FIRST DEPOSIT NATIONAL BANK
Seller and Servicer,
PROVIDIAN NATIONAL BANK,
Seller,
and
BANKERS TRUST COMPANY,
Trustee
on behalf of the Certificateholders
SERIES 1997-3 SUPPLEMENT
Dated as of June 1, 1997
to
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1993
PROVIDIAN MASTER TRUST
SERIES 1997-3
TABLE OF CONTENTS
Page
ARTICLE I
Creation of the Series 1997-3 Certificates
Section 1.01 Designation..................................................... 1
ARTICLE II
Definitions
Section 2.01 Definitions..................................................... 2
ARTICLE III
Servicer
Section 3.01 Servicing Compensation......................................... 21
ARTICLE IV
Rights of Series 1997-3 Certificateholders;
Allocation and Application of Collections
Section 4.01 Collections and Allocations.................................... 22
Section 4.02 Determination of Monthly Interest.............................. 22
Section 4.03 Determination of Senior Monthly
Principal and Collateral Monthly
Principal; Principal Funding
Account; Accumulation Period................................. 25
Section 4.04 Required Amount................................................ 29
Section 4.05 Application of Available Finance
Charge Collections and Available
Principal Collections........................................ 29
Section 4.06 Defaulted Amounts; Charge-Offs................................. 34
Section 4.07 Additional Finance Charges..................................... 36
Section 4.08 Shared Principal Collections................................... 37
Section 4.09 Reserve Account................................................ 38
Section 4.10 Cash Collateral Account........................................ 40
Section 4.11 Interest Rate Protection Agreements............................ 43
ARTICLE V
Distributions and Reports to
Series 1997-3 Certificateholders
Section 5.01 Distributions.................................................. 44
Section 5.02 Reports and Statements......................................... 46
ARTICLE VI
Pay Out Events
Section 6.01 Additional Pay Out Event....................................... 47
ARTICLE VII
Optional Repurchase; Series Termination
Section 7.01 Optional Repurchase............................................ 47
Section 7.02 Series Termination............................................. 48
ARTICLE VIII
Final Distributions
Section 8.01 Sale of Receivables or Certificate-holders'
Interest Pursuant to Section 2.06 or
10.01 of the Agreement....................................... 48
Section 8.02 Distribution of Proceeds of Sale,
Disposition or Liquidation of the
Receivables Pursuant to Section 9.02
of the Agreement............................................. 51
ARTICLE IX
Miscellaneous Provisions
Section 9.01 Ratification of Agreement...................................... 54
Section 9.02 Counterparts................................................... 54
Section 9.03 Governing Law.................................................. 54
Section 9.04 Series Enhancer Notices........................................ 54
Section 9.05 Determination of Material Adverse
Effect....................................................... 54
Section 9.06 Amendment to Reflect Swap...................................... 54
Section 9.07 Other Amendments............................................... 55
EXHIBITS
Exhibit A-1 Form of Class A Certificate
Exhibit A-2 Form of Class B Certificate
Exhibit B Form of Monthly Payment Instructions and
Notification to the Trustee
Exhibit C Form of Monthly Statement
Exhibit D Form of Servicer's Certificate
Exhibit E Form of Notification to the Trustee and the
Sellers of a withdrawal from the Cash
Collateral Account
SCHEDULES
Schedule 1 Designated Dealers
SERIES 1997-3 SUPPLEMENT dated as of June 1, 1997 (the "Supplement"), among
FIRST DEPOSIT NATIONAL BANK, a national banking association, Seller and
Servicer; PROVIDIAN NATIONAL BANK (formerly known as FIRST DEPOSIT NATIONAL
CREDIT CARD BANK), a national banking association, Seller; and BANKERS TRUST
COMPANY, a New York banking corporation, Trustee.
Pursuant to the Pooling and Servicing Agreement dated as of June 1, 1993
(as amended and supplemented by each amendment or supplement thereto, other than
amendments and supplements that apply only to other Series of Investor
Certificates issued thereunder, the "Agreement"), among the Sellers, the
Servicer and the Trustee, the Sellers have created Providian Master Trust,
formerly known as First Deposit Master Trust (the "Trust"). Section 6.03 of the
Agreement provides that the Sellers may from time to time direct the Trustee to
authenticate one or more new Series of Investor Certificates representing
fractional undivided interests in the Trust. The Principal Terms of any new
Series are to be set forth in a Supplement to the Agreement.
Pursuant to this Supplement, the Sellers and the Trustee shall create a new
Series of Investor Certificates and specify the Principal Terms thereof.
ARTICLE I
Creation of the Series 1997-3 Certificates
Section 1.01. Designation. (a) There is hereby created a Series of Investor
Certificates to be issued pursuant to the Agreement and this Supplement to be
known as "Providian Master Trust, Asset Backed Certificates, Series 1997-3."
Series 1997-3 shall consist of three Classes of Investor Certificates, the first
of which shall be in certificated form and shall be known as "Providian Master
Trust, Floating Rate Class A Asset-Backed Certificates, Series 1997-3" (the
"Class A Certificates"), the second of which shall be in certificated form and
shall be known as "Providian Master Trust, Floating Rate Class B Asset Backed
Certificates, Series 1997-3" (the "Class B Certificates") and the third of which
shall be in uncertificated form and shall be known as "Providian Master Trust,
Collateral Interest, Series 1997-3" (the "Collateral Interest"). In connection
with the issuance of the Collateral Interest, the Trustee is hereby directed to
enter into the Collateral Agreement.
(b) Series 1997-3 shall be included in Group One. Notwithstanding any other
provision to the contrary in the Agreement or in this Supplement, the first
Distribution Date with respect to Series 1997-3 shall be the July 1997
Distribution Date.
(c) The Class A Certificates and the Class B Certificates are "Investor
Certificates" and the Class A Certificateholders and the Class B
Certificateholders are "Investor Certificateholders" for all purposes under the
Agreement and this Supplement. The Collateral Interest shall be deemed to be an
"Investor Certificate" and the Collateral Interest Holder shall be deemed to be
an "Investor Certificateholder" for all purposes under the Agreement and this
Supplement, except where expressly stated to the contrary. The Class A
Certificates, the Class B Certificates and the Collateral Interest together
shall constitute the "Certificateholders' Interest" with respect to Series
1997-3 for all purposes under the Agreement and this Supplement.
(d) In the event that any term or provision contained herein or in the
Collateral Agreement shall conflict with or be inconsistent with any term or
provision contained in the Agreement, the terms and provisions of this
Supplement or the Collateral Agreement, as the case may be, shall govern.
(e) The Collateral Interest Holder, as holder of an "Investor Certificate"
under the Agreement, shall be entitled to the benefits of the Agreement and this
Supplement. Notwithstanding the foregoing, except as expressly provided herein,
the provisions of the Agreement relating to the registration, authentication,
delivery, presentation, cancellation and surrender of Registered Certificates
contained in Article VI and Article XII of the Agreement shall not be applicable
to the Collateral Interest.
ARTICLE II
Definitions
Section 2.01. Definitions. (a) Whenever used in this Supplement, 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.
"Adjusted Invested Amount" shall mean, with respect to any date of
determination, an amount equal to the sum of the Class A Adjusted Invested
Amount, the Class B Adjusted Invested Amount and the Collateral Invested Amount.
"Available Cash Collateral Amount" shall mean, with respect to any
Distribution Date, the lesser of (a) the amount on deposit in the Cash
Collateral Account on such date (before giving effect to any deposit to, or
withdrawal from, the Cash Collateral Account to be made with respect to such
date) and (b) the Required Cash Collateral Amount as of such Distribution Date.
"Available Expected Principal" for any date of determination with respect
to each Monthly Period shall be equal to the excess of (a) the Expected Monthly
Principal for such Monthly Period over (b) the sum of, without duplication, (i)
all scheduled amortizations or accumulations of principal, including past due
shortfalls as of such date of determination, for all Non-Variable Accumulation
Series that are not scheduled to be in their revolving periods as of such
Monthly Period and (ii) all Expected Monthly Principal collections projected by
the Servicer to be allocable to any other Series with respect to which a Pay Out
Event shall have occurred on or prior to such date of determination.
"Available Finance Charge Collections" shall mean, with respect to any
Distribution Date, an amount equal to the sum of (a) the product of the Floating
Allocation Percentage and the amount of Collections of Finance Charge
Receivables with respect to the related Monthly Period (including any investment
earnings and certain other amounts that are to be treated as Collections
of Finance Charge Receivables in accordance with the Agreement, but excluding
any investment earnings constituting Principal Funding Investment Proceeds or
Cash Collateral Investment Proceeds), (b) the Principal Funding Investment
Proceeds, if any, with respect to such Distribution Date, (c) the Cash
Collateral Investment Proceeds, if any, with respect to such Distribution Date,
(d) if the Reserve Account is funded, the amount, if any, withdrawn from the
Reserve Account that, pursuant to Section 4.09(d), is required to be included in
Available Finance Charge Collections with respect to such Distribution Date, (e)
any Additional Finance Charges from other Series in Group One that are allocated
to Series 1997-3 with respect to such Monthly Period in accordance with Section
4.05 of the Agreement and Section 4.07 hereof and (f) payments on deposit in the
Collection Account as of the related Determination Date received by the Trust
from the Interest Rate Protection Provider with respect to any Interest Rate
Protection Agreements.
"Available Principal Collections" shall mean, with respect to any
Distribution Date, an amount equal to (a) the sum of (i) an aggregate amount
equal to the sum for each day in the related Monthly Period of the product
obtained by multiplying the Principal Allocation Percentage with respect to such
day and the amount of such day's Collections of Principal Receivables, (ii) any
Shared Principal Collections with respect to other Series that are allocated to
Series 1997-3 in accordance with Section 4.04 of the Agreement and Section 4.08
hereof with respect to such Monthly Period and (iii) any other amounts that,
pursuant to Section 4.05 hereof, are to be treated as Available Principal
Collections with respect to such Distribution Date, minus (b) Reallocated
Principal Collections with respect to such Monthly Period.
"Available Reserve Account Amount" shall mean, with respect to any
Distribution Date, the lesser of (a) the amount on deposit in the Reserve
Account on such date (before giving effect to any deposit to be made to the
Reserve Account on such date) and (b) the Required Reserve Account Amount.
"Base Rate" shall mean, with respect to any Monthly Period, the annualized
percentage equivalent of a fraction, the numerator of which is equal to the sum
of the Monthly Interest and the Monthly Servicing Fee based on an assumed
Servicing Fee Rate of 2% per annum, in each case with respect to the related
Distribution Date, and the denominator of which is the Invested Amount as of the
last day of the immediately preceding Monthly Period.
"Cash Collateral Account" shall have the meaning specified in Section
4.10(a).
"Cash Collateral Account Investments" shall mean Eligible Investments.
"Cash Collateral Account Surplus Amount" shall mean, with respect to any
Distribution Date, the amount, if any, by which the Available Cash Collateral
Amount exceeds the Required Cash Collateral Amount after giving effect to all
deposits to and withdrawals from the Cash Collateral Account required to be made
with respect to such Distribution Date.
"Cash Collateral Investment Proceeds" shall have the meaning specified in
Section 4.10(b).
"Class A Accumulation Period" shall mean, unless a Pay Out Event shall have
occurred prior thereto, the period commencing at the close of business on the
last Business Day of April 1999 (or such later date as is determined in
accordance with Section 4.03(e)), and ending upon the first to occur of (a) the
commencement of the Early Amortization Period, (b) the last Business Day of the
Monthly Period immediately preceding the Distribution Date on which the Class A
Invested Amount is paid in full to Class A Certificateholders and (c) the
Termination Date.
"Class A Accumulation Period Amount" shall mean for each Monthly Period an
amount equal to the product of (i) Available Expected Principal for such Monthly
Period and (ii) a fraction, the numerator of which is the Initial Invested
Amount and the denominator of which is the sum of the Initial Invested Amount
and the Initial Invested Amounts (as defined in the respective related
Supplements) of all other Variable Accumulation Series that are not scheduled
to be in their revolving periods as of such Monthly Period; provided that, for
purposes of this definition, the commencement date of the accumulation period of
each such Variable Accumulation Series shall be deemed to have been postponed to
the latest permissible date, determined as if the provisions of Section 4.03(e)
applied to each such Series with such changes as may be specified in the
applicable Supplement with respect to such Series (applying such provisions
first to the Variable Accumulation Series with the latest expected final payment
date and next to each Series with the next preceding expected final payment
date).
"Class A Accumulation Period Length" shall have the meaning specified in
Section 4.03(e).
"Class A Additional Interest" shall have the meaning specified in Section
4.02(a).
"Class A Adjusted Invested Amount" shall mean, with respect to any date of
determination, an amount equal to the excess, if any, of the Class A Invested
Amount over the Principal Funding Account Balance, if any, with respect to the
Class A Certificates on such date.
"Class A Certificate" shall mean any one of the Class of Investor
Certificates designated as "Providian Master Trust, Floating Rate Class A
Asset-Backed Certificates, Series 1997-3" pursuant to Section 1.01(a), executed
by the Banks and authenticated by or on behalf of the Trustee, substantially in
the form of Exhibit A-1.
"Class A Certificate Rate" shall mean, with respect to any Interest Period,
a per annum rate equal to LIBOR as of the related LIBOR Determination Date, plus
0.11%.
"Class A Certificateholder" shall mean the Person in whose name a Class A
Certificate is registered in the Certificate Register.
"Class A Certificateholders' Interest" shall mean that portion of the
Series 1997-3 Certificateholders' Interest evidenced by the Class A
Certificates.
"Class A Charge-Off" shall have the meaning specified in Section 4.06(b).
"Class A Controlled Accumulation Amount" shall mean, for any Distribution
Date with respect to the Class A Accumulation Period, $23,770,833; provided
that, if the commencement of the Class A Accumulation Period is modified
pursuant to Section 4.03(e), (a) the Class A Controlled Accumulation Amount
shall mean the amount specified in accordance with such Section on the date on
which the Class A Accumulation Period has most recently been modified, (b) the
Class A Controlled Accumulation Amount for each Monthly Period shall be no
greater than the Class A Accumulation Period Amount for such Monthly Period and
(c) the sum of the Class A Controlled Accumulation Amounts for all Monthly
Periods occurring during the modified Class A Accumulation Period shall not be
less than the Class A Initial Invested Amount.
"Class A Controlled Deposit Amount" shall mean, for any Distribution Date
with respect to the Class A Accumulation Period, an amount equal to the sum of
the Class A Controlled Accumulation Amount for such Distribution Date and any
Class A Deficit Controlled Accumulation Amount for the immediately preceding
Distribution Date.
"Class A Defaulted Amount" shall mean, with respect to any Distribution
Date, an amount equal to the product of (a) the Series 1997-3 Defaulted Amount
for the related Monthly Period and (b) the Class A Percentage for such Monthly
Period.
"Class A Deficit Controlled Accumulation Amount" shall mean (a) on the
first Distribution Date with respect to the Class A Accumulation Period, the
excess, if any, of the Class A Controlled Accumulation Amount for such
Distribution Date over the amount deposited in the Principal Funding Account as
Class A Monthly Principal for such Distribution Date and (b) on each subsequent
Distribution Date with respect to the Class A Accumulation Period, the excess,
if any, of the Class A Controlled Accumulation Amount for such subsequent
Distribution Date, plus any Class A Deficit Controlled Accumulation Amount for
the prior Distribution Date, over the amount deposited in the Principal Funding
Account as Class A Monthly Principal for such subsequent Distribution Date.
"Class A Expected Final Payment Date" shall mean the May 2001 Distribution
Date.
"Class A Initial Invested Amount" shall mean the aggregate initial
principal amount of the Class A Certificates, which is $570,500,000.
"Class A Interest Shortfall" shall have the meaning specified in Section
4.02(a).
"Class A Invested Amount" shall mean, with respect to any date of
determination, an amount equal to (a) the Class A Initial Invested Amount, minus
(b) the aggregate amount of principal payments made to Class A
Certificateholders prior to such date, minus (c) the excess, if any, of the
aggregate amount of Class A Charge-Offs over the aggregate amount of Class A
Charge-Offs reimbursed pursuant to Section 4.05(a)(v) prior to such date;
provided, however, that the Class A Invested Amount shall not be reduced below
zero.
"Class A Monthly Interest" shall have the meaning specified in Section
4.02(a).
"Class A Monthly Principal" shall have the meaning specified in Section
4.03(a).
"Class A Percentage" shall mean, with respect to any Monthly Period, the
percentage equivalent (which percentage shall never exceed 100%) of a fraction,
the numerator of which is the Class A Adjusted Invested Amount as of the last
day of the immediately preceding Monthly Period (or, in the case of the first
Monthly Period, as of the Closing Date) and the denominator of which is the
Adjusted Invested Amount as of the last day of such immediately preceding
Monthly Period (or, in the case of the first Monthly Period, as of the Closing
Date).
"Class B Accumulation Period" shall mean, unless a Pay Out Event shall have
occurred prior thereto, the period commencing at the close of business on the
last Business Day of the Monthly Period immediately preceding the Class A
Expected Final Payment Date or, if the Class A Invested Amount is not paid in
full on the Class A Expected Final Payment Date, at the close of business on the
last business day of the second Monthly Period preceding the Distribution Date
on which the Class A Invested Amount is paid in full and ending upon the first
to occur of (a) the commencement of the Early Amortization Period, (b) the
payment in full to Class B Certificateholders of the Class B Invested Amount and
(c) the Termination Date.
"Class B Additional Interest" shall have the meaning specified in Section
4.02(b).
"Class B Adjusted Invested Amount" shall mean, with respect to any date of
determination, an amount equal to the Class B Invested Amount less the Principal
Funding Account Balance, if any, with respect to the Class B Certificates on
such date.
"Class B Certificate" shall mean any one of the Class of Investor
Certificates designated as "Providian Master Trust, Floating Rate Class B
Asset-Backed Certificates, Series 1997-3" pursuant to Section 1.01(a), executed
by the Banks and authenticated by or on behalf of the Trustee, substantially in
the form of Exhibit A-2.
"Class B Certificate Rate" shall mean, with respect to any Interest Period,
a per annum rate equal to LIBOR as of the related LIBOR Determination Date, plus
0.31%.
"Class B Certificateholder" shall mean the Person in whose name a Class B
Certificate is registered in the Certificate Register.
"Class B Certificateholders' Interest" shall mean that portion of the
Series 1997-3 Certificateholders' Interest evidenced by the Class B
Certificates.
"Class B Charge-Off" shall have the meaning specified in Section 4.06(c).
"Class B Controlled Accumulation Amount" shall mean, for any Distribution
Date with respect to the Class B Accumulation Period, $33,250,000, or such other
amount as the Servicer may determine upon written notice to the Trustee prior to
the commencement of the Class B Accumulation Period; provided, however, that
Class B Controlled Accumulation Amount for each Distribution Date with respect
to the Class B Accumulation Period (on or prior to the Class B Expected Final
Payment Date) will be an amount determined by the Servicer such that the sum of
the Class B Controlled Accumulation Amounts for all such Distribution Dates will
not be less than the Class B Initial Invested Amount.
"Class B Controlled Deposit Amount" shall mean, for any Distribution Date
with respect to the Class B Accumulation Period, an amount equal to the sum of
the Class B Controlled Accumulation Amount for such Distribution Date and any
Class B Deficit Controlled Accumulation Amount for the immediately preceding
Distribution Date.
"Class B Defaulted Amount" shall mean, with respect to any Distribution
Date, an amount equal to the product of (a) the Series 1997-3 Defaulted Amount
for the related Monthly Period and (b) the Class B Percentage for such Monthly
Period.
"Class B Deficit Controlled Accumulation Amount" shall mean (a) on the
first Distribution Date with respect to the Class B Accumulation Period, the
excess, if any, of the Class B Controlled Accumulation Amount for such
Distribution Date over the amount deposited in the Principal Funding Account as
Class B Monthly Principal for such Distribution Date and (b) on each subsequent
Distribution Date with respect to the Class B Accumulation Period, the excess,
if any, of the Class B Controlled Accumulation Amount for such subsequent
Distribution Date, plus any Class B Deficit Controlled Accumulation Amount for
the prior Distribution Date, over the amount deposited in the Principal Funding
Account as Class B Monthly Principal for such subsequent Distribution Date.
"Class B Expected Final Payment Date" shall mean the July 2001 Distribution
Date.
"Class B Initial Invested Amount" shall mean the aggregate initial
principal amount of the Class B Certificates, which is $66,500,000.
"Class B Interest Shortfall" shall have the meaning specified in Section
4.02(b).
