Exhibit 4.3
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FLEET BANK (RI), NATIONAL ASSOCIATION,
Servicer,
FLEET CREDIT CARD FUNDING, LLC,
Transferor,
and
BANKERS TRUST COMPANY,
Trustee
FLEET CREDIT CARD MASTER TRUST II
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of December 1, 1993
As Amended and Restated as of January 1, 2002
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TABLE OF CONTENTS
ARTICLE I
Definitions
Section 1.01. Definitions ................................................. 2
Section 1.02. Other Definitional Provisions ............................... 22
Section 1.03. Assumption Agreement ........................................ 23
ARTICLE II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables ................................... 24
Section 2.02. Acceptance by Trustee ....................................... 26
Section 2.03. Representations and Warranties of the Transferors Relating
to the Transferors .......................................... 27
Section 2.04. Representations and Warranties of the Transferors Relating
to the Agreement and Any Supplement and the Receivables ..... 29
Section 2.05. Reassignment of Ineligible Receivables ...................... 31
Section 2.06. Reassignment of Receivables in Trust Portfolio .............. 32
Section 2.07. Covenants of the Transferors ................................ 33
Section 2.08. Addition of Accounts ........................................ 38
Section 2.09. Removal of Accounts and Participation Interests ............. 42
Section 2.10. Account Allocations ......................................... 43
Section 2.11. Discount Option ............................................. 44
Section 2.12. Restrictions on Removal of Accounts and Participation
Interests ................................................... 44
ARTICLE III
Administration and Servicing of Receivables
Section 3.01. Acceptance of Appointment and Other Matters Relating to the
Servicer .................................................... 46
Section 3.02. Servicing Compensation ...................................... 47
Section 3.03. Representations, Warranties and Covenants of the Servicer ... 48
Section 3.04. Reports and Records for the Trustee ......................... 50
Section 3.05. Annual Certificate of Servicer .............................. 51
Section 3.06. Annual Servicing Report of Independent Public Accountants;
Copies of Reports Available ................................. 51
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Section 3.07. Tax Treatment ............................................... 52
Section 3.08. Notices to Fleet (RI) ....................................... 52
Section 3.09. Adjustments ................................................. 52
Section 3.10. Reports to the Commission ................................... 53
Section 3.11. Termination of Authority Upon Termination of Trust .......... 53
ARTICLE IV
Rights of Certificateholders and Allocation and
Application of Collections
Section 4.01. Rights of Certificateholders ................................ 54
Section 4.02. Establishment of Collection Account and Excess Funding
Account ..................................................... 54
Section 4.03. Collections and Allocations ................................. 57
Section 4.04. Shared Principal Collections ................................ 59
Section 4.05. Allocation of Trust Assets to Series or Groups .............. 59
ARTICLE V
Distributions and Reports to Certificateholders
ARTICLE VI
The Certificates
Section 6.01. The Certificates and Uncertificated Interests ............... 62
Section 6.02. Authentication of Certificates .............................. 63
Section 6.03. New Issuances ............................................... 63
Section 6.04. Registration of Transfer and Exchange of Certificates ....... 65
Section 6.05. Mutilated, Destroyed, Lost or Stolen Certificates ........... 67
Section 6.06. Persons Deemed Owners ....................................... 68
Section 6.07. Appointment of Paying Agent ................................. 68
Section 6.08. Access to List of Registered Certificateholders' Names and
Addresses ................................................... 69
Section 6.09. Authenticating Agent ........................................ 69
Section 6.10. Book-Entry Certificates ..................................... 70
Section 6.11. Notices to Clearing Agency .................................. 71
Section 6.12. Definitive Certificates ..................................... 71
Section 6.13. Global Certificate; Exchange Date ........................... 72
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PAGE
Section 6.14. Meetings of Certificateholders .............................. 73
Section 6.15. Uncertificated Classes ...................................... 75
ARTICLE VII
Other Matters Relating to the Transferors
Section 7.01. Liability of the Transferors ................................ 76
Section 7.02. Merger or Consolidation of, or Assumption of the Obligations
of, the Transferors ......................................... 76
Section 7.03. Limitations on Liability of the Transferors ................. 77
Section 7.04. Liabilities ................................................. 77
ARTICLE VIII
Other Matters Relating to the Servicer
Section 8.01. Liability of the Servicer ................................... 79
Section 8.02. Merger or Consolidation of, or Assumption of the Obligations
of, the Servicer ............................................ 79
Section 8.03. Limitation on Liability of the Servicer and Others .......... 79
Section 8.04. Servicer Indemnification of the Trust and the Trustee ....... 80
Section 8.05. The Servicer Not To Resign .................................. 80
Section 8.06. Access to Certain Documentation and Information Regarding
the Receivables ............................................. 81
Section 8.07. Delegation of Duties ........................................ 81
Section 8.08. Examination of Records ...................................... 81
ARTICLE IX
Pay Out Events
Section 9.01. Trust Pay Out Events ........................................ 82
Section 9.02. Additional Rights Upon the Occurrence of Certain Events ..... 83
ARTICLE X
Servicer Defaults
Section 10.01. Servicer Defaults .......................................... 84
Section 10.02. Trustee To Act, Appointment of Successor ................... 86
Section 10.03. Notification to Certificateholders ......................... 87
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ARTICLE XI
The Trustee
Section 11.01. Duties of Trustee .......................................... 88
Section 11.02. Certain Matters Affecting the Trustee ...................... 89
Section 11.03. Trustee Not Liable for Recitals in Certificates ............ 90
Section 11.04. Trustee May Own Certificates ............................... 91
Section 11.05. The Servicer To Pay Trustee's Fees and Expenses ............ 91
Section 11.06. Eligibility Requirements for Trustee ....................... 91
Section 11.07. Resignation or Removal of Trustee .......................... 91
Section 11.08. Successor Trustee .......................................... 92
Section 11.09. Merger or Consolidation of Trustee ......................... 92
Section 11.10. Appointment of Co-Trustee or Separate Trustee .............. 93
Section 11.11. Tax Returns ................................................ 94
Section 11.12. Trustee May Enforce Claims Without Possession of
Certificates ............................................... 94
Section 11.13. Suits for Enforcement ...................................... 94
Section 11.14. Rights of Certificateholders To Direct Trustee ............. 95
Section 11.15. Representations and Warranties of Trustee .................. 96
Section 11.16. Maintenance of Office or Agency ............................ 96
Section 11.17. Capacity of Trustee ........................................ 96
ARTICLE XII
Termination
Section 12.01. Termination of Trust ....................................... 97
Section 12.02. Final Distribution ......................................... 97
Section 12.03. Transferors' Termination Rights ............................ 98
Section 12.04. Defeasance ................................................. 98
Section 12.05. Optional Purchase .......................................... 100
ARTICLE XIII
Miscellaneous Provisions
Section 13.01. Amendment; Waiver of Past Defaults ......................... 101
Section 13.02. Protection of Right, Title and Interest to Trust ........... 102
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PAGE
Section 13.03. Limitation on Rights of Certificateholders ................. 103
Section 13.04. GOVERNING LAW .............................................. 104
Section 13.05. Notices; Payments .......................................... 104
Section 13.06. Rule 144A Information ...................................... 105
Section 13.07. Severability of Provisions ................................. 105
Section 13.08. Assignment ................................................. 105
Section 13.09. Certificates Nonassessable and Fully Paid .................. 105
Section 13.10. Further Assurances ......................................... 105
Section 13.11. Nonpetition Covenant ....................................... 105
Section 13.12. No Waiver; Cumulative Remedies ............................. 106
Section 13.13. Counterparts ............................................... 106
Section 13.14. Third-Party Beneficiaries .................................. 106
Section 13.15. Actions by Certificateholders .............................. 106
Section 13.16. Merger and Integration ..................................... 106
Section 13.17. Headings ................................................... 106
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TABLE OF CONTENTS
EXHIBITS
Exhibit A Form of Base Certificate
Exhibit B Form of Assignment of Receivables in Additional Accounts
Exhibit C Form of Reassignment of Receivables in Removed Accounts
Exhibit D Form of Annual Servicer's Certificate
Exhibit E-1 Private Placement Legend
Exhibit E-2 Representation Letter
Exhibit E-3 ERISA Legend
Exhibit F-1 Form of Certificate of Foreign Clearing Agency
Exhibit F-2 Form of Alternate Certificate to be delivered to Foreign
Clearing Agency
Exhibit F-3 Form of Certificate to be delivered to Foreign Clearing
Agency
Exhibit G-1 Form of Opinion of Counsel with respect to Amendments
Exhibit G-2 Form of Opinion of Counsel with respect to Accounts
SCHEDULES
Schedule 1 List of Accounts
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AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT dated and
effective as of December 1, 1993, as amended and restated as
of January 1, 2002, among FLEET BANK (RI), NATIONAL
ASSOCIATION, a national banking association, as Servicer,
FLEET CREDIT CARD FUNDING, LLC, a Delaware limited liability
company, as Transferor, and BANKERS TRUST COMPANY, a New York
banking corporation, as Trustee.
WHEREAS, Colonial National Bank USA ("Colonial"), as Seller
and Servicer, and the Trustee entered into this Pooling and Servicing Agreement
dated as of December 1, 1993 (the "Original Pooling and Servicing Agreement");
and
WHEREAS, the Original Pooling and Servicing Agreement, was
amended and restated on May 23, 1994, and was thereafter amended by Amendment
No. 1 thereto dated as of July 1, 1994, Amendment No. 2 thereto dated as of
October 6, 1995, Amendment No. 3 thereto dated as of February 20, 1998,
Amendment No. 4 thereto dated as of May 14, 1999, Amendment No. 5 thereto dated
as of December 29, 2000 and Amendment No. 6 thereto dated as of March 30, 2001,
and the right, title and interest of Colonial, as Seller and Servicer under the
Original Pooling and Servicing Agreement, as amended, were assigned to and
accepted by Fleet Bank (RI), National Association ("Fleet (RI)") pursuant to the
terms of an Assignment and Assumption Agreement, dated as of February 20, 1998
(as so restated, amended, and assigned, the "Amended Pooling and Servicing
Agreement");
WHEREAS, Fleet (RI), as Seller, has determined to form Fleet
Credit Card Funding, LLC, ("FCCF") a wholly owned subsidiary of Fleet (RI) and
FCCF is to become the Transferor under this Agreement in place of Fleet (RI), as
Seller; and
WHEREAS, to provide for the substitution of FCCF, as
Transferor, for Fleet (RI) as Seller and for other purposes, Fleet (RI), as
Seller and Servicer, FCCF, as Transferor, and the Trustee desire to amend
further and restate the Amended Pooling and Servicing Agreement;
NOW, THEREFORE, in consideration of the mutual agreements
herein contained, this Agreement is hereby amended and restated to read in its
entirety as follows and each party agrees as follows for the benefit of the
other parties, the Certificateholders and any Series Enhancer (to the extent
provided herein and in any Supplement):
ARTICLE I
Definitions
Section 1.01. Definitions. Whenever used in this Agreement,
the following words and phrases shall have the following meanings, and the
definitions of such terms are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such terms.
"Account" shall mean each Initial Account and each Additional
Account, but shall exclude any Account all the Receivables in which are either
reassigned or assigned to a Transferor or the Servicer in accordance with the
terms of this Agreement. The definition of Account shall include each
Transferred Account. The term "Account" shall be deemed to refer to an
Additional Account only from and after the Addition Date with respect thereto,
and the term "Account" shall be deemed to refer to any Removed Account only
prior to the Removal Date with respect thereto.
"Account Owner" shall mean the Bank and its successors and
assigns, together with any Additional Account Owner.
"Accumulation Period" shall mean, with respect to any Series,
or any Class within a Series, a period following the Revolving Period, which
shall be the accumulation or other period in which Collections of Principal
Receivables are accumulated in an account for the benefit of the Investor
Certificateholders of such Series, or a Class within such Series, in each case
as defined for such Series in the related Supplement.
"Act" shall mean the Securities Act of 1933, as amended.
"Addition" shall mean the designation of additional Eligible
Accounts to be included as Accounts or of Participation Interests to be included
as Trust Assets pursuant to subsection 2.08(a), (b) or (d).
"Additional Account" shall mean each consumer revolving credit
card account or other revolving credit account that is designated as an
"Account" pursuant to the Receivables Purchase Agreement and that is established
pursuant to a Cardholder Agreement, which account is designated pursuant to
subsection 2.08(a), (b) or (d) to be included as an Account and is identified in
a computer file or microfiche list delivered to the Trustee by the applicable
Transferor pursuant to Sections 2.01 and 2.08.
"Additional Account Owner" shall have the meaning specified in
subsection 2.08(f).
"Additional Transferor" shall have the meaning specified in
subsection 2.08(e).
"Addition Cut-Off Date" shall mean, with respect to any
Additional Accounts or Participation Interests to be included in the Trust, the
date specified in the related Assignment.
2
"Addition Date" shall mean (a) with respect to Additional
Accounts, the date on which the Receivables in such Additional Accounts are
conveyed to the Trustee pursuant to subsection 2.08(a), (b) or (d) and (b) with
respect to Participation Interests, the date from and after which such
Participation Interests are to be included as Trust Assets pursuant to
subsection 2.08(a) or (b).
"Adverse Effect" shall mean, with respect to any action, that
such action will (a) result in the occurrence of a Pay Out Event with respect to
any Series or (b) materially adversely affect the amount or timing of
distributions to be made to the Investor Certificateholders of any Series or
Class pursuant to this Agreement and the related Supplement.
"Affiliate" shall mean, with respect to any specified Person,
any other Person controlling or controlled by or under common control with such
specified Person. For the purposes of this definition, "control" shall mean the
power to direct the management and policies of a Person, directly or indirectly,
whether through the ownership of voting securities, membership interests, voting
limited liability company interests, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
"Aggregate Investor Amount" shall mean, as of any date of
determination, the sum of (i) the aggregate Investor Amounts of all Series of
Certificates issued and outstanding on such date of determination and (ii) the
sum of the Enhancement Investor Amounts, if any, for all outstanding Series on
such date of determination.
"Aggregate Series Percentage" shall mean, with respect to
Principal Receivables, Defaulted Receivables and Finance Charge Receivables and
any date of determination, the sum of the Series Percentages for such categories
of Receivables for all outstanding Series on such date of determination;
provided, however, that the Aggregate Series Percentage shall not exceed 100%.
"Agreement" shall mean this Pooling and Servicing Agreement
dated as of December 1, 1993 as amended, restated and supplemented from time to
time and, including, with respect to any Series or Class, the related
Supplement.
"Amortization Period" shall mean, with respect to any Series,
or any Class within a Series, a period following the Revolving Period, which
shall be the controlled amortization period, the principal amortization period,
the rapid amortization period, the optional amortization period, the limited
amortization period or other amortization period, in each case as defined with
respect to such Series in the related Supplement.
"Allocated Interchange" shall have the meaning assigned
thereto in the Receivables Purchase Agreement.
"Applicants" shall have the meaning specified in Section 6.08.
"Appointment Date" shall have the meaning specified in
subsection 9.02(a).
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"Assignment" shall have the meaning specified in subsection
2.08(c)(vii).
"Authorized Newspaper" shall mean any newspaper or newspapers
of general circulation in the Borough of Manhattan, The City of New York, or
Philadelphia, Pennsylvania, printed in the English language (and, with respect
to any Series or Class, if and so long as the Investor Certificates of such
Series or Class are listed on the Luxembourg Stock Exchange and such exchange
shall so require, in Luxembourg, printed in any language satisfying the
requirements of such exchange) and customarily published on each business day at
such place, whether or not published on Saturdays, Sundays or holidays.
"Automatic Additional Account" shall have the meaning
specified in subsection 2.08(d)(i).
"Bank" when referring to any actions or events occurring prior
to February 20, 1998, shall mean Colonial, and when referring to any actions or
events occurring on or after February 20, 1998, shall mean Fleet (RI).
"Base Certificate" shall mean, if the Transferors elect to
evidence their interest in the Transferors' Interest in certificated form
pursuant to Section 6.01, a certificate executed by the Transferors and
authenticated by or on behalf of the Trustee, substantially in the form of
Exhibit A, as the same may be modified in accordance with subsection 2.08 (e);
provided that in any Supplement any reference to the "Bank Certificate" shall
mean the "Base Certificate" and, provided further that in any Supplement any
reference to the "Base Certificate" shall mean either a certificate executed and
delivered by the Transferors and authenticated by the Trustee substantially in
the form of Exhibit A or the Transferors' uncertificated interest in the
Transferors' Interest.
"Bearer Certificates" shall have the meaning specified in
Section 6.01.
"Benefit Plan" shall have the meaning specified in subsection
6.04(c) .
"Book-Entry Certificates" shall mean security entitlements to
the Investor Certificates, ownership and transfers of which shall be made
through book entries by a Clearing Agency as described in Section 6.10.
"Business Day" shall mean any day other than (a) a Saturday or
Sunday or (b) any other day on which banks in New York, New York, Philadelphia,
Pennsylvania, or Claymont, Delaware (or, with respect to any Series, any
additional city specified in the related Supplement) or any other State in which
the principal executive offices of Fleet (RI) or FCCF or any Additional
Transferor are located, are authorized or obligated by law, executive order or
governmental decree to be closed.
4
"Cardholder Agreement" shall mean, with respect to an Account,
the agreements between the Bank or any Additional Account Owner, as the case may
be, and the related Obligor, governing the terms and conditions of such Account,
as such agreements may be amended, modified or otherwise changed from time to
time and as distributed (including any amendments and revisions thereto) to
holders of such Account.
"Cash Advance Fees" shall have the meaning specified in the
Cardholder Agreement applicable to each Account for cash advance fees or similar
terms.
"Certificate" shall mean any one of the Investor Certificates
or the Transferor Certificates.
"Certificateholder" or "Holder" shall mean an Investor
Certificateholder or, if used with respect to the Transferors' Interest, a
Person in whose name a Transferor Certificate is registered in the Certificate
Register or a Person in whose name ownership of an uncertificated interest in
the Transferors' Interest is recorded in the books and records of the Trustee.
"Certificateholders' Interest" shall have the meaning
specified in Section 4.01.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency, or on the books of a Person
maintaining an account with such Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency).
"Certificate Rate" shall mean, with respect to any Series or
Class, the certificate rate specified therefor in the related Supplement.
"Certificate Register" shall mean the register maintained
pursuant to Section 6.04, providing for the registration of the Registered
Certificates and the Transferor Certificates and transfers and exchanges
thereof.
"Class" shall mean, with respect to any Series, any one of the
classes of Investor Certificates of that Series.
"Clearing Agency" shall mean an organization registered as a
"clearing agency" pursuant to Section 17A of the Securities Exchange Act of
1934, as amended.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to time a
Clearing Agency effects book entry transfers and pledges of securities deposited
with the Clearing Agency.
"Clearstream" shall mean Clearstream Banking, societe anonyme.
"Closing Date" shall mean, with respect to any Series, the
closing date specified in the related Supplement.
5
"Code" shall mean the Internal Revenue Code of 1986, as
amended from time to time.
"Collection Account" shall have the meaning specified in
Section 4.02.
"Collections" shall mean all payments by or on behalf of
Obligors (including Insurance Proceeds) received in respect of the Receivables,
in the form of cash, checks (to the extent collected), wire transfers,
electronic transfers, ATM transfers or other form of payment. All Recoveries
will be treated as Collections of Finance Charge Receivables. Collections with
respect to any Monthly Period shall include a portion, calculated pursuant to
subsection 2.07(i), of the Allocated Interchange for that Monthly Period, to be
applied as if such amount were Collections of Finance Charge Receivables for all
purposes. As specified in any Participation Interest Supplement or Supplement,
Collections shall include amounts received with respect to Participation
Interests.
"Colonial" shall mean Colonial National Bank USA, a national
banking association, and its successors.
"Commission" shall have the meaning specified in subsection
3.01(b).
"Companion Series" shall mean (i) each Series which has been
paired with another Series (which Series may be prefunded or partially
prefunded), such that the reduction of the Investor Amount of such Series
results in the increase of the Investor Amount of such other Series, as
described in the related Supplements, and (ii) such other Series.
