servicer or its designee is hereby authorized and empowered, unless such
power is revoked by the Indenture Trustee on account of the occurrence of a
Servicer Default pursuant to Section 7.01, (i) to instruct the Owner Trustee or
the Indenture Trustee to make withdrawals and payments from the Collection
Account, the Special Funding Account and any Series Account, as set forth in
this Agreement, the Indenture or any Indenture Supplement, (ii) to take any
action required or permitted under any Series Enhancement, as set forth in this
Agreement, the Indenture or any Indenture Supplement, (iii) to execute and
deliver, on behalf of the Trust, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable Requirements of Law, to commence collection
proceedings with respect to such Receivable and (iv) to make any filings,
reports, notices, applications and registrations with, and to seek any consents
or authorizations from, the Commission and any state securities authority on
behalf of the Trust as may be necessary or advisable to comply with any Federal
or state securities or reporting requirements or other laws or regulations. The
Owner Trustee and the Indenture Trustee upon written request therefor shall
furnish the Servicer with any documents necessary or appropriate to enable the
Servicer to carry out its servicing and administrative duties hereunder.
(c) The Servicer shall not, and no Successor Servicer shall,
be obligated to use separate servicing procedures, offices, employees or
accounts for servicing the Receivables from the procedures, offices, employees
and accounts used by the Servicer or such Successor Servicer, as the case may
be, in connection with servicing other credit card receivables.
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(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Accounts and Receivables in accordance with the
Credit Card Agreements relating to the Accounts and the Credit Card Guidelines
and all applicable rules and regulations of MasterCard and VISA, except insofar
as any failure to so comply or perform would not materially and adversely affect
the Trust or the Noteholders.
(e) The Servicer shall pay out of its own funds, without
reimbursement, all expenses incurred in connection with the Trust and the
servicing activities hereunder including expenses related to enforcement of the
Receivables, fees and disbursements of the Owner Trustee (as such and in its
individual capacity), the Administrator and the Indenture Trustee (including the
reasonable fees and expenses of its outside counsel) and independent accountants
and all other fees and expenses, including the costs of filing UCC continuation
statements, the costs and expenses relating to obtaining and maintaining the
listing of any Notes on any stock exchange and any stamp, documentary, excise,
property (whether on real, personal or intangible property) or any similar tax
levied on the Trust or the Trust's assets that are not expressly stated in this
Agreement to be payable by the Trust or the Transferor (other than federal,
state, local and foreign income and franchise taxes, if any, or any interest or
penalties with respect thereto, assessed on the Trust).
Section 3.02. Servicing Compensation. As full compensation for
its servicing activities hereunder and as reimbursement for any expense incurred
by it in connection therewith, the Servicer shall be entitled to receive a
servicing fee (the "SERVICING FEE") with respect to each Monthly Period, payable
monthly on the related Distribution Date, in an amount equal to one-twelfth of
the product of (a) the weighted average of the Servicing Fee Rates with respect
to each outstanding Series (based upon the Servicing Fee Rate for each Series
and the Invested Amount (or such other amount as specified in the related
Indenture Supplement) of such Series, in each case as of the last day of the
prior Monthly Period) and (b) the amount of Principal Receivables on the last
day of the prior Monthly Period prior to the termination of the Trust pursuant
to Section 8.01 of the Trust Agreement. The share of the Servicing Fee allocable
to a Series of Notes with respect to any Monthly Period (the "MONTHLY SERVICING
FEE") shall be determined in accordance with the relevant Indenture Supplement.
The portion of the Servicing Fee with respect to any Monthly Period not paid
pursuant to the preceding sentence shall be paid by the Holders of the
Transferor Certificates on the related Distribution Date and in no event shall
the Trust, the Owner Trustee (as such or in its individual capacity), the
Indenture Trustee, the Noteholders of any Series or any Series Enhancer be
liable for the share of the Servicing Fee with respect to any Monthly Period to
be paid by the Holders of the Transferor Certificates.
Section 3.03. Representations, Warranties and Covenants of the
Servicer. ANB, as initial Servicer, hereby makes, and any Successor Servicer by
its appointment hereunder shall make, with respect to itself, on each Closing
Date (and on the date of any such appointment), the following representations,
warranties and covenants on which the Trust and the Indenture Trustee shall be
deemed to have relied in accepting the Receivables in trust and in entering into
the Indenture:
(a) Organization and Good Standing. The Servicer is a national
bank duly organized and validly existing in good standing under the laws of the
United States and has, in all material respects, full power and authority to own
its properties and conduct its credit card
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servicing business as presently owned or conducted, and to execute, deliver and
perform its obligations under this Agreement.
(b) Due Qualification. The Servicer is duly qualified to do
business and is in good standing as a foreign corporation or other foreign
entity (or is exempt from such requirements) and has obtained all necessary
licenses and approvals in each jurisdiction in which the servicing of the
Receivables (including the underlying receivables) and any Participation
Interests as required by this Agreement requires such qualification except where
the failure to so qualify or obtain licenses or approvals would not have a
material adverse effect on its ability to perform its obligations as Servicer
under this Agreement.
(c) Due Authorization. The execution, delivery, and
performance of this Agreement and the other agreements and instruments executed
or to be executed by the Servicer as contemplated hereby, have been duly
authorized by the Servicer by all necessary action on the part of the Servicer.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Servicer, enforceable in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect or by general principles
of equity.
(e) No Conflict. The execution and delivery of this Agreement
by the Servicer, and the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof and thereof applicable to the
Servicer, will not conflict with, violate or result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or lapse
of time or both) a material default under, any indenture, contract, agreement,
mortgage, deed of trust or other instrument to which the Servicer is a party or
by which it or its properties are bound.
(f) No Violation. The execution and delivery of this Agreement
by the Servicer, the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof and thereof applicable to the
Servicer will not conflict with or violate any Requirements of Law applicable to
the Servicer.
(g) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Servicer, threatened against the
Servicer before any Governmental Authority seeking to prevent the consummation
of any of the transactions contemplated by this Agreement or seeking any
determination or ruling that, in the reasonable judgment of the Servicer, would
materially and adversely affect the performance by the Servicer of its
obligations under this Agreement.
(h) Compliance with Requirements of Law. The Servicer shall
duly satisfy all obligations on its part to be fulfilled under or in connection
with each Receivable (and the underlying receivable) and the related Account, if
any, will maintain in effect all qualifications required under Requirements of
Law in order to service properly each Receivable and the related Account, if
any, and will comply in all material respects with all other Requirements of Law
in
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connection with servicing each Receivable and the related Account the failure to
comply with which would have an Adverse Effect.
(i) No Rescission or Cancellation. The Servicer shall not
permit any rescission or cancellation of any Receivable (or the underlying
receivable) except in accordance with the Credit Card Guidelines or as ordered
by a court of competent jurisdiction or other Governmental Authority.
(j) Protection of Rights. The Servicer shall take no action
which, nor omit to take any action the omission of which, would impair the
rights of the Trust, the Indenture Trustee or the Noteholders in any Receivable
(or the underlying receivable) or the related Account, if any, nor shall it
reschedule, revise or defer payments due on any Receivable except in accordance
with the Credit Card Guidelines.
(k) Receivables Not To Be Evidenced by Promissory Notes.
Except in connection with its enforcement or collection of an Account, the
Servicer will take no action to cause any Receivable to be evidenced by any
instrument (as defined in the UCC) and if any Receivable is so evidenced it
shall be reassigned or assigned to the Servicer as provided in this Section.
(l) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by the Servicer in connection with
the execution and delivery of this Agreement by the Servicer and the performance
of the transactions contemplated by this Agreement by the Servicer, have been
duly obtained, effected or given and are in full force and effect.
In the event (x) any of the representations, warranties or
covenants of the Servicer contained in subsection 3.03(h), (i) or (j) with
respect to any Receivable or the related Account is breached, and such breach
has a material adverse effect on such Receivable (which determination shall be
made without regard to whether funds are then available to any Noteholders
pursuant to any Series Enhancement) and is not cured within sixty (60) days (or
such longer period, not in excess of 150 days, as may be agreed to by the
Indenture Trustee and the Transferor) of the earlier to occur of the discovery
of such event by the Servicer, or receipt by the Servicer of notice of such
event given by the Indenture Trustee or the Transferor, or (y) as provided in
subsection 3.03(k) with respect to any Receivable, all Receivables in the
Account or Accounts to which such event relates shall be assigned and
transferred to the Servicer on the terms and conditions set forth below.
The Servicer shall effect such assignment by making a deposit
into the Collection Account in immediately available funds on the Distribution
Date following the Monthly Period in which such assignment obligation arises in
an amount equal to the amount of such Receivables.
Upon each such reassignment or assignment to the Servicer, the
Trust shall automatically and without further action be deemed to sell,
transfer, assign, set over and otherwise convey to the Servicer, without
recourse, representation or warranty, all right, title and interest of the Trust
in and to such Receivables, all Interchange and Recoveries related thereto,
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all monies due or to become due and all amounts received or receivable with
respect thereto and all proceeds thereof. The Trust shall execute such documents
and instruments of transfer or assignment and take such other actions as shall
be reasonably requested by the Servicer to effect the conveyance of any such
Receivables pursuant to this Section but only upon receipt of an Officer's
Certificate of the Servicer that states that all conditions set forth in this
section have been satisfied. The obligation of the Servicer to accept
reassignment or assignment of such Receivables, and to make the deposits, if
any, required to be made to the Collection Account as provided in the preceding
paragraph, shall constitute the sole remedy respecting the event giving rise to
such obligation available to Noteholders (or the Indenture Trustee on behalf of
Noteholders) or any Series Enhancer, except as provided in Section 5.04.