"Class B Invested Amount" shall mean, with respect to any date of
determination, an amount equal to (a) the Class B Initial Invested Amount, minus
(b) the aggregate amount of principal payments made to Class B
Certificateholders prior to such date, minus (c) the aggregate amount by which
the Class B Invested Amount has been reduced in respect of the application of
Reallocated Class B Principal Collections on all prior Distribution Dates
pursuant to Section 4.05(c), minus (d) the aggregate amount of Class B
Charge-Offs prior to such date, plus (e) the aggregate amount of Available
Finance Charge Collections applied on all prior Distribution Dates pursuant to
Section 4.05(a)(viii) for the purpose of reimbursing amounts deducted pursuant
to the foregoing clauses (c) and (d); provided, however, that the Class B
Invested Amount shall not be reduced below zero.
"Class B Monthly Interest" shall have the meaning specified in Section
4.02(b).
"Class B Monthly Principal" shall have the meaning specified in Section
4.03(b).
"Class B Percentage" shall mean, with respect to any Monthly Period, the
percentage equivalent (which percentage shall never exceed 100%) of a fraction,
the numerator of which is the Class B Adjusted Invested Amount as of the last
day of the immediately preceding Monthly Period (or, in the case of the first
Monthly Period, as of the Closing Date) and the denominator of which is the
Adjusted Invested Amount as of the last day of such immediately preceding
Monthly Period (or, in the case of the first Monthly Period, as of the Closing
Date).
"Class B Principal Commencement Date" shall mean the Distribution Date on
which the Class A Invested Amount is paid in full or, if the Class A Invested
Amount is paid in full on the Class A Expected Final Payment Date and the Early
Amortization Period has not commenced, the Distribution Date following the Class
A Expected Final Payment Date.
"Class B Subordinated Additional Interest" shall have the meaning specified
in Section 4.02(c).
"Class B Subordinated Interest Shortfall" shall have the meaning specified
in Section 4.02(c).
"Class B Subordinated Monthly Interest" shall have the meaning specified in
Section 4.02(c).
"Closing Date" shall mean June 11, 1997.
"Collateral Agreement" shall mean the loan agreement relating to Series
1997-3 among the Sellers, the Servicer, the Trustee, the CIA Investors parties
thereto from time to time and the Agent thereunder, dated as of the date hereof,
as amended, supplemented or modified from time to time.
"Collateral Defaulted Amount" shall mean, with respect to each Distribution
Date, an amount equal to the product of (a) the Series 1997-3 Defaulted Amount
for the related Monthly Period and (b) the Collateral Percentage for such
Monthly Period.
"Collateral Initial Invested Amount" shall mean the aggregate initial
principal amount of the Collateral Interest, which is $63,000,000.
"Collateral Interest" shall mean the Class of Investor Certificates
designated as "Providian Master Trust, Collateral Interest, Series 1997-3"
pursuant to Section 1.01(a), according to the terms specified in the Collateral
Agreement.
"Collateral Interest Holder" shall mean the entity or entities so
designated in the Collateral Agreement.
"Collateral Interest Rate" shall mean the rate designated as such in the
Collateral Agreement; provided, however, that the Collateral Interest Rate with
respect to any Monthly Period shall not exceed LIBOR for such Monthly Period
plus 1%.
"Collateral Invested Amount" shall mean, with respect to any date of
determination, an amount equal to (a) the Collateral Initial Invested Amount
minus (b) the aggregate amount of principal payments made to the Collateral
Interest Holder prior to such date and applied to the Collateral Invested Amount
in accordance with the terms of the Collateral Agreement, minus (c) the
aggregate amount by which the Collateral Invested Amount has been reduced in
respect of the application of Reallocated Principal Collections on all prior
Distribution Dates pursuant to Sections 4.05(b) and (c), minus (d) the aggregate
amount by which the Collateral Invested Amount has been reduced on all prior
Distribution Dates pursuant to Section 4.06, plus (e) the aggregate amount of
Available Finance Charge Collections applied on all prior Distribution Dates
pursuant to Section 4.05(a)(xii) for the purpose of reimbursing amounts deducted
pursuant to the foregoing clauses (c) and (d); provided, however, that the
Collateral Invested Amount shall not be reduced below zero.
"Collateral Monthly Interest" shall have the meaning specified in Section
4.02(d).
"Collateral Monthly Principal" shall have the meaning specified in Section
4.03(f).
"Collateral Percentage" shall mean, with respect to any Monthly Period,
100% minus the sum of the Class A Percentage and the Class B Percentage.
"Covered Amount" shall mean, for any Distribution Date with respect to the
Class A Accumulation Period or the first Special Payment Date (on or prior to
the Class A Expected Final Payment Date), an amount equal to the product of (a)
a fraction, the numerator of which is the actual number of days in the related
Interest Period and the denominator of which is 360, (b) the Class A Certificate
Rate for such Interest Period and (c) the Principal Funding Account Balance,
if any, with respect to the Class A Certificates as of the preceding
Distribution Date.
"Cut-Off Date" shall mean May 31, 1997.
"Early Amortization Period" shall mean the period beginning at the close of
business on the Business Day immediately preceding the day on which a Pay Out
Event with respect to Series 1997-3 is deemed to have occurred, and ending upon
the earlier to occur of (a) the payment in full to the Series 1997-3
Certificateholders of the Invested Amount and (b) the Termination Date.
"Expected Monthly Principal" shall be equal to the product of (a) the
lowest of the monthly principal payment rates (determined by dividing
Collections of Principal Receivables during a calendar month by the amount of
Principal Receivables in the Trust as of the last day of the preceding month,
adjusted for additions and removals occurring after such last day), expressed as
a decimal, for the 12 calendar months preceding the date of such calculation (or
such lower principal payment rate as the Servicer may select) and (b) the sum of
the Initial Invested Amounts (as defined in the respective related Supplements)
of all outstanding Series, other than any Variable Funding Series.
"Finance Charge Shortfall" shall have the meaning specified in Section
4.07.
"Floating Allocation Percentage" shall mean, with respect to any Monthly
Period, the percentage equivalent (which percentage shall never exceed 100%) of
a fraction, the numerator of which is the Adjusted Invested Amount as of the
last day of the immediately preceding Monthly Period and the denominator of
which is the sum of the Principal Receivables in the Trust and the amount on
deposit in the Special Funding Account as of the last day of such immediately
preceding Monthly Period; provided, however, that, with respect to the first
Monthly Period, the Floating Allocation Percentage shall mean the percentage
equivalent of a fraction, the numerator of which is the Initial Invested Amount
for the period from and including the Closing Date to and including the last day
of such Monthly Period and the denominator of which is the sum of the Principal
Receivables in the Trust and the amount on deposit in the Special Funding
Account as of the Cut-Off Date.
"Group One" shall mean Series 1997-3 and each other Series specified in the
Supplement for that Series to be included in Group One.
"Initial Invested Amount" shall mean an amount equal to the sum of the
Class A Initial Invested Amount, the Class B Initial Invested Amount and the
Collateral Initial Invested Amount.
"Interest Period" shall mean, with respect to any Distribution Date, the
period from and including the preceding Distribution Date to but excluding such
Distribution Date; provided, however, that the initial Interest Period shall
commence on and include the Closing Date and end on but exclude the first
Distribution Date.
"Interest Rate Protection Agreement" shall mean, if applicable, any
interest rate cap agreement, interest rate swap agreement or any other interest
rate protection agreement assigned to the Trust for the benefit of the Series
1997-3 Certificateholders and any guarantee thereof.
"Interest Rate Protection Provider" shall mean, if applicable, the Person
specified in the Interest Rate Protection Agreement, in its capacity as obligor
thereunder, and any Person acting as guarantor of the Interest Rate Protection
Agreement.
"Invested Amount" shall mean, with respect to any date of determination, an
amount equal to the sum of the Class A Invested Amount, the Class B Invested
Amount and the Collateral Invested Amount on such date.
"LIBOR" shall mean, with respect to each day of each Interest Period (or
portion thereof), the rate per annum shown on page 3750 of the Dow ▇▇▇▇▇ &
Company Telerate screen or any successor page as the rate for United States
Dollar deposits for a period of one month as of 11:00 a.m., London time, on the
LIBOR Determination Date for such Interest Period; provided, however, that if no
such rate is shown, LIBOR shall be the rate per annum (rounded upwards, if
necessary, to the nearest one-sixteenth of one percent) based on the offered
rates for United States Dollar deposits for a period of one month as displayed
on page "LIBO" of the Reuters Monitor Money Rates Service or any successor page
as of 11:00 a.m., London time, on the LIBOR Determination Date for such Interest
Period, it being understood that if at least two such rates appear on such page,
the rate shall be the arithmetic mean of such displayed rates; and provided
further, that (i) if fewer than two such rates are displayed, LIBOR shall be the
rate per annum (rounded upwards, if necessary, to the nearest one-sixteenth of
one percent) equal to the arithmetic mean of the rates at which deposits in
United States Dollars are offered by the Reference Banks at approximately 11:00
a.m., London time, on the LIBOR Determination Date for such Interest Period to
prime banks in the London interbank market for a period of one month and (ii) if
fewer than two such rates are provided as requested, LIBOR shall be the rate per
annum (rounded upwards, if necessary, to the nearest one-sixteenth of one
percent) equal to the arithmetic mean of the rates quoted by two or more major
banks in New York City, selected by the Servicer, at approximately 11:00 a.m.,
New York City time, on the LIBOR Determination Date for such Interest Period to
leading European banks for United States Dollar deposits for a period of one
month. If fewer than two major banks in New York City are quoting rates for such
deposits at such time, the rate for that day shall be deemed to be the rate as
determined with respect to the preceding Interest Period.
"LIBOR Determination Date" shall mean, with respect to any Interest Period,
the second London Business Day prior to the commencement of such Interest
Period.
"London Business Day" shall mean a Business Day on which dealings in
deposits in United States Dollars are transacted in the London interbank market.
"Monthly Interest" shall mean, with respect to any Distribution Date, an
amount equal to the sum of the Class A Monthly Interest, the Class B Monthly
Interest and the Collateral Monthly Interest with respect to such Distribution
Date.
"Monthly Servicing Fee" shall have the meaning specified in Section 3.01.
"Non-Variable Accumulation Series" shall mean Series 1993-2 and each
outstanding Series that is not a Variable Funding Series or a Variable
Accumulation Series.
"Payment Date" shall mean any Distribution Date and any Special Payment
Date.
"Portfolio Yield" shall mean, with respect to any Monthly Period, the
annualized percentage equivalent of a fraction, the numerator of which is equal
to (a) an amount equal to the product obtained by multiplying the Floating
Allocation Percentage with respect to such Monthly Period and the amount of
Collections of Finance Charge Receivables with respect to such Monthly Period
(including any investment earnings and certain other amounts that are to be
treated as Collections of Finance Charge Receivables in accordance with the
Agreement but excluding any investment earnings constituting Cash Collateral
Investment Proceeds or Principal Funding Investment Proceeds), calculated on a
cash basis, plus (b) any Additional Finance Charges from other Series in Group
One that are allocated to Series 1997-3 with respect to such Monthly Period in
accordance with Section 4.05 of the Agreement and Section 4.07 hereof,
calculated on a cash basis, plus (c) the amount of Cash Collateral Investment
Proceeds, if any, for the Distribution Date with respect to such Monthly Period,
plus (d) the amount of Principal Funding Investment Proceeds, if any, for the
Distribution Date with respect to such Monthly Period, plus (e) if the Reserve
Account is funded, the amount, if any, withdrawn from the Reserve Account that,
pursuant to Section 4.09(d), is required to be included as Available Finance
Charge Collections for the Distribution Date with respect to such Monthly
Period, minus (f) the Series 1997-3 Defaulted Amount for the Distribution Date
with respect to such Monthly Period, and the denominator of which is the
Invested Amount as of the last day of the immediately preceding Monthly Period.
"Principal Allocation Percentage" shall mean, with respect to any date of
determination during a Monthly Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which
is (i) during the Revolving Period, the Invested Amount as of the last day of
the immediately preceding Monthly Period and (ii) during the Class A
Accumulation Period, the Class B Accumulation Period or the Early Amortization
Period, the Invested Amount as of the last day of the Revolving Period and the
denominator of which is the greater of (a) the sum of the Principal Receivables
in the Trust and the amount on deposit in the Special Funding Account as of the
last day of such immediately preceding Monthly Period and (b) the sum of the
numerators used to calculate the principal allocation percentages for all Series
outstanding as of such date of determination.
"Principal Funding Account" shall have the meaning specified in Section
4.03(c)(i).
"Principal Funding Account Balance" shall mean, with respect to any date of
determination, the principal amount, if any, on deposit in the Principal Funding
Account on such date (after giving effect to any deposits to, or withdrawals
from, the Principal Funding Account before or on such date).
"Principal Funding Investment Proceeds" shall have the meaning specified in
Section 4.03(c)(ii).
"Principal Shortfall" shall have the meaning specified in Section 4.08.
"Reallocated Class B Principal Collections" shall mean, with respect to any
Monthly Period, the lesser of (a) an amount equal to the excess, if any, of the
full amount required to be paid pursuant to Sections 4.05(a)(i), (iii) and (iv)
over the amount of the Available Finance Charge Collections, Available Cash
Collateral Amount and Reallocated Collateral Principal Collections applied with
respect thereto for such Monthly Period and (b) the sum for each day of the
related Monthly Period of the product obtained by multiplying (i) the Principal
Allocation Percentage with respect to such day, (ii) the amount of such day's
Collections of Principal Receivables and (iii) the Class B Percentage as of the
last day of the immediately preceding Monthly Period.
"Reallocated Collateral Principal Collections" shall mean, with respect to
any Monthly Period, the lesser of (a) an amount equal to the excess, if any, of
the Required Amount over the Available Cash Collateral Amount applied with
respect thereto for such Monthly Period and (b) the sum for each day of the
related Monthly Period of the product obtained by multiplying (i) the Principal
Allocation Percentage with respect to such day, (ii) the amount of such day's
Collections of Principal Receivables and (iii) the Collateral Percentage as of
the last day of the immediately preceding Monthly Period.
"Reallocated Principal Collections" shall mean, with respect to any Monthly
Period, the sum of (a) Reallocated Class B Principal Collections with respect to
such Monthly Period and (b) Reallocated Collateral Principal Collections with
respect to such Monthly Period.
"Reassignment Amount" shall mean, with respect to any Distribution Date,
after giving effect to any deposits and distributions otherwise to be made on
such Distribution Date, the sum of (a) the Adjusted Invested Amount on such
Distribution Date, plus (b) Monthly Interest for such Distribution Date and any
Monthly Interest previously due but not distributed to the Series 1997-3
Certificateholders on any prior Distribution Date, plus (c) the amount of Class
A Additional Interest and Class B Additional Interest, if any, for such
Distribution Date and any Class A Additional Interest and Class B Additional
Interest previously due but not distributed to the Class A Certificateholders
and the Class B Certificateholders on any prior Distribution Date, plus (d)
Class B Subordinated Monthly Interest for such Distribution Date and any Class B
Subordinated Monthly Interest previously due but not distributed to the Class B
Certificateholders on any prior Distribution Date, plus (e) the amount of Class
B Subordinated Additional Interest, if any, for such Distribution Date and any
Class B Subordinated Additional Interest previously due but not distributed to
the Class B Certificateholders on any prior Distribution Date.
"Reference Banks" shall mean two or more major banks in the London
interbank market selected by the Servicer.
"Required Amount" shall have the meaning specified in Section 4.04.
"Required Cash Collateral Amount" shall mean $21,000,000.
"Required Collateral Invested Amount" shall mean the excess, if any, of (a)
the Required Enhancement Amount over (b) the Required Cash Collateral Amount.
"Required Enhancement Amount" shall mean with respect to any Distribution
Date, 12% of the Adjusted Invested Amount on such Distribution Date after taking
into account any adjustments to the Adjusted Invested Amount on such
Distribution Date, but not less than $21,000,000; provided, however, that (i) if
a Pay Out Event with respect to Series 1997-3 has occurred, the Required
Enhancement Amount for any Distribution Date shall equal the Required
Enhancement Amount for the Distribution Date immediately preceding such Pay Out
Event, (ii) in no event shall the Required Enhancement Amount exceed the
outstanding principal amount of the Class A Certificates and the Class B
Certificates, as of the last day of the Monthly Period preceding such
Distribution Date after taking into account the payments to be made on such
Distribution Date and (iii) the Required Enhancement Amount may be reduced, at
the Sellers' option at any time, to a lesser amount if prior written notice of
such reduction is given to the Collateral Interest Holder and the Sellers, the
Servicer and the Trustee have been provided evidence that the Rating Agency
Condition shall have been satisfied.
"Required Reserve Account Amount" if applicable, shall mean, with respect
to any Distribution Date prior to the Reserve Account Funding Date, $0, and on
or after the Reserve Account Funding Date, a percentage selected by the Servicer
upon written notice to the Trustee (not to exceed 0.50% of the Class A Invested
Amount as of such Distribution Date (after giving effect to all changes therein
on such date).
"Reserve Account" if applicable, shall have the meaning specified in
Section 4.09(a).
"Reserve Account Funding Date" if applicable, shall be selected by the
Servicer and shall mean the Distribution Date with respect to the Monthly Period
that commences no more than 12 months prior to the Monthly Period that commences
the Class A Accumulation Period.
"Reserve Account Surplus" shall mean, if applicable, as of any date of
determination, the amount, if any, by which the amount on deposit in the Reserve
Account exceeds the Required Reserve Account Amount.
"Reserve Draw Amount" if applicable, shall have the meaning specified in
Section 4.09(c).
"Revolving Period" shall mean the period beginning at the close of business
on the Cut-Off Date and ending on the earlier of (a) the close of business on
the day the Class A Accumulation Period commences and (b) the close of business
on the day the Early Amortization Period commences.
"Series 1997-3" shall mean the Series of Investor Certificates the terms of
which are specified in this Supplement, including the Class consisting of the
Class A Certificates, the Class consisting of the Class B Certificates and the
Class consisting of the Collateral Interest.
"Series 1997-3 Certificate" shall mean any one of the Class A Certificates,
the Class B Certificates, or the Collateral Interest.
"Series 1997-3 Certificateholder" shall mean any one of the Class A
Certificateholders, the Class B Certificateholders or the Collateral Interest
Holder.
"Series 1997-3 Certificateholders' Interest" shall mean that portion of the
Certificateholders' Interest evidenced by the Series 1997-3 Certificates.
"Series 1997-3 Defaulted Amount" shall mean, with respect to each
Distribution Date, an amount equal to the product of (i) the Defaulted Amount
for the related Monthly Period and (ii) the Floating Allocation Percentage for
such Monthly Period.
"Servicing Fee Rate" shall mean (a) for such time as FDNB or any of its
Affiliates is the Servicer, 1.75% per annum and (b) at all other times, a
percentage determined by the Trustee in accordance with Section 10.02 of the
Agreement which shall not exceed 2.00% per annum.
"Special Payment Date" shall mean each Distribution Date with respect to
the Early Amortization Period.
"Termination Date" shall mean the December 2005 Distribution Date.
"Transfer Date Reserve Account Surplus Amount" shall have the meaning
specified in Section 4.09(e).
"United States Dollars or "$" shall mean the lawful currency of the United
States of America.
"Variable Accumulation Series" shall mean each outstanding Series, other
than Series 1993-2 and any Variable Funding Series, for which, pursuant to the
terms of the related Supplement, at the time a determination is made pursuant to
Section 4.03(e), the commencement date of the Accumulation Period may be
changed.
"Variable Funding Series" shall mean Series 1993-3 and any other Series
designated in the related Supplement as a Variable Funding Series.
(b) Notwithstanding anything to the contrary in this Supplement or the
Agreement, the term "Rating Agency" shall mean, whenever used in this Supplement
or the Agreement with respect to Series 1997-3, ▇▇▇▇▇'▇ and Standard & Poor's.
As used in this Supplement and in the Agreement with respect to Series 1997-3,
"highest investment category" shall mean (i) in the case of Standard & Poor's,
A-1+ or AAA, as applicable, and (ii) in the case of ▇▇▇▇▇'▇, P-1 or Aaa, as
applicable.
(c) All capitalized terms used herein and not otherwise defined herein have
the meanings ascribed to them in the Agreement.
(d) The words "hereof", "herein" and "hereunder" and words of similar
import when used in this Supplement shall refer to this Supplement as a whole
and not to any particular provision of this Supplement; references to any
Article, Section or Exhibit are references to Articles, Sections and Exhibits in
or to this Supplement unless otherwise specified; and the term "including" means
"including without limitation".