"Contractually Delinquent" with respect to an Account, shall
mean an Account as to which the required minimum payment set forth on the
related billing statement has not been received by the due date thereof.
"Corporate Trust Office" shall mean the principal office of
the Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of the execution of this Agreement is
located at Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, Attention: Corporate
Trust and Agency Group/Structured Finance Group.
"Coupon" shall have the meaning specified in Section 6.01.
"Credit Card Guidelines" shall mean the written policies and
procedures of the Bank or any Additional Account Owner, as the case may be,
relating to the operation of its consumer revolving lending business, including,
without limitation, the written policies and procedures for determining the
creditworthiness of credit card account customers, the extension of credit to
credit card account customers and relating to the maintenance of credit card
accounts and collection of receivables with respect thereto, as such policies
and procedures may be amended, modified, or otherwise changed from time to time.
"Date of Processing" shall mean, with respect to any
transaction or receipt of Collections, the Business Day such transaction or
receipt of Collections is first recorded on the
6
Servicer's computer file of consumer revolving credit card accounts (without
regard to the effective date of such recordation).
"Debtor Relief Laws" shall mean (a) the United States
Bankruptcy Code and (b) all other applicable liquidation, conservatorship,
bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payments, readjustment of debt, marshalling of assets, assignment
for the benefit of creditors and similar debtor relief laws from time to time in
effect in any jurisdiction affecting the rights of creditors generally or the
rights of creditors of national banks.
"Defaulted Amount" shall mean, with respect to any Monthly
Period, an amount (which shall not be less than zero) equal to (a) the amount of
Principal Receivables which became Defaulted Receivables in such Monthly Period,
minus (b) the amount of any Defaulted Receivables included in any Account the
Receivables in which a Transferor or the Servicer became obligated to accept
reassignment or assignment in accordance with the terms of this Agreement during
such Monthly Period; provided, however, that, if an Insolvency Event occurs with
respect to any Transferor, the amount of such Defaulted Receivables which are
subject to reassignment to such Transferor in accordance with the terms of this
Agreement shall not be added to the sum so subtracted and, if any of the events
described in subsection 10.01(d) occur with respect to the Servicer, the amount
of such Defaulted Receivables which are subject to reassignment or assignment to
the Servicer in accordance with the terms of this Agreement shall not be added
to the sum so subtracted.
"Defaulted Receivables" shall mean, with respect to any
Monthly Period, all Principal Receivables which are charged off as uncollectible
in such Monthly Period in accordance with the Credit Card Guidelines and the
Servicer's customary and usual servicing procedures for servicing consumer
revolving credit card and other revolving credit account receivables comparable
to the Receivables. A Principal Receivable shall become a Defaulted Receivable
on the day on which such Principal Receivable is recorded as charged off on the
Servicer's computer master file of consumer revolving credit card accounts but,
in any event, shall be deemed a Defaulted Receivable no later than the day the
related Account becomes 186 days Contractually Delinquent unless the Obligor
cures such default by making a partial payment which satisfies the criteria for
curing delinquencies set forth in the applicable Credit Card Guidelines.
"Defeasance" shall have the meaning specified in subsection
12.04(a).
"Defeased Series" shall have the meaning specified in
subsection 12.04(a).
"Definitive Certificates" shall have the meaning specified in
Section 6.10.
"Definitive Euro-Certificates" shall have the meaning
specified in Section 6.13.
"Depositaries" shall mean the Person specified in the
applicable Supplement, in its capacity as depositary for the respective accounts
of any Clearing Agency or any Foreign Clearing Agencies.
7
"Depository Agreement" shall mean, if applicable with respect
to any Series or Class, the agreement among the Transferors, the Trustee and a
Clearing Agency, or as otherwise provided in the related Supplement.
"Determination Date" shall mean, unless otherwise specified in
the related Supplement, with respect to any Distribution Date, the third
Business Day preceding such Distribution Date.
"Discount Option Date" shall mean each date on which a
Discount Percentage designated by the Transferors pursuant to Section 2.11 takes
effect.
"Discount Option Receivables" shall have the meaning specified
in Section 2.11. The aggregate amount of Discount Option Receivables outstanding
on any Date of Processing occurring on or after the Discount Option Date shall
equal the sum of (a) the aggregate Discount Option Receivables at the end of the
prior Date of Processing (which amount, prior to the Discount Option Date, shall
be zero) plus (b) any new Discount Option Receivables created on such Date of
Processing minus (c) any Discount Option Receivables Collections received on
such Date of Processing. Discount Option Receivables created on any Date of
Processing shall mean the product of the amount of any Principal Receivables
created on such Date of Processing (without giving effect to the proviso in the
definition of Principal Receivables) and the Discount Percentage.
"Discount Option Receivable Collections" shall mean on any
Date of Processing occurring in any Monthly Period succeeding the Monthly Period
in which the Discount Option Date occurs, the product of (a) a fraction the
numerator of which is the Discount Option Receivables and the denominator of
which is the sum of the Principal Receivables and the Discount Option
Receivables in each case (for both the numerator and the denominator) at the end
of the preceding Monthly Period and (b) Collections of Principal Receivables on
such Date of Processing (without giving effect to the proviso in the definition
of Principal Receivables).
"Discount Percentage" shall mean the percentages, if any,
designated by the Transferors pursuant to Section 2.11.
"Distribution Date" shall mean, unless otherwise defined in a
Supplement with respect to a Series, the fifteenth day of each calendar month
or, if such fifteenth day is not a Business Day, the next succeeding Business
Day.
"Dollars", "$" or "U.S. $" shall mean United States Dollars.
"Eligible Account" shall mean a revolving credit card account
owned by Colonial, in the case of the Initial Accounts or the Bank or any
Additional Account Owner, in the case of Additional Accounts, which accounts as
of the Trust Cut-Off Date with respect to an Initial Account or as of the
related Addition Cut-Off Date with respect to an Additional Account has the
following characteristics:
8
(a) is in existence and maintained by Colonial,
in the case of the Initial Accounts, or the Bank or any
Additional Account Owner, in the case of Additional Accounts;
(b) is payable in Dollars;
(c) except as provided below, has not been
identified as an account the credit card or cards with respect
to which have been reported to the Bank or the applicable
Additional Account Owner as having been lost or stolen;
(d) the Obligor of which has provided, as his or
her billing address, an address located in the United States
(or its territories or possessions or a military address);
(e) has an Obligor who has not been identified
by the Bank or the applicable Additional Account Owner as an
employee of the Bank or such Additional Account Owner or any
Affiliate of either thereof;
(f) except as provided below, does not have any
Receivables which are Defaulted Receivables; and
(g) except as provided below, does not have any
Receivables which have been identified by the Bank or the
applicable Additional Account Owner or the relevant Obligor as
having been incurred as a result of fraudulent use of any
related credit card.
Eligible Accounts may include Accounts, the Receivables of
which have been written off, or with respect to which the related Account Owner
or the Servicer believes the related Obligor is bankrupt, or as to which certain
Receivables have been identified by the Obligor as having been incurred as a
result of fraudulent use of any credit cards, or as to which any credit cards
have been reported to such Account Owner or the Servicer as lost or stolen, in
each case as of the Trust Cut-Off Date, with respect to the Initial Accounts,
and as of the related Addition Cut-Off Date, with respect to Additional
Accounts; provided that (a) the balance of all Receivables included in such
Accounts is reflected on the books and records of the applicable Transferor (and
is treated for purposes of this Agreement) as "zero", and (b) charging
privileges with respect to all such Accounts have been canceled in accordance
with the relevant Credit Card Guidelines.
"Eligible Deposit Account" shall mean either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account with the
corporate trust department of a depository institution organized under the laws
of the United States or any one of the states thereof, including the District of
Columbia (or any domestic branch of a foreign bank), and acting as a trustee for
funds deposited in such account, so long as any of the securities of such
depository institution shall have a credit rating from each Rating Agency in one
of its generic credit rating categories which signifies investment grade.
9
"Eligible Institution" shall mean (I) a depository institution
(which may be the Trustee) organized under the laws of the United States or any
one of the states thereof, including the District of Columbia (or any domestic
branch of a foreign bank) which at all times (a) has either (i) a long-term
unsecured debt rating of A1 or better by Moody's or (ii) a certificate of
deposit rating of P-1 by Moody's, (b) has either (i) a long-term unsecured debt
rating of AAA by Standard & Poor's or (ii) a certificate of deposit rating of
A-1+ by Standard & Poor's and (c) is a member of the FDIC or (II) any other
institution that is acceptable to each Rating Agency. If so qualified, the
Trustee or the Servicer may be considered an Eligible Institution for the
purposes of this definition.
"Eligible Investments" shall mean any of the following:
(a) direct obligations of, and obligations fully
guaranteed as to timely payment of principal and interest by, the United States
of America;
(b) demand deposits, time deposits or certificates of
deposit (having original maturities of no more than 365 days) of depository
institutions or trust companies incorporated under the laws of the United States
of America or any state thereof (or domestic branches of foreign banks) and
subject to supervision and examination by federal or state banking or depository
institution authorities; provided, that at the time of the Trust's investment or
contractual commitment to invest therein, the short-term debt rating of such
depository institution or trust company shall be in the highest investment
category of each Rating Agency;
(c) commercial paper or other short-term obligations
having, at the time of the Trust's investment or contractual commitment to
invest therein, a rating from each Rating Agency in its highest investment
category;
(d) notes or bankers' acceptances (having original
maturities of no more than 365 days) issued by any depository institution or
trust company referred to in (b) above;
(e) investments in money market funds rated in the
highest investment category by each Rating Agency or otherwise approved in
writing by each Rating Agency;
(f) time deposits, other than as referred to in clause
(e) above, with a Person the commercial paper of which has a credit rating from
each Rating Agency in its highest investment category; or
(g) any other investments approved in writing by each
Rating Agency.
provided, however, that no obligation of the Bank or any Additional Account
Owner shall constitute an Eligible Investment.
"Eligible Receivable" shall mean each Receivable:
(a) which has arisen under an Eligible Account;
10
(b) which was created in compliance with all Requirements
of Law applicable to the Account Owner, the failure to comply with which would
have a material adverse effect on Investor Certificateholders, and pursuant to a
Cardholder Agreement which complies with all Requirements of Law applicable to
such Account Owner, the failure to comply with which would have a material
adverse effect on Investor Certificateholders;
(c) with respect to which all material consents,
licenses, approvals or authorizations of, or registrations or declarations with,
any Governmental Authority required to be obtained or given by the applicable
Account Owner in connection with the creation of such Receivable or the
execution, delivery and performance by such Account Owner of its obligations, if
any, under the related Cardholder Agreement have been duly obtained or given and
are in full force and effect as of such date of creation of such Receivable;
(d) as to which, at the time of its transfer to the
Trustee, such Transferor or the Trustee will have good and marketable title
thereto, free and clear of all Liens (other than any Lien for municipal or other
local taxes if such taxes are not then due and payable or if the relevant
Account Owner is then contesting the validity thereof in good faith by
appropriate proceedings and has set aside on its books adequate reserves with
respect thereto);
(e) which has been the subject of either a valid transfer
and assignment from such Transferor to the Trustee of all such Transferor's
right, title and interest therein or the grant of a first priority perfected
security interest therein (and in the proceeds thereof), effective until the
termination of the Trust;
(f) which at and after the time of transfer to the
Trustee is the legal, valid and binding payment obligation of the Obligor
thereon, legally enforceable against such Obligor in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or hereafter
in effect, affecting the enforcement of creditors' rights in general and except
as such enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity);
(g) which constitutes an "account" as defined in Article
9 of the UCC;
(h) which, at the time of its transfer to the Trustee,
has not been waived or modified except as permitted in accordance with the
Credit Card Guidelines and which waiver or modification is reflected in the
Account Owner's computer file of revolving credit card accounts;
(i) which, at the time of its transfer to the Trustee, is
not subject to any right of rescission, setoff, counterclaim or any other
defense of the Obligor (including the defense of usury), other than defenses
arising out of applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights in general and
except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or equity) or as to which the Servicer is
required by Section 3.09 to make an adjustment;
11
(j) as to which, at the time of its transfer to the
Trustee, the Account Owner has satisfied all obligations to be fulfilled by the
Account Owner at the time it is transferred to the Trustee or the Transferor and
such Transferor has satisfied all obligations to be fulfilled by such Transferor
at the time it is transferred to the Trustee; and
(k) as to which, at the time of its transfer to the
Trustee, the Account Owner has not taken any action which or failed to take any
action the omission of which would, at the time of its transfer to the Trustee
or the Transferor, impair the rights of the Transferor therein or which would,
upon the transfer to the Trustee, impair the rights of the Trustee or the
Certificateholders therein, and such Transferor has not taken any action which,
or failed to take any action the omission of which, would, at the time of its
transfer to the Trustee, impair the rights of the Trustee or the
Certificateholders therein.
"Eligible Servicer" shall mean the Trustee, or if the Trustee
is not acting as Servicer, an entity which, at the time of its appointment as
Servicer, (a) is servicing a portfolio of revolving credit card accounts, (b) is
legally qualified and has the capacity to service the Accounts, (c) is qualified
to use the software that is then being used to service the Accounts or obtains
the right to use, or has its own software, which is adequate to perform its
duties under this Agreement, (d) has demonstrated the ability to professionally
and competently service a portfolio of similar accounts in accordance with high
standards of skill and care, and (e) has a net worth of at least $50,000,000 as
of the end of its most recent fiscal quarter.
"Enhancement Agreement" shall mean any agreement, instrument
or document governing the terms of any Series Enhancement or pursuant to which
any Series Enhancement is issued or outstanding.
"Enhancement Investor Amount" shall have the meaning, if
applicable with respect to any Series, specified in the related Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended.
"Euroclear Operator" shall mean Euroclear Bank S.A/N.V., as
operator of the Euroclear System.
"Excess Funding Account" shall have the meaning specified in
Section 4.02.
"Excess Funding Amount" shall mean the amount on deposit in
the Excess Funding Account.
"Exchange Date" shall mean, with respect to any Series, any
date that is after the related Closing Date, in the case of Definitive
Euro-Certificates in registered form, or upon presentation of certification of
non-United States beneficial ownership (as described in Section 6.13), in the
case of Definitive Euro-Certificates in bearer form.
12
"FCCF" shall mean Fleet Credit Card Funding, LLC, a Delaware
limited liability company, and its successors and assigns.
"FDIC" shall mean the Federal Deposit Insurance Corporation or
any successor.
"Finance Charge Receivables" shall mean all Receivables that
represent amounts billed to the Obligors on any Account in respect of (i)
Periodic Finance Charges, (ii) annual membership fees and annual service
charges, (iii) Late Fees, (iv) Overlimit Fees, (v) Cash Advance Fees, (vi)
Discount Option Receivables, if any, and (vii) all other fees and charges with
respect to the Accounts designated by the Transferors to be included as Finance
Charge Receivables. All Recoveries will be treated as Collections of Finance
Charge Receivables. Collections of Finance Charge Receivables with respect to
any Monthly Period shall include a portion of the Allocated Interchange
calculated pursuant to the related Supplement for any Series. Finance Charge
Receivables shall also include the interest portion of Participation Interests
as shall be determined pursuant to the applicable Participation Interest
Supplement or Supplement.
"Fleet (RI)" shall mean Fleet Bank (RI), National Association,
a national banking association, and its successors and assigns.
"Foreign Clearing Agency" shall mean Clearstream and the
Euroclear Operator.
"Global Certificate" shall have the meaning specified in
subsection 6.13(a).
"Governmental Authority" shall mean the United States of
America, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Group" shall mean, with respect to any Series, the group of
Series, if any, in which the related Supplement specifies such Series is to be
included.
"Holders of the Transferor Certificates" shall mean all
Holders of the Base Certificate and/or the Supplemental Certificates, if any,
and Holders of any uncertificated interests in the Transferors' Interest and
"Holder of a Transferor Certificate" shall mean a Holder of the Base Certificate
or a Supplemental Certificate or a Holder of any uncertificated interest in the
Transferors' Interest.
"Ineligible Receivables" shall have the meaning specified in
subsection 2.05(a).
"Initial Account" shall mean each MasterCard(R) and VISA(R)(1)
account that was established pursuant to a Cardholder Agreement between Colonial
and any Person, and identified by account number and by the Receivable balance
in a computer file or microfiche list delivered
----------
1 MasterCard and VISA are registered trademarks of MasterCard
International Incorporated and of VISA USA, Inc., respectively.
13
to the Trustee by Colonial on or prior to the Initial Closing Date pursuant to
Section 2.01 and that is designated as an Account pursuant to the Receivables
Purchase Agreement.
"Initial Closing Date" shall mean December 9, 1993.
"Insolvency Event" shall have the meaning specified in
subsection 9.01(a)(i).
"Insolvency Proceeds" shall have the meaning specified in
subsection 9.02(b).
"Insurance Proceeds" shall mean, with respect to Receivables
transferred to a Transferor under the Receivables Purchase Agreement, the
Insurance Proceeds as defined in the Receivables Purchase Agreement and with
respect to the Receivables transferred to the Trustee prior to the Substitution
Date, shall mean any amounts recovered by the Servicer pursuant to any credit
insurance policies covering such Receivables.
"Interchange" shall mean interchange fees payable to any
Account Owner, in its capacity as credit card issuer, through VISA or MasterCard
in connection with cardholder charges for goods, services, and cash advances, as
calculated pursuant to the related Supplement for any Series.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended from time to time.
"Investor Amount" shall mean, with respect to any Series and
for any date, an amount equal to the Investor Amount specified in the related
Supplement.
"Investor Certificateholder" shall mean the Person in whose
name a Registered Certificate is registered in the Certificate Register or the
bearer of any Bearer Certificate (or the Global Certificate, as the case may be)
or Coupon.
"Investor Certificates" shall mean any certificated or
uncertificated interest in the Trust designated as, or deemed to be, an
"Investor Certificate" in the related Supplement.
"Late Fees" shall have the meaning specified in the Cardholder
Agreement applicable to each Account for late fees or similar terms.
"Lien" shall mean any security interest, mortgage, deed of
trust, pledge, hypothecation, assignment, participation or equity interest,
deposit arrangement, encumbrance, lien (statutory or other), preference,
priority or other security agreement or preferential arrangement of any kind or
nature whatsoever, including any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect as
any of the foregoing excluding any lien or filing pursuant to the Receivables
Purchase Agreement or this Agreement; provided, however, that any assignment or
transfer pursuant to subsection 6.03(c) or (d) or Section 7.02 shall not be
deemed to constitute a Lien.
14
"Manager" shall mean the lead manager, manager or co-manager
or Person performing a similar function with respect to an offering of
Definitive Euro-Certificates.
"MasterCard" shall mean MasterCard International Incorporated.
"Monthly Period" shall mean, with respect to each Distribution
Date, unless otherwise provided in a Supplement, the period from and including
the first day of the preceding calendar month to and including the last day of
such calendar month; provided, however, that the initial Monthly Period with
respect to any Series will commence on the Closing Date with respect to such
Series.
"Monthly Servicing Fee" shall have the meaning specified in
Section 3.02.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc., or its
successor.
"Notices" shall have the meaning specified in subsection
13.05(a).
"Obligor" shall mean, with respect to any Account, the Person
or Persons obligated to make payments with respect to such Account, including
any guarantor thereof, but excluding any merchant.
"Officer's Certificate" shall mean, unless otherwise specified
in this Agreement, a certificate delivered to the Trustee signed by the Chairman
of the Board, President, any Vice President or the Treasurer of a Transferor or
the Servicer, as the case may be.
"Opinion of Counsel" shall mean a written opinion of counsel,
who may be counsel for, or an employee of, the Person providing the opinion and
who shall be reasonably acceptable to the Trustee.
"Overlimit Fees" shall have the meaning specified in the
Cardholder Agreement applicable to each Account for overlimit fees or similar
terms if such fees are provided for with respect to such Account.