Section 3.04. Reports and Records for the Owner Trustee and
the Indenture Trustee.
(a) Daily Records. On each Business Day, the Servicer shall
make or cause to be made available at the office of the Servicer for inspection
by the Owner Trustee and the Indenture Trustee upon request a record setting
forth (i) the Collections in respect of Principal Receivables and in respect of
Finance Charge Receivables processed by the Servicer on the second preceding
Business Day in respect of each Account and (ii) the amount of Receivables as of
the close of business on the second preceding Business Day in each Account. The
Servicer shall, at all times, maintain its computer files with respect to the
Accounts in such a manner so that the Accounts may be specifically identified
and shall make available to the Owner Trustee and the Indenture Trustee at the
office of the Servicer on any Business Day any computer programs necessary to
make such identification. The Owner Trustee and the Indenture Trustee shall
enter into such reasonable confidentiality agreements as the Servicer shall deem
necessary to protect its interests and as are reasonably acceptable in form and
substance to the Owner Trustee and the Indenture Trustee.
(b) Monthly Servicer's Certificate. Not later than the second
Business Day preceding each Distribution Date, the Servicer shall, with respect
to each outstanding Series, deliver to the Owner Trustee, the Indenture Trustee
and each Rating Agency a certificate of an Authorized Officer in substantially
the form set forth in the related Indenture Supplement.
Section 3.05. Annual Certificate of Servicer. The Servicer
shall deliver to the Owner Trustee, the Indenture Trustee and each Rating Agency
on or before April 30 of each calendar year, beginning with April 30, 2001, an
Officer's Certificate substantially in the form of EXHIBIT C.
Section 3.06. Annual Servicing Report of Independent Public
Accountants; Copies of Reports Available.
(a) On or before April 30 of each calendar year, beginning
with April 30, 2001, the Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to the
Servicer or the Transferor) to furnish to the Indenture Trustee, the Servicer
and each Rating Agency an SAS No. 70 Report (addressed to the Indenture Trustee)
for the year ended on the preceding December 31 for each Person performing
obligations as "Servicer" hereunder.
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(b) On or before April 30 of each calendar year, beginning
with April 30, 2001, the Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to the
Servicer or Transferor) to furnish a report to the Trustee, the Servicer and
each Rating Agency to the effect that they have applied certain procedures
agreed upon with the Servicer to compare the mathematical calculations of
certain amounts set forth in the Servicer's certificates delivered pursuant to
subsection 3.04(b) during the period covered by such report with the Servicer's
computer reports that were the source of such amounts and that on the basis of
such agreed-upon procedures and comparison, such accountants are of the opinion
that such amounts are in agreement, except for such exceptions as they believe
to be immaterial and such other exceptions as shall be set forth in such
statement. Such report shall set forth the agreed-upon procedures performed.
(c) A copy of each certificate and report provided pursuant to
subsection 3.04(b), or Section 3.05 or 3.06, may be obtained by any Noteholder
or Note Owner by a request in writing to the Owner Trustee addressed to the
Corporate Trust Office.
Section 3.07. Tax Treatment. Unless otherwise specified in the
Indenture or an Indenture Supplement with respect to a particular Series, the
Transferor has entered into this Agreement, and the Notes will be issued, with
the intention that, for federal, state and local income and franchise tax
purposes, (i) the Notes of each Series which are characterized as indebtedness
at the time of their issuance will qualify as indebtedness secured by the
Receivables and (ii) the Trust shall not be treated as an association or
publicly traded partnership taxable as a corporation. The Transferor, by
entering into this Agreement, and each Noteholder, by the acceptance of any such
Note (and each Note Owner, by its acceptance of an interest in the applicable
Note), agree to treat such Notes for federal, state and local income and
franchise tax purposes as indebtedness of the Transferor. Each Holder of such
Note agrees that it will cause any Note Owner acquiring an interest in a Note
through it to comply with this Agreement as to treatment as indebtedness under
applicable tax law, as described in this Section 3.07. The parties hereto agree
that they shall not cause or permit the making, as applicable, of any election
under Treasury Regulation Section 301.7701-3 whereby the Trust or any portion
thereof would be treated as a corporation for federal income tax purposes and,
except as required by Section 6.13 of the Indenture, shall not file tax returns
or obtain any federal employer identification number for the Trust but shall
treat the Trust as a security device for federal income tax purposes. The
provisions of this Agreement shall be construed in furtherance of the foregoing
intended tax treatment.
Section 3.08. Notices to ANB. In the event that ANB is no
longer acting as Servicer, any Successor Servicer shall deliver or make
available to ANB each certificate and report required to be provided thereafter
pursuant to subsection 3.04(b) and Sections 3.05 and 3.06.
Section 3.09. Adjustments.
(a) If the Servicer adjusts downward the amount of any
Receivable because of a rebate, refund, unauthorized charge or billing error to
a cardholder, or because such Receivable was created in respect of merchandise
which was refused or returned by a cardholder, then, in any such case, the
amount of Principal Receivables used to calculate the Transferor Interest, and
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(unless otherwise specified) any other amount required herein or in the
Indenture or any Indenture Supplement to be calculated by reference to the
amount of Principal Receivables, will be reduced by the amount of the
adjustment. Similarly, the amount of Principal Receivables used to calculate the
Transferor Interest and (unless otherwise specified) any other amount required
herein or in any Indenture Supplement to be calculated by reference to the
amount of Principal Receivables will be reduced by the principal amount of any
Receivable which was discovered as having been created through a fraudulent or
counterfeit charge or with respect to which the covenant contained in subsection
2.07(b) was breached. Any adjustment required pursuant to either of the two
preceding sentences shall be made on or prior to the end of the Monthly Period
in which such adjustment obligation arises. In the event that, following the
exclusion of such Principal Receivables from the calculation of the Transferor
Interest, the Transferor Interest would be less than the Required Transferor
Interest, not later than 1:00 p.m., New York City time, on the Distribution Date
following the Monthly Period in which such adjustment obligation arises, the
Transferor shall make a deposit into the Special Funding Account in immediately
available funds in an amount equal to the amount by which the Transferor
Interest would be less than the Required Transferor Interest, due to adjustments
with respect to Receivables conveyed by such Transferor (up to the amount of
such Principal Receivables).
(b) If (i) the Servicer makes a deposit into the Collection
Account in respect of a Collection of a Receivable and such Collection was
received by the Servicer in the form of a check which is not honored for any
reason or (ii) the Servicer makes a mistake with respect to the amount of any
Collection and deposits an amount that is less than or more than the actual
amount of such Collection, the Servicer shall appropriately adjust the amount
subsequently deposited into the Collection Account to reflect such dishonored
check or mistake. Any Receivable in respect of which a dishonored check is
received shall be deemed not to have been paid. Notwithstanding the first two
sentences of this paragraph, adjustments made pursuant to this Section 3.09
shall not require any change in any report previously delivered pursuant to
subsection 3.04(a).
Section 3.10. Reports to the Commission. The Servicer shall,
on behalf of the Trust, cause to be filed with the Commission any periodic
reports required to be filed under the provisions of the Securities Exchange Act
of 1934, as amended, and the rules and regulations of the Commission thereunder.
The Transferor shall, at its own expense, cooperate in any reasonable request of
the Servicer in connection with such filings.
[END OF ARTICLE III]
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ARTICLE IV
OTHER MATTERS RELATING TO EACH TRANSFEROR
Section 4.01. Liability of each Transferor. Each Transferor
shall be severally, and not jointly, liable for all obligations, covenants,
representations and warranties of such Transferor arising under or related to
this Agreement. Except as provided in the preceding sentence, each Transferor
shall be liable only to the extent of the obligations specifically undertaken by
it in its capacity as a Transferor.
Section 4.02. Merger or Consolidation of, or Assumption of the
Obligations of, a Transferor.
(a) No Transferor shall dissolve, liquidate, consolidate with
or merge into any other corporation or convey, transfer or sell its properties
and assets substantially as an entirety to any Person unless:
(i) (x) the corporation formed by such consolidation or into
which such Transferor is merged or the Person which acquires by
conveyance, transfer or sale the properties and assets of the
Transferor substantially as an entirety shall be, if such Transferor is
not the surviving entity, organized and existing under the laws of the
United States of America or any state or the District of Columbia, and
shall be a savings association, a national banking association, a bank
or other entity which is not eligible to be a debtor in a case under
Title 11 of the United States Code or is a special purpose corporation
whose powers and activities are limited to substantially the same
degree as provided in the certificate of incorporation of ACCR and, if
such Transferor is not the surviving entity, shall expressly assume, by
an agreement supplemental hereto, executed and delivered to the Owner
Trustee and the Indenture Trustee, in form reasonably satisfactory to
the Owner Trustee and the Indenture Trustee, the performance of every
covenant and obligation of such Transferor hereunder; and (y) such
Transferor or the surviving entity, as the case may be, has delivered
to the Owner Trustee and the Indenture Trustee (with a copy to each
Rating Agency) an Officer's Certificate and an Opinion of Counsel each
stating that such consolidation, merger, conveyance, transfer or sale
and such supplemental agreement comply with this Section, that such
supplemental agreement is a valid and binding obligation of such
surviving entity enforceable against such surviving entity in
accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting creditors' rights generally from time to
time in effect or general principles of equity, and that all conditions
precedent herein provided for relating to such transaction have been
complied with; and
(ii) the Rating Agency Condition shall have been satisfied
with respect to such consolidation, merger, conveyance or transfer.