ARTICLE III
Servicer
Section 3.01. Servicing Compensation. The share of the Servicing Fee
allocable to the Series 1997-3 Certificateholders with respect to any
Distribution Date (the "Monthly Servicing Fee") shall be equal to one-twelfth of
the product of (a) the Servicing Fee Rate and (b) (i) the Adjusted Invested
Amount as of the last day of the Monthly Period preceding such Distribution
Date, minus (ii) the product of the amount, if any, on deposit in the Special
Funding Account as of the last day of such Monthly Period and the Floating
Allocation Percentage with respect to such Monthly Period; provided, however,
that with respect to the first Distribution Date, the Monthly Servicing Fee
shall be equal to the product of (x) 1.75%, (y) the Initial Invested Amount and
(z) a fraction, the numerator of which is the actual number of days in the
period from and including the Closing Date to and including the last day of the
Monthly Period immediately preceding the first Distribution Date and the
denominator of which is 360. The remainder of the Servicing Fee (i.e., the
portion not allocated to the Series 1997-3 Certificateholders' Interest) shall
be paid by the Sellers or the Certificateholders of other Series (as provided in
the related Supplements) and in no event shall the Trust, the Trustee or the
Series 1997-3 Certificateholders be liable for the share of the Servicing Fee to
be paid by the Sellers or the Certificateholders of any other Series. The
Monthly Servicing Fee shall be payable to the Servicer solely to the extent
amounts are available for distribution in respect thereof pursuant to Section
4.05(a)(iii) and Sections 4.05(b) and (c).
ARTICLE IV
Rights of Series 1997-3 Certificateholders;
Allocation and Application of Collections
Section 4.01. Collections and Allocations. The Servicer shall apply, or
shall instruct the Trustee, upon written notice substantially in the form of
Exhibit B, to apply, all collections and other funds on deposit in the
Collection Account that are allocated to the Series 1997-3 Certificates as
described in this Article IV.
Section 4.02. Determination of Monthly Interest. (a) The amount of monthly
interest ("Class A Monthly Interest") distributable from the Collection Account
with respect to the Class A Certificates on any Distribution Date shall be an
amount equal to the product of (i) a fraction, the numerator of which is the
actual number of days in the related Interest Period and the denominator of
which is 360, (ii) the Class A Certificate Rate and (iii) the outstanding
principal amount of the Class A Certificates as of the immediately preceding
Record Date.
On or before each Distribution Date, the Servicer shall determine the
excess, if any (the "Class A Interest Shortfall"), of (x) the Class A Monthly
Interest for such Distribution Date over (y) the aggregate amount of funds
allocated and available to pay such Class A Monthly Interest on such
Distribution Date. With respect to any Distribution Date, if the Class A
Interest Shortfall with respect to the preceding Distribution Date is greater
than zero, an amount ("Class A Additional Interest") equal to the product of (i)
a fraction, the numerator of which is the actual number of days in the related
Interest Period and the denominator of which is 360, (ii) the Class A
Certificate Rate and (iii) such Class A Interest Shortfall (or the portion
thereof which has not been paid to Class A Certificateholders) shall be payable
as provided herein with respect to the Class A Certificates on each Distribution
Date following the Distribution Date on which such Class A Interest Shortfall
occurs to and including the Distribution Date on which such Class A Interest
Shortfall is paid to Class A Certificateholders. Notwithstanding anything to the
contrary herein, Class A Additional Interest shall be payable or distributed
to Class A Certificateholders only to the extent permitted by applicable law.
(b) The amount of monthly interest ("Class B Monthly Interest")
distributable from the Collection Account with respect to the Class B
Certificates on any Distribution Date shall be an amount equal to the product of
(i) a fraction, the numerator of which is the actual number of days in the
related Interest Period and the denominator of which is 360, (ii) the Class B
Certificate Rate and (iii) the Class B Invested Amount as of the immediately
preceding Record Date.
On or before each Distribution Date, the Servicer shall determine the
excess, if any (the "Class B Interest Shortfall"), of (x) the Class B Monthly
Interest for such Distribution Date over (y) the aggregate amount of funds
allocated and available to pay such Class B Monthly Interest on such
Distribution Date. With respect to any Distribution Date, if the Class B
Interest Shortfall with respect to the preceding Distribution Date is greater
than zero, an amount ("Class B Additional Interest") equal to the product of (i)
a fraction, the numerator of which is the actual number of days in the related
Interest Period and the denominator of which is 360, (ii) the Class B
Certificate Rate and (iii) such Class B Interest Shortfall (or the portion
thereof which has not been paid to Class B Certificateholders) shall be payable
as provided herein with respect to the Class B Certificates on each Distribution
Date following the Distribution Date on which such Class B Interest Shortfall
occurs to and including the Distribution Date on which such Class B Interest
Shortfall is paid to Class B Certificateholders. Notwithstanding anything to the
contrary herein, Class B Additional Interest shall be payable or distributed to
Class B Certificateholders only to the extent permitted by applicable law.
(c) The amount of subordinated monthly interest ("Class B Subordinated
Monthly Interest") distributable from the Collection Account with respect to the
Class B Certificates on any Distribution Date shall be an amount equal to the
excess, if any, of (x) an amount equal to the product of (i) a fraction, the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is 360, (ii) the Class B Certificate Rate
and (iii) the outstanding principal amount of the Class B Certificates as of the
immediately preceding Record Date over (y) the Class B Monthly Interest for such
Distribution Date.
On or before each Distribution Date, the Servicer shall determine the
excess, if any (the "Class B Subordinated Interest Shortfall"), of (x) the Class
B Subordinated Monthly Interest for such Distribution Date over (y) the
aggregate amount of funds allocated and available to pay such Class B
Subordinated Monthly Interest on such Distribution Date. With respect to any
Distribution Date, if the Class B Subordinated Interest Shortfall with respect
to the preceding Distribution Date is greater than zero, an amount ("Class B
Subordinated Additional Interest") equal to the product of (i) a fraction, the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is 360, (ii) the Class B Certificate Rate and (iii)
such Class B Subordinated Interest Shortfall (or the portion thereof which has
not been paid to Class B Certificateholders) shall be payable as provided herein
with respect to the Class B Certificates on each Distribution Date following the
Distribution Date on which such Class B Subordinated Interest Shortfall occurs
to and including the Distribution Date on which such Class B Subordinated
Interest Shortfall is paid to Class B Certificateholders. Notwithstanding
anything to the contrary herein, Class B Subordinated Additional Interest shall
be payable or distributed to Class B Certificateholders only to the extent
permitted by applicable law.
(d) The amount of monthly interest ("Collateral Monthly Interest")
distributable from the Collection Account with respect to the Collateral
Interest on any Distribution Date shall be an amount equal to the product of (i)
a fraction, the numerator of which is the actual number of days in the related
Interest Period and the denominator of which is 360, (ii) the Collateral
Interest Rate and (iii) the Collateral Invested Amount as of the last Business
Day of the preceding Monthly Period.
Section 4.03. Determination of Class A Monthly Principal, Class B Monthly
Principal and Collateral Monthly Principal; Principal Funding Account; Class A
Accumulation Period. (a) The amount of monthly principal ("Class A Monthly
Principal") distributable from the Collection Account with respect to the Class
A Certificateholders' Interest on each Distribution Date beginning with the
first to occur of (i) the first Special Payment Date, if any, and (ii) the first
Distribution Date with respect to the Class A Accumulation Period, shall be
equal to the least of (x) Available Principal Collections on deposit in the
Collection Account with respect to such Distribution Date, (y) for each
Distribution Date with respect to the Class A Accumulation Period and on or
prior to the Class A Expected Final Payment Date, the Class A Controlled Deposit
Amount for such Distribution Date and (z) the Class A Adjusted Invested Amount
on such Distribution Date.
(b) The amount of monthly principal ("Class B Monthly Principal")
distributable from the Collection Account with respect to the Class B
Certificateholders' Interest on each Distribution Date beginning with the Class
B Principal Commencement Date, shall be equal to the least of (x) Available
Principal Collections on deposit in the Collection Account with respect to such
Distribution Date (less the portion of Available Principal Collections applied
to Class A Monthly Principal on such Distribution Date), (y) for each
Distribution Date with respect to the Class B Accumulation Period (on or prior
to the Class B Expected Final Payment Date) provided that the Class A Invested
Amount was paid in full on the Class A Expected Final Payment Date, the Class B
Controlled Deposit Amount for such Distribution Date and (z) the Class B
Adjusted Invested Amount on such Distribution Date.
(c) (i) The Servicer, for the benefit of the Class A Certificateholders and
the Class B Certificateholders, shall establish and maintain in the name of the
Trustee, on behalf of the Trust, an Eligible Deposit Account (the "Principal
Funding Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Class A Certificate-holders
and the Class B Certificateholders. The Principal Funding Account shall
initially be established with Bankers Trust Company.
(ii) At the direction of the Servicer, funds on deposit in the Principal
Funding Account shall be invested by the Trustee in Eligible Investments
selected by the Servicer. All such Eligible Investments shall be held by the
Trustee for the benefit of the Class A Certificate-holders and the Class B
Certificateholders; provided that, on each Distribution Date all interest and
other investment income (net of losses and investment expenses) ("Principal
Funding Investment Proceeds") on funds on deposit therein shall be applied as
set forth in paragraph (iii) below. Funds on deposit in the Principal Funding
Account shall be invested in Eligible Investments that will mature so that such
funds will be available at the close of business on the Transfer Date preceding
the following Distribution Date. No such Eligible Investment in the Principal
Funding Account shall be disposed of prior to its maturity; provided, however,
that the Trustee shall sell, liquidate or dispose of such Eligible Investment
before its maturity, at the written direction of the Servicer, if such sale,
liquidation or disposal would not result in a loss of all or part of the
principal portion of such Eligible Investment (the Trustee shall not be
responsible for determining whether such a loss would result) or if, prior to
the maturity of such Eligible Investment, a default occurs in the payment of
principal, interest or any other amount with respect to such Eligible
Investment. Unless the Servicer directs otherwise, funds deposited in the
Principal Funding Account on a Transfer Date (which immediately precedes a
Payment Date) upon the maturity of any Eligible Investments are not required to
be invested overnight.
(iii) On each Distribution Date with respect to the Class A Accumulation
Period and the Class B Accumulation Period and on the first Special Payment
Date, the Servicer shall direct the Trustee to withdraw from the Principal
Funding Account and deposit into the Collection Account all Principal Funding
Investment Proceeds then on deposit in the Principal Funding Account and such
Principal Funding Investment Proceeds shall be treated as a portion of Available
Finance Charge Collections for such Distribution Date.
(iv) Reinvested interest and other investment income on funds deposited in
the Principal Funding Account shall not be considered to be principal amounts on
deposit therein for purposes of this Supplement.
(d) (i) The Trustee shall possess all right, title and interest in all
funds on deposit from time to time in the Principal Funding Account and in all
proceeds thereof. The Principal Funding Account shall be under the sole dominion
and control of the Trustee for the benefit of the Class A Certificateholders and
the Class B Certificateholders. If, at any time, the Principal Funding Account
ceases to be an Eligible Deposit Account, the Trustee (or the Servicer on its
behalf) shall within 10 Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent) establish a new
Principal Funding Account meeting the conditions specified in paragraph (c)(i)
above as an Eligible Deposit Account and shall transfer any cash and/or any
investments to such new Principal Funding Account.
(ii) Pursuant to the authority granted to the Servicer in Section 3.01(b)
of the Agreement, the Servicer shall have the power, revocable by the Trustee,
to make withdrawals and payments or to instruct the Trustee to make withdrawals
and payments from the Principal Funding Account for the purposes of carrying out
the Servicer's or Trustee's duties hereunder. Pursuant to the authority granted
to the Paying Agent in Section 5.01 of this Supplement and Section 6.07 of the
Agreement, the Paying Agent shall have the power, revocable by the Trustee, to
withdraw funds from the Principal Funding Account for the purpose of making
distributions to the Class A Certificateholders and the Class B
Certificateholders.
(e) The Class A Accumulation Period is scheduled to commence at the close
of business on the last Business Day of April 1999; provided, however, that if
the Class A Accumulation Period Length on any Determination Date (determined as
described below) is less than twenty-four months, upon notice to the Trustee,
the Sellers, each Rating Agency and the Collateral Interest Holder, the
Servicer, at its option, may elect to modify the date on which the Class A
Accumulation Period actually commences to the last Business Day of any month
that precedes the month that is the number of months prior to the Class A
Expected Final Payment Date equal to the Class A Accumulation Period Length;
provided, however, that (i) the length of the Class A Accumulation Period shall
not be less than one month; and (ii) notwithstanding any other provision of this
Supplement to the contrary, no election to postpone the commencement of the
Class A Accumulation Period shall be made after a Pay Out Event (as defined in
the related Supplement) shall have occurred and is continuing with respect to
any other Series. On each Determination Date, the Servicer shall determine the
"Class A Accumulation Period Length," which shall equal the number of months
such that the Class A Accumulation Period Amount for the Monthly Period
immediately preceding the Class A Expected Final Payment Date, when aggregated
with the Class A Accumulation Period Amounts for each preceding Monthly Period,
shall equal or exceed the Class A Initial Invested Amount. Any notice by the
Servicer electing to modify the commencement of the Class A Accumulation Period
pursuant to this subsection (e) shall specify (i) the Class A Accumulation
Period Length, (ii) the commencement date of the Class A Accumulation Period and
(iii) the Class A Controlled Accumulation Amount with respect to each Monthly
Period preceding the Class A Expected Final Payment Date.
(f) The amount, if any, of monthly principal ("Collateral Monthly
Principal") distributable from the Collection Account with respect to the
Collateral Interest on each Distribution Date:
(i) for any Distribution Date prior to the Distribution Date on which
the Class A Invested Amount and the Class B Invested Amount are paid in
full, shall be an amount equal to the lesser of (A) Available Principal
Collections not applied to Class A Monthly Principal or Class B Monthly
Principal on such Distribution Date and (B) the excess, if any, of (x) the
Collateral Invested Amount over (y) the Required Collateral Invested Amount
(after giving effect to any adjustments made to the Required Collateral
Invested Amount on such Distribution Date); and
(ii) beginning with the Distribution Date on which the Class A
Invested Amount and the Class B Invested Amount are paid in full, shall be
an amount equal to Available Principal Collections with respect to such
Distribution Date (minus the portion of any Available Principal Collections
applied to Class A Monthly Principal or Class B Monthly Principal on such
Distribution Date);
provided, however, that with respect to any Distribution Date, Collateral
Monthly Principal shall not exceed the Collateral Invested Amount.
Section 4.04. Required Amount. With respect to each Distribution Date, on
the related Determination Date, the Servicer shall determine the amount (the
"Required Amount"), if any, by which (i) the full amount required to be paid
pursuant to Sections 4.05(a)(i), (ii), (iii), (iv) and (vii) for such
Distribution Date exceeds (ii) the amount of Available Finance Charge
Collections to be applied thereto for such Distribution Date. The Servicer shall
give the Trustee notice of the Required Amount on any Determination Date on
which the Servicer determines that the Required Amount is greater than zero.
Section 4.05. Application of Available Finance Charge Collections and
Available Principal Collections. The Servicer shall apply (if FDNB is the
Servicer and the Collection Account is maintained with FDNB) or shall cause the
Trustee to apply, on each Distribution Date, Available Finance Charge
Collections, Reallocated Principal Collections and Available Principal
Collections on deposit in the Collection Account with respect to such
Distribution Date, to make the following distributions:
(a) On each Distribution Date, Available Finance Charge Collections with
respect to such Distribution Date shall be distributed in the following
priority:
(i) an amount equal to Class A Monthly Interest for such Distribution
Date, plus the amount of any Class A Monthly Interest previously due but
not distributed to Class A Certificateholders on a prior Distribution Date,
plus the amount of any Class A
Additional Interest for such Distribution Date and any Class A Additional
Interest previously due but not distributed to Class A Certificateholders
on a prior Distribution Date, shall be distributed to the Paying Agent for
payment to the Class A Certificateholders;
(ii) an amount equal to Class B Monthly Interest for such Distribution
Date, plus the amount of any Class B Monthly Interest previously due but
not distributed to Class B Certificateholders on a prior Distribution Date,
plus the amount of any Class B Additional Interest for such Distribution
Date and any Class B Additional Interest previously due but not distributed
to Class B Certificateholders on a prior Distribution Date, shall be
distributed to the Paying Agent for payment to the Class B
Certificateholders;
(iii) an amount equal to the Monthly Servicing Fee for such
Distribution Date, plus the amount of any Monthly Servicing Fee previously
due but not distributed to the Servicer on any prior Distribution Date,
shall be distributed to the Servicer (unless such amount has been netted
against deposits to the Collection Account in accordance with Section
4.03(a) of the Agreement);
(iv) an amount equal to the Class A Defaulted Amount for such
Distribution Date shall be treated as a portion of Available Principal
Collections for such Distribution Date;
(v) an amount equal to the aggregate amount of Class A Charge-Offs
that have not been previously reimbursed shall be treated as a portion of
Available Principal Collections for such Distribution Date;
(vi) an amount equal to Class B Subordinated Monthly Interest for such
Distribution Date, plus the amount of any Class B Subordinated Monthly
Interest previously due but not distributed to Class B Certificateholders
on a prior Distribution Date, plus the amount of any Class B Subordinated
Additional Interest for such Distribution Date and any Class B Subordinated
Additional Interest previously due but not distributed to Class B
Certificateholders on a prior Distribution Date, shall be distributed to
the Paying Agent for payment to the Class B Certificateholders;
(vii) an amount equal to the Class B Defaulted Amount for such
Distribution Date shall be treated as a portion of Available Principal
Collections for such Distribution Date;
(viii) an amount equal to the aggregate amount by which the Class B
Invested Amount has been reduced pursuant to clauses (c) and (d) of the
definition of "Class B Invested Amount" (but not in excess of the amount of
such reductions that have not been previously reimbursed) shall be treated
as a portion of Available Principal Collections with respect to such
Distribution Date;
(ix) an amount equal to the Collateral Monthly Interest, plus the
amount of any Collateral Monthly Interest previously due but not paid to
the Collateral Interest Holder on any prior Distribution Date, shall be
paid to the Collateral Interest Holder for application in accordance with
the Collateral Agreement;
(x) an amount equal to the Collateral Defaulted Amount for such
Distribution Date shall be treated as a portion of Available Principal
Collections with respect to such Distribution Date;
(xi) if the Reserve Account is being funded, on each Distribution Date
from and after the Reserve Account Funding Date, but prior to the date on
which the Reserve Account terminates as described in Section 4.09(f), an
amount up to the excess, if any, of the Required Reserve Account Amount
over the Available Reserve Account Amount shall be deposited into the
Reserve Account;
(xii) an amount equal to the aggregate amount by which the Collateral
Invested Amount has been reduced pursuant to clauses (c) and (d) of the
definition of "Collateral Invested Amount" (but not in excess of the
amount of such reductions that have not been previously reimbursed) shall
be treated as a portion of Available Principal Collections with respect to
such Distribution Date;
(xiii) an amount up to the excess, if any, of the Required Cash
Collateral Amount over the remaining Available Cash Collateral Amount shall
be deposited into the Cash Collateral Account;
(xiv) an amount equal to the aggregate of any other amounts then due
to the Collateral Interest Holder pursuant to the Collateral Agreement (to
the extent such amounts are payable pursuant to the Collateral Agreement
out of "Available Non-Principal Funds" (as defined therein)) shall be
applied in accordance with the Collateral Agreement; and
(xv) the balance, if any, shall constitute Additional Finance Charges
for such Distribution Date and shall be available for allocation to other
Series in Group One or to the Sellers as described in Section 4.05 of the
Agreement.
(b) On each Distribution Date, Reallocated Collateral Principal Collections
shall be distributed to fund any excess of the Required Amount over the
Available Cash Collateral Amount applied thereto for such Distribution Date, the
amount of such Reallocated Collateral Principal Collections being applied to the
components of the Required Amount in the same priority as amounts are applied to
such components from Available Finance Charge Collections pursuant to Section
4.05(a), and the Collateral Invested Amount (after giving effect to reductions
in the Collateral Invested Amount on such Distribution Date pursuant to Section
4.06(a) in respect of the amount by which the Collateral Defaulted Amount
exceeded the amount of Available Finance Charge Collections available to fund
the Collateral Defaulted Amount) shall be reduced by the amount of such
Reallocated Collateral Principal Collections.
(c) On each Distribution Date, Reallocated Class B Principal Collections
shall be distributed to fund any excess of the full amount required to be paid
pursuant to Sections 4.05(a)(i), (iii) and (iv) for such Distribution
Date over the amount of Available Finance Charge Collections, the Available Cash
Collateral Amount and Reallocated Collateral Principal Collections applied
thereto for such Distribution Date, the amount of such Reallocated Class B
Principal Collections being applied to fund any deficiency pursuant to Sections
4.05(a)(i), (iii) and (iv) in the same priority as amounts are applied to such
Sections from Available Finance Charge Collections pursuant to Section 4.05(a),
and the Collateral Invested Amount (after giving effect to reductions in the
Collateral Invested Amount on such Distribution date (i) pursuant to Section
4.05(b) in respect of the application of Reallocated Collateral Principal
Collections and (ii) pursuant to Section 4.06(a) in respect of the amount by
which the Collateral Defaulted Amount exceeded the amount of Available Finance
Charge Collections available to fund the Collateral Defaulted Amount) shall be
reduced by the amount of such Reallocated Class B Principal Collections. In the
event that such reduction would cause the Collateral Invested Amount to be
reduced below zero, the Collateral Invested Amount shall be reduced to zero and
the Class B Invested Amount (after giving effect to reductions in the Class B
Invested Amount pursuant to Section 4.06(c) in respect of the amount by which
the Class B Defaulted Amount exceeded the amount of Available Finance Charge
Collections, the Available Cash Collateral Amount and Reallocated Collateral
Principal Collections available to fund the Class B Defaulted Amount) shall be
reduced by the amount by which the Collateral Invested Amount would have been
reduced below zero.