"Participating Transferor" shall have the meaning specified in
subsection 2.08(c)(i).
"Participation Interests" shall have the meaning specified in
subsection 2.08(a)(ii).
"Participation Interest Supplement" shall mean a Supplement
entered into pursuant to subsections 2.08(a)(ii) and 13.01(a) in connection with
the conveyance of Participation Interests to the Trustee.
"Paying Agent" shall mean any paying agent and co-paying agent
appointed pursuant to Section 6.07 and shall initially be the Trustee; provided,
that if the Supplement for a Series so provides, a Paying Agent may be appointed
with respect to such Series.
15
"Pay Out Event" shall mean, with respect to each Series, a
Trust Pay Out Event or a Series Pay Out Event.
"Periodic Finance Charges" shall have the meaning specified in
the Cardholder Agreement applicable to each Account for finance charges (due to
periodic rate) or any similar term.
"Person" shall mean any person or entity, including any
individual, corporation, partnership, limited liability company, joint venture,
association, joint-stock company, trust, unincorporated organization,
governmental entity or any other entity of any nature.
"Principal Receivable" shall mean all Receivables that
represent amounts charged by Obligors for merchandise and services and cash
advances, but shall not include Finance Charge Receivables or Defaulted
Receivables; provided, however, that after the Discount Option Date, Principal
Receivables on any Date of Processing thereafter shall mean Principal
Receivables as otherwise determined pursuant to this definition minus the amount
of any Discount Option Receivables. Principal Receivables shall also include the
principal portion of Participation Interests as shall be determined pursuant to
the applicable Participation Interest Supplement or Supplement. In calculating
the aggregate amount of Principal Receivables on any day, the amount of
Principal Receivables shall be reduced by the aggregate amount of credit
balances in the Accounts on such day. Any Receivables which the related
Transferor is unable to transfer as provided in Section 2.10 shall not be
included in calculating the aggregate amount of Principal Receivables, except to
the extent so provided in Section 2.10.
"Principal Sharing Series" shall mean a Series that, pursuant
to the Supplement therefor, is entitled to receive Shared Principal Collections.
"Principal Shortfalls" shall have the meaning specified in
Section 4.04.
"Principal Terms" shall mean, with respect to any Series, (i)
the name or designation; (ii) the Initial Investor Amount, the Series Investor
Amount and the Series Invested Amount (or method for calculating such amounts);
(iii) the Certificate Rate (or method for the determination thereof); (iv) the
payment date or dates and the date or dates from which interest shall accrue;
(v) the method for allocating Collections to Certificateholders of such Series;
(vi) the designation of any Series Accounts and the terms governing the
operation of any such Series Accounts; (vii) the method of calculating the
servicing fee with respect thereto; (viii) the terms of any form of Series
Enhancement with respect thereto; (ix) the terms on which the Investor
Certificates of such Series may be exchanged for Investor Certificates of
another Series, repurchased by the Transferors or remarketed to other investors;
(x) the Series Termination Date; (xi) the number of Classes of Investor
Certificates of such Series and, if such Series consists of more than one Class,
the rights and priorities of each such Class; (xii) the extent to which the
Investor Certificates of such Series will be issuable in temporary or permanent
global form (and, in such case, the depositary for such Global Certificate or
Certificates, the terms and conditions, if any, upon which such Global
Certificate may be exchanged, in whole or in part, for Definitive Certificates,
and the manner in which any interest payable on a temporary or Global
Certificate
16
will be paid); (xiii) whether the Investor Certificates of such Series may be
issued as Bearer Certificates and any limitations imposed thereon; (xiv) the
priority of such Series with respect to any other Series; (xv) the Group, if
any, to which such Series belongs; (xvi) whether or not such Series is a
Principal Sharing Series; and (xvii) any other terms of such Series.
"Rating Agency" shall mean, with respect to any outstanding
Series or Class, each statistical rating agency selected by the Transferors to
rate the Investor Certificates of such Series or Class, as specified in the
related Supplement.
"Rating Agency Condition" shall mean, with respect to any
action, that each Rating Agency shall have notified the Transferors in writing
that such action will not result in a reduction or withdrawal of the rating of
any outstanding Series or Class with respect to which it is a Rating Agency.
"Reassignment" shall have the meaning specified in Section
2.09.
"Receivable" shall mean any amount owing by the Obligor under
an Account from time to time, including amounts owing for Principal Receivables
and Finance Charge Receivables to the extent, but only to the extent, that
either (i) such amounts owing have been conveyed by the Account Owner to a
Transferor pursuant to the Receivables Purchase Agreement or (ii) such amounts
arose prior to the Substitution Date. A Receivable shall be deemed to have been
created at the end of the day on the Date of Processing of such Receivable.
Receivables which become Defaulted Receivables shall not be shown on the
Servicer's records as amounts payable (and shall cease to be included as
Receivables) on the day on which they become Defaulted Receivables.
"Receivables Purchase Agreement" shall mean with respect to
FCCF, as Transferor, the Receivables Purchase Agreement dated as of January 1,
2002 between Fleet (RI) and FCCF and acknowledged and accepted by the Trustee,
as amended and supplemented from time to time and, with respect to any
Additional Transferor, the receivables purchase agreement between the Account
Owner as seller of Receivables and related assets and such Additional Transferor
entered into in accordance with the requirements set forth in subsection
2.08(f).
"Record Date" shall mean, with respect to any Distribution
Date, the last Business Day of the preceding Monthly Period, except as otherwise
provided with respect to a Series in the related Supplement.
"Recoveries" shall mean, with respect to Receivables
transferred to a Transferor under the Receivables Purchase Agreement, Recoveries
as defined in the Receivables Purchase Agreement with respect to such
Receivables and with respect to Receivables transferred to the Trustee prior to
the Substitution Date all amounts, including Insurance Proceeds, that are
received by the Servicer with respect to such Receivables which have become
Defaulted Receivables, and, in each case, net of the Servicer's and the
Transferor's out-of-pocket costs and expenses of collection (including attorneys
fees and expenses deducted therefrom).
"Registered Certificateholder" shall mean the Holder of a
Registered Certificate.
17
"Registered Certificates" shall have the meaning specified in
Section 6.01.
"Removal Cut-Off Date" shall have the meaning specified in
subsection 2.09(b).
"Removal Date" shall have the meaning specified in subsection
2.09(a).
"Removal Notice Date" shall have the meaning specified in
subsection 2.09(a).
"Removed Accounts" shall have the meaning specified in Section
2.09.
"Required Designation Date" shall have the meaning specified
in subsection 2.08(a).
"Required Principal Balance" shall mean, as of any date of
determination, (a) the sum of the Series Investor Amounts for each Series
outstanding on such date, minus (b) the Excess Funding Amount.
"Required Transferor Amount" shall mean, with respect to any
date, an amount equal to the product of the Required Transferor Percentage and
the aggregate amount of Principal Receivables.
"Required Transferor Percentage" shall mean 7%; provided,
however, that the Transferors may reduce the Required Transferor Percentage upon
(x) 30 days' prior notice to the Trustee and each Rating Agency, (y)
satisfaction of the Rating Agency Condition with respect thereto and (z)
delivery to the Trustee of a certificate of a Vice President or more senior
officer of each Transferor stating that such Transferor reasonably believes that
such reduction will not, based on the facts known to such officer at the time of
such certification, then or thereafter have an Adverse Effect; provided further,
that the Required Transferor Percentage shall not at any time be less than 2%.
"Requirements of Law" with respect to any Person shall mean
the certificate of incorporation, certificate of formation or articles of
association and by-laws, limited liability company agreement or other
organizational or governing documents of such Person, and any law, treaty, rule
or regulation, or determination of an arbitrator or Governmental Authority, in
each case applicable to or binding upon such Person or to which such Person is
subject, whether Federal, state or local (including, without limitation, usury
laws, the Federal Truth in Lending Act and Regulation Z and Regulation B of the
Board of Governors of the Federal Reserve System).
"Responsible Officer" shall mean any officer within the
Corporate Trust Office (or any successor group of the Trustee) including any
Vice President, any Assistant Secretary, any Assistant Treasurer, or any other
officer of the Trustee customarily performing functions similar to those
performed by any of the above-designated officers and also, with respect to a
particular matter, any other officer to whom such matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
18
"Revolving Credit Agreement" shall mean the Revolving Credit
Agreement by and between Fleet (RI) and FCCF, dated as of January 1, 2002, as
such agreement may be amended from time to time in accordance therewith, or any
substantially similar agreement entered into between any lender and a
Transferor.
"Revolving Period" shall mean, with respect to any Series, the
period specified as such in the related Supplement.
"Rule 144A" shall mean Rule 144A under the Act, as such Rule
may be amended from time to time.
"Seller" shall mean the Bank as the entity selling,
transferring, assigning, setting over and otherwise conveying to the Trustee the
Receivables and other Trust Assets prior to the Substitution Date and which was
designated as the "Seller" under this Agreement prior to the Substitution Date.
"Series" shall mean any series of Investor Certificates
established pursuant to a Supplement.
"Series Account" shall mean any deposit, trust, escrow or
similar account maintained for the benefit of any Series or Class, as specified
in any Supplement.
"Series Enhancement" shall mean the rights and benefits
provided to the Investor Certificateholders of any Series or Class pursuant to
any letter of credit, surety bond, cash collateral account, cash collateral
guaranty, spread account, guaranteed rate agreement, maturity liquidity
facility, tax protection agreement, interest rate swap agreement, interest rate
cap agreement or other similar arrangement. The subordination of any Series or
Class to another Series or Class shall be deemed to be a Series Enhancement.
"Series Enhancer" shall mean the Person or Persons providing
any Series Enhancement, other than the Investor Certificateholders of any Series
or Class which is subordinated to another Series or Class.
"Series Invested Amount" shall have, with respect to any
Series, the meaning specified in the related Supplement.
"Series Investor Amount" shall have, with respect to any
Series, the meaning specified in the related Supplement.
"Series Pay Out Event" shall mean, with respect to any Series,
each event, if any, specified in the Supplement as a Series Pay Out Event with
respect to such Series.
"Series Percentage" shall have, with respect to Principal
Receivables, Finance Charge Receivables and Defaulted Receivables, and any
Series of Certificates, the meaning stated in the related Supplement.
19
"Series Termination Date" shall mean, with respect to any
Series, the termination date for such Series specified in the related
Supplement.
"Servicer" shall mean Fleet (RI) and its permitted successors
and assigns, in its capacity as Servicer pursuant to this Agreement, and
thereafter any Person appointed Successor Servicer as herein provided.
"Servicer Default" shall have the meaning specified in Section
10.01.
"Servicing Fee" shall have the meaning specified in Section
3.02.
"Servicing Fee Rate" shall mean, with respect to any Series,
the servicing fee rate specified in the related Supplement.
"Servicing Officer" shall mean any officer of the Servicer, or
any attorney-in-fact of the Servicer, involved in, or responsible for, the
administration and servicing of the Receivables whose name appears on a list of
servicing officers furnished to the Trustee by the Servicer, as such list may
from time to time be amended.
"Shared Principal Collections" shall have the meaning
specified in Section 4.04.
"Standard & Poor's" shall mean Standard & Poor's Corporation
or its successor.
"Substitution Date" shall mean January 1, 2002.
"Successor Servicer" shall have the meaning specified in
subsection 10.02(a).
"Supplement" shall mean, with respect to any Series, a
Supplement to this Agreement, executed and delivered in connection with the
original issuance of the Investor Certificates of such Series pursuant to
Section 6.03, and all amendments thereof and supplements thereto.
"Supplemental Certificate" shall have the meaning specified in
subsection 6.03(c).
"Tax Opinion" shall mean, with respect to any action, an
Opinion of Counsel to the effect that, (a) for Federal income tax purposes, such
action will not adversely affect the tax characterization as debt of Investor
Certificates of any outstanding Series or Class that were characterized as debt
at the time of their issuance, (b) following such action the Trust will not be
deemed to be an association (or publicly traded partnership) taxable as a
corporation and (c) such action will not cause or constitute an event in which
gain or loss would be recognized by any Investor Certificateholder or the Trust.
"Termination Notice" shall have the meaning specified in
Section 10.01.
20
"Transfer Agent and Registrar" shall have the meaning
specified in Section 6.04.
"Transfer Date" shall mean the Business Day immediately
preceding each Distribution Date.
"Transfer Restriction Event" shall have the meaning specified
in Section 2.10.
"Transferors" shall mean prior to the Substitution Date, the
Bank, as Seller, and on and after the Substitution Date, shall mean, FCCF and
any Additional Transferor, and their successors and permitted assigns.
"Transferor Amount" shall mean, on any date of determination,
an amount equal to (i) the sum of (a) the aggregate amount of Principal
Receivables at the end of the day immediately prior to such date of
determination, and (b) the Excess Funding Amount at the end of the day
immediately prior to such date of determination, and minus the sum of the Series
Invested Amounts for each Series outstanding on such date at the end of such
day.
"Transferor Certificates" shall mean, collectively, the Base
Certificate (including, when the term is used in connection with "Holder" or
"Holders," any uncertificated interest of a Transferor or Transferors in the
Transferors' Interest) and any outstanding Supplemental Certificates.
"Transferors' Interest" shall have the meaning specified in
Section 4.01.
"Transferor Percentage" shall mean, on any date of
determination, when used with respect to Principal Receivables, Finance Charge
Receivables and Defaulted Receivables, a percentage equal to 100% minus the
Aggregate Series Percentage with respect to such categories of Receivables.
"Transferred Account" shall have the meaning assigned to that
term in the Receivables Purchase Agreement.
"Trust" shall mean the Fleet Credit Card Master Trust II
created by this Agreement.
"Trust Assets" shall have the meaning specified in Section
2.01.
"Trust Cut-Off Date" shall mean October 31, 1993.
"Trustee" shall mean Bankers Trust Company, in its capacity as
trustee on behalf of the Trust, or its successor in interest, or any successor
trustee appointed as herein provided.
"Trust Pay Out Event" shall mean each event specified in
subsection 9.01(a).
"UCC" shall mean the Uniform Commercial Code, as amended from
time to time, as in effect in the applicable jurisdiction.
21
"United States" shall mean the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"Vice President" when used with respect to the Transferors or
the Servicer shall mean any vice president thereof whether or not designated by
a number or word or words added before or after the title "vice president".
"VISA" shall mean VISA USA, Inc.
Section 1.02. Other Definitional Provisions.
(a) With respect to any Series, all terms used herein and
not otherwise defined herein shall have meanings ascribed to them in
the related Supplement.
(b) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein.
(c) As used in this Agreement and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting
terms not defined in this Agreement or in any such certificate or other
document, and accounting terms partly defined in this Agreement or in
any such certificate or other document to the extent not defined, shall
have the respective meanings given to them under generally accepted
accounting principles or regulatory accounting principles, as
applicable. To the extent that the definitions of accounting terms in
this Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally accepted
accounting principles or regulatory accounting principles, the
definitions contained in this Agreement or in any such certificate or
other document shall control.
(d) The agreements, representations and warranties of
FCCF and any Additional Transferor in this Agreement in each of their
respective capacities as Transferors, shall be deemed to be the
agreements, representations and warranties of FCCF and any such
Additional Transferor solely in such capacity for so long as FCCF and
any such Additional Transferor act in each such capacity under this
Agreement, and the agreements, representations and warranties of Fleet
(RI) in this Agreement as Servicer shall be deemed to be the
agreements, representations and warranties of Fleet (RI) solely in such
capacity for so long as Fleet (RI) acts in such capacity under this
Agreement.
(e) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this
Agreement; references to any Section, Schedule or Exhibit are
references to Sections, Schedules and Exhibits in or to this Agreement
unless otherwise specified; and the term "including" means "including
without limitation."
22
(f) Unless otherwise specifically provided herein, the
failure of this Agreement to specify the meaning of a term or the
applicability of a provision to any Series shall not preclude the
meaning of such term or the applicability of such provision with
respect to such Series being set forth in the Supplement therefor.
(g) At any time when only one Transferor exists under
this Agreement, references to Transferors in the plural shall mean the
one entity which is the Transferor.
Section 1.03. Assumption Agreement. As provided herein, FCCF
shall be and hereby is substituted as of January 1, 2002, in place of Fleet (RI)
as Transferor. By the execution of this Agreement, FCCF hereby assumes (except
as provided in the next sentence) all of the obligations of the Transferor which
arise on or after the Substitution Date under the Agreement and the obligations
of the Transferor which relate to the transactions contemplated by the
Agreement. Fleet (RI), as Seller prior to the Substitution Date hereby agrees
that it shall continue to be liable for all representations and warranties and
covenants made by it and all obligations performed or to be performed by it in
its capacity as Seller prior to the Substitution Date and agrees that if any
representation or warranty made by the Bank as Seller under this Agreement prior
to the Substitution Date is not true and correct and as a result Receivables
transferred to the Trustee by the Bank under this Agreement are reassigned to
the Transferor under Section 2.05 or Section 2.06, Fleet (RI) shall be obligated
to accept assignment and deposit with FCCF for deposit into the Collection
Account an amount equal to the outstanding balance of Receivables reassigned, as
provided in Section 2.05 or 2.06, as applicable. Fleet (RI), as Seller is hereby
released from any obligations accruing on or after the Substitution Date or with
respect to representations and warranties of the Transferor made as of or after
the Substitution Date.
[END OF ARTICLE I]
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ARTICLE II
Conveyance of Receivables
Section 2.01. Conveyance of Receivables. By execution of this
Agreement, each Transferor does hereby transfer, assign, set over and otherwise
convey to the Trustee all its right, title and interest in, to and under the
Receivables existing at the close of business on the Initial Closing Date, in
the case of Receivables arising in the Initial Accounts, and on each Addition
Date, in the case of Receivables arising in the Additional Accounts, and in each
case thereafter created from time to time until the termination of the Trust,
all Allocated Interchange and Recoveries, all moneys due or to become due and
all amounts received with respect thereto and all proceeds (including "proceeds"
as defined in the UCC) thereof. Each Transferor does hereby further transfer,
assign, set over and otherwise convey to the Trustee all of its rights,
remedies, powers, privileges and claims under or with respect to each
Receivables Purchase Agreement to which it is a party (whether arising pursuant
to the terms of such Receivables Purchase Agreement or otherwise available to
such Transferor at law or in equity), including without limitation, the rights
of such Transferor to enforce the Receivables Purchase Agreement and to give or
withhold any and all consents, requests, notices, directions, approvals,
extensions or waivers under or with respect to the Receivable Purchase
Agreements to the same extent as such Transferor could but for the assignment
thereof to the Trustee. The property described in the two preceding sentences,
together with all moneys, instruments, investment property, and other property
credited to, carried in or deposited in the Collection Account, the Excess
Funding Account, the Series Accounts and any Series Enhancement shall constitute
the assets of the Trust (the "Trust Assets"). The foregoing does not constitute
and is not intended to result in the creation or assumption by the Trust, the
Trustee, any Investor Certificateholder or any Series Enhancer of any obligation
of the Servicer, any Transferor, any Additional Transferor, any Account Owner or
any other Person in connection with the Accounts or the Receivables or under any
agreement or instrument relating thereto, including any obligation to Obligors,
merchant banks, merchant clearance systems, VISA, MasterCard or insurers. Any
reference herein to a conveyance, assignment, or other transfer to or by the
Trust shall be construed as and shall be deemed to mean, a conveyance,
assignment, or other transfer to or by the Trustee.
The Transferors agree to record and file, at their own expense,
financing statements (and continuation statements and amendments when
applicable) with respect to the Receivables now existing and hereafter created
meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect, and maintain the perfection of, the
transfer and assignment of the Receivables to the Trustee, and to deliver a file
stamped copy of each such financing statement or other evidence of such filing
to the Trustee on or prior to the Initial Closing Date, in the case of
Receivables arising in the Initial Accounts, and (if any additional filing is so
necessary) the applicable Addition Date, in the case of Receivables arising in
Additional Accounts. The Trustee shall be under no obligation whatsoever to file
such financing or continuation statements or to make any other filing under the
UCC in connection with such transfer and assignment.