(b) Except as permitted by subsection 2.07(c), the
obligations, rights or any part thereof of each Transferor hereunder shall not
be assignable nor shall any Person succeed to such obligations or rights of any
Transferor hereunder except (i) for conveyances, mergers,
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consolidations, assumptions, sales or transfers in accordance with the
provisions of the foregoing paragraph and (ii) for conveyances, mergers,
consolidations, assumptions, sales or transfers to other entities (1) which such
Transferor and the Servicer determine will not result in an Adverse Effect, (2)
which meet the requirements of clause (ii) of the preceding paragraph and (3)
for which such purchaser, transferee, pledgee or entity shall expressly assume,
in an agreement supplemental hereto, executed and delivered to the Owner Trustee
and the Indenture Trustee in writing in form satisfactory to the Owner Trustee
and the Indenture Trustee, the performance of every covenant and obligation of
such Transferor thereby conveyed.
Section 4.03. Limitations on Liability of Each Transferor.
Subject to Section 4.01, no Transferor nor any of the directors, officers,
employees, incorporators or agents of any Transferor acting in such capacities
shall be under any liability to the Trust, the Owner Trustee, the Indenture
Trustee, the Noteholders, any Series Enhancer or any other Person for any action
taken, or for refraining from the taking of any action, in good faith in such
capacities pursuant to this Agreement, it being expressly understood that such
liability is expressly waived and released as a condition of, and consideration
for, the execution of this Agreement, the Indenture and any Indenture Supplement
and the issuance of the Notes; provided, however, that this provision shall not
protect any Transferor or any such person against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. Each Transferor and any director, officer,
employee or agent of such Transferor may rely in good faith on any document of
any kind prima facie properly executed and submitted by any Person (other than
such Transferor) respecting any matters arising hereunder.
[END OF ARTICLE IV]
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ARTICLE V
OTHER MATTERS RELATING TO THE SERVICER
Section 5.01. Liability of the Servicer. The Servicer shall be
liable under this Article V only to the extent of the obligations specifically
undertaken by the Servicer in its capacity as Servicer.
Section 5.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer. The Servicer shall not consolidate with or merge
into any other corporation or convey, transfer or sell its properties and assets
substantially as an entirety to any Person, unless:
(a) (i) the corporation formed by such consolidation or into
which the Servicer is merged or the Person which acquires by conveyance,
transfer or sale the properties and assets of the Servicer substantially as an
entirety shall be, if the Servicer is not the surviving entity, a corporation or
a national banking association organized and existing under the laws of the
United States of America or any state or the District of Columbia, and, if the
Servicer is not the surviving entity, such corporation shall expressly assume,
by an agreement supplemental hereto, executed and delivered to the Owner Trustee
and the Indenture Trustee, in form satisfactory to the Owner Trustee and the
Indenture Trustee, the performance of every covenant and obligation of the
Servicer hereunder;
(ii) the Servicer has delivered to the Owner Trustee and the
Indenture Trustee an Officer's Certificate and an Opinion of Counsel
each stating that such consolidation, merger, conveyance, transfer or
sale comply with this Section 5.02 and that all conditions precedent
herein provided for relating to such transaction have been complied
with;
(iii) the Servicer shall have given the Rating Agencies notice
of such consolidation, merger or transfer or assets; and
(b) the corporation formed by such consolidation or into which
the Servicer is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Servicer substantially as an entirety shall be
an Eligible Servicer.
Section 5.03. Limitation on Liability of the Servicer and
Others. Except as provided in Section 5.04, neither the Servicer nor any of the
directors, officers, employees or agents of the Servicer in its capacity as
Servicer shall be under any liability to the Trust, the Owner Trustee, the
Indenture Trustee, the Noteholders, any Series Enhancer or any other Person for
any action taken, or for refraining from the taking of any action, in good faith
in its capacity as Servicer pursuant to this Agreement; provided, however, that
this provision shall not protect the Servicer or any such Person against any
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Servicer and any director,
officer, employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
(other than the Servicer) respecting any matters arising hereunder. The Servicer
shall not be under any obligation to appear in,
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prosecute or defend any legal action which is not incidental to its duties as
Servicer in accordance with this Agreement and which in its reasonable judgment
may involve it in any expense or liability. The Servicer may, in its sole
discretion, undertake any such legal action which it may deem necessary or
desirable for the benefit of the Noteholders with respect to this Agreement and
the rights and duties of the parties hereto and the interests of the Noteholders
hereunder.
Section 5.04. Servicer Indemnification of the Trust, the Owner
Trustee and the Indenture Trustee. The Servicer shall indemnify and hold
harmless each of the Trust, the Owner Trustee (as such and in its individual
capacity), the Indenture Trustee and any trustees predecessor thereto (including
the Indenture Trustee in its capacity as Transfer Agent and Registrar or as
Paying Agent) and their respective directors, officers, employees and agents
from and against any and all loss, liability, claim, expense, damage or injury
suffered or sustained by reason of (a) any acts or omissions of the Servicer
with respect to the Trust pursuant to this Agreement or (b) the administration
by the Owner Trustee of the Trust (in the case of clause (a) or (b), other than
such as may arise from the negligence or willful misconduct of the Owner Trustee
or the Indenture Trustee, as applicable), including any judgment, award,
settlement, reasonable attorneys' fees and other costs or expenses incurred in
connection with the defense of any action, proceeding or claim. Indemnification
pursuant to this Section 5.04 shall not be payable from the Trust Assets. The
Servicer's obligations under this Section 5.04 shall survive the termination of
this Agreement or the Trust or the earlier removal or resignation of the Owner
Trustee or the Indenture Trustee, as applicable.
Section 5.05. Resignation of the Servicer. The Servicer shall
not resign from the obligations and duties hereby imposed on it except (a) upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action which
the Servicer could take to make the performance of its duties hereunder
permissible under applicable law or (b) upon the assumption, by an agreement
supplemental hereto, executed and delivered to the Owner Trustee and the
Indenture Trustee, in form satisfactory to the Owner Trustee and the Indenture
Trustee, of the obligations and duties of the Servicer hereunder by any of its
Affiliates that is a direct or indirect wholly owned subsidiary of, and
guaranteed by, AFCC or by any entity the appointment of which shall have
satisfied the Rating Agency Condition and, in either case, qualifies as an
Eligible Servicer. Any determination permitting the resignation of the Servicer
shall be evidenced as to clause (a) above by an Opinion of Counsel to such
effect delivered to the Owner Trustee and the Indenture Trustee. No resignation
shall become effective until the Indenture Trustee or a Successor Servicer shall
have assumed the responsibilities and obligations of the Servicer in accordance
with Section 7.02 hereof. If within 120 days of the date of the determination
that the Servicer may no longer act as Servicer under clause (a) above the
Indenture Trustee is unable to appoint a Successor Servicer, the Indenture
Trustee shall serve as Successor Servicer. Notwithstanding the foregoing, the
Indenture Trustee shall, if it is legally unable so to act, petition a court of
competent jurisdiction to appoint any established institution qualifying as an
Eligible Servicer as the Successor Servicer hereunder. The Trust shall give
prompt notice to each Rating Agency and each Series Enhancer upon the
appointment of a Successor Servicer. Notwithstanding anything in this Agreement
to the contrary, ANB may assign part or all of its obligations and duties as
Servicer under this Agreement to an Affiliate of ANB so long as ANB shall have
fully guaranteed the performance of such obligations and duties under this
Agreement.
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Section 5.06. Access to Certain Documentation and Information
Regarding the Receivables. The Servicer shall provide to the Owner Trustee or
the Indenture Trustee, as applicable, access to the documentation regarding the
Accounts and the Receivables in such cases where the Owner Trustee or the
Indenture Trustee, as applicable, is required in connection with the enforcement
of the rights of Noteholders or by applicable statutes or regulations to review
such documentation, such access being afforded without charge but only (a) upon
reasonable request, (b) during normal business hours, (c) subject to the
Servicer's normal security and confidentiality procedures and (d) at reasonably
accessible offices in the continental United States designated by the Servicer.
Nothing in this Section shall derogate from the obligation of the Transferor,
the Owner Trustee, the Indenture Trustee and the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors and
the failure of the Servicer to provide access as provided in this Section as a
result of such obligation shall not constitute a breach of this Section.
Section 5.07. Delegation of Duties. In the ordinary course of
business, the Servicer may at any time delegate its duties hereunder with
respect to the Accounts and the Receivables to any Person that agrees to conduct
such duties in accordance with the Credit Card Guidelines and this Agreement.
Such delegation shall not relieve the Servicer of its liability and
responsibility with respect to such duties, and shall not constitute a
resignation within the meaning of Section 5.05.
Section 5.08. Examination of Records. Each Transferor and the
Servicer shall indicate generally in their computer files or other records that
the Receivables arising in the Accounts have been conveyed to the Trust,
pursuant to this Agreement. Each Transferor and the Servicer shall, prior to the
sale or transfer to a third party of any receivable held in its custody, examine
its computer records and other records to determine that such receivable is not,
and does not include, a Receivable.