(d) On each Distribution Date with respect to the Revolving Period, an
amount equal to the Available Principal Collections deposited in the Collection
Account for the related Monthly Period shall be distributed in the following
priority:
(i) an amount equal to Collateral Monthly Principal, if any, for such
Distribution Date shall be distributed to the Collateral Interest Holder
for application in accordance with the Collateral Agreement; and
(ii) the balance, if any, of such Available Principal Collections then
on deposit in the Collection Account shall be treated as Shared Principal
Collections and applied in accordance with Section 4.04 of the Agreement.
(e) On each Distribution Date during the period beginning on the earlier to
occur of (w) the first Distribution Date with respect to the Class A
Accumulation Period and (x) the first Special Payment Date and ending on the
earlier to occur of (y) the payment in full to Series 1997-3 Certificateholders
of the Invested Amount and (z) the Termination Date, an amount equal to the
Available Principal Collections deposited in the Collection Account for the
related Monthly Period shall be distributed in the following priority:
(i) an amount equal to Class A Monthly Principal for such Distribution
Date shall be deposited into the Principal Funding Account, and on the
Class A Expected Final Payment Date and each Distribution Date thereafter,
and on each Special Payment Date, such amounts shall be applied in
accordance with Section 5.01(b);
(ii) an amount equal to Class B Monthly Principal for such
Distribution Date shall be deposited into the Principal Funding Account,
and on the earlier of the Class B Expected Final Payment Date and the
Distribution Date on which the Class A Invested Amount is paid in full if
such Distribution Date is after the Class A Expected Final Payment Date,
and each Distribution Date thereafter, and on each Special Payment Date,
such amounts shall be applied in accordance with Section 5.01(d);
(iii) an amount equal to the Collateral Monthly Principal, if any, for
such Distribution Date shall be distributed to the Collateral Interest
Holder for application in accordance with the Collateral Agreement; and
(iv) the balance, if any, of Available Principal Collections then on
deposit in the Collection Account shall be treated as Shared Principal
Collections and applied in accordance with Section 4.04 of the Agreement.
Section 4.06. Defaulted Amounts; Charge-Offs. (a) If, on any Distribution
Date, the Collateral Defaulted Amount exceeds the amount of Available Finance
Charge Collections available to fund the Collateral Defaulted Amount pursuant to
Section 4.05(a)(x) on such Distribution Date, then the Collateral Invested
Amount shall be reduced by the amount of such excess; provided, however, that
the Collateral Invested Amount shall not be reduced below zero. Such reductions
shall thereafter be reimbursed and the Collateral Invested Amount increased (but
not by an amount in excess of the aggregate unreimbursed reductions) on any
Distribution Date by the amount of Available Finance Charge Collections
allocated and available for that purpose pursuant to 4.05(a)(xii).
(b) On each Determination Date, the Servicer shall calculate the Class A
Defaulted Amount, if any, for the related Distribution Date. If, on any
Distribution Date, the Class A Defaulted Amount for the related Monthly Period
exceeds the amount of Available Finance Charge Collections, the Available Cash
Collateral Amount and Reallocated Principal Collections applied thereto on such
Distribution Date, the Collateral Invested Amount (after giving effect to
reductions in the Collateral Invested Amount on such Distribution Date (i)
pursuant to Sections 4.05(b) and (c) in respect of the application of
Reallocated Principal Collections and (ii) pursuant to Section 4.06(a) in
respect of the amount by which the Collateral Defaulted Amount exceeded the
amount of Available Finance Charge Collections available to fund the Collateral
Defaulted Amount) shall be reduced by the amount of such excess. In the event
that such reduction would cause the Collateral Invested Amount to be reduced
below zero, the Collateral Invested Amount shall be reduced to zero and the
Class B Invested Amount (after giving effect to reductions in the Class B
Invested Amount on such Distribution Date (i) pursuant to Section 4.05(c) in
respect of the application of Reallocated Class B Principal Collections and (ii)
pursuant to Section 4.06(c) in respect of the amount by which the Class B
Defaulted Amount exceeded the amount of Available Finance Charge Collections,
the Available Cash Collateral Amount and Reallocated Collateral Principal
Collections available to fund the Class B Defaulted Amount) shall be reduced by
the amount by which the Collateral Invested Amount would have been reduced below
zero. In the event that such reduction would cause the Class B Invested Amount
to be reduced below zero, the Class B Invested Amount shall be reduced to zero
and the Class A Invested Amount shall be reduced by the amount by which the
Class B Invested Amount would have been reduced below zero (a "Class A
Charge-Off"). Class A Charge-Offs shall thereafter be reimbursed and the Class A
Invested Amount increased (but not by an amount in excess of the aggregate
unreimbursed Class A Charge-Offs) on any Distribution Date by the amount of
Available Finance Charge Collections allocated and available for that purpose
pursuant to Section 4.05(a)(v).
(c) On each Determination Date, the Servicer shall calculate the Class B
Defaulted Amount, if any, for the related Distribution Date. If, on any
Distribution Date, the Class B Defaulted Amount for the related Monthly Period
exceeds the amount of Available Finance Charge Collections, the Available Cash
Collateral Amount and Reallocated Collateral Principal Collections applied
thereto for such Distribution Date, the Collateral Invested Amount (after giving
effect to reductions in the Collateral Invested Amount on such Distribution Date
(i) pursuant to Section 4.05(b) in respect of the application of Reallocated
Collateral Principal Collections, (ii) pursuant to Section 4.06(a) in respect of
the amount by which the Collateral Defaulted Amount exceeded the amount of
Available Finance Charge Collections available to fund the Collateral Defaulted
Amount and (iii) pursuant to Section 4.06(b) in respect of the amount by which
the Class A Defaulted Amount exceeded the amount of Available Finance Charge
Collections, the Available Cash Collateral Amount and Reallocated Principal
Collections available to fund the Class A Defaulted Amount) shall be reduced by
the amount of such excess. In the event that such reduction would cause the
Collateral Invested Amount to be reduced below zero, the Collateral Invested
Amount shall be reduced to zero and the Class B Invested Amount shall be reduced
by the amount by which the Collateral Invested Amount would have been reduced
below zero (any reduction in the Class B Invested Amount in this paragraph (c)
or paragraph (b) above, a "Class B Charge-Off"). Class B Charge-Offs shall
thereafter be reimbursed and the Class B Invested Amount increased (but not by
an amount in excess of the aggregate unreimbursed Class B Charge-Offs) on any
Distribution Date by the amount of Available Finance Charge Collections
allocated and available for that purpose pursuant to Section 4.05(a)(viii).
Section 4.07. Additional Finance Charges. Subject to Section 4.05 of the
Agreement, Additional Finance Charges with respect to the Series in Group One
for any Distribution Date shall be allocated to Series 1997-3 in an amount equal
to the product of (i) the aggregate amount of Additional Finance Charges with
respect to all the Series in Group One for such Distribution Date and (ii) a
fraction, the numerator of which is the Finance Charge Shortfall for Series
1997-3 for such Distribution Date and the denominator of which is the aggregate
amount of Finance Charge Shortfalls for all the Series in Group One for such
Distribution Date. The "Finance Charge Shortfall" for Series 1997-3 for any
Distribution Date shall be equal to the excess, if any, of (x) the full amount
required to be paid pursuant to Section 4.05(a) (excluding Section 4.05(a)(xv))
on such Distribution Date over (y) Available Finance Charge Collections
(excluding any Additional Finance Charges from other Series in Group One that
are allocated to Series 1997-3 on such Distribution Date) with respect to the
related Monthly Period.
Section 4.08. Shared Principal Collections. Subject to Section 4.04 of the
Agreement, Shared Principal Collections for any Distribution Date shall be
allocated to Series 1997-3 in an amount equal to the product of (i) the
aggregate amount of Shared Principal Collections with respect to all Series for
such Distribution Date and (ii) a fraction, the numerator of which is the
Principal Shortfall for Series 1997-3 for such Distribution Date and the
denominator of which is the aggregate amount of Principal Shortfalls for all
Series for such Distribution Date. The "Principal Shortfall" for Series 1997-3
shall be equal to (w) for any Distribution Date with respect to the Revolving
Period, zero, (x) for any Distribution Date with respect to the Class A
Accumulation Period (on or prior to the Class A Expected Final Payment Date),
the excess, if any, of the Class A Controlled Deposit Amount with respect to
such Distribution Date over the amount of Available Principal Collections for
such Distribution Date (excluding any portion thereof attributable to Shared
Principal Collections), (y) for any Distribution Date with respect to the Class
B Accumulation Period (on or prior to the Class B Expected Final Payment Date
provided that the Class A Invested Amount was paid in full on the Class A
Expected Final Payment Date), the excess, if any, of the Class B Controlled
Deposit Amount with respect to such Distribution Date over the amount of
Available Principal Collections for such Distribution Date (excluding any
portion thereof attributable to Shared Principal Collections) and (z) for any
Distribution Date with respect to the Early Amortization Period and any
Distribution Date with respect to the Class A Accumulation Period or the Class B
Accumulation Period commencing on the earlier of the Distribution Date following
the Class A Expected Final Payment Date if the Class A Invested Amount was not
paid in full on the Class A Expected Final Payment Date and the Distribution
Date following the Class B Expected Final Payment Date, the excess, if any, of
the Invested Amount over the amount of Available Principal Collections for such
Distribution Date (excluding any portion thereof attributable to Shared
Principal Collections).
Section 4.09. Reserve Account. (a) The Servicer may elect, in its sole
discretion, to establish and maintain, in the name of the Trustee, on behalf of
the Trust, for the benefit of the Class A Certificateholders, an Eligible
Deposit Account (the "Reserve Account") bearing a designation clearly indicating
that the funds deposited therein are held for the benefit of the Class A
Certificateholders. At the time of such election, the Servicer shall notify the
Trustee of the percentage to be specified under the definition of Required
Reserve Account Amount in Section 2.01(a). The Trustee shall possess all right,
title and interest in all funds on deposit from time to time in the Reserve
Account and in all proceeds thereof. The Reserve Account shall be under the sole
dominion and control of the Trustee for the benefit of the Class A
Certificateholders. If at any time the Reserve Account ceases to be an Eligible
Deposit Account, the Trustee (or the Servicer on its behalf) shall within
10 Business Days (or such longer period, not to exceed 30 calendar days, as to
which each Rating Agency may consent) establish a new Reserve Account meeting
the conditions specified above as an Eligible Deposit Account, and shall
transfer any cash or any investments to such new Reserve Account. The Trustee,
at the direction of the Servicer, shall (i) make withdrawals from the Reserve
Account from time to time in an amount up to the Available Reserve Account
Amount at such time, for the purposes set forth in this Supplement, and (ii) on
each Distribution Date (from and after the Reserve Account Funding Date) prior
to the termination of the Reserve Account make a deposit into the Reserve
Account in the amount specified in, and otherwise in accordance with, Section
4.05(a)(xi).
(b) Funds on deposit in the Reserve Account shall be invested at the
direction of the Servicer by the Trustee in Eligible Investments. Funds on
deposit in the Reserve Account on any Transfer Date or Distribution Date, after
giving effect to any withdrawals from the Reserve Account on such date, shall be
invested in such investments that will mature so that such funds will be
available for withdrawal on or prior to the following Transfer Date. The Trustee
shall maintain for the benefit of the Class A Certificate-holders possession of
the negotiable instruments or securities, if any, evidencing such Eligible
Investments. No Eligible Investment shall be disposed of prior to its maturity;
provided, however, that the Trustee shall sell, liquidate or dispose of an
Eligible Investment before its maturity, at the written direction of the
Servicer, if such sale, liquidation or disposal would not result in a loss of
all or part of the principal portion of such Eligible Investment (the Trustee
shall not be responsible for determining whether such a loss would result) or
if, prior to the maturity of such Eligible Investment, a default occurs in the
payment of principal, interest or any other amount with respect to such Eligible
Investment. On each Transfer Date, all interest and earnings (net of losses and
investment expenses) accrued since the preceding Transfer Date on funds on
deposit in the Reserve Account shall be retained in the Reserve Account (to the
extent that the Available Reserve Account Amount is less than the Required
Reserve Account Amount) and the balance, if any, shall be distributed on the
related Distribution Date to or at the direction of the Sellers. For purposes of
determining the availability of funds or the balance in the Reserve Account for
any reason under this Supplement, except as otherwise provided in the preceding
sentence, investment earnings on such funds shall be deemed not to be available
or on deposit.
(c) On the Determination Date preceding each Distribution Date with respect
to the Class A Accumulation Period and the first Special Payment Date (on or
prior to the Class A Expected Final Payment Date), the Servicer shall calculate
the "Reserve Draw Amount," which shall be equal to the excess, if any, of the
Covered Amount with respect to such Distribution Date or Special Payment Date
over the Principal Funding Investment Proceeds with respect to such Distribution
Date or Special Payment Date; provided, that such amount shall be reduced to the
extent that funds otherwise would be available for deposit in the Reserve
Account under Section 4.05(a)(xi) with respect to such Distribution Date or
Special Payment Date.
(d) In the event that for any Distribution Date the Reserve Draw Amount is
greater than zero, the Reserve Draw Amount, up to the Available Reserve Account
Amount, shall be withdrawn from the Reserve Account on the related Transfer Date
by the Trustee (acting in accordance with the instructions of the Servicer),
deposited into the Collection Account and included in Available Finance Charge
Collections for such Distribution Date.
(e) On or before each Transfer Date, the Servicer shall determine the
amount, if any, of the Reserve Account Surplus for the related Distribution
Date, after giving effect to all deposits to and withdrawals from the Reserve
Account required to be made with respect to such Distribution Date (the
"Transfer Date Reserve Account Surplus Amount"). In the event that the Transfer
Date Reserve Account Surplus Amount with respect to any Transfer Date is greater
than zero, the Trustee, on the related Distribution Date, acting in accordance
with the instructions of the Servicer, shall withdraw from the Reserve Account,
and pay to or at the direction of the Sellers, an amount equal to such Transfer
Date Reserve Account Surplus Amount.
(f) Upon the earliest to occur of (i) the termination of the Trust pursuant
to Article XII of the Agreement, (ii) the day on which the Class A Invested
Amount is paid in full to the Class A Certificateholders, (iii) the Transfer
Date immediately preceding the first Special Payment Date and (iv) the Transfer
Date immediately preceding the Class A Expected Final Payment Date, the Trustee,
acting in accordance with the instructions of the Servicer, after the prior
payment of all amounts owing to the Class A Certificateholders that are payable
from the Reserve Account as provided herein, shall withdraw from the Reserve
Account and pay to or at the direction of the Sellers, all amounts, if any, on
deposit in the Reserve Account and the Reserve Account shall be deemed to have
terminated for purposes of this Supplement.
Section 4.10. Cash Collateral Account. (a) The Servicer shall establish and
maintain, in the name of the Trustee, on behalf of the Trust, for the benefit of
the Class A Certificateholders and the Class B Certificate-holders, as their
interests appear herein, an Eligible Deposit Account (the "Cash Collateral
Account") bearing a designation clearly indicating that the funds deposited
therein are held for the benefit of the Class A Certificateholders and the Class
B Certificateholders. The Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Cash Collateral Account and in all
proceeds thereof. The Cash Collateral Account shall be under the sole dominion
and control of the Trustee for the benefit of the Class A Certificateholders and
the Class B Certificateholders. If at any time the Cash Collateral Account
ceases to be an Eligible Deposit Account, the Trustee (or the Servicer on its
behalf) shall within 10 Business Days (or such longer period, not to exceed 30
calendar days, as to which each Rating Agency may consent) establish a new Cash
Collateral Account meeting the conditions specified above as an Eligible Deposit
Account, and shall transfer any cash or any investments to such new Cash
Collateral Account. The Trustee, at the direction of the Servicer, shall (i) on
the Closing Date, deposit in the Cash Collateral Account the proceeds of the
advance to be made on such date by the Sellers, (ii) make withdrawals from
the Cash Collateral Account from time to time in an amount up to the Available
Cash Collateral Amount at such time, for the purposes set forth in this
Supplement, and (iii) on each Distribution Date prior to the termination of the
Cash Collateral Account make a deposit into the Cash Collateral Account in the
amount specified in, and otherwise in accordance with, Section 4.05(a)(xiii).
The Sellers shall not be entitled to reimbursement from the Trust Assets for any
withdrawals from the Cash Collateral Account except as specifically provided in
this Supplement.
(b) Funds on deposit in the Cash Collateral Account shall be invested at
the direction of the Servicer by the Trustee in Cash Collateral Account
Investments. Funds on deposit in the Cash Collateral Account on any Transfer
Date, after giving effect to any withdrawals from the Cash Collateral Account on
such Transfer Date, shall be invested in such investments that will mature so
that such funds will be available for withdrawal on or prior to the following
Transfer Date. No Cash Collateral Account Investment shall be disposed of prior
to its maturity; provided, however, that the Trustee may sell, liquidate or
dispose of a Cash Collateral Account Investment before its maturity, if so
directed by the Servicer, the Servicer having reasonably determined that the
interest of the Class A Certificateholders and the Class B Certificateholders
may be adversely affected if such Cash Collateral Account Investment is held to
its maturity. The proceeds of any such investments shall be invested in such
investments that will mature so that such funds will be available for withdrawal
on or prior to the Transfer Date immediately following the date of such
investment. The Trustee shall maintain for the benefit of the Class A
Certificateholders and the Class B Certificateholders possession of the
negotiable instruments or securities, if any, evidencing the Cash Collateral
Account Investments. On each Distribution Date, the Servicer shall direct the
Trustee to withdraw from the Cash Collateral Account and deposit into the
Collection Account all interest and earnings (net of losses and investment
expenses) ("Cash Collateral Investment Proceeds") accrued since the preceding
Distribution Date on funds on deposit in the Cash Collateral Account and such
Cash Collateral Investment Proceeds shall be treated as a portion of Available
Finance Charge Collections for such Distribution Date. For purposes of
determining the availability of funds or the balances in the Cash Collateral
Account for any reason under this Supplement, all investment earnings on such
funds shall be deemed not to be available or on deposit.
(c) In the event that for any Distribution Date the Required Amount (such
amount being referred to as the "Required Draw Amount") is greater than zero,
the Servicer shall give written notice to the Trustee and the Sellers, in
substantially the form of Exhibit E, of such positive Required Draw Amount on
the related Determination Date. The Required Draw Amount, if any, up to the
Available Cash Collateral Amount shall be withdrawn from the Cash Collateral
Account and distributed to fund any Required Amount, the amount of such
Available Cash Collateral Amount being applied to the components of the Required
Amount in the same priority as amounts are applied to such components from
Available Finance Charge Collections pursuant to Section 4.05(a).
(d) On or before each Distribution Date, the Servicer shall determine the
amount, if any, of the Cash Collateral Account Surplus Amount for such
Distribution Date. In the event that the Cash Collateral Account Surplus Amount
with respect to any Distribution Date is greater than zero, the Trustee, on such
Distribution Date, acting in accordance with the instructions of the Servicer,
shall withdraw from the Cash Collateral Account, and pay to or at the direction
of the Sellers, an amount equal to such Cash Collateral Account Surplus Amount.
(e) Upon the earliest to occur of (i) the termination of the Trust pursuant
to Article XII of the Agreement, (ii) the Termination Date and (iii) the day on
which the Class A Invested Amount and the Class B Invested Amount are paid in
full to the Class A Certificateholders and the Class B Certificateholders, the
Trustee, acting in accordance with the instructions of the Servicer, after the
prior payment of all amounts owing to the Class A Certificateholders and the
Class B Certificateholders which are payable from the Cash Collateral Account as
provided herein, shall withdraw from the Cash Collateral Account and pay to or
at the direction of the Sellers, all amounts, if any, on deposit in the Cash
Collateral Account and the Cash Collateral Account shall be deemed to have
terminated for purposes of this Supplement.
Section 4.11. Interest Rate Protection Agreements. (a) The Sellers may
determine from time to time, in their sole discretion, to obtain one or more
Interest Rate Protection Agreements with respect to Series 1997-3. Upon any such
determination, the Servicer shall obtain such an Interest Rate Protection
Agreement in favor of the Trust for the benefit of the Series 1997-3
Certificateholders by directing the Trustee to accept an assignment of such
Interest Rate Protection Agreement and the Trustee shall accept such assignment.