The Transferors further agree, at their own expense, (a) on or prior
to (x) the Substitution Date and (y) each Addition Date thereafter, in the case
of Additional Accounts designated subsequent to the Substitution Date, and (z)
the applicable Removal Date, in the case
24
of Removed Accounts, to indicate in the appropriate computer files that
Receivables created in connection with the Accounts (other than Removed
Accounts) have been conveyed to the Trustee pursuant to this Agreement (or
conveyed to the Transferors in the case of Removed Accounts) by including (or
deleting in the case of Removed Accounts) in such computer files the code "02,"
"11," "12," "13," "14," "15," "16," "17," "20," "22" or "30" through "80" (or
any other code specified in an Assignment) in the PORTF_CD field of such
computer files and (b) on the date of execution and delivery of the Receivables
Purchase Agreement, on or prior to each Addition Date thereafter and each
Removal Date, as applicable, to deliver to the Trustee a computer file or
microfiche list containing a true and complete list of all such Accounts
specifying for each such Account, as of the Substitution Date, in the case of
accounts then designated as Accounts hereunder, the applicable Addition Cut-Off
Date, in the case of Additional Accounts, and the applicable Removal Cut-Off
Date, in the case of Removed Accounts, its account number, the aggregate amount
outstanding in such Account and the aggregate amount of Principal Receivables
outstanding in such Account. Such file or list, as supplemented from time to
time to reflect Additional Accounts and Removed Accounts, shall be marked as
Schedule 1 to this Agreement and is hereby incorporated into and made a part of
this Agreement. Once the books and records (including the appropriate computer
files) referenced in clause (a) of this paragraph have been indicated with
respect to any Account, the Transferors agree not to alter such indication with
respect to any Account during the term of this Agreement unless and until such
Accounts become Removed Accounts or unless and until (i) the Transferors shall
give written notice of any such alteration to the Trustee, such written notice
to be as of the date of its receipt by the Trustee incorporated into and made
part of this Agreement, and (ii) the Transferors shall have taken such action as
is necessary or advisable to cause the interest of the Trustee in the Trust
Assets to continue to be perfected and of first priority.
The parties hereto intend that each transfer of Receivables and
other property pursuant to this Agreement or any Assignment constitutes a sale,
and not a secured borrowing, for accounting purposes. If, and to the extent
that, the transfer pursuant to this Section 2.01 is not deemed to be a sale, the
Transferors shall be deemed hereunder to have granted and do hereby grant to the
Trustee, a first priority perfected security interest in all of its right, title
and interest, whether now owned or hereafter acquired, in, to and under all of
the Trust Assets. This Agreement shall constitute a security agreement under the
UCC.
Notwithstanding any other provisions of this Agreement, Fleet (RI),
as Transferor prior to the Substitution Date, hereby ratifies and confirms that
with respect to all Receivables existing in the Accounts at the close of
business on the Business Day immediately preceding the Substitution Date, Fleet
(RI) as Seller on and prior to that date has sold, transferred and assigned, set
over and otherwise conveyed to the Trustee all of its right, title and interest
in, to and under all such Receivables then existing, all monies due or to become
due and all amounts received or receivable with respect thereto and all proceeds
thereof, and all of Fleet (RI)'s right, title and interest in, to and under the
Interchange payable pursuant to Section 2.07(i) prior to the Substitution Date.
Fleet (RI) hereby ratifies and confirms that all of such property and rights,
are included as Trust Assets.
25
Fleet (RI) hereby further agrees and confirms that if it is in
breach of any of the representations or warranties made by it under this
Agreement prior to the Substitution Date, its obligation to accept reassignment
of such Receivables under Section 2.05 or 2.06 of this Agreement shall remain
and is in full force and effect.
Section 2.02. Acceptance by Trustee.
(a) The Trustee hereby acknowledges its acceptance of all right,
title and interest to the property, now existing and hereafter created,
conveyed to the Trustee pursuant to Section 2.01 and declares that it
shall maintain such right, title and interest, upon the trust herein set
forth, for the benefit of all Certificateholders and, if provided in any
Supplement, the Series Enhancers. The Trustee further acknowledges that
the Transferor has delivered to the Trustee the computer file or
microfiche list described in Section 2.01 relating to the designated
Accounts as of the Substitution Date.
(b) All references in this Agreement or in any Supplement to the
transfer, assignment, setting over or other conveyance or delivery to the
Trustee of Trust Assets of any kind or of any other rights, interests, or
property or to the Trustee's holding or disposition of any Trust Assets or
other rights, interests or property, shall, in each case, mean that such
Trust Assets or other rights, interests or property are conveyed,
delivered, held or disposed of by the Trustee not in its individual
capacity but as Trustee under this Agreement for the benefit of the
Certificateholders and, if provided in a Supplement, the Series Enhancers.
(c) The Trustee hereby agrees not to disclose to any Person (or to
any other department or operating division of the Trustee, other than the
corporate trust department of the Trustee or, if the Trustee shall be
appointed the Successor Servicer, such other departments or operating
divisions of the Trustee as shall be necessary to fulfill its duties as
Servicer), any of the account numbers or other information contained in
the computer files or microfiche lists marked as Schedule 1 or otherwise
delivered to the Trustee from time to time, except (i) to a Successor
Servicer or as required by a Requirement of Law applicable to the Trustee,
(ii) in connection with the performance of the Trustee's duties hereunder,
(iii) in enforcing the rights of Certificateholders or (iv) as requested
by any Person in connection with the financing statements filed pursuant
to this Agreement or the Receivables Purchase Agreement. The Trustee also
agrees not to use any of the foregoing information for any purpose other
than for the purposes provided for in this Agreement. The Trustee agrees
to take such measures as shall be reasonably requested by the Account
Owners or the Transferors to protect and maintain the security and
confidentiality of such information and, in connection therewith, will
allow the Account Owners and the Transferors to inspect the Trustee's
security and confidentiality arrangements from time to time during normal
business hours. The Trustee shall make best efforts to provide the Account
Owners and the Transferors with notice five Business Days prior to any
disclosure pursuant to this subsection 2.02(b).
(d) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement or any Supplement.
26
Section 2.03. Representations and Warranties of the Transferors
Relating to the Transferors. Each of the Transferors hereby represents and
warrants as to itself only and not as to any other Transferor, to the Trust as
of each Closing Date and as of the Substitution Date that:
(a) Organization and Good Standing. Such Transferor is a national
banking association, a corporation or a limited liability company, duly
organized or formed and validly existing in good standing under the laws
of the jurisdiction of its organization, incorporation or formation and
has full power, authority and legal right to own its properties and
conduct its consumer revolving lending business or its receivables
purchase and transfer business as such properties are presently owned and
such business is presently conducted, to execute, deliver and perform its
obligations under the Receivables Purchase Agreement and each Assignment
thereunder and under this Agreement and each Supplement and to execute and
deliver to the Trustee the Certificates pursuant hereto.
(b) Due Qualification. Such Transferor is duly qualified to do
business and is in good standing as a foreign corporation (or is exempt
from such requirements), and has obtained all necessary licenses and
approvals with respect to such Transferor, in each jurisdiction in which
failure to so qualify or to obtain such licenses and approvals would
render any Cardholder Agreement relating to an Account owned by such
Transferor or any Receivable transferred to the Trustee by such Transferor
unenforceable by such Transferor, the Servicer or the Trustee or would
have a material adverse effect on the interests of the Certificateholders
hereunder or under any Supplement; provided, however, that no
representation or warranty is made with respect to any qualification,
licenses or approvals which the Trustee has or may be required at any time
to obtain, if any, in connection with the transactions contemplated
hereby.
(c) Due Authorization. The execution, delivery and performance of
this Agreement and each Supplement by such Transferor and the execution
and delivery to the Trustee of the Certificates and the consummation by
such Transferor of the transactions provided for in this Agreement and
each Supplement have been duly authorized by such Transferor by all
necessary corporate or company action on the part of such Transferor and
this Agreement and each Supplement will remain, from the time of its
execution, an official record of such Transferor.
(d) No Conflict. The execution and delivery by such Transferor of
this Agreement, each Supplement and the Certificates, the performance by
such Transferor of the transactions contemplated by this Agreement and
each Supplement and the fulfillment by such Transferor of the terms hereof
and thereof will not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or without notice or
lapse of time or both) a material default under, any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which such
Transferor is a party or by which it or any of its properties are bound.
(e) No Violation. The execution and delivery by such Transferor of
this Agreement, each Supplement and the Certificates, the performance by
such Transferor of the transactions contemplated by this Agreement and
each Supplement and the
27
fulfillment by such Transferor of the terms hereof and thereof will not
conflict with or violate any Requirements of Law applicable to such
Transferor.
(f) No Proceedings. There are no proceedings or investigations
pending, or to the best knowledge of such Transferor, threatened, against
such Transferor, before any court, regulatory body, administrative agency,
or other tribunal or governmental instrumentality (i) asserting the
invalidity of this Agreement, any Supplement or the Certificates, (ii)
seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this Agreement, any Supplement or
the Certificates, (iii) seeking any determination or ruling that, in the
reasonable judgment of such Transferor, would materially and adversely
affect the performance by such Transferor of its obligations under this
Agreement or any Supplement, (iv) seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of
this Agreement, any Supplement or the Certificates or (v) seeking to
affect adversely the income tax attributes of the Trust under the Federal
or Delaware income or franchise tax systems.
(g) All Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery by such
Transferor of this Agreement, each Supplement and the Certificates, the
performance by such Transferor of the transactions contemplated by this
Agreement and each Supplement and the fulfillment by such Transferor of
the terms hereof and thereof, have been obtained; provided, however, that
such Transferor makes no representation or warranty regarding state
securities or "blue sky" laws in connection with the distribution of the
Certificates.
(h) Insolvency. No Insolvency Event with respect to such Transferor
has occurred and the transfer of the Receivables by such Transferor to the
Trustee has not been made in contemplation of the occurrence thereof.
(i) FDIC Insurance. Such Transferor is either an insured institution
for purposes of the Federal Deposit Insurance Act or is a
bankruptcy-remote entity.
The representations and warranties of each Transferor set forth in
this Section 2.03 shall survive the transfer and assignment by such Transferor
of the respective Receivables to the Trustee. Upon discovery by such Transferor,
the Servicer or the Trustee of a breach of any of the representations and
warranties by such Transferor set forth in this Section 2.03, the party
discovering such breach shall give prompt written notice to the others. Such
Transferor agrees to cooperate with the Servicer and the Trustee in attempting
to cure any such breach. For purposes of the representations and warranties set
forth in this Section 2.03, (i) each reference to a Supplement shall be deemed
to refer only to those Supplements in effect as of the Substitution Date or the
relevant Closing Date that were executed and delivered by such Transferor and
(ii) each reference to the Certificates shall be deemed to refer only to those
Certificates issued on or prior to the Substitution Date or the relevant Closing
Date and that were executed and delivered by that Transferor.
28
Section 2.04. Representations and Warranties of the
Transferors Relating to the Agreement and Any Supplement and the Receivables.
(a) Representations and Warranties. Each of the Transferors hereby
represents and warrants as to itself only and not as to any other
Transferor, to the Trust as of each Closing Date and, with respect to
Additional Accounts the Receivables in which are being transferred by such
Transferor to the Trustee, as of the related Addition Date that:
(i) the Receivables Purchase Agreement, this Agreement, each
Supplement and, in the case of Additional Accounts the Receivables in
which are being transferred by such Transferor to the Trustee, the related
Assignment, each constitutes a legal, valid and binding obligation of such
Transferor enforceable against such Transferor in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect affecting the enforcement of creditors' rights
in general and the rights of creditors of national banking associations
and except as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
(ii) as of the Initial Closing Date and as of the related Addition
Date with respect to Additional Accounts the Receivables in which are
being transferred by such Transferor to the Trustee, Schedule 1 to this
Agreement, as supplemented on such date, is an accurate and complete
listing in all material respects of all the Accounts as of the Trust
Cut-Off Date or such Addition Cut-Off Date, as the case may be, and the
information contained therein with respect to the identity of such
Accounts and the Receivables existing in such Accounts is true and correct
in all material respects as of the Trust Cut-Off Date or such Addition
Cut-Off Date, as the case may be;
(iii) each Receivable conveyed to the Trustee by such Transferor has
been conveyed to the Trustee free and clear of any Lien of any Person
claiming through or under such Transferor or any of its Affiliates (other
than Liens arising in favor of the Transferor under the Receivables
Purchase Agreement and other than Liens permitted under subsection
2.07(b)) and in compliance, in all material respects, with all
Requirements of Law applicable to such Transferor;
(iv) all authorizations, consents, orders or approvals of or
registrations or declarations with any Governmental Authority required to
be obtained, effected or given by the Account Owner or such Transferor in
connection with the conveyance of Receivables by the Account Owner to the
Transferor and by such Transferor to the Trustee have been duly obtained,
effected or given and are in full force and effect;
(v) either this Agreement or, in the case of Additional Accounts,
the related Assignment constitutes a valid transfer and assignment to the
Trustee of all right, title and interest of such Transferor in the
Receivables conveyed to the Trustee by such Transferor and the proceeds
thereof or, if this Agreement or, in the case of Additional Accounts, the
related Assignment does not constitute a transfer of such property, it
constitutes a grant of a security interest in such property to the
Trustee, which, in the case of existing
29
Receivables and the proceeds thereof, is enforceable upon execution and
delivery of this Agreement or, with respect to then existing Receivables
in Additional Accounts, as of the applicable Addition Date, and which will
be enforceable with respect to such Receivables hereafter and thereafter
created and the proceeds thereof upon such creation. Upon the filing of
the financing statements pursuant to Sections 2.01 and 2.08 and, in the
case of Receivables hereafter created and the proceeds thereof, upon the
creation thereof, the Trustee shall have a first priority perfected
security or ownership interest in such property and proceeds except for
(x) Liens permitted under subsection 2.07(b), (y) the interests of the
Transferors as Holders of the Base Certificate or any Supplemental
Certificate, and (z) the Transferors' right, if any, to interest accruing
on and investment earnings, if any, in respect of the Collection Account
or any Series Account, as provided in this Agreement or the related
Supplement; provided, however, that the Transferors make no representation
or warranty with respect to the effect of Section 9-315 of the UCC on the
rights of the Trustee to proceeds;
(vi) except as otherwise expressly provided in this Agreement or any
Supplement, neither such Transferor nor any Person claiming through or
under such Transferor has any claim to or interest in the Collection
Account, the Excess Funding Account, any Series Account or any Series
Enhancement;
(vii) on the Trust Cut-Off Date, each Initial Account was an
Eligible Account and, on the applicable Addition Cut-Off Date, each
related Additional Account is an Eligible Account;
(viii) on the Trust Cut-Off Date, each Receivable then existing in
an Account was an Eligible Receivable and, on the applicable Addition
Cut-Off Date, each Receivable contained in any related Additional Accounts
is an Eligible Receivable;
(ix) as of the date of the creation of any new Receivable in an
Account such Receivable is an Eligible Receivable; and
(x) no selection procedure has been utilized by the Account Owner or
by such Transferor which such Transferor reasonably believes would result
in a selection of Initial Accounts or Additional Accounts (from among the
available Eligible Accounts owned by the Account Owner on the Trust
Cut-Off Date or the applicable Addition Cut-Off Date, as the case may be
that are available to such Transferor) that would be materially adverse to
the interests of the Investor Certificateholders.
(b) Notice of Breach. The representations and warranties of each
Transferor set forth in this Section 2.04 shall survive the transfer and
assignment by such Transferor of Receivables to the Trustee. Upon
discovery by such Transferor, the Servicer or the Trustee of a breach of
any of the representations and warranties made by such Transferor set
forth in this Section 2.04, the party discovering such breach shall give
prompt written notice to the others. Such Transferor agrees to cooperate
with the Servicer and the Trustee in attempting to cure any such breach.
For purposes of the representations and warranties set forth in this
Section 2.04, each reference to a Supplement shall be deemed
30
to refer only to those Supplements in effect as of the date of the
relevant representations or warranties.
Section 2.05. Reassignment of Ineligible Receivables.
(a) Reassignment of Receivables. In the event (i) any representation
or warranty of a Transferor contained in subsection 2.04(a)(ii), (iii), (iv),
(vii), (viii), (ix) or (x) is not true and correct in any material respect as of
the date specified therein with respect to any Receivable transferred to the
Trustee by such Transferor and as a result of such breach any Receivables in the
related Account become Defaulted Receivables or the Trustee's rights in, to or
under such Receivables or the proceeds of such Receivables are impaired or such
proceeds are not available for any reason to the Trustee free and clear of any
Lien, unless cured within 60 days (or such longer period, not in excess of 150
days, as may be agreed to by the Trustee) after the earlier to occur of the
discovery thereof by such Transferor or receipt by such Transferor of notice
thereof given by the Trustee, or (ii) it is so provided in subsection 2.07(a)
with respect to any Receivables transferred to the Trustee by such Transferor,
then such Transferor shall accept reassignment of all Receivables in the related
Account ("Ineligible Receivables") on the terms and conditions set forth in
paragraph (b) below; provided, however, that such Receivables will not be deemed
to be Ineligible Receivables and will not be reassigned to such Transferor if,
on any day prior to the end of such 60-day or longer period, (x) either (A) in
the case of an event described in clause (i) above the relevant representation
and warranty shall be true and correct in all material respects as if made on
such day or (B) in the case of an event described in clause (ii) above the
circumstances causing such Receivable to become an Ineligible Receivable shall
no longer exist and (y) such Transferor shall have delivered to the Trustee an
Officer's Certificate describing the nature of such breach and the manner in
which the relevant representation and warranty became true and correct.
(b) Price of Reassignment. The Servicer shall deduct the portion of
the Ineligible Receivables reassigned to a Transferor which are Principal
Receivables from the aggregate amount of Principal Receivables used to calculate
the Transferor Amount, the Series Percentages and any other percentage used to
allocate within or among Series that is applicable to any Series. In the event
that, following the exclusion of such Principal Receivables from the calculation
of the Transferor Amount, the Transferor Amount would be less than the Required
Transferor Amount, not later than 12:00 noon, New York City time, on the first
Distribution Date following the Monthly Period in which such reassignment
obligation arises, the relevant Transferor shall make a deposit into the Excess
Funding Account in immediately available funds in an amount equal to the amount
by which the Transferor Amount would be reduced below the Required Transferor
Amount (up to the amount of such Principal Receivables).
Upon the deposit, if any, required to be made to the Excess Funding
Account as provided in this Section and the reassignment of Ineligible
Receivables, the Trustee shall automatically and without further action sell,
transfer, assign, set over and otherwise convey to the relevant Transferor,
without recourse, representation or warranty, all the right, title and interest
of the Trustee in and to such Ineligible Receivables, all moneys due or to
become due and all amounts received with respect thereto and all proceeds
thereof. The Trustee shall execute such documents and instruments of transfer or
assignment and take such other actions as shall reasonably be requested by the
relevant Transferor to effect the conveyance of Ineligible
31
Receivables. The obligation of a Transferor to accept reassignment of any
Ineligible Receivables, and to make the deposits, if any, required to be made to
the Excess Funding Account as provided in this Section, shall constitute the
sole remedy respecting the event giving rise to such obligation available to
Certificateholders (or the Trustee on behalf of the Certificateholders).
(c) Representations and Warranties of the Transferors Relating to
Security Interest. Each Transferor hereby makes the following representations
and warranties with respect to Receivables transferred by it, and each of the
following representations and warranties shall survive until the termination of
this Agreement and each shall speak as of the Substitution Date and, with
respect to Receivables in Additional Accounts, as of the applicable Addition
Date. None of the following representations and warranties shall be waived by
any of the parties to this Agreement unless the Rating Agency Condition shall
have been satisfied with respect to such waiver.
(i) This Agreement creates a valid and continuing security interest
(as defined in the applicable UCC) in favor of the Trustee in the
Receivables which security interest is prior to all other liens, and is
enforceable as such against creditors of and purchasers from the
Transferors.