[END OF ARTICLE V]
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ARTICLE VI
INSOLVENCY EVENTS
Section 6.01. Rights upon the Occurrence of an Insolvency
Event. If any Transferor shall consent or fail to object to the appointment of a
bankruptcy trustee or conservator, receiver or liquidator in any bankruptcy
proceeding or other insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to any Transferor or relating
to all or substantially all of such Transferor's property, or the commencement
of an action seeking a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
bankruptcy trustee or conservator, receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or for the winding-up, insolvency, bankruptcy, reorganization,
conservatorship, receivership or liquidation of such entity's affairs, or
notwithstanding an objection by such Transferor any such action shall have
remained undischarged or unstayed for a period of sixty (60) days or upon entry
of any order or decree providing for such relief; or such Transferor shall admit
in writing its inability to pay its debts generally as they become due, file, or
consent or fail to object (or object without dismissal of any such filing within
sixty (60) days of such filing) to the filing of, a petition to take advantage
of any applicable bankruptcy, insolvency or reorganization, receivership or
conservatorship statute, make an assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations (any such act or occurrence with
respect to any Person being an "INSOLVENCY EVENT"), such Transferor shall on the
day any such Insolvency Event occurs (the "APPOINTMENT DATE"), immediately cease
to transfer Principal Receivables to the Trust and shall promptly give notice to
the Indenture Trustee and the Owner Trustee thereof. Notwithstanding any
cessation of the transfer to the Trust of additional Principal Receivables,
Principal Receivables transferred to the Trust prior to the occurrence of such
Insolvency Event, Collections in respect of such Principal Receivables and
Finance Charge Receivables (whenever created) accrued in respect of such
Principal Receivables shall continue to be a part of the Trust Assets and shall
be allocated and distributed to Noteholders in accordance with the terms of the
Indenture and each Indenture Supplement.
[END OF ARTICLE VI]
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ARTICLE VII
SERVICER DEFAULTS
Section 7.01. Servicer Defaults. If any one of the following
events (a "SERVICER DEFAULT") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer
or deposit or to give instructions or to give notice to the Indenture Trustee to
make such payment, transfer or deposit on or before the date occurring five (5)
Business Days after the date such payment, transfer or deposit or such
instruction or notice is required to be made or given, as the case may be, under
the terms of this Agreement, the Indenture or any Indenture Supplement;
(b) failure on the part of the Servicer duly to observe or
perform in any material respect any other covenants or agreements of the
Servicer set forth in this Agreement which has an Adverse Effect and which
continues unremedied for a period of sixty (60) days after the date on which
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Owner Trustee or the Indenture Trustee, or to the
Servicer, the Owner Trustee and the Indenture Trustee by Holders of Notes
evidencing not less than 10% of the aggregate unpaid principal amount of all
Notes (or, with respect to any such failure that does not relate to all Series,
10% of the aggregate unpaid principal amount of all Series to which such failure
relates); or the Servicer shall assign or delegate its duties under this
Agreement, except as permitted by Sections 5.02 and 5.07;
(c) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has an Adverse
Effect on the rights of the Noteholders of any Series (which determination shall
be made without regard to whether funds are then available pursuant to any
Series Enhancement) and which Adverse Effect continues for a period of sixty
(60) days after the date on which notice thereof, requiring the same to be
remedied, shall have been given to the Servicer by the Owner Trustee or the
Indenture Trustee, or to the Servicer, the Owner Trustee and the Indenture
Trustee by the Holders of Notes evidencing not less than 10% of the aggregate
unpaid principal amount of all Notes (or, with respect to any such
representation, warranty or certification that does not relate to all Series,
10% of the aggregate unpaid principal amount of all Series to which such
representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a
bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy
proceeding or other insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to the Servicer or of or
relating to all or substantially all its property, or a decree or order of a
court or agency or supervisory authority having jurisdiction in the premises for
the appointment of a bankruptcy trustee or a conservator or receiver or
liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or the winding-up or liquidation
of its affairs, shall have been entered against the Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of
sixty (60) days; or the Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute,
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make any assignment for the benefit of its creditors or voluntarily suspend
payment of its obligations; or
(e) any other Servicer Default described in the related
Indenture Supplement.
Then, in the event of any Servicer Default, so long as the
Servicer Default shall not have been remedied, either the Indenture Trustee or
the Holders of Notes evidencing more than 50% of the aggregate unpaid principal
amount of all Notes, by notice then given to the Servicer and the Owner Trustee
(and to the Indenture Trustee if given by the Noteholders) (a "TERMINATION
NOTICE"), may terminate all but not less than all the rights and obligations of
the Servicer as Servicer under this Agreement; provided, however, if within
sixty (60) days of receipt of a Termination Notice the Indenture Trustee does
not receive any bids from Eligible Servicers in accordance with subsection
7.02(c) to act as a Successor Servicer and receives an Officer's Certificate of
the Servicer to the effect that the Servicer cannot in good faith cure the
Servicer Default which gave rise to the Termination Notice, the Indenture
Trustee shall grant a right of first refusal to the Transferor which would
permit the Transferor at its option to acquire the Notes on the Distribution
Date in the next calendar month.
The price for the Notes shall be equal to the sum of the
amounts specified therefor with respect to each outstanding Series in the
related Indenture Supplement. The Transferor shall notify the Indenture Trustee
prior to the Record Date for the Distribution Date of the acquisition if it is
exercising such right of first refusal. If the Transferor exercises such right
of first refusal, the Transferor shall deposit the price into the Collection
Account not later than 1:00 p.m., New York City time, on such Distribution Date
in immediately available funds. The price shall be allocated and distributed to
Noteholders in accordance with the terms of the Indenture and each Indenture
Supplement.
After receipt by the Servicer of a Termination Notice, and on
the date that a Successor Servicer is appointed by the Indenture Trustee
pursuant to Section 7.02, all authority and power of the Servicer under this
Agreement shall pass to and be vested in the Successor Servicer (a "SERVICE
TRANSFER"); and, without limitation, the Indenture Trustee is hereby authorized
and empowered (upon the failure of the Servicer to cooperate) to execute and
deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all
documents and other instruments upon the failure of the Servicer to execute or
deliver such documents or instruments, and to do and accomplish all other acts
or things necessary or appropriate to effect the purposes of such Service
Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such
Successor Servicer in effecting the termination of the responsibilities and
rights of the Servicer to conduct servicing hereunder, including the transfer to
such Successor Servicer of all authority of the Servicer to service the
Receivables provided for under this Agreement, including all authority over all
Collections which shall on the date of transfer be held by the Servicer for
deposit, or which have been deposited by the Servicer, in the Collection
Account, or which shall thereafter be received with respect to the Receivables,
and in assisting the Successor Servicer. The Servicer shall within twenty (20)
Business Days transfer its electronic records relating to the Receivables to the
Successor Servicer in such electronic form as the Successor Servicer may
reasonably request and shall promptly transfer to the Successor Servicer all
other records, correspondence and documents necessary for the continued
servicing of the Receivables in the manner and at such times as the Successor
Servicer shall reasonably request. To the extent that compliance
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with this Section shall require the Servicer to disclose to the Successor
Servicer information of any kind which the Servicer deems to be confidential,
the Successor Servicer shall be required to enter into such customary licensing
and confidentiality agreements as the Servicer shall deem reasonably necessary
to protect its interests.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in paragraph (a) above for a period of ten (10) Business
Days after the applicable grace period or under paragraph (b) or (c) above for a
period of sixty (60) Business Days after the applicable grace period, shall not
constitute a Servicer Default if such delay or failure could not be prevented by
the exercise of reasonable diligence by the Servicer and such delay or failure
was caused by an act of God or the public enemy, acts of declared or undeclared
war, public disorder, rebellion or sabotage, epidemics, landslides, lightning,
fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence
shall not relieve the Servicer from using all commercially reasonable efforts to
perform its obligations in a timely manner in accordance with the terms of this
Agreement and the Servicer shall provide the Indenture Trustee, Owner Trustee,
each Transferor and any Series Enhancer with an Officer's Certificate giving
prompt notice of such failure or delay by it, together with a description of its
efforts so to perform its obligations.
Section 7.02. Indenture Trustee To Act; Appointment of
Successor.
(a) On and after the receipt by the Servicer of a Termination
Notice pursuant to Section 7.01, the Servicer shall continue to perform all
servicing functions under this Agreement until the date specified in the
Termination Notice or otherwise specified by the Indenture Trustee or until a
date mutually agreed upon by the Servicer and the Indenture Trustee. The
Indenture Trustee shall as promptly as possible after the giving of a
Termination Notice appoint an Eligible Servicer as a successor servicer (the
"SUCCESSOR SERVICER"), and such Successor Servicer shall accept its appointment
by a written assumption in a form acceptable to the Indenture Trustee. In the
event that a Successor Servicer has not been appointed or has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the
Indenture Trustee without further action shall automatically be appointed the
Successor Servicer. The Indenture Trustee may delegate any of its servicing
obligations to an Affiliate or agent in accordance with subsection 3.01(b) and
Section 5.07. Notwithstanding the foregoing, the Indenture Trustee shall, if it
is legally unable so to act, petition at the expense of the Servicer a court of
competent jurisdiction to appoint any established institution qualifying as an
Eligible Servicer as the Successor Servicer hereunder. The Indenture Trustee
shall give prompt notice to each Rating Agency and each Series Enhancer upon the
appointment of a Successor Servicer.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof, and all references in this Agreement to the Servicer shall be
deemed to refer to the Successor Servicer.