The Interest Rate Protection Agreement shall provide that the Trust shall be
entitled to receive any payments from the Interest Rate Protection Provider
thereunder (which payments shall be determined in accordance with the Interest
Rate Protection Agreement). Any Interest Rate Protection Agreement may be
terminated by the Sellers or assigned by the Trust to or at the direction of the
Sellers at any time at the Sellers' election and in their sole discretion. The
Sellers may assign to the Trust at any time in their sole discretion any
Interest Rate Protection Agreement so long as the Trust is neither required to
pay for nor obligated to make payments pursuant to such Interest Rate Protection
Agreement, and the Sellers may assign to the Trust pursuant to this Section 4.11
any Interest Rate Protection Agreement that obligates the Trust to make any
payments pursuant thereto if the conditions specified in Section 9.06 have been
satisfied with respect thereto. The Sellers will notify each Rating Agency in
writing of the assignment of any Interest Rate Protection Agreement to the Trust
within five Business Days following such assignment, unless earlier notice is
given in connection with the satisfaction of any required Rating Agency
Condition.
(b) The Trustee hereby appoints the Servicer to perform the duties of the
calculation agent under any Interest Rate Protection Agreement and the Servicer
accepts such appointment.
(c) The Trustee hereby agrees to make demand under the guarantee, if any,
of any Interest Rate Protection Agreement in the event that the Interest Rate
Protection Provider shall fail to make any payment as provided in the
Interest Rate Protection Agreement.
ARTICLE V
Distributions and Reports to
Series 1997-3 Certificateholders
Section 5.01. Distributions. (a) On each Payment Date, the Paying Agent
shall distribute to each Class A Certificateholder of record on the related
Record Date (other than as provided in Section 12.02 of the Agreement) such
Class A Certificateholder's pro rata share of the amounts that are allocated and
available on such Payment Date to pay interest on the Class A Certificates
pursuant to this Supplement.
(b) On each Special Payment Date (on or prior to the Class B Principal
Commencement Date), on the Class A Expected Final Payment Date and on each
Distribution Date with respect to the Class A Accumulation Period following the
Class A Expected Final Payment Date, the Paying Agent shall distribute to each
Class A Certificateholder of record on the related Record Date (other than as
provided in Section 12.02 of the Agreement) such Class A Certificateholder's pro
rata share of the amounts on deposit in the Principal Funding Account (or
otherwise held by the Paying Agent) and that are allocated and available on such
date to pay principal of the Class A Certificates pursuant to this Supplement up
to a maximum amount on any such date equal to the Class A Invested Amount on
such date (unless there has been an optional repurchase of the Series 1997-3
Certificateholders' Interest pursuant to Section 10.01 of the Agreement, in
which event the foregoing limitation shall not apply).
(c) On each Payment Date, the Paying Agent shall distribute to each Class B
Certificateholder of record on the related Record Date (other than as provided
in Section 12.02 of the Agreement) such Class B Certificateholder's pro rata
share of the amounts that are allocated and available on such Payment Date to
pay interest on the Class B Certificates pursuant to this Supplement.
(d) On each Special Payment Date (on or after the Class B Principal
Commencement Date), on the Class B Expected Final Payment Date and on each
Distribution Date with respect to the Class B Accumulation Period commencing on
the earlier of the Distribution Date following the Class A Expected Final
Payment Date if the Class A Invested Amount was not paid in full on the Class A
Expected Final Payment Date and the Distribution Date following the Class B
Expected Final Payment Date, the Paying Agent shall distribute to each Class B
Certificateholder of record on the related Record Date (other than as provided
in Section 12.02 of the Agreement) such Class B Certificateholder's pro rata
share of the amounts on deposit in the Principal Funding Account (or otherwise
held by the Paying Agent) and that are allocated and available on such date to
pay principal of the Class B Certificates pursuant to this Supplement up to a
maximum amount on any such date equal to the Class B Invested Amount on such
date (unless there has been an optional repurchase of the Series 1997-3
Certificateholders' Interest pursuant to Section 10.01 of the Agreement, in
which event the foregoing limitation shall not apply).
(e) The distributions to be made pursuant to this Section 5.01 are subject
to the provisions of Sections 2.06, 9.02, 10.01 and 12.02 of the Agreement and
Sections 8.01 and 8.02 of this Supplement.
(f) Except as provided in Section 12.02 of the Agreement with respect to a
final distribution, distributions to Class A Certificateholders and Class B
Certificateholders hereunder shall be made by check mailed to each Class A
Certificateholder and Class B Certificateholder at such Certificateholder's
address appearing in the Certificate Register without presentation or surrender
of any Class A Certificate or Class B Certificate or the making of any notation
thereon; provided, however, that with respect to Class A Certificates and Class
B Certificates registered in the name of a Clearing Agency, such distributions
shall be made to such Clearing Agency in immediately available funds.
(g) Distributions to the Collateral Interest Holder shall be made in
accordance with the terms of the Collateral Agreement, subject to the terms
of, and the amounts allocated and available for such purpose under, the
Agreement and this Supplement.
Section 5.02. Reports and Statements. (a) On each Distribution Date, the
Paying Agent, on behalf of the Trustee, shall forward to each Series 1997-3
Certificateholder a statement substantially in the form of Exhibit C prepared by
the Servicer.
(b) (i) Not later than each Determination Date, the Servicer shall deliver
to the Trustee and the Paying Agent (x) a statement substantially in the form of
Exhibit C prepared by the Servicer and (y) a certificate of a Servicing Officer
substantially in the form of Exhibit D, and (ii) not later than each
Distribution Date, the Paying Agent shall deliver to each Rating Agency a copy
of the statements delivered to it by the Servicer pursuant to clause (i).
(c) A copy of each statement or certificate provided pursuant to paragraph
(a) or (b) may be obtained by any Series 1997-3 Certificateholder or any
Certificate Owner with respect to Series 1997-3 by a request in writing to the
Servicer.
(d) On or before January 31 of each calendar year, beginning with calendar
year 1998, the Paying Agent, on behalf of the Trustee, shall furnish or cause to
be furnished to each Person who at any time during the preceding calendar year
was a Series 1997-3 Certificateholder, a statement prepared by the Servicer
containing the information that is required to be contained in the statement in
paragraph (a) above, aggregated for such calendar year or the applicable portion
thereof during which such Person was a Series 1997-3 Certificateholder, together
with such other information, if any, as is required to be provided under the
Internal Revenue Code. Such obligation of the Servicer shall be deemed to have
been satisfied to the extent that substantially comparable information shall be
provided by the Paying Agent pursuant to any requirements of the Internal
Revenue Code as from time to time in effect.
ARTICLE VI
Pay Out Events
Section 6.01. Additional Pay Out Event. The occurrence of the following
event (as determined by the Servicer on any Determination Date) shall,
immediately on such Determination Date without notice or other action on the
part of the Trustee or the Series 1997-3 Certificateholders, be deemed to be a
Pay Out Event solely with respect to Series 1997-3:
the average of the Portfolio Yields for any three consecutive
Monthly Periods is less than the average of the Base Rates for such
Monthly Periods.
ARTICLE VII
Optional Repurchase; Series Termination
Section 7.01 Optional Repurchase. (a) On any day occurring on or after the
date on which the Invested Amount is reduced to 5% or less of the Initial
Invested Amount, the Sellers shall have the option to purchase the Series 1997-3
Certificateholders' Interest, at a purchase price equal to (i) if such day is a
Distribution Date, the Reassignment Amount for the day immediately preceding
such Distribution Date or (ii) if such day is not a Distribution Date, the
Reassignment Amount for the day immediately preceding the Distribution Date
following such day.
(b) The Sellers shall give the Servicer and the Trustee at least 30 days
prior written notice of the date on which the Sellers intend to exercise such
purchase option. Not later than 12:00 noon, New York City time, on such
Distribution Date the Sellers shall deposit the Reassignment Amount into the
Collection Account in immediately available funds. Such purchase option is
subject to payment in full of the Reassignment Amount. Following the deposit of
the Reassignment Amount into the Collection Account in accordance with the
foregoing, the Invested Amount for Series 1997-3 shall be reduced to zero and
the Series 1997-3 Certificateholders shall have no further interest in the
Receivables. The Reassignment Amount shall be distributed as set forth in
Section 8.01(b).
Section 7.02. Series Termination. (a) If, on the October 2005 Distribution
Date, the Invested Amount (after giving effect to all changes therein on such
date) would be greater than zero, the Servicer, on behalf of the Trustee, shall,
within the 40-day period that begins on such Distribution Date, solicit bids for
the sale of Principal Receivables and the related Finance Charge Receivables (or
interests therein) in an amount equal to the Invested Amount at the close of
business on the last day of the Monthly Period preceding the Termination Date
(after giving effect to all distributions required to be made on the Termination
Date, except pursuant to this Section 7.02). Such bids shall require that such
sale shall (subject to Section 7.02(b)) occur on the Termination Date. The
Sellers and the Collateral Interest Holder shall be entitled to participate in,
and to receive from the Trustee a copy of each other bid submitted in connection
with, such bidding process.
(b) The Servicer, on behalf of the Trustee, shall sell such Receivables (or
interests therein) on the Termination Date to the bidder who made the highest
cash purchase offer. The proceeds of any such sale shall be treated as
Collections on the Receivables allocated to the Series 1997-3 Certificateholders
pursuant to the Agreement and this Supplement; provided, however, that the
Servicer shall determine conclusively the amount of such proceeds that are
allocable to Finance Charge Receivables and the amount of such proceeds that are
allocable to Principal Receivables. During the period from the October 2005
Distribution Date to the Termination Date, the Servicer shall continue to
collect payments on the Receivables and allocate and deposit such collections in
accordance with the provisions of the Agreement and the Supplements.
ARTICLE VIII
Final Distributions
Section 8.01. Sale of Receivables or Certificateholders' Interest Pursuant
to Section 2.06 or 10.01 of the Agreement. (a) Purchase Price. (i) The amount to
be paid by each Seller with respect to Series 1997-3 in connection with a
reassignment of Receivables pursuant to Section 2.06 of the Agreement shall
equal the product of (x) the Reassignment Amount for the first Distribution Date
following the Monthly Period in which the reassignment obligation arises under
the Agreement and (y) a fraction, the numerator of which is equal to the
aggregate amount of Principal Receivables in the Trust on the last day of the
Monthly Period preceding such Distribution Date that were transferred to the
Trust by such Seller and the denominator of which is equal to the aggregate
amount of Principal Receivables in the Trust on such day.
(ii) The amount to be paid by the Sellers with respect to Series 1997-3 in
connection with a re urchase of the Certificateholders' Interest pursuant to
Section 10.01 of the Agreement shall equal the sum of (x) the Reassignment
Amount for the Distribution Date of such repurchase and (y) the sum of (I) the
excess, if any, of (A) a price equivalent to the average of bids quoted on the
Record Date preceding the date of repurchase by at least two recognized dealers
selected by the Trustee (which may be selected from the list attached as
Schedule 1), for the purchase by such dealers of a security that is similar to
the Class A Certificates with a remaining maturity approximately equal to the
remaining maturity of the Class A Certificates and rated by each Rating Agency
in the rating category originally assigned to the Class A Certificates over (B)
the portion of the Reassignment Amount attributable to the Class A Certificates
and (II) the excess, if any, of (A) a price equivalent to the average of bids
quoted on the Record Date preceding the date of repurchase by at least two
recognized dealers selected by the Trustee (which may be selected from the list
attached as Schedule 1), for the purchase by such dealers of a security that is
similar to the Class B Certificates with a remaining maturity approximately
equal to the remaining maturity of the Class B Certificates and rated by each
Rating Agency in the rating category originally assigned to the Class B
Certificates over (B) the portion of the Reassignment Amount attributable to the
Class B Certificates.
(b) Distributions Pursuant to Section 7.01 or 7.02 of this Supplement and
Section 10.01 of the Agreement. With respect to the Reassignment Amount
deposited into the Collection Account pursuant to Section 7.01 or 8.01(a)(ii) or
any amounts allocable to the Series 1997-3 Certificateholders' Interest
deposited into the Collection Account pursuant to Section 7.02, the Trustee
shall, not later than 12:00 noon, New York City time, on the related
Distribution Date, make deposits or distributions of the following amounts (in
the priority set forth below and, in each case, after giving effect to any
deposits and distributions otherwise to be made on such date) in immediately
available funds: (i) (x) the Class A Invested Amount on such Distribution Date
shall be distributed to the Paying Agent for payment to the Class A
Certificateholders and (y) an amount equal to the sum of (A) Class A Monthly
Interest for such Distribution Date, (B) any Class A Monthly Interest previously
due but not distributed to the Class A Certificateholders on a prior
Distribution Date and (C) the amount of Class A Additional Interest, if any, for
such Distribution Date and any Class A Additional Interest previously due but
not distributed to the Class A Certificateholders on any prior Distribution
Date, shall be distributed to the Paying Agent for payment to the Class A
Certificateholders, (ii) (x) the Class B Invested Amount on such Distribution
Date shall be distributed to the Paying Agent for payment to the Class B
Certificateholders and (y) an amount equal to the sum of (A) Class B Monthly
Interest and Class B Subordinated Monthly Interest for such Distribution Date,
(B) any Class B Monthly Interest and any Class B Subordinated Monthly Interest
previously due but not distributed to the Class B Certificateholders on a prior
Distribution Date and (C) the amount of Class B Additional Interest and Class B
Subordinated Additional Interest, if any, for such Distribution Date and any
Class B Additional Interest and any Class B Subordinated Additional Interest
previously due but not distributed to the Class B Certificateholders on any
prior Distribution Date, shall be distributed to the Paying Agent for payment
to the Class B Certificateholders and (iii) the balance, if any, shall be
distributed to the Collateral Interest Holder for application in accordance with
the Collateral Agreement. Notwithstanding anything to the contrary contained in
this Supplement or the Agreement, the amount of any excess determined pursuant
to paragraph (a)(ii)(y)(I) shall be distributed to the Class A
Certificateholders and the amount of any excess determined pursuant to paragraph
(a)(ii)(y)(II) shall be distributed to the Class B Certificateholders.
(c) Distributions Pursuant to Section 2.06 of the Agreement. With respect
to any amounts deposited into the Collection Account pursuant to Section
8.01(a)(i), the Trustee shall, not later than 12:00 noon, New York City time, on
the related Distribution Date, deposit the principal portion of such amounts
into the Special Funding Account.
(d) Notwithstanding anything to the contrary in this Supplement or the
Agreement, all amounts distributed to the Paying Agent and the Collateral
Interest Holder pursuant to Section 8.01(b) for payment to the Series 1997-3
Certificateholders shall be deemed distributed in full to the Series 1997-3
Certificateholders on the date on which such funds are distributed to the Paying
Agent and the Collateral Interest Holder pursuant to this Section and shall be
deemed to be a final distribution pursuant to Section 12.02 of the Agreement.
Section 8.02. Distribution of Proceeds of Sale, Disposition or Liquidation
of the Receivables Pursuant to Section 9.02 of the Agreement. (a) Not later than
12:00 noon, New York City time, on the Distribution Date following the date on
which the Insolvency Proceeds are deposited into the Collection Account pursuant
to Section 9.02(b) of the Agreement, the Trustee shall (in the following
priority and, in each case, after giving effect to any deposits and
distributions otherwise to be made on such Distribution Date) (i) deduct an
amount equal to the Class A Invested Amount on such Distribution Date from the
portion of the Insolvency Proceeds allocated to Collections of Principal
Receivables and distribute such amount to the Paying Agent for payment to the
Class A Certificateholders, provided that the amount of such distribution shall
not exceed the product of (x) the portion of the Insolvency Proceeds allocated
to Collections of Principal Receivables and (y) the Principal Allocation
Percentage with respect to the related Monthly Period, (ii) deduct an amount
equal to the Class B Invested Amount on such Distribution Date from the portion
of the Insolvency Proceeds allocated to Collections of Principal Receivables and
distribute such amount to the Paying Agent for payment to the Class B
Certificateholders, provided that the amount of such distribution shall not
exceed (x) the product of the portion of the Insolvency Proceeds allocated to
Collections of Principal Receivables and the Principal Allocation Percentage
with respect to such Monthly Period minus (y) the amount distributed to the
Paying Agent pursuant to clause (a)(i) of this sentence and (iii) deduct an
amount equal to the Collateral Invested Amount on such Distribution Date from
the portion of the Insolvency Proceeds allocated to Collections of Principal
Receivables and distribute such amount to the Collateral Interest Holder for
application in accordance with the Collateral Agreement, provided that the
amount of such distribution shall not exceed (x) the product of the portion of
the Insolvency Proceeds allocated to Collections of Principal Receivables and
the Principal Allocation Percentage with respect to such Monthly Period minus
(y) the amount distributed to the Paying Agent pursuant to clauses (a)(i) and
(a)(ii) of this sentence. To the extent that the product of (A) the portion of
the Insolvency Proceeds allocated to Collections of Principal Receivables and
(B) the Principal Allocation Percentage with respect to the related Monthly
Period exceeds the aggregate amounts distributed to the Paying Agent and the
Collateral Interest Holder pursuant to the preceding sentence, the excess shall
be allocated to the Sellers' Interest and shall be released to the Sellers on
such Distribution Date.
(b) Not later than 12:00 noon, New York City time, on such Distribution
Date, the Trustee shall (in the following priority and, in each case, after
giving effect to any deposits and distributions otherwise to be made on such
Distribution Date) (i) deduct an amount equal to the sum of (w) Class A Monthly
Interest for such Distribution Date, (x) any Class A Monthly Interest previously
due but not distributed to the Class A Certificateholders on a prior
Distribution Date and (y) the amount of Class A Additional Interest, if any, for
such Distribution Date and any Class A Additional Interest previously due but
not distributed to the Class A Certificateholders on a prior Distribution Date
from the portion of the Insolvency Proceeds allocated to Collections of Finance
Charge Receivables and distribute such amount to the Paying Agent for payment to
the Class A Certificateholders, provided that the amount of such distribution
shall not exceed the product of (x) the portion of the Insolvency Proceeds
allocated to Collections of Finance Charge Receivables and (y) the Floating
Allocation Percentage with respect to the related Monthly Period and (ii) deduct
an amount equal to the sum of (w) Class B Monthly Interest and Class B
Subordinated Monthly Interest for such Distribution Date, (x) any Class B
Monthly Interest and any Class B Subordinated Monthly Interest previously due
but not distributed to the Class B Certificateholders on a prior Distribution
Date and (y) the amount of Class B Additional Interest and Class B Subordinated
Additional Interest, if any, for such Distribution Date and any Class B
Additional Interest and any Class B Subordinated Additional Interest previously
due but not distributed to the Class B Certificateholders on a prior
Distribution Date from the portion of the Insolvency Proceeds allocated to
Collections of Finance Charge Receivables and distribute such amount to the
Paying Agent for payment to the Class B Certificateholders, provided that the
amount of such distribution shall not exceed (x) the product of the portion of
the Insolvency Proceeds allocated to Collections of Finance Charge Receivables
and the Floating Allocation Percentage with respect to the related Monthly
Period minus (y) the amount distributed to the Paying Agent pursuant to clause
(b)(i) of this sentence. To the extent that the product of (A) the portion of
the Insolvency Proceeds allocated to Collections of Finance Charge Receivables
and (B) the Floating Allocation Percentage with respect to the related Monthly
Period exceeds the aggregate amount distributed to the Paying Agent pursuant to
the preceding sentence, the excess shall be released to the Collateral Interest
Holder for application by the Collateral Interest Holder in accordance with the
Collateral Agreement.
(c) Notwithstanding anything to the contrary in this Supplement or the
Agreement, all amounts distributed to the Paying Agent and the Collateral
Interest Holder pursuant to this Section for payment to the Series 1997-3
Certificateholders shall be distributed in full to the Series 1997-3
Certificateholders on the date on which funds are distributed to the Paying
Agent and the Collateral Interest Holder pursuant to this Section and shall be
deemed to be a final distribution pursuant to Section 12.02 of the Agreement.
(d) Notwithstanding any provision of the Agreement or this Supplement, for
purposes of Section 9.02(a) of the Agreement, the holders of the Series 1997-3
Certificates shall not be deemed to have disapproved a liquidation of the
Receivables following an Insolvency Event with respect to any of the Sellers
unless (i) holders of more than 50% of the aggregate unpaid principal amount of
each of the Class A Certificates and the Class B Certificates and (ii) the
Collateral Interest Holder shall have disapproved of such liquidation (or, if
the Collateral Interest Holder shall have assigned all or part of its interest
under the Collateral Agreement to one or more Persons, then one or more Persons
holding more than 50% of such interest shall have disapproved of such
liquidation).
ARTICLE IX
Miscellaneous Provisions
Section 9.01. Ratification of Agreement. As supplemented by this
Supplement, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
Section 9.02. Counterparts. This Supplement 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.