(ii) The Receivables transferred by such Transferor constitute
"accounts" within the meaning of the applicable UCC.
(iii) At the time of its transfer of any Receivables to the Trustee
pursuant to this Agreement, such Transferor owned and had good and
marketable title to such item of collateral free and clear of any lien,
claim or encumbrance of any Person.
(iv) Such Transferor has caused or will have caused, within ten (10)
days of the execution of this Agreement, the filing of all appropriate
financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security
interest in the Receivables granted to the Trustee pursuant to this
Agreement.
(v) Other than the security interest granted to the Trustee pursuant
to this Agreement or an Assignment, such Transferor has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed the
Receivables described in Section 2.01 of this Agreement. Such Transferor
has not authorized the filing of and is not aware of any financing
statements against such Transferor that cover such Receivables other than
any financing statement relating to the transfer of the Receivables to
such Transferor pursuant to the appropriate Receivables Purchase Agreement
and the security interest granted to the Trustee pursuant to this
Agreement or an Assignment or that has been terminated. Such Transferor is
not aware of any judgment or tax lien filings against such Transferor.
Section 2.06. Reassignment of Receivables in Trust Portfolio. In the
event any representation or warranty of a Transferor set forth in subsection
2.03(a) or (c) or subsection 2.04(a)(i), (v) or (vi) is not true and correct in
any material respect and such breach has a material adverse effect on the
Certificateholders' Interest in the Receivables transferred to the
32
Trustee by such Transferor, then either the Trustee or the Holders of Investor
Certificates evidencing more than 50% of the Aggregate Investor Amount, by
notice then given to such Transferor and the Servicer (and to the Trustee if
given by the Investor Certificateholders), may direct such Transferor to accept
a reassignment of the Receivables transferred to the Trustee by such Transferor
if such breach and any material adverse effect caused by such breach is not
cured within 60 days of such notice (or within such longer period, not in excess
of 150 days, as may be specified in such notice), and upon those conditions such
Transferor shall be obligated to accept such reassignment on the terms set forth
below; provided, however, that such Receivables will not be reassigned to such
Transferor if, on any day prior to the end of such 60-day or longer period (i)
the relevant representation and warranty shall be true and correct in all
material respects as if made on such day and (ii) such Transferor shall have
delivered to the Trustee a certificate of an authorized officer describing the
nature of such breach and the manner in which the relevant representation and
warranty became true and correct.
The relevant Transferor shall deposit in the Collection Account in
immediately available funds not later than 12:00 noon, New York City time, on
the first Distribution Date following the Monthly Period in which such
reassignment obligation arises, in payment for such reassignment, an amount
equal to the sum of the amounts specified therefor with respect to each
outstanding Series in the related Supplement. Notwithstanding anything to the
contrary in this Agreement, such amounts shall be distributed on such
Distribution Date in accordance with Article IV and the terms of each
Supplement.
Upon the deposit, if any, required to be made to the Collection
Account as provided in this Section and the reassignment of the Receivables, the
Trustee shall automatically and without further action sell, transfer, assign,
set over and otherwise convey to the relevant Transferor, without recourse,
representation or warranty, all the right, title and interest of the Trustee in
and to such Receivables, all moneys due or to become due and all amounts
received with respect thereto and all proceeds thereof. The Trustee shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested by the relevant Transferor to
effect the conveyance of such Receivables pursuant to this Section. The
obligation of a Transferor to accept reassignment of any Receivables, and to
make the deposits, if any, required to be made to the Collection Account as
provided in this section, shall constitute the sole remedy respecting the event
giving rise to such obligation available to Certificateholders (or the Trustee
on behalf of the Certificateholders) or any Series Enhancer.
Section 2.07. Covenants of the Transferors. Each Transferor hereby
covenants as to itself only and not as to any other Transferor, as follows:
(a) Receivables to be Accounts. Except in connection with the
enforcement or collection of a Receivable, such Transferor will take no action
to cause any Receivable transferred by it to the Trustee to be evidenced by any
instrument or chattel paper (as defined in the UCC) and, if any such Receivable
is so evidenced as a result of such Transferor's action, it shall be deemed to
be an Ineligible Receivable in accordance with subsection 2.05(a) and shall be
reassigned to such Transferor in accordance with subsection 2.05(b); provided,
however, that Receivables evidenced by notes taken from Obligors in the ordinary
course of business of the Servicer's collection efforts shall not be deemed
Ineligible Receivables solely as a result thereof.
33
(b) Security Interests. Except for the conveyances hereunder, such
Transferor will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on any Receivable
transferred by it to the Trustee, whether now existing or hereafter created, or
any interest therein; such Transferor will immediately notify the Trustee of the
existence of any Lien on any such Receivable; and such Transferor shall defend
the right, title and interest of the Trustee in, to and under such Receivables,
whether now existing or hereafter created, against all claims of third parties
claiming through or under such Transferor; provided, however, that nothing in
this subsection 2.07(b) shall prevent or be deemed to prohibit such Transferor
from suffering to exist upon any of the Receivables transferred by it to the
Trustee any Liens for municipal or other local taxes if such taxes shall not at
the time be due and payable or if such Transferor shall currently be contesting
the validity thereof in good faith by appropriate proceedings and shall have set
aside on its books adequate reserves with respect thereto.
(c) Transferors' Interest. Except for the transfer to FCCF as of the
Substitution Date and except for the conveyances hereunder in connection with
any transaction permitted by Section 7.02 and as provided in Sections 2.08(e)
and 6.03, such Transferor agrees not to transfer, assign, exchange or otherwise
convey or pledge, hypothecate or otherwise grant a security interest in the
Transferors' Interest, whether in certificated form and represented by the Base
Certificate or in any uncertificated form, or any Supplemental Certificate and
any such attempted transfer, assignment, exchange, conveyance, pledge,
hypothecation or grant shall be void.
Notwithstanding the foregoing paragraph, the Transferors may pledge,
hypothecate or otherwise grant a security interest in the Base Certificate (or
any portion thereof) or in any uncertificated interest of the Transferors in the
Transferors' Interest (or any portion thereof) to any Federal Reserve Bank or
any Federal Home Loan Bank; provided, however, that such pledge, hypothecation,
or grant may not be used as an artifice or device to avoid or limit the
foregoing prohibition on transfer.
(d) Delivery of Collections. In the event that such Transferor
receives Collections, such Transferor agrees to pay the Servicer all such
Collections as soon as practicable after receipt thereof but in no event later
than two Business Days after the date of receipt by the Transferor.
(e) Notice of Liens. Such Transferor shall notify the Trustee
promptly after becoming aware of any Lien on any Receivable other than the
conveyances under the Receivables Purchase Agreement and hereunder or Liens
permitted under subsection 2.07(b).
(f) Periodic Finance Charges and Other Fees. Each Transferor hereby
agrees that, it will include in each Receivables Purchase Agreement provisions
under which the Account Owner will agree that, except as otherwise required by
any Requirement of Law, or as is deemed by the Account Owner in its sole
discretion to be necessary in order for the Account Owner to maintain its
lending business on a competitive basis based on a good faith assessment by the
Account Owner of the nature of its competition in the lending business, the
Account
34
Owner shall not at any time reduce the annual percentage rate of the Periodic
Finance Charges assessed on the Receivables transferred by it to any Transferor
or other fees charged on any of the Accounts owned by it if, as a result of any
such reduction, either (i) such Account Owner's reasonable expectation is that
such reduction will cause a Series Pay Out Event to occur or (ii) such reduction
is not also applied to any comparable segments of consumer revolving credit card
accounts owned by the Account Owner which have characteristics the same as, or
substantially similar to, such Accounts.
(g) Cardholder Agreements and Credit Card Guidelines. Each
Transferor shall include in each Receivables Purchase Agreement a covenant by
the Account Owner to comply with and perform its obligations under the
Cardholder Agreements relating to the Accounts owned by it and the Credit Card
Guidelines and all applicable rules and regulations of MasterCard and VISA or
their respective substantial equivalents except insofar as any failure so to
comply or perform would not materially and adversely affect the rights of the
Transferor, the Trustee or the Certificateholders hereunder. Each Transferor may
in such Receivables Purchase Agreement allow the Account Owner, subject to
compliance with all Requirements of Law, to change the terms and provisions of
the Cardholder Agreements or the Credit Card Guidelines with respect to any of
the Accounts owned by that Account Owner in any respect (including the
calculation of the amount, or the timing, of charge-offs and the Periodic
Finance Charges and other fees to be assessed thereon) if in the reasonable
judgment of such Account Owner such change is made applicable to any comparable
segment of the consumer revolving credit card accounts owned by such Account
Owner which have characteristics the same as, or substantially similar to, such
Accounts.
(h) MasterCard and VISA. Each Transferor shall include in each
Receivables Purchase Agreement a covenant by the Account Owner to the extent
applicable to Accounts owned or serviced by the Account Owner, that such Account
Owner shall use its best efforts to remain, either directly or indirectly, a
member in good standing of the MasterCard system, the VISA system and any other
similar entity's or organization's system relating to any other type of consumer
revolving credit card accounts included as Accounts.
(i) Interchange. With respect to any Distribution Date, on or prior
to the last day of the preceding Monthly Period, the Transferor shall notify the
Servicer of the amount of the Allocated Interchange required to be included as
Collections of Finance Charge Receivables with respect to such Monthly Period
which amount for any Series shall be specified in the related Supplement. Not
later than 12:00 noon, New York City time, on the Business Day immediately
preceding such Distribution Date, the Transferor shall deposit into the
Collection Account, in immediately available funds, the amount of the Allocated
Interchange to be so included as Collections of Finance Charge Receivables with
respect to such Monthly Period.
(j) Separate Existence. Such Transferor shall:
(i) Maintain in full effect its existence, rights and
franchises as a limited liability company under the laws of the
state of its formation and will obtain and preserve its
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability
35
of this Agreement and the Receivables Purchase Agreement and each
other instrument or agreement necessary or appropriate to proper
administration hereof and permit and effectuate the transactions
contemplated hereby.
(ii) Except as provided herein, maintain its own deposit,
securities and other account or accounts, separate from those of any
Affiliate of such Transferor, with financial institutions. The funds
of such Transferor will not be diverted to any other Person or for
other than the company use of such Transferor, and, except as may be
expressly permitted by this Agreement or the Receivables Purchase
Agreement, the funds of such Transferor shall not be commingled with
those of any other Person.
(iii) Ensure that, to the extent that it shares the same
officers or other employees as any of its members, managers or other
Affiliates, the salaries of and the expenses related to providing
benefits to such officers and other employees shall be fairly
allocated among such entities, and each such entity shall bear its
fair share of the salary and benefit costs associated with all such
common officers and employees.
(iv) Ensure that, to the extent that it jointly contracts with
any of its stockholders, members or managers or other Affiliates to
do business with vendors or service providers or to share overhead
expenses, the costs incurred in so doing shall be allocated fairly
among such entities, and each such entity shall bear its fair share
of such costs. To the extent that such Transferor contracts or does
business with vendors or service providers where the goods and
services provided are partially for the benefit of any other Person,
the costs incurred in so doing shall be fairly allocated to or among
such entities for whose benefit the goods and services are provided,
and each such entity shall bear its fair share of such costs.
(v) Ensure that all material transactions between such
Transferor and any of its Affiliates shall be only on an
arm's-length basis and shall not be on terms more favorable to
either party than the terms that would be found in a similar
transaction involving unrelated third parties. All such transactions
shall receive the approval of such Transferor's board of directors
including at least one Independent Director (defined below).
(vi) Maintain a principal executive and administrative office
through which its business is conducted and a telephone number
separate from those of its members, managers and other Affiliates.
To the extent that such Transferor and any of its members, managers
or other Affiliates have offices in contiguous space, there shall be
fair and appropriate allocation of overhead costs (including rent)
among them, and each such entity shall bear its fair share of such
expenses.
(vii) Conduct its affairs strictly in accordance with its
certificate of formation and limited liability company agreement and
observe all necessary, appropriate and customary formalities,
including, but not limited to, holding all
36
regular and special meetings of the board of directors appropriate
to authorize all actions of such Transferor, keeping separate and
accurate minutes of such meetings, passing all resolutions or
consents necessary to authorize actions taken or to be taken, and
maintaining accurate and separate books, records and accounts,
including, but not limited to, intercompany transaction accounts.
Regular meetings of the board of directors shall be held at least
annually.
(viii) Ensure that its board of directors shall at all times
include at least one Independent Director (for purposes hereof,
"Independent Director" shall mean any member of the board of
directors of such Transferor that is not and has not at any time
been (x) an officer, agent, advisor, consultant, attorney,
accountant, employee or shareholder of any Affiliate of such
Transferor which is not a special purpose entity, (y) a director of
any Affiliate of such Transferor other than an independent director
of any Affiliate which is a special purpose entity or (z) a member
of the immediate family of any of the foregoing).
(ix) Ensure that decisions with respect to its business and
daily operations shall be independently made by such Transferor
(although the officer making any particular decision may also be an
officer or director of an Affiliate of the Transferor) and shall not
be dictated by an Affiliate of such Transferor.
(x) Act solely in its own company name and through its own
authorized members, managers, officers and agents, and no Affiliate
of the Transferor shall be appointed to act as agent of such
Transferor. Such Transferor shall at all times use its own
stationery and business forms and describe itself as a separate
legal entity.
(xi) Other than as provided in the Revolving Credit Agreement,
ensure that no Affiliate of such Transferor shall loan money to such
Transferor, and no Affiliate of such Transferor will otherwise
guaranty debts of such Transferor.
(xii) Other than organizational expenses and as expressly
provided herein, pay all expenses, indebtedness and other
obligations incurred by it using its own funds.
(xiii) Except as provided herein and in the Receivables
Purchase Agreement, not enter into any guaranty, or otherwise become
liable, with respect to or hold its assets or creditworthiness out
as being available for the payment of any obligation of any
Affiliate of such Transferor nor shall such Transferor make any
loans to any Person.
(xiv) Ensure that any financial reports required of such
Transferor shall comply with generally accepted accounting
principles and shall be issued separately from, but may be
consolidated with, any reports prepared for any of its Affiliates so
long as such consolidated reports contain footnotes describing the
effect of the transactions between such Transferor and such
Affiliate and also
37
state that the assets of such Transferor are not available to pay
creditors of the Affiliate.
(xv) Ensure that at all times it is adequately capitalized to
engage in the transactions contemplated in its certificate of
formation and its limited liability company agreement.
Section 2.08. Addition of Accounts.
(a) Required Additions. (i) If on any Determination Date, as of the
close of business on the last Business Day of the preceding Monthly Period,
either (x) the Transferor Amount is less than the Required Transferor Amount or
(y) the aggregate amount of Principal Receivables is less than the Required
Principal Balance, the Transferors shall on or prior to the close of business on
the 10th Business Day following such Determination Date (the "Required
Designation Date"), unless the Transferor Amount exceeds the Required Transferor
Amount or the aggregate amount of Principal Receivables exceeds the Required
Principal Balance, as the case may be, in either case as of the close of
business on any day after the last Business Day of such Monthly Period and prior
to the Required Designation Date, designate additional Eligible Accounts to be
included as Accounts as of the Required Designation Date or any earlier date in
a sufficient amount such that, after giving effect to such addition, the
Transferor Amount as of the close of business on the applicable Addition Date is
at least equal to the Required Transferor Amount on such date and the aggregate
amount of Principal Receivables exceeds the Required Principal Balance on such
date. The failure of any condition set forth in paragraph (c) below, as the case
may be, shall not relieve the Transferors of their obligation pursuant to this
paragraph; provided, however, that the failure of the Transferors to transfer
Receivables to the Trustee as provided in this clause (i) solely as a result of
the unavailability of a sufficient amount of Eligible Receivables shall not
constitute a breach of this Agreement; provided further, that any such failure
which has not been timely cured may nevertheless result in the occurrence of a
Pay Out Event.
(ii) In lieu of, or in addition to, designating Additional
Accounts pursuant to clause (i) above, the Transferors may, subject
to the conditions specified in paragraph (c) below, convey to the
Trustee participations (including 100% participations) representing
undivided interests in a pool of assets primarily consisting of
revolving credit card receivables, consumer loan receivables
(secured and unsecured), and any interests in any of the foregoing,
including securities representing or backed by such receivables, and
other self-liquidating financial assets (including any "Eligible
Assets" as such term is defined in Rule 3a-7 under the Investment
Company Act (or any successor to such Rule)) which financial assets
are owned by a Transferor or any Affiliate of any Transferor and
collections thereon ("Participation Interests"). The addition of
Participation Interests in the Trust pursuant to this paragraph (a)
or paragraph (b) below shall be effected by a Participation Interest
Supplement, dated the applicable Addition Date and entered into
pursuant to subsection 13.01(a).
(b) Restricted Additions. Each Transferor may from time to time, at
its sole discretion, subject to the conditions specified below, designate
additional Eligible Accounts to be
38
included as Accounts or Participation Interests to be included as Trust Assets,
in either case as of the applicable Addition Date.
(c) Conditions to Required and Restricted Additions. On the Addition
Date with respect to any Additional Accounts or Participation Interests
designated pursuant to subsection 2.08(a) or (b), the Trustee shall purchase the
Receivables in such Additional Accounts (and such Additional Accounts shall be
Accounts for purposes of this Agreement) or shall purchase such Participation
Interests, in each case as of the close of business on the applicable Addition
Date, subject to the satisfaction of the following conditions:
(i) on or before the tenth Business Day immediately preceding
the Addition Date, each Transferor which is designating any such
Additional Account or is transferring any such Participation
Interest to the Trustee (a "Participating Transferor") shall have
given the Trustee, the Servicer and each Rating Agency written
notice that the Additional Accounts or Participation Interests will
be included and specifying the applicable Addition Date, the
Addition Cut-Off Date, and the approximate number of accounts
expected to be added and the approximate aggregate balances expected
to be outstanding in the accounts to be added (in the case of
Additional Accounts);
(ii) in the case of Additional Accounts, the Participating
Transferors shall have delivered to the Trustee copies of UCC
financing statements covering such Additional Accounts, if necessary
to perfect the Trustee's interest in the Receivables arising
therein;
(iii) as of each of the Addition Cut-Off Date and the Addition
Date, no Insolvency Event with respect to the Participating
Transferor or the Account Owner shall have occurred nor shall the
transfer of the Receivables arising in the Additional Accounts or of
the Participation Interests to the Transferor or to the Trustee have
been made in contemplation of the occurrence thereof;
(iv) except in the case of an Addition pursuant to subsection
2.08(a)(i), the Rating Agency Condition shall have been satisfied;
(v) each Participating Transferor shall have delivered to the
Trustee an Officer's Certificate, dated the Addition Date, stating
that (x) in the case of Additional Accounts, as of the applicable
Addition Cut-Off Date, the Additional Accounts are all Eligible
Accounts, (y) to the extent applicable, the conditions set forth in
clauses (ii) through (iv) above have been satisfied and (z) such
Participating Transferor reasonably believes that (A) the
designation of such Additional Accounts and the transfer by such
Participating Transferor of the Receivables arising in the
Additional Accounts or of the Participation Interests to the Trustee
will not, based on the facts known to such officer at the time of
such addition, then or thereafter cause a Pay Out Event to occur
with respect to any Series and (B) in the case of Additional
Accounts, no selection procedure was utilized by such Participating
Transferor or by the Account Owner which would result in a selection
of Additional Accounts (from among the available Eligible
39
Accounts) that would be materially adverse to the interests of the
Investor Certificateholders of any Series as of the Addition Date;
(vi) the Participating Transferors shall have delivered to the
Trustee and each Rating Agency (except that such opinions need not
be delivered to Standard & Poor's) an Opinion of Counsel, which
counsel shall be outside counsel, dated the Addition Date, in
accordance with subsection 13.02(d);
(vii) in the case of designation of Additional Accounts, the
Participating Transferors shall have delivered to the Trustee (x)
the computer file or microfiche list required to be delivered
pursuant to Section 2.01 with respect to such Additional Accounts
and (y) a duly executed, written assignment (including an acceptance
by the Trustee for the benefit of the Certificateholders),
substantially in the form of Exhibit B (the "Assignment"); and
(viii) unless each Rating Agency otherwise consents, the
number of Additional Accounts designated pursuant to subsection
2.08(a) with respect to any of the three consecutive Monthly Periods
commencing in January, April, July and October of each calendar
year, commencing in January 1994, shall not exceed 15% of the number
of Accounts as of the first day of the calendar year during which
such Monthly Periods commence and the number of Additional Accounts
designated pursuant to subsection 2.08(a) during any calendar year
shall not exceed 20% of the number of Accounts as of the first day
of such calendar year.