(c) In connection with any Termination Notice, the Indenture
Trustee will review any bids which it obtains from Eligible Servicers and shall
be permitted to appoint any Eligible Servicer submitting such a bid as a
Successor Servicer for servicing compensation not in excess of the aggregate
Servicing Fees for all Series plus the sum of the amounts with respect to
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each Series and with respect to each Distribution Date equal to any Collections
of Finance Charge Receivables allocable to Noteholders of such Series which are
payable to the Holders of the Transferor Certificates after payment of all
amounts owing to the Noteholders of such Series with respect to such
Distribution Date or required to be deposited in the applicable Series Accounts
with respect to such Distribution Date and any amounts required to be paid to
any Series Enhancer for such Series with respect to such Distribution Date
pursuant to the terms of any Enhancement Agreement; provided, however, that the
Holders of the Transferor Certificates shall be responsible for payment of the
Transferor's portion of such aggregate Servicing Fees and all other such amounts
in excess of such aggregate Servicing Fees. Each Holder of the Transferor's
Certificates agrees that, if ANB (or any Successor Servicer) is terminated as
Servicer hereunder, the portion of the Collections in respect of Finance Charge
Receivables that the Transferor is entitled to receive pursuant to this
Agreement, the Indenture or any Indenture Supplement shall be reduced by an
amount sufficient to pay the Transferor's share of the compensation of the
Successor Servicer.
(d) All authority and power granted to the Servicer under this
Agreement shall automatically cease and terminate upon termination of the Trust
pursuant to Section 8.01 of the Trust Agreement, and shall pass to and be vested
in the Transferor and, without limitation, the Transferor is hereby authorized
and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments, and to do
and accomplish all other acts or things necessary or appropriate to effect the
purposes of such transfer of servicing rights. The Servicer agrees to cooperate
with the Transferor in effecting the termination of the responsibilities and
rights of the Servicer to conduct servicing of the Receivables. The Servicer
shall transfer its electronic records relating to the Receivables to the
Transferor or its designee in such electronic form as it may reasonably request
and shall transfer all other records, correspondence and documents to it in the
manner and at such times as it shall reasonably request. To the extent that
compliance with this Section shall require the Servicer to disclose to the
Transferor information of any kind which the Servicer deems to be confidential,
the Transferor shall be required to enter into such customary licensing and
confidentiality agreements as the Servicer shall deem necessary to protect its
interests.
Section 7.03. Notification to Noteholders. Within five (5)
Business Days after the Servicer becomes aware of any Servicer Default, the
Servicer shall give notice thereof to the Owner Trustee, the Indenture Trustee,
each Rating Agency and each Series Enhancer and the Indenture Trustee shall give
notice to the Noteholders. Upon any termination or appointment of a Successor
Servicer pursuant to this Article, the Indenture Trustee shall give prompt
notice thereof to the Noteholders.
[END OF ARTICLE VII]
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ARTICLE VIII
TERMINATION
Section 8.01. Termination of Agreement. This Agreement and the
respective obligations and responsibilities of the Trust, the Transferor and the
Servicer under this Agreement shall terminate, except with respect to the duties
described in Section 5.04, on the Trust Termination Date.
[END OF ARTICLE VIII]
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ARTICLE IX
MISCELLANEOUS PROVISIONS
Section 9.01. Amendment; Waiver of Past Defaults.
(a) This Agreement may be amended by the parties hereto from
time to time prior to, or in connection with, the issuance of the first Series
of Notes hereunder without the requirement of any consents or the satisfaction
of any conditions set forth below. This Agreement may be amended from time to
time by the Servicer, the Transferor and the Trust, by a written instrument
signed by each of them, without the consent of the Indenture Trustee or any of
the Noteholders; provided that (i) the Transferor shall have delivered to the
Indenture Trustee and the Owner Trustee an Officer's Certificate, dated the date
of any such Amendment, stating that the Transferor reasonably believes that such
amendment will not have an Adverse Effect and (ii) the Rating Agency Condition
shall have been satisfied with respect to any such amendment. Additionally,
notwithstanding the preceding sentence, this Agreement will be amended by the
Servicer and the Trust at the direction of the Transferor without the consent of
the Indenture Trustee or any of the Noteholders or Series Enhancers to add,
modify or eliminate such provisions as may be necessary or advisable in order to
enable all or a portion of the Trust (i) to qualify as, and to permit an
election to be made to cause the Trust to be treated as, a "financial asset
securitization investment trust" as described in the provisions of Section 860L
of the Code, and (ii) to avoid the imposition of state or local income or
franchise taxes imposed on the Trust's property or its income; provided,
however, that (i) the Transferor delivers to the Indenture Trustee and the Owner
Trustee an Officer's Certificate to the effect that the proposed amendments meet
the requirements set forth in this subsection, (ii) each Rating Agency will have
notified the Transferor, the Servicer, the Indenture Trustee and the Owner
Trustee in writing that the amendment will not result in a reduction or
withdrawal of the rating of any outstanding Series or Class as to which it is a
Rating Agency and (iii) such amendment does not affect the rights, duties,
benefits, protections, privileges or immunities of the Indenture Trustee or the
Owner Trustee (as such or in its individual capacity) hereunder. The amendments
which the Transferor may make without the consent of Noteholders or Series
Enhancers pursuant to the preceding sentence may include, without limitation,
the addition of a sale of Receivables.
(b) This Agreement may also be amended from time to time by
the Servicer, the Transferor and the Trust, with the consent of the Holders of
Notes evidencing not less than 66-2/3% of the aggregate unpaid principal amount
of the Notes of all affected Series for which the Transferor has not delivered
an Officer's Certificate stating that there is no Adverse Effect, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Noteholders; provided, however, that no such amendment shall (i) reduce in
any manner the amount of or delay the timing of any distributions (changes in
Pay Out Events or Events of Default that decrease the likelihood of the
occurrence thereof shall not be considered delays in the timing of distributions
for purposes of this clause) to be made to Noteholders or deposits of amounts to
be so distributed or the amount available under any Series Enhancement without
the consent of each affected Noteholder, (ii) change the definition of or the
manner of calculating the interest of any Noteholder without the consent of each
affected Noteholder, (iii) reduce the aforesaid percentage required to consent
to any such amendment without the consent of each Noteholder or (iv)
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adversely affect the rating of any Series or Class by each Rating Agency without
the consent of the Holders of Notes of such Series or Class evidencing not less
than 66-2/3% of the aggregate unpaid principal amount of the Notes of such
Series or Class.
(c) Promptly after the execution of any such amendment or
consent (other than an amendment pursuant to paragraph (a)), the Trust shall
furnish notification of the substance of such amendment to the Indenture Trustee
and each Noteholder, and the Servicer shall furnish notification of the
substance of such amendment to each Rating Agency and each Series Enhancer.
(d) It shall not be necessary for the consent of Noteholders
under this Section 9.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Noteholders shall be subject to such
reasonable requirements as the Indenture Trustee may prescribe.
(e) Notwithstanding anything in this Section 9.01 to the
contrary, no amendment may be made to this Agreement or any Participation
Interest Supplement which would adversely affect in any material respect the
interests of any Series Enhancer without the consent of such Series Enhancer.
(f) Any Indenture Supplement executed in accordance with the
provisions of Article X of the Indenture shall not be considered an amendment of
this Agreement for the purposes of this Section 9.01.
(g) The Holders of Notes evidencing more than 66-2/3% of the
aggregate unpaid principal amount of the Notes of each Series or, with respect
to any Series with two (2) or more Classes, of each Class (or, with respect to
any default that does not relate to all Series, 66-2/3% of the aggregate unpaid
principal amount of the Notes of each Series to which such default relates or,
with respect to any such Series with two or more Classes, of each Class) may, on
behalf of all Noteholders, waive any default by the Transferor or the Servicer
in the performance of their obligations hereunder and its consequences, except
the failure to make any distributions required to be made to Noteholders or to
make any required deposits of any amounts to be so distributed. Upon any such
waiver of a past default, such default shall cease to exist, and any default
arising therefrom shall be deemed to have been remedied for every purpose of
this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
(h) The Owner Trustee may, but shall not be obligated to,
enter into any such amendment which affects the Owner Trustee's rights, duties,
benefits, protections, privileges or immunities under this Agreement or
otherwise. In connection with the execution of any amendment hereunder, the
Owner Trustee shall be entitled to receive the Opinion of Counsel described in
subsection 9.02(d).
Section 9.02. Protection of Right, Title and Interest to
Trust.
(a) The Transferor shall cause this Agreement, all amendments
and supplements hereto and all financing statements and continuation statements
and any other
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necessary documents covering the Indenture Trustee's and the Trust's right,
title and interest to the Trust to be promptly recorded, registered and filed,
and at all times to be kept recorded, registered and filed, all in such manner
and in such places as may be required by law fully to preserve and protect the
right, title and interest of the Indenture Trustee, Noteholders and the Trust
hereunder to all property comprising the Trust. The Transferor shall deliver to
the Owner Trustee and Indenture Trustee file-stamped copies of, or filing
receipts for, any document recorded, registered or filed as provided above, as
soon as available following such recording, registration or filing. The
Transferor shall cooperate fully with the Servicer in connection with the
obligations set forth above and will execute any and all documents reasonably
required to fulfill the intent of this paragraph.