Section 9.03. Governing Law. THIS SUPPLEMENT 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.
Section 9.04. Series Enhancer Notices. The Collateral Interest Holder shall
be entitled to receive all notices and other items that are available to be
delivered to Series Enhancers pursuant to Sections 2.03, 2.04(b), 6.03(d), 8.07
and 9.02 of the Agreement, except for notices and other items that relate solely
to Series other than Series 1997-3.
Section 9.05. Determination of Material Adverse Effect. Any determination
of material adverse effect on Investor Certificateholders under the Agreement or
this Supplement shall be made assuming the Collateral Invested Amount is zero
and without regard to whether funds are available in the Cash Collateral Account
(including, without limitation, any determination of whether a representation or
warranty made therein is correct or whether a Seller or the Servicer has duly
performed a covenant contained therein or herein).
Section 9.06. Amendment to Reflect Swap. This Supplement may be amended
pursuant to Section 13.01(a) of the Agreement without the consent of any of the
Series 1997-3 Certificateholders but subject to the conditions specified in
Section 13.01(a) of the Agreement, to provide that the Trust shall enter into a
swap agreement relating to amounts that would otherwise be distributed to the
Sellers under Section 4.05(a)(xv).
Section 9.07. Other Amendments. Notwithstanding anything to the contrary in
the Agreement or this Supplement, any amendment to this Supplement to change the
Required Cash Collateral Amount or the Required Collateral Invested Amount such
that (i) the Required Enhancement Amount is not reduced or (ii) the Sellers
acquire an interest in the Trust that is subordinate to the Class A Certificates
and the Class B Certificates as a replacement for any such reduction in the
Required Enhancement Amount (provided that such action will not have an
adverse regulatory impact upon either of the Sellers), shall be deemed
conclusively not to affect adversely in any material respect the interests of
any Class A Certificateholder and Class B Certificateholder, so long as the
Rating Agency Condition shall have been satisfied with respect to such
amendment, and such amendment may be entered into without the consent of any of
the Class A Certificateholders and Class B Certificateholders.
IN WITNESS WHEREOF, the Sellers, the Servicer and the Trustee have caused
this Supplement to be duly executed by their respective officers as of the day
and year first above written.
FIRST DEPOSIT NATIONAL BANK,
Seller and Servicer,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
PROVIDIAN NATIONAL BANK,
Seller,
by
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
BANKERS TRUST COMPANY,
Trustee,
by
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
EXHIBIT A-1
REGISTERED $__________*
No. R- CUSIP No. [ ]
[Unless this Class A Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.]
PROVIDIAN MASTER TRUST
FLOATING RATE CLASS A ASSET BACKED CERTIFICATE
Series 1997-3
Each $1,000 minimum denomination represents a
1/570,500 undivided interest in certain assets of the
PROVIDIAN MASTER TRUST
Evidencing an undivided interest in a trust, the corpus of which consists
primarily of receivables generated from time to time in the ordinary course of
business in a portfolio of revolving credit card accounts by
FIRST DEPOSIT NATIONAL BANK
and
PROVIDIAN NATIONAL BANK
and, in certain circumstances, certain Additional Sellers (as defined in the
Pooling and Servicing Agreement referred to below).
(Not an interest in or obligation of First Deposit
National Bank, Providian National Bank,
any Additional Sellers or any affiliate thereof)
----------
*Denominations of $1,000 and integral multiples of
$1,000 in excess thereof.
This certifies that (the "Class A Certificateholder") is the registered
owner of a fractional undivided interest in certain assets of a trust (the
"Trust") created pursuant to the Pooling and Servicing Agreement dated as of
June 1, 1993 (as amended and supplemented, other than by any amendment or
supplement relating to a specific Series, the "Agreement"), as supplemented by
the Series 1997-3 Supplement dated as of June 1, 1997 (as amended and
supplemented, the "Series Supplement"), among First Deposit National Bank, a
national banking association, as Seller and Servicer, Providian National Bank, a
national banking association, as Seller, and Bankers Trust Company, a New York
banking corporation, as trustee (the "Trustee"). The Trust will also issue
$66,500,000 of Floating Rate Class B Asset Backed Certificates, Series 1997-3
and $63,000,000 of Collateral Interest, Series 1997-3 which will be subordinated
to the Class A Certificates as described in the Series Supplement. The corpus of
the Trust consists of (i) a portfolio of all receivables (the "Receivables")
existing in the revolving credit card accounts and other revolving credit
accounts identified under the Agreement from time to time (the "Accounts"),
(ii) all Receivables generated under the Accounts from time to time thereafter,
(iii) funds collected or to be collected from accountholders in respect of the
Receivables, (iv) all funds which are from time to time on deposit in the
Collection Account and in the Series Accounts, (v) the benefits of certain
Series Enhancements including a Cash Collateral Account for the benefit of the
Class A Certificateholders and the Class B Certificateholders which will have an
initial balance of $21,000,000, (vi) if applicable, payments, if any, received
under any interest rate swap or cap agreement assigned to the Trust for the
benefit of the Series 1997-3 Certificateholders and (vii) all other assets and
interests constituting the Trust. Although a summary of certain provisions of
the Agreement and the Series Supplement is set forth below and on the Summary of
Terms and Conditions attached hereto and made a part hereof, this Class A
Certificate does not purport to summarize the Agreement and the Series
Supplement and reference is made to the Agreement and the Series Supplement for
information with respect to the interests, rights, benefits, obligations,
proceeds and duties evidenced hereby and the rights, duties and obligations of
the Trustee. A copy of the Agreement and the Series Supplement (without
schedules) may be requested from the Trustee by writing to the Trustee at the
Corporate Trust Office. To the extent not defined herein, the capitalized terms
used herein have the meanings ascribed to them in the Agreement or the Series
Supplement, as applicable.
This Class A Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement and the Series Supplement, to which
Agreement and Series Supplement, each as amended and supplemented from time to
time, the Class A Certificateholder by virtue of the acceptance hereof assents
and is bound. It is the intent of the Sellers and the Series 1997-3
Certificateholders that, for Federal, state and local income and franchise tax
purposes only, the Series 1997-3 Certificates will qualify as indebtedness of
the Sellers secured by the Receivables. The Class A Certificateholder, by the
acceptance of this Class A Certificate, agrees to treat this Class A Certificate
for Federal, state and local income and franchise tax purposes as indebtedness
of the Sellers.
In general, payments of principal with respect to the Class A Certificates
are limited to the Class A Invested Amount, which may be less than the unpaid
principal balance of the Class A Certificates. The final principal payment with
respect to the Class A Certificates is scheduled to be made on the May 2001
Distribution Date, but the final principal payment with respect to the Class A
Certificates may be paid earlier or later under certain circumstances described
in the Agreement and the Series Supplement. If for one or more months during the
Class A Accumulation Period there are not sufficient funds to pay the Class A
Controlled Accumulation Amount, then to the extent that excess funds are not
available on subsequent Distribution Dates with respect to the Class A
Accumulation Period to make up for such shortfalls, the final payment of
principal of the Class A Certificates will occur later than the May 2001
Distribution Date.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Class A Certificate shall not
be entitled to any benefit under the Agreement or the Series Supplement or be
valid for any purpose.
IN WITNESS WHEREOF, the Sellers have caused this Class A Certificate to be
duly executed.
FIRST DEPOSIT NATIONAL BANK,
By
----------------------
Name:
Title:
PROVIDIAN NATIONAL BANK,
By
---------------------
Name:
Title:
Dated: , 199
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates described in the within-mentioned
Agreement and Series Supplement.
BANKERS TRUST COMPANY,
as Trustee,
By:
___________________
Authorized Officer
or
By:
as Authenticating Agent
for the Trustee,
By:
___________________
Authorized Officer
PROVIDIAN MASTER TRUST
FLOATING RATE CLASS A ASSET BACKED CERTIFICATE
Series 1997-3
Summary of Terms and Conditions
This Class A Certificate is one of a Series of Certificates entitled
Providian Master Trust, Asset Backed Certificates, Series 1997-3 (the "Series
1997-3 Certificates"), and one of a Class thereof entitled Floating Rate Class A
Asset Backed Certificates, Series 1997-3 (the "Class A Certificates"), each of
which represents a fractional undivided interest in certain assets of the Trust.
The Receivables consist of Principal Receivables which arise generally from the
purchase of merchandise and services and amounts advanced to accountholders as
cash advances and Finance Charge Receivables. The Trust Assets are allocated in
part to the certificateholders of all outstanding Series (the
"Certificateholders' Interest") with the remainder allocated to the Sellers. The
aggregate interest represented by the Class A Certificates at any time in the
Principal Receivables in the Trust shall not exceed an amount equal to the
Class A Invested Amount at such time. The Class A Initial Invested Amount is
$570,500,000. In addition to the Class A Certificates, the Floating Rate Class B
Asset Backed Certificates, Series 1997-3, the Collateral Interest,
Series 1997-3, the Series 1997-3 Certificates, issued contemporaneously with the
Series 1997-3 Certificates, and other Series of Investor Certificates previously
issued by the Trust, a Sellers' Certificate has been issued to the Sellers
pursuant to the Agreement which represents the Sellers' Interest.
Subject to the terms and conditions of the Agreement, the Sellers may from
time to time direct the Trustee, on behalf of the Trust, to issue one or more
new Series of Investor Certificates, which will represent fractional undivided
interests in certain of the Trust Assets.
On each Distribution Date, the Paying Agent shall distribute to each
Class A Certificateholder of record on the last business day of the preceding
calendar month (each a "Record Date") such Class A Certificateholder's pro rata
share of such amounts on deposit in the Collection Account and the Principal
Funding Account as are payable to the Class A Certificateholders pursuant to the
Agreement and the Series Supplement. Distributions with respect to this Class A
Certificate will be made by the Paying Agent by check mailed to the address of
the Class A Certificateholder
of record appearing in the Certificate Register without the presentation or
surrender of this Class A Certificate or the making of any notation thereon
(except for the final distribution in respect of this Class A Certificate)
except that with respect to Class A Certificates registered in the name of
Cede & Co., the nominee for The Depository Trust Company, distributions will be
made in the form of immediately available funds. Final payment of this Class A
Certificate will be made only upon presentation and surrender of this Class A
Certificate at the office or agency specified in the notice of final
distribution delivered by the Trustee to the Class A Certificateholders in
accordance with the Agreement and the Series Supplement.
On any day occurring on or after the day on which the Invested Amount is
reduced to 5% or less of the Initial Invested Amount, the Sellers have the
option to repurchase the Series 1997-3 Certificateholders' Interest in the
Trust. The repurchase price of the Class A Certificates will be equal to (a) if
such day is a Distribution Date, the Reassignment Amount for the day immediately
preceding such Distribution Date or (b) if such day is not a Distribution Date,
the Reassignment Amount for the day immediately preceding the Distribution Date
following such day; excluding, in each case, any portion of the Reassignment
Amount consisting of amounts payable to the Class B Certificateholders or the
Collateral Interest Holder. Following the deposit of such repurchase price in
the Collection Account, the Class A Certificateholders will not have any
interest in the Receivables and the Class A Certificates will represent only the
right to receive such repurchase price.
This Class A Certificate does not represent an obligation of, or an
interest in, the Sellers, the Servicer or any affiliate of any of them and is
not insured or guaranteed by the Federal Deposit Insurance Corporation or any
other governmental agency or instrumentality. This Class A Certificate is
limited in right of payment to certain Collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
hereinabove and in the Agreement and the Series Supplement.
The Agreement or any Supplement may, subject to certain conditions, be
amended by the Sellers, the Servicer and the Trustee without Investor
Certificateholder consent. The Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Trustee's rights, duties or immunities
under the Agreement or otherwise.
The Agreement or any Supplement may also be amended from time to time
(including in connection with the issuance of a Supplemental Certificate) by the
Servicer, the Sellers and the Trustee, with the consent of the Holders of
Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid
principal amount of the Investor Certificates of all adversely affected Series,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Agreement or any Supplement or of
modifying in any manner the rights of the Investor Certificateholders; provided,
however, that no such amendment shall (i) reduce in any manner the amount of or
delay the timing of any distributions to be made to Investor Certificateholders
or deposits of amounts to be so distributed or the total amount of Series
Enhancement available for the benefit of a Series without the consent of each
affected Investor Certificateholder (provided that any amendment to the terms of
a Pay Out Event shall not be deemed to be within the scope of this clause (i)),
(ii) change the definition of or the manner of calculating the interest of any
Investor Certificateholder without the consent of each affected Investor
Certificateholder, (iii) reduce the aforesaid percentage required to consent to
any such amendment without the consent of each Investor Certificateholder or
(iv) adversely affect the rating of any Series or Class by each Rating Agency
without the consent of the Holders of Investor Certificates of such Series or
Class evidencing not less than 66-2/3% of the aggregate unpaid principal amount
of the Investor Certificates of such Series or Class. The Trustee may, but shall
not be obligated to, enter into any such amendment which affects the Trustee's
rights, duties or immunities under this Agreement or otherwise.
The Class A Certificates are issuable only in minimum denominations of
$1,000 and integral multiples of $1,000. The transfer of this Class A
Certificate shall be registered in the Certificate Register upon surrender of
this Class A Certificate for registration of transfer at any office or agency
maintained by the Transfer Agent and Registrar accompanied by a written
instrument of transfer, in a form satisfactory to the Trustee or the Transfer
Agent and Registrar, duly executed by the Class A Certificateholder or such
Class A Certificateholder's attorney-in-fact, and duly authorized in writing
with such signature guaranteed, and thereupon one or more new Class A
Certificates of authorized denominations and for the same aggregate fractional
undivided interest will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations therein set
forth, Class A Certificates
are exchangeable for new Class A Certificates evidencing like aggregate
fractional undivided interests as requested by the Class A Certificateholder
surrendering such Class A Certificates. No service charge may be imposed for any
such exchange but the Servicer or Transfer Agent and Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
The Servicer, the Trustee, the Paying Agent and the Transfer Agent and
Registrar and any agent of any of them, may treat the person in whose name this
Class A Certificate is registered as the owner hereof for all purposes, and
neither the Servicer nor the Trustee, the Paying Agent, the Transfer Agent and
Registrar, nor any agent of any of them, shall be affected by notice to the
contrary except in certain circumstances described in the Agreement.
THIS CLASS A CERTIFICATE 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.
ASSIGNMENT
Social Security or other identifying number of assignee
_____________________
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto _____________________________________________________________
(name and address of assignee)
the within Certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________________ attorney-in-fact, to transfer
said Certificate on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: _______________________*
Signature Guaranteed:
_______________________
____________________
(*) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatsoever.
EXHIBIT A-2
REGISTERED $__________*
No. R- CUSIP No. [ ]
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT PLAN (AS
DEFINED BELOW).
[Unless this Class B Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the issuer or its agent for registration of transfer, exchange or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.]
PROVIDIAN MASTER TRUST
FLOATING RATE CLASS B ASSET BACKED CERTIFICATE
Series 1997-3
Each $1,000 minimum denomination represents a
1/66,500 undivided interest in certain assets of the
PROVIDIAN MASTER TRUST
Evidencing an undivided interest in a trust, the corpus of which consists
primarily of receivables generated from time to time in the ordinary course of
business in a portfolio of revolving credit card accounts by
FIRST DEPOSIT NATIONAL BANK
and
PROVIDIAN NATIONAL BANK
and, in certain circumstances, certain Additional Sellers (as defined in the
Pooling and Servicing Agreement referred to below).
(Not an interest in or obligation of First Deposit
National Bank, Providian National Bank,
any Additional Sellers or any affiliate thereof)
--------
* Denominations of $1,000 and integral multiples of
$1,000 in excess thereof.
This certifies that (the "Class B Certificateholder") is the registered
owner of a fractional undivided interest in certain assets of a trust (the
"Trust") created pursuant to the Pooling and Servicing Agreement dated as of
June 1, 1993 (as amended and supplemented, other than by any amendment or
supplement relating to a specific Series, the "Agreement"), as supplemented by
the Series 1997-3 Supplement dated as of June 1, 1997 (as amended and
supplemented, the "Series Supplement"), among First Deposit National Bank, a
national banking association, as Seller and Servicer, Providian National Bank, a
national banking association, as Seller, and Bankers Trust Company, a New York
banking corporation, as trustee (the "Trustee"). The Trust will also issue
$570,500,000 of Floating Rate Class A Asset Backed Certificates, Series 1997-3
which will be senior to the Class B Certificates and $63,000,000 of Collateral
Interest, Series 1997-3 which will be subordinated to the Class B Certificates,
all as described in the Series Supplement. The corpus of the Trust consists of
(i) a portfolio of all receivables (the "Receivables") existing in the revolving
credit card accounts and other revolving credit accounts identified under the
Agreement from time to time (the "Accounts"), (ii) all Receivables generated
under the Accounts from time to time thereafter, (iii) funds collected or to be
collected from accountholders in respect of the Receivables, (iv) all funds
which are from time to time on deposit in the Collection Account and in the
Series Accounts, (v) the benefits of certain Series Enhancements including a
Cash Collateral Account for the benefit of the Class A Certificateholders and
the Class B Certificateholders which will have an initial balance of
$21,000,000, (vi) if applicable, payments, if any, received under any interest
rate swap or cap agreement assigned to the Trust for the benefit of the Series
1997-3 Certificateholders and (vii) all other assets and interests constituting
the Trust. Although a summary of certain provisions of the Agreement and the
Series Supplement is set forth below and on the Summary of Terms and Conditions
attached hereto and made a part hereof, this Class B Certificate does not
purport to summarize the Agreement and the Series Supplement and reference is
made to the Agreement and the Series Supplement for information with respect to
the interests, rights, benefits, obligations, proceeds and duties evidenced
hereby and the rights, duties and obligations of the Trustee. A copy of the
Agreement and the Series Supplement (without schedules) may be requested from
the Trustee by writing to the Trustee at the Corporate Trust Office. To the
extent not defined herein, the capitalized terms used herein have the meanings
ascribed to them in the Agreement or the Series Supplement, as applicable.
This Class B Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement and the Series Supplement, to which
Agreement and Series Supplement, each as amended and supplemented from time to
time, the Class B Certificateholder by virtue of the acceptance hereof assents
and is bound. It is the intent of the Sellers and the Series 1997-3
Certificateholders that, for Federal, state and local income and franchise tax
purposes only, the Series 1997-3 Certificates will qualify as indebtedness of
the Sellers secured by the Receivables. The Class B Certificateholder, by the
acceptance of this Class B Certificate, agrees to treat this Class B Certificate
for Federal, state and local income and franchise tax purposes as indebtedness
of the Sellers.
In general, payments of principal with respect to the Class B Certificates
are limited to the Class B Invested Amount, which may be less than the unpaid
principal balance of the Class B Certificates. The final principal payment with
respect to the Class B Certificates is scheduled to be made on the June 2001
Distribution Date, but the final principal payment with respect to the Class B
Certificates may be paid earlier or later under certain circumstances described
in the Agreement and the Series Supplement. Principal payments with respect to
the Class B Certificates will not commence until the Class A Invested Amount is
paid in full.
The Class B Certificates may not be acquired by or for the account of any
employee benefit plan, trust or account, including an individual retirement
account, that is subject to Section 406 of the Employee Retirement Income
Security Act of 1974 or that is described in Section 4975(e)(1) of the Internal
Revenue Code of 1986 or an entity
whose underlying assets include plan assets by reason of a plan's investment in
such entity (a "Benefit Plan"). By accepting and holding this Certificate, the
Holder hereof shall be deemed to have represented and warranted that it is not a
Benefit Plan. By acquiring any interest in this Certificate, the applicable
Certificate Owner or Owners shall be deemed to have represented and warranted
that it or they are not Benefit Plans.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Class B Certificate shall not
be entitled to any benefit under the Agreement or the Series Supplement or be
valid for any purpose.
IN WITNESS WHEREOF, the Sellers have caused this Class B Certificate to be
duly executed.
FIRST DEPOSIT NATIONAL BANK,
By
----------------------
Name:
Title:
PROVIDIAN NATIONAL BANK,
By
---------------------
Name:
Title:
Dated: , 199
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates described in the within-mentioned
Agreement and Series Supplement.
BANKERS TRUST COMPANY,
as Trustee,
By:
---------------------
Authorized Officer
or
By:
as Authenticating Agent
for the Trustee,
By:
---------------------
Authorized Officer
PROVIDIAN MASTER TRUST
FLOATING RATE CLASS B ASSET BACKED CERTIFICATE
Series 1997-3
Summary of Terms and Conditions
This Class B Certificate is one of a Series of Certificates entitled
Providian Master Trust, Asset Backed Certificates, Series 1997-3 (the "Series
1997-3 Certificates"), and one of a Class thereof entitled Floating Rate Class B
Asset Backed Certificates, Series 1997-3 (the "Class B Certificates"), each of
which represents a fractional undivided interest in certain assets of the Trust.