(d) Automatic Account Additions.
(i) Each Transferor may from time to time, at its sole
discretion, subject to and in compliance with the limitations
specified in clause (ii) below and the applicable conditions
specified in clauses (iii) through (vii) below, designate Eligible
Accounts ("Automatic Additional Accounts") to be included as
Accounts as of the applicable Addition Date. For purposes of this
paragraph, Eligible Accounts shall include only consumer revolving
credit card accounts which are originated by a Transferor or any
Affiliate of a Transferor.
(ii) Unless each Rating Agency otherwise consents, the number
of Automatic Additional Accounts designated with respect to any of
the three consecutive Monthly Periods commencing in January, April,
July and October of each calendar year, commencing in January 1994,
shall not exceed 15% of the number of Accounts as of the first day
of the calendar year during which such Monthly Periods commence and
the number of Automatic Additional Accounts designated during any
such calendar year shall not exceed 20% of the number of Accounts as
of the first day of such calendar year.
(iii) Within 30 days after the Addition Date with respect to
any Automatic Additional Accounts, the Transferors shall have
delivered to the Trustee and each Rating Agency (except that such
opinions need not be delivered to Standard & Poor's) an Opinion of
Counsel (which counsel shall be outside
40
counsel) in accordance with subsection 13.02(d), with respect to the
Automatic Additional Accounts included as Accounts on such Addition
Date, confirming the validity and perfection of the transfer of the
Receivables arising in such Automatic Additional Accounts. If such
Opinion of Counsel with respect to any Automatic Additional Accounts
is not so received, the ability of the Transferors to designate
Automatic Additional Accounts will be suspended until such time as
each Rating Agency otherwise consents in writing. If the Transferors
are unable to deliver an Opinion of Counsel with respect to any
Automatic Additional Account, such inability shall be deemed to be a
breach of the representation in subsection 2.04(a)(viii) with
respect to the Receivables in such Automatic Additional Account for
purposes of Section 2.05; provided, that the cure period for such
breach shall not exceed 30 days.
(iv) The Participating Transferors shall have delivered to the
Trustee copies of financing statements covering the Receivables
arising in such Automatic Additional Accounts, if necessary to
perfect the Trustee's interest in the Receivables arising therein.
(v) As of each of the Addition Cut-Off Date and the Addition
Date, no Insolvency Event with respect to any Participating
Transferor shall have occurred nor shall the transfer of the
Receivables arising in the Automatic Additional Accounts to the
Trustee have been made in contemplation of the occurrence thereof.
(vi) Each Participating Transferor shall have delivered to the
Trustee an Officer's Certificate, dated the Addition Date, stating
that (x) as of the applicable Addition Cut-Off Date, such Automatic
Additional Accounts designated by such Participating Transferor are
all Eligible Accounts, (y) to the extent applicable, the conditions
set forth in clauses (ii) through (v) above have been satisfied and
(z) such Participating Transferor reasonably believes that (A) the
designation of such Additional Accounts and the transfer by such
Participating Transferor of the Receivables arising in such
Automatic Additional Accounts will not, based on the facts known to
such officer at the time of such addition, then or thereafter cause
a Pay Out Event to occur with respect to any Series and (B) no
selection procedure was utilized by such Participating Transferor or
by the Account Owner which would result in a selection of Automatic
Additional Accounts (from among the available Eligible Accounts)
that would be materially adverse to the interests of the Investor
Certificateholders of any Series as of the Addition Date.
(vii) The Participating Transferors shall have delivered to
the Trustee (x) the computer file or microfiche list required to be
delivered pursuant to Section 2.01 with respect to such Automatic
Additional Accounts and (y) a duly executed Assignment.
(e) Additional Transferors. FCCF may designate Affiliates of FCCF to
be included as Transferors ("Additional Transferors") under this Agreement by an
amendment
41
hereto pursuant to subsection 13.01(a). In connection with such designation, if
the interest of the Transferors in the Transferors' Interest is evidenced by the
Base Certificate, the Transferors shall surrender the Base Certificate to the
Trustee, in exchange for a newly issued Base Certificate modified to reflect
such Additional Transferor's interest. If the interest of the Transferors in the
Transferors' Interest is in uncertificated form, then, in connection with the
designation of an Additional Transferor, the existing Transferors shall instruct
the Trustee in writing to register the Additional Transferor as the owner of the
appropriate interest in the Transferors' Interest on the books and records of
the Trust. Prior to any such designation and exchange or transfer of interests
the conditions set forth in subsection 6.03(c) or 6.03(d), as applicable, shall
have been satisfied with respect thereto.
(f) Additional Account Owners. In addition to the Receivables
Purchase Agreement entered into with Fleet (RI) as of the Substitution Date,
FCCF, as Transferor, or an Additional Transferor may enter into one or more
additional Receivables Purchase Agreements and may purchase Receivables which
constitute Eligible Receivables and related assets under the terms of such
Receivables Purchase Agreement or Receivables Purchase Agreements from Fleet
(RI) or another Affiliate of FCCF if (i) the Account Owner is Fleet (RI) or if
other than Fleet (RI) (an "Additional Account Owner") is an affiliate of FCCF,
(ii) is the owner of consumer revolving credit card accounts and/or other
revolving credit accounts, (iii) the Rating Agency Condition is satisfied with
respect to the Additional Account Owner and the Receivables Purchase Agreement,
and (iv) a Tax Opinion with respect to the addition of such Additional Account
Owner and Receivables Purchase Agreement has been delivered to the Trustee.
Section 2.09. Removal of Accounts and Participation Interests. On
any day of any Monthly Period each Transferor shall have the right, subject to
the restrictions set forth in Section 2.12, to require the reassignment to it or
its designee of all the Trustee's right, title and interest in, to and under the
Receivables then existing and thereafter created, all moneys due or to become
due and all amounts received with respect thereto and all proceeds thereof in or
with respect to the Accounts designated by such Transferor (the "Removed
Accounts") or Participation Interests designated by the Transferor, upon
satisfaction of the following conditions:
(a) on or before the fifth Business Day immediately preceding the
Removal Date (the "Removal Notice Date"), such Transferor shall have given
the Trustee, the Servicer, each Rating Agency and any Series Enhancer
written notice of such removal, specifying the date for removal of the
Removed Accounts or Participation Interests (the "Removal Date");
(b) with respect to Removed Accounts, on or prior to the date that
is ten Business Days after the Removal Date, such Transferor shall have
amended Schedule 1 by delivering to the Trustee a computer file or
microfiche list containing a true and complete list of the Removed
Accounts specifying for each such Account, as of the last day of the
Monthly Period preceding the Removal Notice Date (the "Removal Cut-Off
Date"), its account number, the aggregate amount outstanding in such
Account and the aggregate amount of Principal Receivables outstanding in
such Account;
42
(c) with respect to Removed Accounts, such Transferor shall have
represented and warranted as of the Removal Date that the list of Removed
Accounts delivered pursuant to paragraph (b) above, as of the Removal
Cut-Off Date, is true and complete in all material respects;
(d) the Rating Agency Condition shall have been satisfied with
respect to such removal;
(e) such Transferor shall have delivered to the Trustee an Officer's
Certificate, dated the Removal Date, to the effect that such Transferor
reasonably believes that (i) such removal will not, based on the facts
known to such officer at the time of such certification, then or
thereafter cause a Pay Out Event to occur with respect to any Series and
(ii) no selection procedure was utilized by such Transferor which would
result in a selection of Removed Accounts or Participation Interests that
would be materially adverse to the interests of the Investor
Certificateholders of any Series as of the Removal Date; and
(f) as of the Removal Cut-Off Date, no more than 10% of the
Receivables outstanding are more than thirty days Contractually
Delinquent.
Upon satisfaction of the above conditions, the Trustee shall execute
and deliver to the relevant Transferor a written reassignment in substantially
the form of Exhibit C (the "Reassignment") and shall, without further action,
sell, transfer, assign, set over and otherwise convey to such Transferor,
effective as of the Removal Date, without recourse, representation or warranty,
all the right, title and interest of the Trustee in and to the Participation
Interests or Receivables arising in the Removed Accounts, all moneys due and to
become due and all amounts received with respect thereto and all proceeds
thereof. In addition, the Trustee shall execute such other documents and
instruments of transfer or assignment and take such other actions as shall
reasonably be requested by the relevant Transferor to effect the conveyance of
Participation Interests or Receivables pursuant to this Section 2.09.
Section 2.10. Account Allocations. In the event that any Transferor
is unable for any reason to transfer Receivables to the Trustee in accordance
with the provisions of this Agreement, including by reason of the application of
the provisions of Section 9.02 or any order of any Governmental Authority (a
"Transfer Restriction Event"), then, in any such event, (a) such Transferor
agrees (except as prohibited by any such order) to allocate and pay to the
Trustee, after the date of such inability, all Collections of Receivables
transferred to the Trustee by such Transferor, including Collections of
Receivables transferred to the Trustee by such Transferor prior to the
occurrence of such event, and all amounts which would have constituted
Collections but for such Transferor's inability to transfer Receivables (up to
an aggregate amount equal to the amount of Receivables transferred to the
Trustee by such Transferor in the Trust on such date), (b) such Transferor
agrees that such amounts will be applied as Collections in accordance with
Article IV and the terms of each Supplement and (c) for so long as the
allocation and application of all Collections and all amounts that would have
constituted Collections are made in accordance with clauses (a) and (b) above,
Principal Receivables and all amounts which would have constituted Principal
Receivables but for such Transferor's inability to transfer Receivables to the
Trustee which are written off as uncollectible in accordance with
43
this Agreement shall continue to be allocated in accordance with Article IV and
the terms of each Supplement. For the purpose of the immediately preceding
sentence, such Transferor shall treat the first received Collections with
respect to the Accounts that were designated by such Transferor as allocable to
the Trust until the Trustee shall have been allocated and paid Collections in an
amount equal to the aggregate amount of Principal Receivables in such Accounts
as of the date of the occurrence of such event. If such Transferor is unable
pursuant to any Requirements of Law to allocate Collections as described above,
such Transferor agrees that, after the occurrence of such event, payments on
each Account with respect to the principal balance of such Account shall be
allocated first to the oldest principal balance of such Account and shall have
such payments applied as Collections in accordance with Article IV and the terms
of each Supplement. The parties hereto agree that Finance Charge Receivables,
whenever created, accrued in respect of Principal Receivables which have been
conveyed to the Trustee shall continue to be a part of the Trust notwithstanding
any cessation of the transfer of additional Principal Receivables to the Trustee
and Collections with respect thereto shall continue to be allocated and paid in
accordance with Article IV and the terms of each Supplement.
Section 2.11. Discount Option. (a) The Transferors shall have the
option to designate at any time and from time to time a percentage or
percentages, which may be a fixed percentage or a variable percentage based on a
formula (the "Discount Percentage"), of all or any specified portion of
Principal Receivables created after the Discount Option Date to be treated as
Finance Charge Receivables ("Discount Option Receivables"). The Transferors
shall also have the option of reducing or withdrawing the Discount Percentage,
at any time and from time to time, on and after such Discount Option Date. The
Transferors shall provide to the Servicer, the Trustee and any Rating Agency 30
days prior written notice of the Discount Option Date, and such designation
shall become effective on the Discount Option Date (i) unless such designation
in the reasonable belief of the Transferors would cause a Pay Out Event with
respect to any Series to occur, or an event which, with notice or lapse of time
or both, would constitute a Pay Out Event with respect to any Series and (ii)
only if the Rating Agency Condition shall have been satisfied with respect to
such designation.
(b) After the Discount Option Date, the Transferors shall treat
Discount Option Receivable Collections as Collections of Finance Charge
Receivables.
Section 2.12. Restrictions on Removal of Accounts and Participation
Interests. In addition to the terms and conditions contained in Section 2.09 of
this Agreement, the Transferor's right to require the reassignment to it of all
the Trustee's right, title and interest in, to and under the Receivables in
Removed Accounts and Participation Interests, shall be subject to the following
restrictions:
(a) Except for Removed Accounts described in subsection (b), there
shall be no more than one Removal Date in any Monthly Period; for each
Removal Date, the Accounts to be designated as Removed Accounts shall be
selected at random by the Transferor and the Removed Accounts shall not,
as of the Removal Cut-Off Date, contain Principal Receivables which, in
the aggregate, exceed an amount equal to the excess, if any, between the
Transferor Amount and the Required Transferor Amount.
44
(b) The Transferor may designate Removed Accounts as provided in and
subject to the terms and conditions contained in Section 2.09 of this
Agreement without being subject to the restrictions set forth in (a) of
this Section 2.12 if:
(i) the Removed Accounts are Accounts containing Defaulted
Receivables;
(ii) the Removed Accounts are Accounts which, according to the
Servicer's records, have had a zero balance for a period of at least 90
consecutive days;
(iii) the Removed Accounts are Accounts which as of the Removal
Cut-Off Date fail to satisfy one or more of the characteristics listed in
provisions (a) through (g) of the definition of Eligible Accounts; or
(iv) the Removed Accounts are Accounts originated or acquired under
a specific affinity agreement if the affinity agreement has terminated or
will terminate within 30 days of the removal and such termination is at
the election of or due to default or breach by a party or parties to the
agreement other than the Transferor, any Affiliate of the Transferor or
any agent of the Transferor or such termination is the result of a failure
by a party other than the Transferor, an affiliate of the Transferor or an
agent of the Transferor to extend the agreement.
[END OF ARTICLE II]
45
ARTICLE III
Administration and Servicing of Receivables
Section 3.01. Acceptance of Appointment and Other Matters Relating
to the Servicer.
(a) Fleet (RI) agrees to act as the Servicer under this Agreement
and the Certificateholders by their acceptance of Certificates consent to
Fleet (RI) acting as Servicer.
(b) The Servicer shall service and administer the Receivables, shall
collect payments due under the Receivables and shall charge off as
uncollectible Receivables, all in accordance with its customary and usual
servicing procedures for servicing credit card receivables comparable to
the Receivables and in accordance with the Credit Card Guidelines. The
Servicer shall have full power and authority, acting alone or through any
party properly designated by it hereunder, to do any and all things in
connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing,
subject to Section 10.01 and provided Fleet (RI) is the Servicer, the
Servicer or its designee (rather than the Trustee) is hereby authorized
and empowered (i) to make withdrawals and payments or to instruct the
Trustee to make withdrawals and payments from the Collection Account, the
Excess Funding Account and any Series Account, as set forth in this
Agreement or any Supplement, and (ii) to take any action required or
permitted under any Series Enhancement, as set forth in this Agreement or
any Supplement. Without limiting the generality of the foregoing and
subject to Section 10.01, the Servicer or its designee is hereby
authorized and empowered to make any filings, reports, notices,
applications and registrations with, and to seek any consents or
authorizations from, the Securities and Exchange Commission (the
"Commission") and any state securities authority on behalf of the Trust as
may be necessary or advisable to comply with any Federal or state
securities laws or reporting requirements. The Trustee shall furnish the
Servicer with any powers of attorney or other documents necessary or
appropriate to enable the Servicer to carry out its servicing and
administrative duties hereunder.
(c) The Servicer shall not be obligated to use separate servicing
procedures, offices, employees or accounts for servicing the Receivables
from the procedures, offices, employees and accounts used by the Servicer
in connection with servicing other credit card receivables.
(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Accounts and Receivables in accordance
with the Cardholder Agreements relating to the Accounts and the Credit
Card Guidelines and all applicable rules and regulations of VISA,
MasterCard and any other similar entity or organization relating to any
other type of consumer revolving credit card accounts included as
Accounts, except insofar as any failure to so comply or perform would not
materially and adversely affect the Trust or the Investor
Certificateholders.
46
(e) The Servicer shall pay out of its own funds, without
reimbursement, all expenses incurred in connection with the Trust and the
servicing activities hereunder including expenses related to enforcement
of the Receivables, fees and disbursements of the Trustee, any Paying
Agent and any Transfer Agent and Registrar (including the reasonable fees
and expenses of its counsel) and independent accountants and all other
fees and expenses relating to the servicing of the Receivables that are
not expressly stated in this Agreement to be payable by the Trust or the
Transferors (other than Federal, state, local and foreign income,
franchise and other taxes, if any, or any interest or penalties with
respect thereto, assessed on the Trust or the Transferors).
(f) The Servicer agrees that upon a request by the Transferors it
will use its reasonable best efforts, at the expense of the Transferors,
to obtain and maintain the listing of the Investor Certificates of any
Series or Class on any specified security exchange. If any such request is
made, the Servicer shall give notice to the Transferors and the Trustee on
the date on which such Investor Certificates are approved for such listing
and within three Business Days following receipt of notice by the Servicer
of any actual, proposed or contemplated delisting of such Investor
Certificates by any such securities exchange. The Transferors may
terminate any listing on any such securities exchange at any time subject
to the notice requirements set forth in the preceding sentence.
Section 3.02. Servicing Compensation. As full compensation for its
servicing activities hereunder and as reimbursement for any expense incurred by
it in connection therewith, the Servicer shall be entitled to receive a
servicing fee (the "Servicing Fee") with respect to each Monthly Period, payable
monthly on the related Distribution Date, in an amount equal to one-twelfth of
the product of (a) the weighted average of the Servicing Fee Rates with respect
to each outstanding Series (based upon the Servicing Fee Rate for each Series
and the Investor Amount (or such other amount as specified in the related
Supplement) of such Series, in each case as of the last day of the prior Monthly
Period) and (b) the amount of Principal Receivables on the last day of the prior
Monthly Period. The share of the Servicing Fee allocable to (i) the
Certificateholders' Interest of a particular Series with respect to any Monthly
Period (the "Monthly Servicing Fee") and (ii) the Enhancement Investor Amount,
if any, of a particular Series with respect to any Monthly Period will each be
determined in accordance with the relevant Supplement. The portion of the
Servicing Fee with respect to any Monthly Period not so allocated to the
Certificateholders' Interest or the Enhancement Investor Amount, if any, of a
particular Series shall be paid by the Holders of the Transferor Certificates on
the related Distribution Date and in no event shall the Trust, the Trustee, the
Investor Certificateholders of any Series or any Series Enhancer be liable for
the share of the Servicing Fee with respect to any Monthly Period to be paid by
the Holders of the Transferor Certificates.
47
Section 3.03. Representations, Warranties and Covenants of the
Servicer. Fleet (RI), as Servicer, hereby makes, and any Successor Servicer by
its appointment hereunder shall make, on each Closing Date (and on the date of
any such appointment), the following representations, warranties and covenants:
(a) Organization and Good Standing. The Servicer is a national
banking association duly organized, validly existing and in good standing
under the laws of the United States of America or a corporation duly
organized, validly existing and in good standing under the laws of its
state of incorporation, and has full corporate power, authority and legal
right to execute, deliver and perform its obligations under this Agreement
and each Supplement and, in all material respects, to own its properties
and conduct its business as such properties are presently owned and as
such business is presently conducted.
(b) Due Qualification. The Servicer is duly qualified to do business
and is in good standing as a foreign corporation (or is exempt from such
requirements), and has obtained all necessary licenses and approvals in
each jurisdiction in which failure to so qualify or to obtain such
licenses and approvals would have a material adverse effect on the
interests of the Investor Certificateholders hereunder or under any
Supplement.
(c) Due Authorization. The execution, delivery, and performance by
the Servicer of this Agreement and each Supplement have been duly
authorized by the Servicer by all necessary corporate action on the part
of the Servicer and this Agreement and each Supplement will remain, from
the time of its execution, an official record of the Servicer.