(b) Within thirty (30) days after any Transferor makes any
change in its name, identity or corporate structure which would make any
financing statement or continuation statement filed in accordance with paragraph
(a) seriously misleading within the meaning of Section 9-402(7) (or any
comparable provision) of the UCC, such Transferor shall give the Owner Trustee
and the Indenture Trustee notice of any such change and shall file such
financing statements or amendments as may be necessary to continue the
perfection of the Trust's security interest or ownership interest in the
Receivables and the proceeds thereof.
(c) Each Transferor shall give the Owner Trustee and the
Indenture Trustee prompt notice of any relocation of its chief executive office
or any change in the jurisdiction under whose laws it is organized and whether,
as a result of such relocation or change, the applicable provisions of the UCC
would require the filing of any amendment of any previously filed financing or
continuation statement or of any new financing statement and shall file such
financing statements or amendments as may be necessary to perfect or to continue
the perfection of the Trust's security interest in the Receivables and the
proceeds thereof. Each Transferor shall at all times maintain its chief
executive offices within the United States and shall at all times be organized
under the laws of a jurisdiction located within the United States.
(d) The Transferor shall deliver to the Owner Trustee and the
Indenture Trustee (i) upon the execution and delivery of each amendment of this
Agreement, an Opinion of Counsel to the effect specified in EXHIBIT D-1; (ii) on
each date specified in subsection 2.09(c)(ix) with respect to Aggregate
Additions to be designated as Accounts, an Opinion of Counsel substantially in
the form of EXHIBIT D-2, (iii) on each date specified in subsection
2.09(d)(iii), with respect to any New Accounts included as Accounts, an Opinion
of Counsel substantially in the form of EXHIBIT D-2, (iv) on each Addition Date
on which any Participation Interests are to be included in the Trust pursuant to
subsection 2.09(a) or (b), an Opinion of Counsel covering the same substantive
legal issues addressed by EXHIBITS D-1 and D-2 but conformed to the extent
appropriate to relate to Participation Interests; and (v) on or before April 30
of each year, beginning with April 30, 2001, an Opinion of Counsel substantially
in the form of EXHIBIT D-3.
Section 9.03. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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61
Section 9.04. Notices; Payments.
(a) All demands, notices, instructions, directions and
communications (collectively, "NOTICES") under this Agreement shall be in
writing and shall be deemed to have been duly given if personally delivered at,
mailed by registered mail, return receipt requested, or sent by facsimile
transmission (i) in the case of the Transferor, to Associates Credit Card
Receivables Corp., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, 7 ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Attention: General Counsel (facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇), (ii) in the case of
the Servicer, to Associates National Bank (Delaware), at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Senior Vice President-Capital Markets
(facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇), (iii) in the case of the Trust or the Owner
Trustee, to Wilmington Trust Company, ▇▇▇▇▇▇ Square North, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Corporate Trust
Administration, (iv) in the case of the Rating Agency for a particular Series,
the address, if any, specified in the Indenture Supplement relating to such
Series, and (v) to any other Person as specified in the Indenture or any
Indenture Supplement; or, as to each party, at such other address or facsimile
number as shall be designated by such party in a written notice to each other
party.
(b) Any Notice required or permitted to be given to a Holder
of Registered Notes shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Note Register. No Notice shall be
required to be mailed to a Holder of Bearer Notes or Coupons but shall be given
as provided below. Any Notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Noteholder receives such Notice. In addition, (a) if and so long as any
Series or Class is listed on the Luxembourg Stock Exchange and such Exchange
shall so require, any Notice to Noteholders shall be published in an Authorized
Newspaper of general circulation in Luxembourg within the time period prescribed
in this Agreement and (b) in the case of any Series or Class with respect to
which any Bearer Notes are outstanding, any Notice required or permitted to be
given to Noteholders of such Series or Class shall be published in an Authorized
Newspaper within the time period prescribed in this Agreement.
Section 9.05. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such provisions shall be deemed
severable from the remaining provisions of this Agreement and shall in no way
affect the validity or enforceability of the remaining provisions or of the
Notes or the rights of the Noteholders.
Section 9.06. Further Assurances. The Transferor and the
Servicer agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments required or reasonably requested by the
Owner Trustee and the Indenture Trustee more fully to effect the purposes of
this Agreement, including the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
Section 9.07. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trust, the Owner
Trustee, the Indenture Trustee or the Noteholders, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege
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62
under this Agreement preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights, remedies,
powers and privileges provided under this Agreement are cumulative and not
exhaustive of any rights, remedies, powers and privileges provided by law.
Section 9.08. Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
Section 9.09. Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the Indenture
Trustee, the Noteholders, any holder of a Supplemental Certificate, any Series
Enhancer and their respective successors and permitted assigns. Except as
otherwise expressly provided in this Agreement, no other Person will have any
right or obligation hereunder.
Section 9.10. Actions by Noteholders.
(a) Wherever in this Agreement a provision is made that an
action may be taken or a Notice given by Noteholders, such action or Notice may
be taken or given by any Noteholder, unless such provision requires a specific
percentage of Noteholders.
(b) Any Notice, request, authorization, direction, consent,
waiver or other act by the Holder of a Note shall bind such Holder and every
subsequent Holder of such Note and of any Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done or omitted to be done by the Owner Trustee, the Transferor or the
Servicer in reliance thereon, whether or not notation of such action is made
upon such Note.
Section 9.11. Rule 144A Information. For so long as any of the
Notes of any Series or Class are "restricted securities" within the meaning of
Rule 144(a)(3) under the Securities Act, each of the Transferor, the Owner
Trustee, the Indenture Trustee, the Servicer and any Series Enhancer agree to
cooperate with each other to provide to any Noteholders of such Series or Class
and to any prospective purchaser of Notes designated by such Noteholder, upon
the request of such Noteholder or prospective purchaser, any information
required to be provided to such holder or prospective purchaser to satisfy the
condition set forth in Rule 144A(d)(4) under the Securities Act.
Section 9.12. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 9.13. Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
Section 9.14. Limitation of Liability. Notwithstanding any
other provision herein or elsewhere, this Agreement has been executed and
delivered by Wilmington Trust Company, not in its individual capacity, but
solely in its capacity as Owner Trustee of the Trust,
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in no event shall Wilmington Trust Company in its individual capacity have any
liability in respect of the representations, warranties, or obligations of the
Trust hereunder or under any other document, as to all of which recourse shall
be had solely to the assets of the Trust, and for all purposes of this Agreement
and each other document, the Owner Trustee (as such or in its individual
capacity) shall be subject to, and entitled to the benefits of, the terms and
provisions of the Trust Agreement.
[END OF ARTICLE IX]
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IN WITNESS WHEREOF, the Transferor, the Servicer and the Trust
have caused this Transfer and Servicing Agreement to be duly executed by their
respective officers as of the day and year first above written.
ASSOCIATES CREDIT CARD RECEIVABLES
CORP.,
as Transferor
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
ASSOCIATES NATIONAL BANK (DELAWARE),
as Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
ASSOCIATES CREDIT CARD MASTER NOTE
TRUST,
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
on behalf of the Trust,
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
[Signature Page to Transfer and Servicing Agreement]
65
Acknowledged and Accepted:
THE BANK OF NEW YORK,
not in its individual capacity but
solely as Indenture Trustee
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Assistant Treasurer
66
EXHIBIT A
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(AS REQUIRED BY SECTION 2.09 OF
THE TRANSFER AND SERVICING AGREEMENT)
ASSIGNMENT No. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS dated
as of _____________,(2) by and among ASSOCIATES CREDIT CARD RECEIVABLES CORP., a
Delaware corporation, as Transferor (the "TRANSFEROR"), ASSOCIATES NATIONAL BANK
(DELAWARE), a national banking association, as Servicer (the "SERVICER"), and
ASSOCIATES CREDIT CARD MASTER NOTE TRUST (the "TRUST"), pursuant to the Transfer
and Servicing Agreement referred to below.
WITNESSETH
WHEREAS, the Transferor, the Servicer and the Trust are
parties to the Transfer and Servicing Agreement, dated as of April 1, 2000 (as
amended and supplemented, the "AGREEMENT");
WHEREAS, pursuant to the Agreement, the Transferor wishes to
designate Additional Accounts to be included as Accounts and to convey the
Receivables of such Additional Accounts (as each such term is defined in the
Agreement), whether now existing or hereafter created, to the Trust; and
WHEREAS, the Trust is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Transferor, the Servicer and the Trust
hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in the Agreement unless otherwise defined herein.
"ADDITION DATE" shall mean, with respect to the Additional
Accounts designated hereby, ____________, ____.
"ADDITIONAL CUT-OFF DATE" shall mean, with respect to the
Additional Accounts designated hereby, ____________, ____.
2. Designation of Additional Accounts. On or before the date
hereof, the Transferor will deliver to the Owner Trustee a computer file or
microfiche list containing a true and complete schedule identifying all such
Additional Accounts (the "ADDITIONAL ACCOUNTS") specifying for each such
Additional Account, as of the Additional Cut-Off Date, its account number, the
aggregate amount outstanding in such Account and the aggregate amount of
Principal Receivables outstanding in such Account, which computer file or
microfiche list shall supplement SCHEDULE 1 to the Agreement.