The Receivables consist of Principal Receivables which arise generally from the
purchase of merchandise and services and amounts advanced to accountholders as
cash advances and Finance Charge Receivables. The Trust Assets are allocated in
part to the certificateholders of all outstanding Series (the
"Certificateholders' Interest") with the remainder allocated to the Sellers. The
aggregate interest represented by the Class B Certificates at any time in the
Principal Receivables in the Trust shall not exceed an amount equal to the Class
B Invested Amount at such time. The Class B Initial Invested Amount is
$66,500,000. In addition to the Class B Certificates, the Floating Rate Class A
Asset Backed Certificates, Series 1997-3, the Collateral Interest, Series
1997-3, the Series 1997-3 Certificates, issued contemporaneously with the Series
1997-3 Certificates, and other Series of Investor Certificates previously issued
by the Trust, a Sellers' Certificate has been issued to the Sellers pursuant to
the Agreement which represents the Sellers' Interest.
Subject to the terms and conditions of the Agreement, the Sellers may from
time to time direct the Trustee, on behalf of the Trust, to issue one or more
new Series of Investor Certificates, which will represent fractional undivided
interests in certain of the Trust Assets.
On each Distribution Date, the Paying Agent shall distribute to each Class
B Certificateholder of record on the last business day of the preceding calendar
month (each a "Record Date") such Class B Certificateholder's pro rata share of
such amounts on deposit in the Collection Account and the Principal Funding
Account as are payable to the Class B Certificateholders pursuant to the
Agreement and the Series Supplement. Distributions with respect to this Class B
Certificate will be made by the Paying Agent by check mailed to the address of
the Class B Certificateholder of record appearing in the Certificate Register
without the presentation or surrender of this Class B Certificate or the making
of any notation thereon (except for the final distribution in respect of this
Class B Certificate) except that with respect to Class B Certificates registered
in the name of Cede & Co., the nominee for The Depository Trust Company,
distributions will be made in the form of immediately available funds. Final
payment of this Class B Certificate will be made only upon presentation and
surrender of this Class B Certificate at the office or agency specified in the
notice of final distribution delivered by the Trustee to the Class B
Certificateholders in accordance with the Agreement and the Series Supplement.
On any day occurring on or after the day on which the Invested Amount is
reduced to 5% or less of the Initial Invested Amount, the Sellers have the
option to repurchase the Series 1997-3 Certificateholders' Interest in the
Trust. The repurchase price of the Class B Certificates will be equal to (a) if
such day is a Distribution Date, the Reassignment Amount for the day immediately
preceding such Distribution Date or (b) if such day is not a Distribution Date,
the Reassignment Amount for the day immediately preceding the Distribution Date
following such day; excluding, in each case, any portion of the Reassignment
Amount consisting of amounts payable to the Class A Certificateholders or the
Collateral Interest Holder. Following the deposit of such repurchase price in
the Collection Account, the Class B Certificateholders will not have any
interest in the Receivables and the Class B Certificates will represent only the
right to receive such repurchase price.
This Class B Certificate does not represent an obligation of, or an
interest in, the Sellers, the Servicer or any affiliate of any of them and is
not insured or guaranteed by the Federal Deposit Insurance Corporation or any
other governmental agency or instrumentality. This Class B Certificate is
limited in right of payment to certain Collections with respect to the
Receivables (and certain other amounts), all as more specifically set forth
hereinabove and in the Agreement and the Series Supplement.
The Agreement or any Supplement may, subject to certain conditions, be
amended by the Sellers, the Servicer and the Trustee without Investor
Certificateholder consent. The Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Trustee's rights, duties or immunities
under the Agreement or otherwise.
The Agreement or any Supplement may also be amended from time to time
(including in connection with the issuance of a Supplemental Certificate) by the
Servicer, the Sellers and the Trustee, with the consent of the Holders of
Investor Certificates evidencing not less than 66-2/3% of the aggregate unpaid
principal amount of the Investor Certificates of all adversely affected Series,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Agreement or any Supplement or of
modifying in any manner the rights of the Investor Certificateholders; provided,
however, that no such amendment shall (i) reduce in any manner the amount of or
delay the timing of any distributions to be made to Investor Certificateholders
or deposits of amounts to be so distributed or the total amount of Series
Enhancement available for the benefit of a Series without the consent of each
affected Investor Certificateholder (provided that any amendment to the terms of
a Pay Out Event shall not be deemed to be within the scope of this clause (i)),
(ii) change the definition of or the manner of calculating the interest of any
Investor Certificateholder without the consent of each affected Investor
Certificateholder, (iii) reduce the aforesaid percentage required to consent to
any such amendment without the consent of each Investor Certificateholder or
(iv) adversely affect the rating of any
Series or Class by each Rating Agency without the consent of the Holders of
Investor Certificates of such Series or Class evidencing not less than 66-2/3%
of the aggregate unpaid principal amount of the Investor Certificates of such
Series or Class. The Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Trustee's rights, duties or immunities under
this Agreement or otherwise.
The Class B Certificates are issuable only in minimum denominations of
$1,000 and integral multiples of $1,000. The transfer of this Class B
Certificate shall be registered in the Certificate Register upon surrender of
this Class B Certificate for registration of transfer at any office or agency
maintained by the Transfer Agent and Registrar accompanied by a written
instrument of transfer, in a form satisfactory to the Trustee or the Transfer
Agent and Registrar, duly executed by the Class B Certificateholder or such
Class B Certificateholder's attorney-in-fact, and duly authorized in writing
with such signature guaranteed, and thereupon one or more new Class B
Certificates of authorized denominations and for the same aggregate fractional
undivided interest will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations therein set
forth, Class B Certificates are exchangeable for new Class B Certificates
evidencing like aggregate fractional undivided interests as requested by the
Class B Certificateholder surrendering such Class B Certificates. No service
charge may be imposed for any such exchange but the Servicer or Transfer Agent
and Registrar may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection therewith.
The Servicer, the Trustee, the Paying Agent and the Transfer Agent and
Registrar and any agent of any of them, may treat the person in whose name this
Class B Certificate is registered as the owner hereof for all purposes, and
neither the Servicer nor the Trustee, the Paying Agent, the Transfer Agent and
Registrar, nor any agent of any of them, shall be affected by notice to the
contrary except in certain circumstances described in the
Agreement.
THIS CLASS B CERTIFICATE 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.
ASSIGNMENT
Social Security or other identifying number of assignee
--------------------
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto ___________________________________________________________
(name and address of assignee)
the within Certificate and all rights thereunder, and hereby irrevocably
constitutes and appoints _____________________ attorney-in-fact, to transfer
said Certificate on the books kept for registration thereof, with full power of
substitution in the premises.
Dated: _______________________*
Signature Guaranteed:
_______________________
(*) NOTE: The signature to this assignment must correspond with the name of the
registered owner as it appears on the face of the within Certificate in every
particular, without alteration, enlargement or any change whatsoever.
EXHIBIT B
MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO THE TRUSTEE
PROVIDIAN MASTER TRUST
SERIES 1997-3
________________________
The undersigned, a duly authorized representative of First Deposit National
Bank ("FDNB"), as Servicer pursuant to the Pooling and Servicing Agreement dated
as of June 1, 1993 (as amended and supplemented, the "Agreement"), among FDNB,
Providian National Bank ("PNB"), and Bankers Trust Company, as trustee (the
"Trustee"), does hereby certify as follows:
1. Capitalized terms used in this Certificate have their respective meanings
set forth in the Agreement or the Series 1997-3 Supplement dated as of June
1, 1997 among FDNB, PNB and the Trustee (as amended and supplemented, the
"Series Supplement"), as applicable. This Certificate is delivered pursuant
to Section 4.03(a) of the Agreement and Sections 4.05(a), 4.09 and 4.10 of
the Series Supplement.
2. First Deposit is the Servicer.
3. The undersigned is a Servicing Officer.
I. Instructions to make a Withdrawal on the Distribution Date from the
Collection Account from Available Finance Charge Collections.
Pursuant to Section 4.03(a) of the Agreement and Section 4.05(a) of
the Series Supplement, the Servicer does hereby instruct the Trustee (i) to
make a withdrawal from Available Finance Charge Collections on deposit in
the Collection Account on __________, which date is a Distribution Date
under the Agreement, in an aggregate amount as set forth below in respect
of the following amounts and (ii) to apply the proceeds of such withdrawal
in accordance with Section 4.05(a) of the Series Supplement:
A) Class A Monthly Interest (Section 4.05(a)(i) of the Series Supplement)
(1) Class A Monthly Interest due on the Distribution
Date......................................................... $
(2) Class A Monthly Interest previously due but unpaid on a prior
Distribution Date............................................ $
(3) Class A Additional Interest due on the Distribution Date or Class
A Additional Interest previously due but unpaid on a prior
Distribution Date............................................ $
______________________
Series 1997-3 Monthly Payment Instructions
________________ Distribution Date
______________________
B) Class B Monthly Interest (Section 4.05(a)(ii) of the Series
Supplement)
(1) Class B Monthly Interest due on the Distribution
Date......................................................... $
(2) Class B Monthly Interest previously due but unpaid on a prior
Distribution Date............................................ $
(3) Class B Additional Interest due on the Distribution Date or Class
B Additional Interest previously due but unpaid on a prior
Distribution Date............................................ $
C) Servicing Fee (Section 4.05(a)(iii) of the Series Supplement)
(1) Monthly Servicing Fee due on the Distribution Date with respect
to the Series 1997-3 Certificates (unless such amount has been
netted against deposits to the Collection Account pursuant to
Section 4.03 of the Agreement)............................... $
(2) Monthly Servicing Fee previously due but unpaid on a prior
Distribution Date with respect to the Series 1997-3 Certificates
(unless such amount has been netted against deposits to the
Collection Account pursuant to Section 4.03 of the
Agreement)................................................... $
D) Class A Defaulted Amount (Section 4.05(a)(iv) of the Series
Supplement)
(1) Class A Defaulted Amount for the Distribution Date (unless such
amount has been netted against deposits to the Collection Account
pursuant to Section 4.03 of the Agreement)................... $
______________________
Series 1997-3 Monthly Payment Instructions
________________ Distribution Date
______________________
E) Reimbursement of Class A Charge-Offs (Section 4.05(a)(v) of the Series
Supplement)
(1) Unreimbursed Class A Charge-Offs............................. $
F) Class B Subordinated Monthly Interest (Section 4.05(a)(vi) of the
Series Supplement)
(1) Class B Subordinated Monthly Interest due on the Distribution
Date......................................................... $
(2) Class B Subordinated Monthly Interest previously due but unpaid
on a prior Distribution Date................................. $
(3) Class B Subordinated Additional Interest due on the Distribution
Date or Class B Subordinated Additional Interest previously due
but unpaid on a prior Distribution Date...................... $
G) Class B Defaulted Amount (Section 4.05(a)(vii) of the Series
Supplement)
(1) Class B Defaulted Amount for the Distribution Date (unless such
amount has been netted against deposits to the Collection Account
pursuant to Section 4.03 of the Agreement)................... $
H) Reimbursement of Class B Invested Amount Reductions (Section
4.05(a)(viii) of the Series Supplement)
______________________
Series 1997-3 Monthly Payment Instructions
________________ Distribution Date
______________________
(1) Unreimbursed reductions in the Class B Invested Amount on prior
Distribution Dates........................................... $
I) Collateral Monthly Interest (Section 4.05(a)(ix) of the Series
Supplement)
(1) Collateral Monthly Interest due on the Distribution
Date......................................................... $
(2) Collateral Monthly Interest previously due but unpaid on a prior
Distribution Date............................................ $
J) Collateral Defaulted Amount (Section 4.05(a)(x) of the Series
Supplement)
(1) Collateral Defaulted Amount for the Distribution Date (unless
such amount has been netted against deposits to the Collection
Account pursuant to Section 4.03 of the
Agreement)................................................... $
K) Required Reserve Account Amount, if applicable (Section 4.05(a)(xi) of
the Series Supplement)
(1) On and after the Reserve Account Funding Date, if any, the amount
by which the Required Reserve Account Amount exceeds the
Available Reserve Account Amount............................. $
L) Reimbursement of Collateral Invested Amount Reductions (Section 4.05
(a)(xii) of the Series Supplement)
(1) Unreimbursed reductions in the Collateral Invested Amount on
prior Distribution Dates..................................... $
______________________
Series 1997-3 Monthly Payment Instructions
________________ Distribution Date
______________________
M) Required Cash Collateral Amount (Section 4.05(a)(xiii) of the Series
Supplement)
(1) Amount by which the Required Cash Collateral Amount exceeds the
Available Cash Collateral Amount............................. $
N) Other Collateral Interest Holder Payments (Section 4.05(a)(xiv) of the
Series Supplement)
(1) Other amounts due the Collateral Interest Holder pursuant to the
Collateral Agreement......................................... $
O) Additional Finance Charges (Section 4.05(a)(xv) of the Series
Supplement)
(1) Additional Finance Charges allocated to other
Series....................................................... $
(2) Additional Finance Charges payable to the
Sellers...................................................... $
II. Instructions to Make Withdrawals from the Cash Collateral Account.
Pursuant to Section 4.10 of the Series Supplement, the Servicer does
hereby instruct the Trustee (i) to make a withdrawal from the Cash
Collateral Account on ____________, which date is a Distribution Date under
the Agreement, in an aggregate amount as set forth below in respect of the
following amounts, and (ii) to apply the proceeds of such withdrawal in
accordance with Section 4.10(b), (c) or (d), as applicable, of the Series
Supplement:
______________________
Series 1997-3 Monthly Payment Instructions
________________ Distribution Date
______________________
A) Pursuant to Section 4.10(b) of the Series Supplement
(1) Cash Collateral Investment Proceeds on deposit in the Cash
Collateral Account (to be deposited in the Collection Account and
treated as Available Finance Charge
Collections)................................................. $
B) Pursuant to Section 4.10(c) of the Series Supplement
(1) Required Draw Amount (to be deposited in the Collection
Account)..................................................... $
C) Pursuant to Section 4.10(d) of the Series Supplement
(1) The Cash Collateral Account Surplus Amount (to be distributed to
the Collateral Interest Holder on the Distribution Date for
application in accordance with the Collateral
Agreement)................................................... $
III. Instructions to Make a Withdrawal from the Collection Account from
Reallocated Principal Collections.
Pursuant to Section 4.03(a) of the Agreement and Sections 4.05(b) and
(c) of the Series Supplement, the Servicer does hereby instruct the Trustee
(i) to make a withdrawal from Reallocated Principal Collections on deposit
in the Collection Account on ___________, which date is a Distribution Date
under the Agreement, in an aggregate amount as set forth below and (ii) to
apply the proceeds of such withdrawal in accordance with Sections 4.05(b)
and (c) of the Series Supplement.
A) Reallocated Collateral Principal Collections (Section 4.05(b) of the
Series Supplement)
______________________
Series 1997-3 Monthly Payment Instructions
________________ Distribution Date
______________________
(1) Amount of Reallocated Collateral Principal Collections used to
fund any deficiency in items I(A), I(B), I(C), I(D) and I(G) on
such Distribution Date........................................$
B) Reallocated Class B Principal Collections (Section 4.05(c) of the
Series Supplement)
(1) Amount of Reallocated Class B Principal Collections used to fund
any deficiency in items I(A), I(C) and I(D) on such Distribution
Date..........................................................$
IV. Instructions to make a Withdrawal from the Collection Account from
Available Principal Collections during the Revolving Period.
Pursuant to Section 4.03(a) of the Agreement and Section 4.05(d) of
the Series Supplement, the Servicer does hereby instruct the Trustee (i) to
make a withdrawal from Available Principal Collections on deposit in the
Collection Account on ____________, which date is a Distribution Date under
the Agreement, in an aggregate amount as set forth below in respect of the
following amounts and (ii) to apply the proceeds of such withdrawal in
accordance with Section 4.05(d) of the Series Supplement:
A) Collateral Monthly Principal during the Revolving Period (Section
4.05(d)(i) of the Series Supplement)
(1) Collateral Monthly Principal, if any, on the Distribution
Date..........................................................$
B) Shared Principal Collections during the Revolving Period (Section
4.05(d)(ii) of the Series Supplement)
(1) Shared Principal Collections allocated to other Series
..............................................................$
______________________
Series 1997-3 Monthly Payment Instructions
________________ Distribution Date
______________________
(2) Shared Principal Collections to be deposited in the Special
Funding Account.............................................. $
(3) Shared Principal Collections payable to the
Sellers...................................................... $
V. Instructions to make a Withdrawal on the Distribution Date from the
Collection Account from Available Principal Collections during the
Accumulation Period or Early Amortization Period.
Pursuant to Section 4.03(a) of the Agreement and Section 4.05(e) of
the Series Supplement, the Servicer does hereby instruct the Trustee (i) to
make a withdrawal from Available Principal Collections on deposit in the
Collection Account on ____________, which date is a Distribution Date under
the Agreement, in an aggregate amount as set forth below in respect of the
following amounts and (ii) to apply the proceeds of such withdrawal in
accordance with Section 4.05(e) of the Series Supplement:
A) Class A Monthly Principal (Section 4.05(e)(i) of the Series
Supplement)
(1) Class A Monthly Principal to be deposited in the Principal
Funding Account on the Distribution
Date......................................................... $
B) Class B Monthly Principal (Section 4.05(e)(ii) of the Series
Supplement)
(1) Class B Monthly Principal to be deposited in the Principal
Funding Account on the Distribution
Date......................................................... $
C) Collateral Monthly Principal (Section 4.05(e)(iii) of the Series
Supplement)
______________________
Series 1997-3 Monthly Payment Instructions
________________ Distribution Date
______________________
(1) Collateral Monthly Principal, if any, for such Distribution Date
............................................................. $
D) Shared Principal Collections (Section 4.05(e)(iv) of the Series
Supplement)
(1) Shared Principal Collections allocated to other
Series....................................................... $
(2) Shared Principal Collections to be deposited in the Special
Funding Account.............................................. $
(3) Shared Principal Collections payable to the
Sellers...................................................... $
VI. Instructions to make Withdrawals from the Reserve Account.
Pursuant to Section 4.09 of the Series Supplement, the Servicer does
hereby instruct the Trustee (i) to make a withdrawal from the Reserve
Account pursuant to Section 4.09(d) of the Series Supplement on __________,
which date is a Transfer Date under the Agreement, and (ii) to apply the
proceeds of such withdrawal in accordance with Sections 4.09(b), (d) or
(e), as applicable, of the Series Supplement:
A) Pursuant to Section 4.09(d) of the Series Supplement
(1) Reserve Draw Amount (to be deposited in the Collection Account on
the Transfer Date)........................................... $
B) Pursuant to Sections 4.09(b) and (e) of the Series Supplement
(1) Reserve Account Surplus and investment earnings on the Reserve
Account (to be distributed to the Collateral Interest Holder for
application in accordance with the Collateral
Agreement)................................................... $
______________________
Series 1997-3 Monthly Payment Instructions
________________ Distribution Date
______________________
VII. Instructions to make Withdrawals from the Principal Funding Account.
Pursuant to Section 4.03(c) of the Series Supplement, the Servicer
does hereby instruct the Trustee (i) to make a withdrawal from the
Principal Funding Account pursuant to Section 4.03(c) of the Series
Supplement on _________, which date is a Distribution Date under the
Agreement, and (ii) to deposit the proceeds of such withdrawal in the
Collection Account in accordance with Section 4.03(c) of the Series
Supplement:
A) Pursuant to Section 4.03(c) of the Series Supplement
(1) Principal Funding Investment Proceeds on deposit in the Principal
Funding Account (to be deposited in the Collection Account and
treated as Available Finance Charge
Collections)................................................. $
VIII. Accrued and Unpaid Amounts.
After giving effect to the withdrawals, deposits and distributions to
be made in accordance with this Certificate, the following amounts will be
accrued and unpaid on the __________ Distribution Date with respect to the
Series 1997-3 Certificates:
A) Monthly Interest
(1) The aggregate amount of all due but unpaid Class A Monthly
Interest..................................................... $
(2) The aggregate amount of all due but unpaid Class B Monthly
Interest..................................................... $
(3) The aggregate amount of all due but unpaid Collateral Monthly
Interest..................................................... $
B) Monthly Servicing Fee
______________________
Series 1997-3 Monthly Payment Instructions
________________ Distribution Date
______________________
(1) The aggregate amount of all due but unpaid Monthly Servicing Fees
with respect to the Series 1997-3 Certificates............... $
C) Defaulted Amounts
(1) The aggregate amount of all unreimbursed Class A
Charge-Offs.................................................. $
(2) The aggregate amount of all unreimbursed reductions in the Class
B Invested Amount............................................ $
(3) The aggregate amount of all unreimbursed reductions in the
Collateral Invested Amount................................... $
IX. Amounts to be Applied in Accordance with the Collateral Agreement.
Pursuant to Section 2.10(b) of the Collateral Agreement, the Servicer
does hereby instruct the Trustee on ___________, which date is a
Distribution Date under the Agreement, to distribute the amounts specified
in I(I), I(N), II(C), IV(A), V(C) and VI(B) above, plus other amounts
available under the Collateral Agreement, to the persons or accounts set
forth below.