(d) Binding Obligation. This Agreement and each Supplement
constitutes a legal, valid and binding obligation of the Servicer,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect, affecting the
enforcement of creditors' rights in general and the rights of creditors of
national banking associations and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity).
(e) No Violation. The execution and delivery of this Agreement and
each Supplement by the Servicer, the performance by the Servicer of the
transactions contemplated by this Agreement and each Supplement and the
fulfillment by the Servicer of the terms hereof and thereof applicable to
the Servicer will not conflict with, violate, result in any breach of any
of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a default under, any Requirement of Law
applicable to the Servicer or any indenture, contract, agreement,
mortgage, deed of trust or other instrument to which the Servicer is a
party or by which it or any of its properties are bound.
(f) No Proceedings. There are no proceedings or investigations
pending, or to the best knowledge of the Servicer, threatened, against the
Servicer before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality
48
seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this Agreement or any Supplement,
seeking any determination or ruling that, in the reasonable judgment of
the Servicer, would materially and adversely affect the performance by the
Servicer of its obligations under this Agreement or any Supplement, or
seeking any determination or ruling that would materially and adversely
affect the validity or enforceability of this Agreement or any Supplement.
(g) Compliance with Requirements of Law. The Servicer shall duly
satisfy all obligations on its part to be fulfilled under or in connection
with the Receivables and the related Accounts, will maintain in effect all
qualifications required under Requirements of Law in order to service the
Receivables and the related Accounts properly and will comply in all
material respects with all other Requirements of Law in connection with
servicing the Receivables and the related Accounts, the failure to comply
with which would have a material adverse effect on the interests of the
Certificateholders.
(h) No Rescission or Cancellation. Subject to Section 3.09, the
Servicer shall not permit any rescission or cancellation of a Receivable
except as ordered by a court of competent jurisdiction or other
Governmental Authority or in the ordinary course of its business and in
accordance with the Credit Card Guidelines.
(i) Protection of Certificateholders' Rights. The Servicer shall
take no action which, nor omit to take any action the omission of which,
would substantially impair the rights of Certificateholders in any
Receivable or Account, nor shall it, except in the ordinary course of its
business and in accordance with the Credit Card Guidelines, reschedule,
revise or defer Collections due on the Receivables.
(j) Receivables Not To Be Evidenced by Promissory Notes. Except in
connection with its enforcement or collection of a Receivable, the
Servicer will take no action to cause any Receivable to be evidenced by
any instrument (as defined in the UCC) and, if any Receivable is so
evidenced as a result of the actions of the Servicer, it shall be
reassigned or assigned to the Servicer as provided in this Section;
provided, however, that Receivables evidenced by notes taken from Obligors
in the ordinary course of business of the Servicer's collection efforts
shall not be deemed Ineligible Receivables solely as a result thereof.
(k) All Consents Required. All approvals, authorizations, consents,
orders or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery by the
Servicer of this Agreement and each Supplement, the performance by the
Servicer of the transactions contemplated by this Agreement and each
Supplement and the fulfillment by the Servicer of the terms hereof and
thereof, have been obtained; provided, however, that the Servicer makes no
representation or warranty regarding state securities or "blue sky" laws
in connection with the distribution of the Certificates.
49
For purposes of the representations and warranties set forth in this
Section 3.03, each reference to a Supplement shall be deemed to refer only to
those Supplements in effect as of the relevant Closing Date or the date of
appointment of a Successor Servicer, as applicable.
In the event any of the representations, warranties or covenants of
the Servicer contained in paragraph (g), (h), (i) or (j) with respect to any
Receivable or the related Account is breached, and as a result of such breach
the Trustee's rights in, to or under any Receivable in the related Account or
the proceeds of such Receivable are impaired or such proceeds are not available
for any reason to the Trustee free and clear of any Lien, then no later than the
expiration of 60 days (or such longer period, not in excess of 150 days, as may
be agreed to by the Trustee) from the earlier to occur of the discovery of such
event by the Servicer, or receipt by the Servicer of notice of such event given
by the Trustee, all Receivables in the Account or Accounts to which such event
relates shall be assigned to the Servicer on the terms and conditions set forth
below; provided, however, that such Receivables will not be reassigned or
assigned to the Servicer if, on any day prior to the end of such 60-day or
longer period, (i) the relevant representation and warranty shall be true and
correct, or the relevant covenant shall have been complied with, in all material
respects and (ii) the Servicer shall have delivered to the Trustee a certificate
of an authorized officer describing the nature of such breach and the manner in
which such breach was cured.
The Servicer shall effect such assignment by making a deposit into
the Collection Account in immediately available funds on the Transfer Date
following the Monthly Period in which such assignment obligation arises in an
amount equal to the amount of such Receivables, which deposit shall be
considered a Collection of Principal Receivables and shall be applied in
accordance with Article IV and the terms of each Supplement.
Upon each such assignment to the Servicer, the Trustee shall
automatically and without further action sell, transfer, assign, set over and
otherwise convey to the Servicer, without recourse, representation or warranty,
all right, title and interest of the Trustee in and to such Receivables, all
moneys due or to become due and all amounts received with respect thereto and
all proceeds thereof. The Trustee shall execute such documents and instruments
of transfer or assignment and take such other actions as shall be reasonably
requested by the Servicer to effect the conveyance of any such Receivables
pursuant to this Section. The obligation of the Servicer to accept reassignment
or assignment of such Receivables, and to make the deposits, if any, required to
be made to the Collection Account as provided in the preceding paragraph, shall
constitute the sole remedy respecting the event giving rise to such obligation
available to Certificateholders (or the Trustee) or any Series Enhancer.
Section 3.04. Reports and Records for the Trustee.
(a) Daily Records. On each Business Day, the Servicer, with prior
written notice by the Trustee or the Transferors shall make or cause to be made
available at the office of the Servicer on any Business Day during normal
business hours for inspection by the Trustee and the Transferors a record
setting forth (i) the Collections in respect of Principal Receivables and in
respect of Finance Charge Receivables processed by the Servicer on the second
preceding Business Day in respect of the Accounts and (ii) the amount of
Receivables as of the close of business on the second preceding Business Day.
The Servicer shall, at all times, maintain its
50
computer files with respect to the Accounts in such a manner so that the
Accounts may be specifically identified.
(b) Monthly Servicer's Certificate. Not later than the Determination
Date immediately preceding each Distribution Date, the Servicer shall,
with respect to each outstanding Series, deliver to the Trustee, the
Transferors, the Paying Agent and each Rating Agency a certificate of a
Servicing Officer in substantially the form set forth in the related
Supplement.
Section 3.05. Annual Certificate of Servicer. The Servicer shall
deliver to the Trustee, the Transferors and each Rating Agency, on or before
November 30 of each calendar year, beginning with November 30, 1994, an
Officer's Certificate (with appropriate insertions) substantially in the form of
Exhibit D.
Section 3.06. Annual Servicing Report of Independent Public
Accountants; Copies of Reports Available.
(a) On or before November 30 of each calendar year, beginning with
November 30, 1994, the Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to the
Account Owner, the Servicer or the Transferors) to furnish a report (addressed
to the Trustee) to the Trustee, the Servicer, the Transferors and each Rating
Agency to the effect that they have applied certain procedures agreed upon with
the Servicer and examined certain documents and records relating to the
servicing of Receivables under this Agreement and each Supplement and that, on
the basis of such agreed-upon procedures, nothing has come to the attention of
such accountants that caused them to believe that the servicing (including the
allocation of Collections) has not been conducted in compliance with the terms
and conditions set forth in Articles III and Article IV and Section 8.08 of this
Agreement and the applicable provisions of each Supplement, except for such
exceptions as they believe to be immaterial and such other exceptions as shall
be set forth in such statement. Such report shall set forth the agreed upon
procedures performed.
(b) On or before November 30 of each calendar year, beginning with
November 30, 1994, the Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to the
Account Owner, the Servicer or the Transferors) to furnish a report (addressed
to the Trustee) to the Trustee, the Servicer, the Transferors and each Rating
Agency to the effect that they have applied certain procedures agreed upon with
the Servicer to compare the mathematical calculations of certain amounts set
forth in the Servicer's certificates delivered pursuant to subsection 3.04(b)
during the period covered by such report with the Servicer's computer reports
which were the source of such amounts and that on the basis of such agreed-upon
procedures and comparison, such accountants are of the opinion that such amounts
are in agreement, except for such exceptions as they believe to be immaterial
and such other exceptions as shall be set forth in such statement.
(c) A copy of each certificate and report provided pursuant to
Section 3.04(b), 3.05 or 3.06 may be obtained by any Investor Certificateholder
or Certificate Owner by a request to the Trustee addressed to the Corporate
Trust Office.
51
Section 3.07. Tax Treatment. Unless otherwise specified in a
Supplement with respect to a particular Series, the Transferors have entered
into this Agreement, and the Certificates will be issued, with the intention
that, for Federal, state and local income and franchise tax purposes only, the
Investor Certificates of each Series which are characterized as indebtedness at
the time of their issuance will qualify as indebtedness secured by the
Receivables. The Transferors, by entering into this Agreement, and each
Certificateholder, by the acceptance of any such Certificate (and each
Certificate Owner, by its acceptance of an interest in the applicable
Certificate), agree to treat such Investor Certificates for Federal, state and
local income and franchise tax purposes as indebtedness. Each Holder of such
Investor Certificate agrees that it will cause any Certificate Owner acquiring
an interest in a Certificate through it to comply with this Agreement as to
treatment as indebtedness under applicable tax law, as described in this Section
3.07.
Section 3.08. Notices to Fleet (RI). In the event that Fleet (RI) is
no longer acting as Servicer, any Successor Servicer shall deliver to Fleet (RI)
each certificate and report required to be provided thereafter pursuant to
Section 3.04(b), 3.05 or 3.06.
Section 3.09. Adjustments.
If the Servicer adjusts downward the amount of any Receivable
because of a rebate, refund, unauthorized charge or billing error to an account
holder, or because such Receivable was created in respect of merchandise which
was refused or returned by an account holder, or if the Servicer otherwise
adjusts downward the amount of any Receivable without receiving Collections
therefor or charging off such amount as uncollectible, then, in any such case,
the amount of Principal Receivables used to calculate the Transferor Amount, the
Series Percentages and any other percentage used to allocate within or among
Series applicable to any Series will be reduced by the amount of the adjustment.
Similarly, the amount of Principal Receivables used to calculate the Transferor
Amount, the Series Percentages and any other percentage used to allocate within
or among Series applicable to any Series will be reduced by the amount of any
Receivable which was discovered as having been created through a fraudulent or
counterfeit charge. Any adjustment required pursuant to either of the two
preceding sentences shall be made on or prior to the end of the Monthly Period
in which such adjustment obligation arises. In the event that, following the
exclusion of such Principal Receivables from the calculation of the Transferor
Amount, the Transferor Amount would be less than the Required Transferor Amount,
not later than 12:00 noon, New York City time, on the Distribution Date
following the Monthly Period in which such adjustment obligation arises, the
Transferor which transferred such Principal Receivables to the Trustee shall
make a deposit into the Excess Funding Account in immediately available funds in
an amount equal to the amount by which the Transferor Amount would be below the
Required Transferor Amount (up to the amount of such Principal Receivables).
If (i) the Servicer makes a deposit into the Collection Account in
respect of a Collection of a Receivable and such Collection was received by the
Servicer in the form of a check which is not honored for any reason or (ii) the
Servicer makes a mistake with respect to the amount of any Collection and
deposits an amount that is less than or more than the actual amount of such
Collection, the Servicer shall appropriately adjust the amount subsequently
deposited into the Collection Account to reflect such dishonored check or
mistake. Any
52
Receivable in respect of which a dishonored check is received shall be deemed
not to have been paid.
Section 3.10. Reports to the Commission. The Servicer shall, on
behalf of the Trust, cause to be filed with the Commission any periodic reports
required to be filed under the provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder.
The Transferors shall, at the expense of the Transferors, cooperate in any
reasonable request of the Servicer in connection with such filings.
Section 3.11. Termination of Authority Upon Termination of Trust.
All authority and power granted to the Servicer, including any Successor
Servicer, under this Agreement shall automatically cease and terminate upon
termination of the Trust pursuant to Section 12.01 and shall pass to and be
vested in the Transferors and, without limitation, the Transferors are hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments, and to do
and accomplish all other acts or things necessary or appropriate to effect the
purposes of such transfer of servicing rights. The Servicer agrees to cooperate
with the Transferors in effecting the termination of the responsibilities and
rights of the Servicer to conduct servicing on the Receivables. The Servicer
shall transfer its electronic records relating to the Receivables to the
Transferors in such electronic form as the Transferors may reasonably request
and shall transfer all other records, correspondence and documents to the
Transferors in the manner and at such times as the Transferors shall reasonably
request. To the extent that compliance with this Section 3.11 shall require the
Servicer to disclose to the Transferors information of any kind which the
Servicer reasonably deems to be confidential, the Transferors shall be required
to enter into such customary licensing and confidentiality agreements as the
Servicer shall deem necessary to protect its interests.
[END OF ARTICLE III]
53
ARTICLE IV
Rights of Certificateholders and
Allocation and Application of Collections
Section 4.01. Rights of Certificateholders. The Investor
Certificates shall represent fractional undivided interests in the Trust, which,
with respect to each Series, shall consist of the right to receive, to the
extent necessary to make the required payments with respect to the Investor
Certificates of such Series at the times and in the amounts specified in the
related Supplement, the portion of Collections allocable to Investor
Certificateholders of such Series pursuant to this Agreement and such
Supplement, funds on deposit in the Collection Account and the Excess Funding
Account allocable to Certificateholders of such Series pursuant to this
Agreement and such Supplement, funds on deposit in any related Series Account
and funds available pursuant to any related Series Enhancement (collectively,
with respect to all Series, the "Certificateholders' Interest"), it being
understood that the Investor Certificates of any Series or Class shall not
represent any interest in any Series Account or Series Enhancement for the
benefit of any other Series or Class. The Transferor Certificates shall
represent the ownership interest in the remainder of the Trust Assets not
allocated pursuant to this Agreement or any Supplement to the
Certificateholders' Interest, including the right to receive Collections with
respect to the Receivables and other amounts at the times and in the amounts
specified in this Agreement or any Supplement to be paid to the Holders of the
Transferor Certificates (the "Transferors' Interest"); provided, however, that
if the Transferors elect to have the interest of the Transferors in the
Transferors' Interest be uncertificated, then such uncertificated interest,
together with any Supplemental Certificates shall represent the "Transferors'
Interest;" provided, further, that neither the Transferor Certificates nor any
uncertificated interest in the Transferors' Interest shall represent any
interest in the Collection Account, the Excess Funding Account, any Series
Account or any Series Enhancement, except as specifically provided in this
Agreement or any Supplement; and provided further, that the foregoing shall not
be construed to limit the Trustee's obligations to make payments to the Holders
of the Transferor Certificates (which shall include Holders of any
uncertificated interest in the Transferors' Interest), the Transferors and the
Servicer as and when required under this Agreement and any Supplement.
Section 4.02. Establishment of Collection Account and Excess Funding
Account. The Servicer, for the benefit of the Certificateholders, shall
establish and maintain in the name of the Trustee an Eligible Deposit Account
(or Eligible Deposit Accounts) bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Certificateholders (the
"Collection Account"). The Trustee shall possess all right, title and interest
in all funds on deposit from time to time in the Collection Account and in all
proceeds thereof. The Collection Account shall be under the sole dominion and
control of the Trustee for the benefit of the Certificateholders. Except as
expressly provided in this Agreement, the Servicer agrees that it shall have no
right of setoff or banker's lien against, and no right to otherwise deduct from,
any funds held in the Collection Account for any amount owed to it by the
Trustee, the Trust, any Certificateholder or any Series Enhancer. If, at any
time, the Collection Account ceases to be an Eligible Deposit Account, the
Trustee (or the Servicer on its behalf) shall within ten Business Days (or such
longer period, not to exceed 30 calendar days, as to which each Rating Agency
may consent) establish a new Collection Account meeting the conditions specified
above, transfer any cash or any investments to such new Collection Account
54
and from the date such new Collection Account is established, it shall be the
"Collection Account."
Unless otherwise agreed to by each Rating Agency, if at any time
neither Fleet (RI) nor any Affiliate of Fleet (RI) is the Servicer, the
Collection Account will be moved from Fleet (RI) if then maintained there.
Funds on deposit in the Collection Account (other than amounts
deposited pursuant to Section 2.06, 9.02, 10.01 or 12.02) shall at the direction
of the Servicer be invested by the Trustee in Eligible Investments selected by
the Servicer. The Servicer shall notify the Trustee of its selection in writing
and the Trustee shall be entitled to rely conclusively on such writing for all
purposes, including the Servicer's compliance with the investment restrictions
set forth in the definition of "Eligible Investment." All such Eligible
Investments shall be held by the Trustee. Investments of funds representing
Collections collected during any Monthly Period shall be invested in Eligible
Investments that will mature so that funds will be available at the close of
business on the Transfer Date following such Monthly Period. Unless directed by
the Servicer, funds deposited in the Collection Account on a Transfer Date with
respect to the next following Distribution Date are not required to be invested
overnight. For purposes of determining the availability of funds or the balances
in the Collection Account for any reason under this Agreement, all investment
earnings net of investment expenses and losses on such funds shall be deemed not
to be available or on deposit.
The Servicer, for the benefit of the Certificateholders, shall
establish and maintain in the name of the Trustee an Eligible Deposit Account
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of the Certificateholders (the "Excess Funding Account").
The Trustee shall possess all right, title and interest in all funds on deposit
from time to time in the Excess Funding Account and in all proceeds thereof. The
Excess Funding Account shall be under the sole dominion and control of the
Trustee. Except as expressly provided in this Agreement, the Servicer agrees
that it shall have no right of setoff or banker's lien against, and no right to
otherwise deduct from, any funds held in the Excess Funding Account for any
amount owed to it by the Trustee, the Trust, any Certificateholder or any Series
Enhancer. If, at any time, the Excess 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 Excess Funding Account
meeting the conditions specified above, transfer any cash or any investments to
such new Excess Funding Account and from the date such new Excess Funding
Account is established, it shall be the "Excess Funding Account."
Unless otherwise agreed by each Rating Agency, if at any time
neither Fleet (RI) nor any other Affiliate of Fleet (RI) is the Servicer, the
Excess Funding Account will be moved from Fleet (RI) if then maintained there.
Funds on deposit in the Excess Funding Account shall at the
direction of the Servicer be invested by the Trustee in Eligible Investments
selected by the Servicer. The Servicer shall notify the Trustee of its selection
in writing and the Trustee shall be entitled to rely conclusively on such
writing for all purposes, including the Servicer's compliance with the
investment restrictions set forth in the definition of "Eligible Investment."
All such Eligible
55
Investments shall be held by the Trustee. Funds on deposit in the Excess Funding
Account on any date (after giving effect to any withdrawals from the Excess
Funding Account on such date) will be invested in Eligible Investments that will
mature so that funds will be available at the close of business on the Transfer
Date following such date. Unless directed by the Servicer, funds deposited in
the Excess Funding Account on a Transfer Date with respect to the next following
Distribution Date are not required to be invested overnight. On each Transfer
Date, the Servicer shall instruct the Trustee to withdraw on the related
Distribution Date from the Excess Funding Account and deposit in the Collection
Account all interest and other investment earnings (net of losses and investment
expenses) on funds on deposit in the Excess Funding Account, for application as
Collections of Finance Charge Receivables with respect to the prior Monthly
Period. Interest (including reinvested interest) and other investment income and
earnings on funds on deposit in the Excess Funding Account shall not be
considered part of the Excess Funding Amount for purposes of this Agreement. On
any Transfer Date on which no Series is in an Accumulation Period or
Amortization Period, the Servicer shall determine the amount by which the
Transferor Amount exceeds the Required Transferor Amount on such date and shall
instruct the Trustee to withdraw such amount from the Excess Funding Account on
the related Distribution Date and pay such amount to the Holders of the
Transferor Certificates. On any Transfer Date on which one or more Series is in
an Accumulation Period or Amortization Period, the Servicer shall determine the
aggregate amount of Principal Shortfalls, if any, with respect to each such
Series that is a Principal Sharing Series (after giving effect to the allocation
and payment provisions in the Supplement with respect to each such Series), and
the Servicer shall instruct the Trustee to withdraw such amount (up to the
Excess Funding Amount) from the Excess Funding Account on the succeeding
Distribution Date and allocate such amount among each such Series as Shared
Principal Collections as specified herein and in each related Supplement.