----------
(2) / To be dated as of the applicable Addition Date.
67
3. Conveyance of Receivables. (a) The Transferor does hereby,
transfer, assign, set over and otherwise convey, without recourse except as set
forth in the Transfer and Servicing Agreement, to the Trust, all its right,
title and interest in, to and under the Receivables of such Additional Accounts
existing at the close of business on the Additional Cut-Off Date and thereafter
created from time to time until the termination of the Trust, all Interchange
and Recoveries related thereto, all monies due or to become due and all amounts
received or receivable with respect thereto and all proceeds (including
"proceeds" as defined in the UCC) thereof. The foregoing does not constitute and
is not intended to result in the creation or assumption by the Trust, the Owner
Trustee (as such or in its individual capacity), the Indenture Trustee, any
Noteholders or any Series Enhancer of any obligation of the Servicer, the
Transferor or any other Person in connection with the Accounts, the Receivables
or under any agreement or instrument relating thereto, including any obligation
to Obligors, merchant banks, merchants clearance systems, VISA, MasterCard or
insurers.
(b) If necessary, the Transferor agrees to record and file, at
its own expense, financing statements (and continuation statements when
applicable) with respect to the Receivables in Additional Accounts existing on
the Additional Cut-Off Date and thereafter created meeting the requirements of
applicable state law in such manner and in such jurisdictions as are necessary
to perfect, and maintain perfection of, the sale and assignment of its interest
in such Receivables to the Trust, and to deliver a file-stamped copy of each
such financing statement or other evidence of such filing to the Owner Trustee
on or prior to the Addition Date. The Owner Trustee shall be under no obligation
whatsoever to file such financing or continuation statements or to make any
other filing under the UCC in connection with such sale and assignment.
(c) In connection with such sale, the Transferor further
agrees, at its own expense, on or prior to the date of this Assignment, to
indicate in the appropriate computer files that Receivables created in
connection with the Additional Accounts and designated hereby have been conveyed
to the Trust pursuant to the Agreement and this Assignment.
(d) The Transferor does hereby grant to the Trust a security
interest in all of its right, title and interest, whether now owned or hereafter
acquired, in and to the Receivables in the Additional Accounts existing on the
Additional Cut-Off Date and thereafter created, all Interchange and Recoveries
related thereto, all monies due or to become due and all amounts received or
receivable with respect thereto, all money, accounts, general intangibles,
chattel paper, instruments, documents, goods, investment property, deposit
accounts, certificates of deposit, letters of credit, and advices of credit
consisting of, arising from or related to the foregoing, and all "proceeds"
(including "proceeds" as defined in the UCC) thereof. This Assignment
constitutes a security agreement under the UCC.
4. Acceptance by Trust. The Trust hereby acknowledges its
acceptance of all right, title and interest to the property, existing on the
Additional Cut-Off Date and thereafter created, conveyed to the Trust pursuant
to Section 3(a) of this Assignment. The Trust further acknowledges that, prior
to or simultaneously with the execution and delivery of this Assignment, the
Transferor delivered to the Owner Trustee the computer file or microfiche list
described in Section 2 of this Assignment.
A-2
68
5. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Trust, as the Addition Date
that:
(a) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Transferor
enforceable against the Transferor in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity);
(b) Eligibility of Accounts. As of the Additional Cut-Off
Date, each Additional Account designated hereby is an Eligible Account;
(c) Insolvency. As of each of the Additional Cut-Off Date and
the Addition Date, no Insolvency Event with respect to the Transferor
has occurred and the transfer by the Transferor of Receivables arising
in the Additional Accounts to the Trust has not been made in
contemplation of the occurrence thereof;
(d) Pay Out Event; Event of Default. The Transferor reasonably
believes that (A) the transfer of the Receivables arising in the
Additional Accounts will not, based on the facts known to the
Transferor, then or thereafter cause a Pay Out Event or Event of
Default to occur with respect to any Series and (B) no selection
procedure was utilized by the Transferor which would result in the
selection of Additional Accounts (from among the available Eligible
Accounts available to the Transferor) that would be materially adverse
to the interests of the Noteholders of any Series as of the Addition
Date;
(e) Security Interest. This Assignment constitutes a valid
sale, transfer and assignment to the Trust of all right, title and
interest, whether owned on the Additional Cut-Off Date or thereafter
acquired, of the Transferor in the Receivables existing on the
Additional Cut-Off Date or thereafter created in the Additional
Accounts, all Interchange and Recoveries related thereto, all monies
due or to become due and all amounts received or receivable with
respect thereto and the "proceeds" (including "proceeds" as defined in
the applicable UCC) thereof, or, if this Assignment does not constitute
a sale of such property, it constitutes a grant of a "security
interest" (as defined in the applicable UCC) in such property to the
Trust, which, in the case of existing Receivables and the proceeds
thereof, is enforceable upon execution and delivery of this Assignment,
and which will be enforceable with respect to such Receivables
hereafter created and the proceeds thereof upon such creation. Upon the
filing of the financing statements described in Section 3 of this
Assignment and, in the case of the Receivables hereafter created and
the proceeds thereof, upon the creation thereof, the Trust shall have a
first priority perfected security or ownership interest in such
property;
(f) No Conflict. The execution and delivery by the Transferor
of this Assignment, the performance of the transactions contemplated by
this Assignment and the fulfillment of the terms hereof applicable to
the Transferor, will not conflict with or violate any Requirements of
Law applicable to the Transferor or conflict with, result in
A-3
69
any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of
trust or other instrument to which the Transferor is a party or by
which it or its properties are bound;
(g) No Proceedings. There are no proceedings or
investigations, pending or, to the best knowledge of the Transferor,
threatened against the Transferor before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality
(i) asserting the invalidity of this Assignment, (ii) seeking to
prevent the consummation of any of the transactions contemplated by
this Assignment, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Transferor, would materially and adversely
affect the performance by the Transferor of its obligations under this
Assignment or (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Assignment; and
(h) All Consents. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be
obtained by the Transferor in connection with the execution and
delivery of this Assignment by the Transferor and the performance of
the transactions contemplated by this Assignment by the Transferor,
have been obtained.
6. Ratification of Agreement. As supplemented by this
Assignment, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Assignment shall be read, taken and
construed as one and the same instrument.
7. Counterparts. This Assignment may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
8. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
9. Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Assignment has been executed and delivered
by Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of the Trust, in no event shall Wilmington Trust
Company in its individual capacity have any liability in respect of the
representations, warranties, or obligations of the Trust hereunder or under any
other document, as to all of which recourse shall be had solely to the assets of
the Trust, and for all purposes of this Assignment and each other document, the
Owner Trustee (as such or in its individual capacity) shall be subject to, and
entitled to the benefits of, the terms and provisions of of the Trust Agreement.
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70
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trust
have caused this Assignment to be duly executed by their respective officers as
of the day and year first above written.
ASSOCIATES CREDIT CARD
RECEIVABLES CORP.,
Transferor,
By:
--------------------------------------
Name:
Title:
ASSOCIATES NATIONAL BANK
(DELAWARE),
Servicer
By:
--------------------------------------
Name:
Title:
ASSOCIATES CREDIT CARD MASTER
NOTE TRUST
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee,
on behalf of the Trust
By:
--------------------------------------
Name:
Title:
A-5
71
SCHEDULE 1
List of Accounts
72
EXHIBIT B
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(AS REQUIRED BY SECTION 2.10 OF
THE TRANSFER AND SERVICING AGREEMENT)
REASSIGNMENT No. _______ OF RECEIVABLES dated as of
_________,(3) by and among ASSOCIATES CREDIT CARD RECEIVABLES CORP., a Delaware
corporation, as Transferor (the "TRANSFEROR"), ASSOCIATES NATIONAL BANK
(DELAWARE), a national banking association, as Servicer (the "SERVICER") and
ASSOCIATES CREDIT CARD MASTER NOTE TRUST, (the "TRUST"), pursuant to the
Transfer and Servicing Agreement referred to below.
WITNESSETH:
WHEREAS the Transferor, the Servicer and the Trust are parties
to the Transfer and Servicing Agreement, dated as of April 1, 2000 (as amended
and supplemented, the "AGREEMENT");
WHEREAS pursuant to the Agreement, the Transferor wishes to
remove from the Trust all Receivables owned by the Trust in certain designated
Accounts (the "REMOVED ACCOUNTS") and to cause the Trust to reconvey the
Receivables of such Removed Accounts, whether now existing or hereafter created,
from the Trust to the Transferor; and
WHEREAS the Trust is willing to accept such designation and to
reconvey the Receivables in the Removed Accounts subject to the terms and
conditions hereof;
NOW, THEREFORE, the Transferor and the Trust hereby agree as
follows:
1. Defined Terms. All terms defined in the Agreement and used
herein shall have such defined meanings when used herein, unless otherwise
defined herein.
"REMOVAL DATE" shall mean, with respect to the Removed
Accounts designated hereby, ___________, ____
"REMOVAL NOTICE DATE" shall mean, with respect to the Removed
Accounts ______________, ____
2. Designation of Removed Accounts. On or before the Removal
Date, the Transferor will deliver to the Owner Trustee a computer file or
microfiche list containing a true and complete schedule identifying all Accounts
the Receivables of which are being removed from the Trust, specifying for each
such Account, as of the Removal Notice Date, its account number, the aggregate
amount outstanding in such Account and the aggregate amount of Principal
Receivables in such Account, which computer file or microfiche list shall
supplement Schedule 1 to the Agreement.