A) Interest on the Collateral Interest (Sections 2.03 and 2.10(a) of the
Collateral Agreement)
(1) Interest on the Collateral Amount at the Collateral Interest Rate
for the applicable Interest Period (pursuant to Section
2.10(a)(i) of the Collateral Agreement)...................... $
(2) Interest on the amount by which the outstanding principal balance
of the
______________________
Series 1997-3 Monthly Payment Instructions
________________ Distribution Date
______________________
Collateral Interest exceeds the Collateral Invested Amount, at
the Prime Rate for the applicable Interest Period plus the Loan
Margin (pursuant to Section 2.03(a)(ii) of the Collateral
Agreement)................................................... $
(3) Due but unpaid interest on the Collateral Interest from prior
Distribution Dates (pursuant to Section 2.03(c) of the Collateral
Agreement)................................................... $
B) All other amounts payable to the Collateral Interest Holder from
Available Non- Principal Funds pursuant to the Collateral Agreement
(including Sections 2.06, 2.07 and 2.09) (pursuant to Section
2.10(a)(ii) of the Collateral Agreement)...........................$
C) Amount to be deposited into the Spread Account (pursuant to Section
2.10(a)(iii) of the Collateral Agreement)..........................$
D) Amount payable to the Sellers (pursuant to Section 2.10(a)(iv) of the
Collateral Agreement)..............................................$
E) All amounts payable to the Collateral Interest Holder from Available
Principal Funds pursuant to the Collateral Agreement (pursuant to
Section 2.10(b) of the Collateral Agreement).......................$
----------------------
Series 1997-3 Monthly Payment Instructions
________________ Distribution Date
----------------------
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this
__th day of ___________.
FIRST DEPOSIT NATIONAL BANK,
Servicer
By: _________________________________
Name:
Title:
EXHIBIT C
MONTHLY STATEMENT
_____________________________________________
PROVIDIAN MASTER TRUST
SERIES 1997-3
_____________________________________________
Pursuant to the Pooling and Servicing Agreement dated as of June 1, 1993
(as amended and supplemented, the "Agreement"), as supplemented by the Series
1997-3 Supplement dated June 1, 1997 (as amended and supplemented, the "Series
Supplement"), among First Deposit National Bank ("FDNB"), Seller and Servicer,
Providian National Bank, Seller, and Bankers Trust Company, Trustee, FDNB as
Servicer is required to prepare certain information each month regarding current
distributions to Class A Certificateholders, Class B Certificateholders and the
Collateral Interest Holder and the performance of the Providian Master Trust
(the "Trust") during the previous month. The information which is required to be
prepared for the Series 1997-3 Certificates with respect to the Distribution
Date occurring on ______________, and with respect to the performance of the
Trust during the month of ______________ is set forth below. Certain of the
information is presented on the basis of an original principal amount of $1,000
per Investor Certificate. Certain other information is presented based on the
aggregate amounts for the Trust as a whole. Capitalized terms used in this
Certificate have their respective meanings set forth in the Agreement or Series
Supplement, as applicable.
A) Information Regarding the Current Monthly Distribution for the Series
1997-3 Class A Certificates and Class B Certificates (stated on the
basis of $1,000 original certificate principal amount)
(1) The total amount distributed to Class A Certificateholders per
$1,000 original certificate principal amount................. $
(2) The amount set forth in A(1) above distributed to Class A
Certificateholders with respect to interest per $1,000 original
certificate principal amount................................. $
(3) The amount set forth in A(1) above distributed to Class A
Certificateholders with respect to principal per $1,000 original
certificate principal amount................................. $
(4) The total amount distributed to Class B Certificateholders per
$1,000 original certificate principal amount................. $
(5) The amount set forth in A(4) above distributed to Class B
Certificateholders with respect to interest per $1,000 original
certificate principal amount................................. $
_____________________________________________
Series 1997-3 Monthly Statement
__________ Distribution Date
_____________________________________________
(6) The amount set forth in A(4) above distributed to Class B
Certificateholders with respect to principal per $1,000 original
certificate principal amount................................. $
B) Information Regarding the Performance of the Trust
(1) Allocation of Receivables Collections to the Series 1997-3
Certificates
(a) The aggregate amount of Finance Charge Receivables collected
during the Monthly Period immediately preceding the
Distribution Date....................................... $
(b) The aggregate amount of Interchange collected and allocated
to the Trust for the Monthly Period immediately preceding
the Distribution Date................................... $
(c) The aggregate amount of Principal Receivables collected
during the Monthly Period immediately preceding the
Distribution Date....................................... $
(d) The Floating Allocation Percentage with respect to the
Series 1997- 3 Certificates for the Monthly Period
immediately preceding the Distribution Date............. $
(e) The Principal Allocation Percentage with respect to the
Series 1997- 3 Certificates for the Monthly Period
immediately preceding the Distribution Date............. $
(f) The Finance Charge Receivables and Interchange collected and
allocated to the Series 1997-3 Certificates for the Monthly
Period immediately preceding the Distribution
Date.................................................... $
(g) The Principal Receivables collected and allocated to the
Series 1997-3 Certificates for the Monthly Period
immediately preceding the Distribution Date............. $
(2) Available Finance Charge Collections, Required Draw Amount and
_____________________________________________
Series 1997-3 Monthly Statement
__________ Distribution Date
_____________________________________________
Reallocated Principal Collections for Series 1997-3 for the
Monthly Period immediately preceding the Distribution
Date......................................................... $
(a) The Finance Charge Receivables and Interchange collected and
allocated to the Series 1997-3 Certificates............. $
(b) Collection Account and Special Funding Account investment
earnings allocated to the Series 1997-3
Certificates............................................ $
` (c) Principal Funding Account Investment Proceeds............ $
(d) Cash Collateral Account Investment Proceeds............. $
(e) Reserve Draw Amount, if applicable...................... $
(f) Additional Finance Charges from other Series allocated to
the Series 1997-3 Certificates.......................... $
(g) Payments, if any, on deposit as of the Determination Date
received from any Interest Rate Protection
Agreements.............................................. $
(h) Required Draw Amount, if applicable..................... $
(i) Reallocated Collateral Principal Collections............ $
(j) Reallocated Class B Principal Collections............... $
(k) Total Available Finance Charge Collections and Reallocated
Principal Collections for Series 1997-3 (total of (a), (b),
(c), (d), (e), (f), (g), (h), (i) and (j)
above).................................................. $
(3) Available Principal Collections for Series 1997-3 for the Monthly
Period immediately preceding the Distribution Date
(a) The Principal Receivables collected and allocated to the
Series 1997-3 Certificates.............................. $
_____________________________________________
Series 1997-3 Monthly Statement
__________ Distribution Date
_____________________________________________
(b) Shared Principal Collections from other Series allocated to
the Series 1997-3 Certificates.......................... $
(c) Additional amounts to be treated as Available Principal
Collections pursuant to the Series Supplement........... $
(d) Reallocated Collateral Principal Collections............ $
(e) Reallocated Class B Principal Collections............... $
(f) Available Principal Collections for Series 1997-3 (total of
(a), (b) and (c) minus (d) and (e) above)............... $
(4) Delinquent Balances in the Trust
The aggregate outstanding balance of the Accounts which were
delinquent as of the close of business on the last day of the
Monthly Period immediately preceding the Distribution Date.
(a) 31-60 days $
(b) 61-90 days
(c) 91 or more days
(d) Total Delinquencies $
(5) Defaulted Amount
(a) The aggregate amount of Defaulted Receivables with respect
to the Trust for the Monthly Period immediately preceding
the Distribution Date................................... $
(b) The aggregate Amount of Recoveries of Defaulted Receivables
processed during the Monthly Period immediately preceding
the Distribution Date................................... $
_____________________________________________
Series 1997-3 Monthly Statement
__________ Distribution Date
_____________________________________________
(c) The Defaulted Amount for the Monthly Period immediately
preceding the Distribution Date [Defaulted Receivables minus
Recoveries]............................................. $
(d) The Defaulted Amount for the Monthly Period immediately
preceding the Distribution Date allocable to the Series
1997-3 Certificates (the "Series 1997-3 Defaulted
Amount")................................................ $
(e) The Class A Defaulted Amount [Series 1997-3 Defaulted Amount
multiplied by the Class A Percentage]................... $
(f) The Class B Defaulted Amount [Series 1997-3 Defaulted Amount
multiplied by the Class B Percentage]................... $
(6) Class A Charge-Offs
(a) The excess, if any, of the Class A Defaulted Amount over the
sum of (i) Available Finance Charge Collections applied to
such Class A Defaulted Amount, (ii) the Available Cash
Collateral Amount applied to such Class A Defaulted Amount,
(iii) Reallocated Principal Collections applied to such
Class A Defaulted Amount, (iv) the amount by which the
Collateral Invested Amount has been reduced in respect of
such Class A Defaulted Amount and (v) the amount by which
the Class B Invested Amount has been reduced in respect of
such Class A Defaulted Amount(a "Class A Charge-Off").... $
(b) The amount of the Class A Charge-Off set forth in item 6(a)
above, per $1,000 original certificate principal amount
(which will have the effect of reducing, pro rata, the
amount of each Class A Certificateholder's
investment)............................................. $
(c) The total amount reimbursed on the Distribution Date in
respect of Class A Charge-Offs for prior Distribution
Dates................................................... $
_____________________________________________
Series 1997-3 Monthly Statement
__________ Distribution Date
_____________________________________________
(d) The amount set forth in item 6(c) above per $1,000 original
certificate principal amount (which will have the effect of
increasing, pro rata, the amount of each Class A
Certificateholder's investment)......................... $
(e) The amount, if any, by which the outstanding principal
balance of the Class A Certificates exceeds the Class A
Invested Amount if any, as of the Distribution Date, after
giving effect to all deposits, withdrawals and distributions
on such Distribution Date.............................. $
(7) Class B Charge-Offs
(a) The excess, if any, of the Class B Defaulted Amount over the
sum of (i) Available Finance Charge Collections applied to
such Class B Defaulted Amount applied to such Class B
Defaulted Amount, (ii) the Available Cash Collateral Amount,
(iii) Reallocated Collateral Principal Collections applied
to such Class B Defaulted Amount and (iv) the amount by
which the Collateral Invested Amount has been reduced in
respect of such Class B Defaulted Amount................ $
(b) The amount by which the Class B Invested Amount has been
reduced on the Distribution Date in respect of Reallocated
Class B Principal Collections........................... $
(c) The amount by which the Class B Invested Amount has been
reduced on the Distribution Date in respect of item 6(a)
(together with item 7(a), "Class B Charge-Offs")........ $
(d) The total amount by which the Class B Invested Amount has
been reduced on the Distribution Date as set forth in items
7(a), (b) and (c)....................................... $
(e) The amount set forth in item 7(d) above per $1,000 original
certificate principal amount (which will have the effect of
reducing, pro rata, the amount of each Class B
Certificateholder's investment)......................... $
_____________________________________________
Series 1997-3 Monthly Statement
__________ Distribution Date
_____________________________________________
(f) The total amount reimbursed on the Distribution Date in
respect of reductions in the Class B Invested Amount on
prior Distribution Dates................................ $
(g) The amount set forth in item 7(f) above per $1,000 original
certificate principal amount (which will have the effect of
increasing, pro rata, the amount of each Class B
Certificateholder's investment)......................... $
(h) The amount, if any, by which the outstanding principal
balance of the Class B Certificates exceeds the Class B
Invested Amount if any, as of the Distribution Date, after
giving effect to all deposits, withdrawals and distributions
on such Distribution Date............................... $
(8) Reductions in the Collateral Interest
(a) The excess, if any, of the Collateral Defaulted Amount over
Available Finance Charge Collections applied to such
Collateral Defaulted Amount............................. $
(b) The amount by which the Collateral Invested Amount has been
reduced on the Distribution Date in respect of Reallocated
Principal Collections................................... $
(c) The amount by which the Collateral Invested Amount has been
reduced on the Distribution Date in respect of items 6(a)
and 7(a) above.......................................... $
(d) The total amount by which the Collateral Invested Amount has
been reduced on the Distribution Date as set forth in items
8(a), (b) and (c)....................................... $
(e) The total amount reimbursed on the Distribution Date in
respect of reductions in the Collateral Invested Amount on
prior Distribution Dates................................ $
_____________________________________________
Series 1997-3 Monthly Statement
__________ Distribution Date
_____________________________________________
(f) The amount, if any, by which the outstanding principal
balance of the Collateral Interest exceeds the Collateral
Invested Amount, if any, as of the Distribution Date, after
giving effect to all deposits, withdrawals and distributions
on the Distribution Date................................ $
(9) Investor Monthly Servicing Fee
(a) The amount of the Series 1997-3 Monthly Servicing Fee
payable to the Servicer on the Distribution
Date.................................................... $
(10) Cash Collateral Account
(a) The Available Cash Collateral Amount on the Distribution
Date, after giving effect to all deposits, withdrawals and
distributions on such Distribution Date................. $
(11) Class A Monthly Interest
(a) Class A Monthly Interest payable on the Distribution
Date.................................................... $
(12) Class B Monthly Interest
(a) Class B Monthly Interest payable on the Distribution
Date.................................................... $
(13) Principal Funding Account Amount
(a) The amount on deposit in the Principal Funding Account on
the Distribution Date, after giving effect to all deposits,
withdrawals and distributions on such Distribution Date
........................................................ $
(b) Deposits to the Principal Funding Account are currently
scheduled to commence on the Distribution Date occurring in
______________. (The initial funding date
_____________________________________________
Series 1997-3 Monthly Statement
__________ Distribution Date
_____________________________________________
for the Principal Funding Account may be modified in certain
circumstances in accordance with the terms of the Series
Supplement.)
(14) Deficit Controlled Accumulation Amount
The Deficit Controlled Accumulation Amount for the
Distribution Date, after giving effect to all deposits,
withdrawals and distributions on such Distribution
Date................................................... $
(15) Reserve Account (if applicable)
(a) The amount on deposit in the Reserve Account, if
funded, on the Distribution Date, after giving effect
to all deposits, withdrawals and distributions on such
Distribution Date and the related Transfer
Date............................................... $
(b) The Required Reserve Account Amount, if any, selected
by the Servicer.................................... $
C) Class A Invested Amount
(1) The Class A Initial Invested Amount..................... $
(2) The Class A Invested Amount on the Distribution Date, after
giving effect to all deposits, withdrawals and distributions
on such Distribution Date................................$
(3) The Pool Factor for the Distribution Date (which represents
the ratio of the Class A Invested Amount, as of such
Distribution Date, after giving effect to any adjustment in
the Class A Invested Amount on such Distribution Date, to
the Class A Initial Invested Amount). The amount of a
Class A Certificateholder's pro rata share of the Class A
Invested Amount can be determined by multiplying the
original denomination of the Class A Certificateholder's
Certificate by the Pool Factor...........................$
_____________________________________________
Series 1997-3 Monthly Statement
__________ Distribution Date
_____________________________________________
D) Class B Invested Amount
(1) The Class B Initial Invested Amount..................... $
(2) The Class B Invested Amount on the Distribution Date, after
giving effect to all deposits, withdrawals and distributions
on such Distribution Date............................... $
(3) The Pool Factor for the Distribution Date (which represents
the ratio of the Class B Invested Amount, as of such
Distribution Date, after giving effect to any adjustment in
the Class B Invested Amount on such Distribution Date, to
the Class B Initial Invested Amount). The amount of a Class
B Certificateholder's pro rata share of the Class B Invested
Amount can be determined by multiplying the original
denomination of the Class B Certificateholder's Certificate
by the Pool Factor...................................... $
E) Collateral Invested Amount
(1) The Collateral Initial Invested Amount.................. $
(2) The Collateral Invested Amount on the Distribution Date,
after giving effect to all deposits, withdrawals and
distributions on such Distribution Date................. $
(3) The Collateral Invested Amount as a percentage of the sum of
the Invested Amount on such Distribution
Date.................................................... $
F) Receivables Balances
(1) The aggregate amount of Principal Receivables in the Trust
at the close of business on the last day of the immediately
preceding Monthly Period................................ $
(2) The aggregate amount of Finance Charge Receivables in the
Trust at the close of business on the last day of the
immediately preceding Monthly Period.................... $
_____________________________________________
Series 1997-3 Monthly Statement
__________ Distribution Date
_____________________________________________
G) Annualized Percentages
(1) The Gross Yield (Available Finance Charge Collections for
the Series 1997-3 Certificates for the preceding Monthly
Period (excluding payments received from Interest Rate
Protection Agreements) divided by the Invested Amount of the
Series 1997-3 Certificates as of the last day of the next
preceding Monthly Period, multiplied by 12)............ $
(2) The Net Loss Rate (the Series 1997-3 Defaulted Amount for
the preceding Monthly Period divided by the Invested Amount
of the Series 1997-3 Certificates as of the last day of the
next preceding Monthly Period, multiplied by 12)........ $
(3) The Portfolio Yield (the Gross Yield minus the Net Loss Rate
for the Series 1997-3 Certificates for the preceding Monthly
Period)................................................. $
(4) The Base Rate (Monthly Interest plus Monthly Servicing Fee
(based on an assumed Servicing Fee Rate of 2% per annum) for
the preceding Monthly Period with respect to the related
Distribution Date, divided by the Invested Amount of the
Series 1997-3 Certificates as of the last day of the next
preceding Monthly Period, multiplied by 12)............. $
(5) The Net Spread (the Portfolio Yield minus the Base Rate for
the Series 1997-3 Certificates for the preceding Monthly
Period)................................................. $
(6) The Monthly Payment Rate (Collections of Principal
Receivables and Finance Charge Receivables with respect to
all Receivables in the Trust for the preceding Monthly
Period divided by the amount of Receivables in the Trust as
of the last day of the next preceding Monthly
Period)................................................. $
_____________________________________________
Series 1997-3 Monthly Statement
__________ Distribution Date
_____________________________________________
H) Series 1997-3 Information for the Last Three Distribution Dates
1) Gross Yield
a) / / %
b) / / %
c) / / %
2) Net Loss Rate
a) / / %
b) / / %
c) / / %
3) Net Spread (Portfolio Yield Minus Base Rate)
a) / / %
b) / / %
c) / / %
Three Month Average %
4) Monthly Payment Rate
a) / / %
b) / / %
c) / / %
FIRST DEPOSIT NATIONAL BANK,
Servicer
By: _______________________
Name:
Title:
EXHIBIT D
MONTHLY SERVICER'S CERTIFICATE
---------------------------------------------
PROVIDIAN MASTER TRUST
SERIES 1997-3
---------------------------------------------
The undersigned, a duly authorized representative of First Deposit National
Bank ("FDNB"), as Servicer pursuant to the Pooling and Servicing Agreement dated
as of June 1, 1993 (as amended and supplemented, the "Agreement"), as
supplemented by the Series 1997-3 Supplement dated as of June 1, 1997 (the
"Series Supplement"), among FDNB, as Seller and Servicer, Providian National
Bank, as Seller, and Bankers Trust Company, as Trustee, does hereby certify as
follows:
1. Capitalized terms used in this Certificate have their respective meanings
set forth in the Agreement or Series Supplement, as applicable.
2. FDNB is, as of the date hereof, the Servicer under the Agreement.
3. The undersigned is a Servicing Officer.
4. This Certificate relates to the Distribution Date occurring on
____________.
5. As of the date hereof, to the best knowledge of the undersigned, the
Servicer has performed in all material respects all its obligations under
the Agreement through the Monthly Period preceding such Distribution Date
[or, if there has been a default in the performance of any such obligation,
set forth in detail (i) the nature of such default, (ii) the action taken
by the Sellers and the Servicer, if any, to remedy such default and (iii)
the current status of each such default].
6. As of the date hereof, to the best knowledge of the undersigned, no Pay Out
Event occurred on or prior to such Distribution Date.
7. As of the date hereof, to the best knowledge of the undersigned, no Lien
has been placed on any of the Receivables other than pursuant to the
Agreement [or, if there is a Lien, such Lien consist of ________________].
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this
Certificate this __th day of ____________-.
FIRST DEPOSIT NATIONAL BANK,
Servicer
By: _____________________________
Name:
Title:
SCHEDULE I
Designated Dealers
Credit Suisse First Boston Corporation
Chase Securities Inc.
▇▇▇▇▇▇ Brothers Inc.
Citicorp Securities, Inc.
SBCI Swiss Bank Corporation Investment banking Inc.
UBS Securities Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
Salomon Brothers Inc
Daiwa Securities America Inc.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Credit Lyonnais Securities (USA) Inc.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
NationsBank Capital Markets, Inc.
Prudential Securities Incorporated
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.