----------
(3) / To be dated as of the Removal Date.
73
3. Conveyance of Receivables. (a) The Trust does hereby
transfer, assign, set over and otherwise convey to the Transferor, without
recourse, on and after the Removal Date, all right, title and interest of the
Trust in, to and under the Receivables existing at the close of business on the
Removal Notice Date and thereafter created from time to time in the Removed
Accounts designated hereby, all Interchange and Recoveries related thereto, all
monies due or to become due and all amounts received or receivable with respect
thereto and all proceeds thereof.
(b) In connection with such transfer, the Trust agrees to
execute and deliver to the Transferor on or prior to the date this Reassignment
is delivered, applicable termination statements prepared by the Transferor with
respect to the Receivables existing at the close of business on the Removal Date
and thereafter created from time to time in the Removed Accounts reassigned
hereby and the proceeds thereof evidencing the release by the Trust of its
interest in the Receivables in the Removed Accounts, and meeting the
requirements of applicable state law, in such manner and such jurisdictions as
are necessary to terminate such interest.
4. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Trust as of the Removal Date:
(a) Legal Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Transferor enforceable
against the Transferor, in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity); and
(b) Pay Out Event; Event of Default. The Transferor reasonably
believes that (A) the removal of the Receivables existing in the Removed
Accounts will not, based on the facts known to the Transferor, then or
thereafter cause a Pay Out Event or Event of Default to occur with respect to
any Series and (B) no selection procedure was utilized by the Transferor which
would result in a selection of Removed Accounts that would be materially adverse
to the interests of the Noteholders of any Series as of the Removal Date.
(c) List of Removed Accounts. The list of Removed Accounts
delivered pursuant to subsection 2.09(c) of the Agreement, as of the Removal
Date, is true and complete in all material respects.
5. Ratification of Agreement. As supplemented by this
Reassignment, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Reassignment shall be read, taken and
construed as one and the same instrument.
6. Counterparts. This Reassignment may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
7. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE
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OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS.
8. Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Reassignment has been executed and delivered
by Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee of the Trust, in no event shall Wilmington Trust
Company in its individual capacity have any liability in respect of the
representations, warranties, or obligations of the Trust hereunder or under any
other document, as to all of which recourse shall be had solely to the assets of
the Trust, and for all purposes of this Reassignment and each other document,
the Owner Trustee (as such or in its individual capacity) shall be subject to,
and entitled to the benefits of, the terms and provisions of of the Trust
Agreement.
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IN WITNESS WHEREOF, the Transferor, the Servicer and the Trust
have caused this Reassignment to be duly executed by their respective officers
as of the day and year first above written.
ASSOCIATES CREDIT CARD
RECEIVABLES CORP.,
Transferor
By:
--------------------------------------
Name:
Title:
ASSOCIATES NATIONAL BANK (DELAWARE),
Servicer
By:
--------------------------------------
Name:
Title:
ASSOCIATES CREDIT CARD MASTER
NOTE TRUST
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee,
on behalf of the Trust
By:
--------------------------------------
Name:
Title:
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76
EXHIBIT C
FORM OF ANNUAL SERVICER'S CERTIFICATE
(To be delivered on or before April 30 of
each calendar year beginning with April 30, 2001,
pursuant to Section 3.05 of the Transfer and
Servicing Agreement referred to below)
ASSOCIATES CREDIT CARD MASTER NOTE TRUST
The undersigned, a duly authorized representative of Associates National Bank
(Delaware), as Servicer ("ANB"), pursuant to the Transfer and Servicing
Agreement, dated as of April 1, 2000 (as amended and supplemented, the
"AGREEMENT"), among Associates Credit Card Receivables Corp., as transferor,
ANB, and Associates Credit Card Master Note Trust, does hereby certify that:
1. ANB is, as of the date hereof, the Servicer under the
Agreement. Capitalized terms used in this Certificate have their respective
meanings as set forth in the Agreement.
2. The undersigned is an Authorized Officer who is duly
authorized pursuant to the Agreement to execute and deliver this Certificate to
the Trust.
3. A review of the activities of the Servicer during the year
ended December 31, ____, and of its performance under the Agreement was
conducted under my supervision.
4. Based on such review, the Servicer has, to the best of my
knowledge, performed in all material respects its obligations under the
Agreement throughout such year and no default in the performance of such
obligations has occurred or is continuing except as set forth in paragraph 5
below.
5. The following is a description of each default in the
performance of the Servicer's obligations under the provisions of the Agreement
known to me to have been made by the Servicer during the year ended December 31,
____ which sets forth in detail (i) the nature of each such default, (ii) the
action taken by the Servicer, if any, to remedy each such default and (iii) the
current status of each such default: [If applicable, insert "NONE."]
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate this ____ day of __________________, 20__.
ASSOCIATES NATIONAL BANK (DELAWARE),
Servicer
By:
--------------------------------------
Name:
Title:
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FORM OF OPINION OF COUNSEL
WITH RESPECT TO AMENDMENTS
Provisions to be included in
Opinion of Counsel to be delivered pursuant
to subsection 9.02(d)(i)
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
Opinions Of Counsel delivered on any applicable Closing Date.
(i) The amendment to the Transfer and Servicing Agreement,
attached hereto as Schedule 1 (the "AMENDMENT"), has been duly
authorized, executed and delivered by the Transferor and constitutes
the legal, valid and binding agreement of the Transferor, enforceable
in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws from time to time in effect affecting
creditors' rights generally. The enforceability of the Transferor's
obligations is also subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity
or at law)
(ii) The Amendment has been entered into in accordance with
the terms and provisions of Section 9.01 of the Transfer and Servicing
Agreement.
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FORM OF OPINION OF COUNSEL
WITH RESPECT TO ACCOUNTS
Provisions to be included in
Opinion of Counsel to be
delivered pursuant to
subsection 9.02(d)(ii) or (iii)
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
Opinions of Counsel delivered on any applicable Closing Date.
1. The applicable Assignment creates in favor of the Trust a
security interest in the rights of the related Transferor in such of the
Receivables (arising in Accounts identified in Schedule 1 to such Assignment) as
constitute accounts. To the extent that such security interest is not an
interest of a buyer of accounts, then such Assignment creates in favor of the
Trust a security interest in the rights of such Transferor in the proceeds of
such Receivables.
2. To extent that transactions contemplated by the applicable
Assignment do not constitute a sale by the related Transferor to the Trust of
such of the Receivables (arising in Accounts identified in Schedule 1 to such
Assignment) as constitute general intangibles or the proceeds thereof, then such
Assignment creates in favor of the Trust a security interest in the rights of
such Transferor in such of the Receivables as constitute general intangibles and
the proceeds thereof.
3. The applicable Transferor Purchase Agreement or
Supplemental Conveyance creates in favor of the related Transferor a security
interest in the rights of ACCS in such of the Receivables (arising in Accounts
identified in Schedule 1 to such Transferor Purchase Agreement or Supplemental
Conveyance) as constitute accounts.
4. The applicable Receivables Purchase Agreement or
Supplemental Conveyance creates in favor of ACCS a security interest in the
rights of the related Account Owner in such of the Receivables (arising in
Accounts identified in Schedule 1 to such Receivables Purchase Agreement or
Supplemental Conveyance) as constitute accounts. To the extent that such
security interest is not an interest of a buyer of accounts, then such
Receivables Purchase Agreement or Supplemental Conveyance creates in favor of
ACCS a security interest in the rights of such Account Owner in the proceeds of
such Receivables.
5. To extent that transactions contemplated by the applicable
Receivables Purchase Agreement or Supplemental Conveyance do not constitute a
sale by the related Account Owner to ACCS of such of the Receivables (arising in
Accounts identified in Schedule 1 to such Receivables Purchase Agreement or
Supplemental Conveyance) as constitute general intangibles or the proceeds
thereof, then such Receivables Purchase Agreement or Supplemental Conveyance
creates in favor of ACCS a security interest in the rights of such Account Owner
in such of the Receivables as constitute general intangibles and the proceeds
thereof.
6. The security interests described in paragraphs 1 through 5
above are perfected and of first priority.
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PROVISIONS TO BE INCLUDED IN
ANNUAL OPINION OF COUNSEL
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
Opinions of Counsel delivered on any applicable Closing Date with respect to
similar matters. Unless otherwise indicated, all capitalized terms used herein
shall have the meanings ascribed to them in the Transfer and Servicing
Agreement.
1. No filing or other action, other than such filing or other
action described in such opinion, is necessary from the date of such opinion
through April 30 of the following year to continue the perfected status of the
security interest of the Trust in the Receivables described in the financing
statements referenced in such opinion.
2. No filing or other action, other than such filing or other
action described in such opinion, is necessary from the date of such opinion
through April 30 of the following year to continue the perfected status of the
security interest of the relevant Transferor in the Receivables described in the
financing statements referenced in such opinion.
3. No filing or other action, other than such filing or other
action described in such opinion, is necessary from the date of such opinion
through April 30 of the following year to continue the perfected status of the
security interest of ACCS in the Receivables described in the financing
statements referenced in such opinion.
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SCHEDULE 1
List of Accounts
[Original list delivered to Owner Trustee]
S-1