Notwithstanding the immediately preceding paragraph, the terms of
this paragraph shall apply and to the extent of any differences between this
paragraph and the immediately preceding paragraph the terms of this paragraph
shall control so long as (1) on each Date of Processing if the Transferor Amount
on such Date of Processing is less than the Required Transferor Amount and the
Transferor makes a deposit into the Excess Funding Account to the extent needed
to increase the Transferor Amount to the Required Transferor Amount and (2)
Fleet (RI) remains the Servicer and maintains a certificate of deposit rating of
P-1 or better by ▇▇▇▇▇'▇. Funds on deposit in the Excess Funding Account shall
at the direction of the Servicer be invested by the Trustee in Eligible
Investments selected by the Servicer. The Servicer shall notify the Trustee of
its selection in writing and the Trustee shall be entitled to rely conclusively
on such writing for all purposes, including the Servicer's compliance with the
investment restrictions set forth in the definition of "Eligible Investment."
All such Eligible Investments shall be held by the Trustee. Funds on deposit in
the Excess Funding Account on any date (after giving effect to any withdrawals
from the Excess Funding Account on such date) will be invested in Eligible
Investments that will mature so that funds will be available at the close of
business on the Transfer Date following such date or with respect to some or all
of the amounts so invested, so that funds will be available on such earlier date
as the Servicer directs. Unless directed by the Servicer, funds deposited in the
Excess Funding Account on a Transfer Date with respect to the next following
Distribution Date are not required to be invested overnight. On each Transfer
Date, the Servicer shall instruct the Trustee to withdraw on the
56
related Distribution Date from the Excess Funding Account and deposit in the
Collection Account all interest and other investment earnings (net of losses and
investment expenses) on funds on deposit in the Excess Funding Account, for
application as Collections of Finance Charge Receivables with respect to the
prior Monthly Period. Interest (including reinvested interest) and other
investment income and earnings on funds on deposit in the Excess Funding Account
shall not be considered part of the Excess Funding Amount for purposes of this
Agreement. On any Business Day on which no Series is in an Accumulation Period
or Amortization Period, the Servicer shall determine the amount by which the
Transferor Amount exceeds the Required Transferor Amount on such date and shall
instruct the Trustee in writing to withdraw such amount from the Excess Funding
Account on the next succeeding Business Day and pay such amount to the Holders
of the Transferor Certificates. On any Business Day on which one or more Series
is in an Accumulation Period or Amortization Period, if the Servicer determines
(i) that, on the first Distribution Date after such Business Day no Principal
Shortfall will exist with respect to any Principal Sharing Series and (ii) that,
on such Business Day, the Transferor Amount exceeds the Required Transferor
Amount, then the Servicer shall instruct the Trustee in writing to withdraw the
amount by which the Transferor Amount exceeds the Required Transferor Amount
from the Excess Funding Account on the next succeeding Business Day and pay such
amount to the Holders of the Transferor Certificates. For purposes of the
immediately preceding sentence, the Servicer shall determine whether or not a
Principal Shortfall will exist on the first Distribution Date thereafter solely
on the basis of Collections received by the Servicer prior to the Business Day
on which such determination is made (and for the Monthly Period related to such
Distribution Date) and on the assumption that no additional Collections will be
received prior to such Distribution Date. On any Transfer Date on which one or
more Series is in an Accumulation Period or Amortization Period, the Servicer
shall determine the aggregate amount of Principal Shortfalls, if any, with
respect to each such Series that is a Principal Sharing Series (after giving
effect to the allocation and payment provisions in the Supplement with respect
to each such Series), and the Servicer shall instruct the Trustee in writing to
withdraw such amount (up to the Excess Funding Amount) from the Excess Funding
Account on the succeeding Distribution Date and allocate such amount among each
such Series as Shared Principal Collections as specified herein and in each
related Supplement.
Section 4.03. Collections and Allocations.
(a) Collections. The Servicer will apply or will instruct the
Trustee to apply all funds on deposit in the Collection Account as described in
this Article IV and in each Supplement. Except as otherwise provided below or as
expressly provided in any Supplement with respect to Collections allocated to
the related Series, the Servicer shall deposit Collections into the Collection
Account no later than the second Business Day following the Date of Processing
of such Collections. Subject to the express terms of any Supplement, but
notwithstanding anything else in this Agreement to the contrary, for so long as
Fleet (RI) remains the Servicer and (x) maintains a certificate of deposit
rating of A-1 or better by Standard & Poor's and P-1 by ▇▇▇▇▇'▇ (or such other
rating below A-1 or P-1, as the case may be, which is satisfactory to each
Rating Agency), or (y) Fleet (RI) has provided to the Trustee a letter of credit
covering collection risk of the Servicer acceptable to each Rating Agency (as
evidenced by a letter from each Rating Agency), the Servicer need not make the
daily deposits of Collections into the Collection Account as provided in the
preceding sentence, but may make a single deposit in the Collection Account in
immediately available funds not later than 12:00 noon, New York
57
City time, on the Transfer Date following the Monthly Period with respect to
which such deposit was made. Subject to the express terms of any Supplement, but
notwithstanding anything else in this Agreement to the contrary, with respect to
any Monthly Period, whether the Servicer is required to make deposits of
Collections pursuant to the first or the second preceding sentence, (i) the
Servicer will only be required to deposit Collections into the Collection
Account up to the aggregate amount of Collections required to be deposited into
any Series Account or, without duplication, distributed on or prior to the
related Distribution Date to Investor Certificateholders or to any Series
Enhancer pursuant to the terms of any Supplement or Enhancement Agreement and
any excess shall be paid to the Holders of the Transferors Interest, and (ii) if
at any time prior to such Distribution Date the amount of Collections deposited
in the Collection Account exceeds the amount required to be deposited pursuant
to clause (i) above, the Servicer shall withdraw the excess from the Collection
Account and pay it to the Holders of the Transferors' Interest.
(b) Allocations for the Transferors' Interest. Throughout the
existence of the Trust, unless otherwise stated in any Supplement, the Servicer
shall allocate to the Holders of the Transferors' Interest, including the
Holders of any Transferor Certificates and the Holders of any uncertificated
interest in the Transferors' Interest an amount equal to the product of (A) the
Transferor Percentage and (B) the aggregate amount of such Collections allocated
to Principal Receivables and Finance Charge Receivables, respectively, in
respect of each Monthly Period. Notwithstanding anything in this Agreement to
the contrary, unless otherwise stated in any Supplement, the Servicer need not
deposit this amount or any other amounts so allocated to the Transferors'
Interest pursuant to any Supplement into the Collection Account and shall pay
such amounts as collected to the Holders of the Transferors' Interest.
The payments to be made to the Holders of the Transferor
Certificates pursuant to this subsection 4.03(b) do not apply to deposits to the
Collection Account or other amounts that do not represent Collections, including
payment of the purchase price for Receivables pursuant to Section 2.06 or 10.01,
proceeds from the sale, disposition or liquidation of Receivables pursuant to
Section 9.02 or 12.02 or payment of the purchase price for the
Certificateholders' Interest of a specific Series pursuant to the related
Supplement.
(c) Principal Allocations to the Excess Funding Account. Throughout
the existence of the Trust the amount of Collections of Principal Receivables
that is allocated to Investor Certificateholders, and which is to be paid to the
Holders of the Transferor Certificates as provided in this Agreement and in any
Supplement shall be paid to such Holders only if the Transferor Amount on such
day is greater than the Required Transferor Amount on such day (after giving
affect to all Principal Receivables transferred to the Trustee on such day) and
otherwise shall be deposited in the Excess Funding Account and applied in
accordance with Section 4.02 of this Agreement.
(d) Eligible Investments.
(1) The Trustee shall hold each Eligible Investment (other than such
as are described in clauses (b) or (f) of the definition thereof) that
constitutes investment property through a securities intermediary (which
securities intermediary may be the same institution as the entity then
serving as Trustee), which securities intermediary shall
58
agree with the Trustee that (i) such investment property shall at all
times be credited to a securities account of the Trustee, (ii) such
securities intermediary shall comply with entitlement orders originated by
the Trustee without the further consent of any other person or entity,
(iii) all property credited to such securities account shall be treated as
financial assets, (iv) such securities intermediary shall treat the
Trustee as entitled to exercise the rights that comprise each financial
asset credited to such securities account, (v) such securities account and
the property credited thereto shall not be subject to any lien, security
interest, or right of set-off in favor of such securities intermediary or
anyone claiming through it (other than the Trustee), (vi) such securities
intermediary shall not agree with any person or entity other than the
Trustee to comply with entitlement orders originated by such other person
or entity, (vii) such agreement shall be governed by the laws of the State
of New York, and (viii) the State of New York shall be the securities
intermediary's jurisdiction for purposes of Article 8 of the New York UCC.
(2) The Trustee shall maintain possession of each other Eligible
Investment not described in clause (1) above in the State of New York.
(3) Terms used in clause (1) above that are defined in the New York
UCC and not otherwise defined herein shall have the meaning set forth in
the New York UCC. Except as permitted by this Section 4.03(d), the Trustee
shall not hold any Eligible Investment through an agent or nominee.
Section 4.04. Shared Principal Collections. On each Distribution
Date, (a) the Servicer shall allocate Shared Principal Collections to each
Principal Sharing Series, pro rata, in proportion to the Principal Shortfalls,
if any, with respect to each such Series and (b) the Servicer shall withdraw
from the Collection Account and pay to the Holders of the Transferor
Certificates an amount equal to the excess, if any, of (x) the aggregate amount
for all outstanding Series of Collections of Principal Receivables which the
related Supplements or this Agreement specify are to be treated as "Shared
Principal Collections" for such Distribution Date over (y) the aggregate amount
for all outstanding Principal Sharing Series which the related Supplements
specify are "Principal Shortfalls" for such Distribution Date; provided,
however, that if, on any Distribution Date the Transferor Amount is less than or
equal to the Required Transferor Amount, the Servicer will not distribute to the
Holders of the Transferor Certificates any Shared Principal Collections that
otherwise would be distributed to the Holders of the Transferor Certificates,
but shall deposit such funds in the Excess Funding Account.
Section 4.05. Allocation of Trust Assets to Series or Groups. To the
extent so provided in the Supplement for any Series or in an amendment to this
Agreement executed pursuant to subsection 13.01(a), Receivables conveyed to the
Trustee pursuant to Section 2.01 and Receivables or Participation Interests
conveyed to the Trustee pursuant to Section 2.08 or any Participation Interest
Supplement, and all Collections received with respect to such Receivables or
Participation Interests, may be allocated in whole or in part to one or more
Series or Groups as may be provided in such Supplement or amendment, provided,
however, that any such allocation shall be effective only upon satisfaction of
the following conditions:
59
(i) on or before the fifth Business Day immediately preceding such
allocation, the Servicer shall have given the Trustee and each Rating
Agency written notice of such allocation;
(ii) the Rating Agency Condition shall have been satisfied with
respect to such allocation; and
(iii) the Servicer shall have delivered to the Trustee an Officer's
Certificate, dated the date of such allocation, to the effect that the
Servicer reasonably believes that such allocation will not have an Adverse
Effect.
Any such Supplement or amendment may provide that (i) such
allocation to one or more particular Series or Groups may terminate upon the
occurrence of certain events specified therein and (ii) that upon the occurrence
of any such event, such assets and any Collections with respect thereto, shall
be reallocated to other Series or Groups or to all Series, all as shall be
provided in such Supplement or amendment.
[END OF ARTICLE IV]
60
ARTICLE V
Distributions and Reports to Certificateholders
Distributions shall be made to, and reports shall be provided to,
Certificateholders as set forth in the applicable Supplement.
[END OF ARTICLE V]
61
ARTICLE VI
The Certificates
Section 6.01. The Certificates and Uncertificated Interests. The
Investor Certificates of any Series or Class may be issued in bearer form
("Bearer Certificates") with attached interest coupons and any other applicable
coupon (collectively, the "Coupons") or in fully registered form ("Registered
Certificates") and shall be substantially in the form of the exhibits with
respect thereto attached to the applicable Supplement. The Transferors may elect
at any time, by written notice to the Trustee, to have their interest in the
Transferors' Interest (i) be in the form of an uncertificated interest or (ii)
be evidenced by the Base Certificate. If the Transferors elect to have their
interest in the Transferors' Interest be an uncertificated interest, the
Transferors shall deliver to the Trustee for cancellation the Base Certificate
previously issued to the Transferors. If the Transferors elect to have their
interest in the Transferors' Interest be in certificated form, the Base
Certificate will be issued in registered form, substantially in the form of
Exhibit A, and shall upon issue be executed and delivered by the Transferors to
the Trustee for authentication and redelivery as provided in Section 6.02.
The Trustee shall keep, with the books and records of the Trust, a
register in book-entry form, of each Person owning any uncertificated interest
in the Transferors' Interest.
Except as otherwise provided in Section 6.03 or in any Supplement,
Bearer Certificates shall be issued in minimum denominations of $100,000 and
Registered Certificates shall be issued in minimum denominations of $1,000 and
in integral multiples of $1,000 in excess thereof. If specified in any
Supplement, the Investor Certificates of any Series or Class shall be issued
upon initial issuance as a single certificate evidencing the aggregate original
principal amount of such Series or Class as described in Section 6.13. If the
Transferors' interest in the Transferors' Interest is in certificated form, it
shall be in the form of the Base Certificate and the Base Certificate shall be a
single certificate and shall initially represent the entire Transferors'
Interest.
Each Certificate shall be executed by manual or facsimile signature
on behalf of the Transferors each by its respective President or any Vice
President. Certificates bearing the manual or facsimile signature of an
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of a Transferor or Transferors shall not be rendered invalid,
notwithstanding that such individual ceased to be so authorized prior to the
authentication and delivery of such Certificates or does not hold such office at
the date of such Certificates. Any Certificate which was executed by the manual
or facsimile signature of a duly authorized officer of the Bank, or such other
Person which was a Transferor at the time of execution of the Certificate, shall
not be rendered invalid notwithstanding that the Bank or such other Person
ceases to be a Transferor under this Agreement. No Certificates shall be
entitled to any benefit under this Agreement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein executed by or on behalf of the
Trustee by the manual signature of a duly authorized signatory, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. Bearer Certificates shall be dated the
62
related Closing Date. All Registered Certificates and Transferor Certificates
shall be dated the date of their authentication.
Section 6.02. Authentication of Certificates. The Trustee shall
authenticate and deliver the Investor Certificates of each Series and Class that
are issued upon original issuance to or upon the order of the Transferors
against payment to the Transferors of the purchase price therefor. If the
Transferors elect to have their interest in the Transferors' Interest be in
certificated form, the Base Certificate shall be executed and delivered by the
Transferors to the Trustee, and the Trustee shall authenticate and deliver the
Base Certificate to the Transferors. If specified in the related Supplement for
any Series or Class, the Trustee shall authenticate and deliver outside the
United States the Global Certificate that is issued upon original issuance
thereof.
Section 6.03. New Issuances.
(a) The Transferors may from time to time direct the Trustee to
authenticate one or more new Series of Investor Certificates. The Investor
Certificates of all outstanding Series shall be equally and ratably entitled as
provided herein to the benefits of this Agreement without preference, priority
or distinction, all in accordance with the terms and provisions of this
Agreement and the applicable Supplement except, with respect to any Series or
Class, as provided in the related Supplement.
(b) On or before the Closing Date relating to any new Series, the
parties hereto will execute and deliver a Supplement which will specify the
Principal Terms of such new Series. The terms of such Supplement may modify or
amend the terms of this Agreement solely as applied to such new Series. The
obligation of the Trustee to authenticate the Investor Certificates of such new
Series and to execute and deliver the related Supplement is subject to the
satisfaction of the following conditions:
(i) on or before the fifth day immediately preceding the Closing
Date, the Transferors shall have given the Trustee and the Servicer notice
of such issuance and the Closing Date; and on or before the tenth day
immediately preceding the Closing Date, the Transferors shall have given
each Rating Agency notice of such issuance;
(ii) the Transferors shall have delivered to the Trustee the related
Supplement, in form satisfactory to the Trustee, executed by each party
thereto;
(iii) the Transferors shall have delivered to the Trustee any
related Enhancement Agreement executed by each of the parties thereto,
other than the Trustee;
(iv) the Rating Agency Condition shall have been satisfied with
respect to such issuance;
(v) the Transferors shall have delivered to the Trustee an Officer's
Certificate, dated the Closing Date, to the effect that such Transferor
reasonably believes that such issuance will not, based on the facts known
to such officer at the time of such certification, then or thereafter
cause a Pay Out Event to occur with respect to any Series; and
63
(vi) if any Series of Investor Certificates are outstanding that
were characterized as debt at the time of their issuance, the Transferors
shall have delivered to the Trustee and each Rating Agency a Tax Opinion,
dated the Closing Date, with respect to such issuance.
Upon satisfaction of the above conditions, the Trustee shall execute
the Supplement and authenticate the Investor Certificates of such Series upon
execution thereof by the Transferors.
(c) If the Transferors elect to have their interest in the
Transferors' Interest evidenced by the Base Certificate as provided in Section
6.01 hereof, then the Transferors may surrender the Base Certificate to the
Trustee in exchange for a newly issued Base Certificate and one or more
additional certificates (each a "Supplemental Certificate"), the terms of which
shall be defined in a supplement to this Agreement (which supplement shall be
subject to subsection 13.01(a) only to the extent that it amends any of the
terms of this Agreement), to be delivered to or upon the order of the
Transferors (or the Holder of a Supplemental Certificate, in the case of the
transfer or exchange thereof, as provided below), upon satisfaction of the
conditions set forth in clauses (i), (ii) and (iii) of the second following
paragraph.
If the Transferors elect to have their interest in the Transferors'
Interest be in uncertificated form, then the Transferors may assign a portion of
the Transferors' Interest to another Person and direct that, with respect to the
interest transferred, a Supplemental Certificate be issued in accordance with
the requirements and subject to the satisfaction of the conditions set forth in
clauses (i), (ii) and (iii) of the next following paragraph and the Transferors
shall instruct the Trustee in writing to register such assignment and the
issuance of the Supplemental Certificates on the books and records of the Trust.
If any Transferor elects to exchange all or a portion of its
interest in the Transferors' Interest for a Supplemental Certificate in
accordance with this subsection 6.03(c), the following conditions must be
satisfied:
(i) The Transferors shall have given written notice to each
Rating Agency of such exchange;
(ii) the Transferor Amount (excluding the interest represented by
any Supplemental Certificate) shall not be less than 2% of the total
amount of Principal Receivables as of the date of, and after giving effect
to, such exchange; and
(iii) if any Series of Investor Certificates are outstanding that
were characterized as debt at the time of their issuance, the Transferors
shall have delivered to the Trustee and each Rating Agency a Tax Opinion,
dated the date of such exchange (or transfer or exchange as provided
below), with respect thereto.
Any Supplemental Certificate may be transferred or exchanged only
upon satisfaction of the conditions set forth in clauses (ii) and (iii) above in
the preceding paragraph.
64
(d) The Base Certificate (or any interest therein) or the
uncertificated interest of the Transferors in the Transferors' Interest (or any
interest therein) may be transferred to a Person which is a member of the
"affiliated group" of which FleetBoston Financial Corporation is the "common
parent" (as such terms are defined in Section 1504(a) of the Code); provided
that (i) if any Series of Investor Certificates are outstanding that were
characterized as debt at the time of their issuance, the Transferors shall have
delivered to the Trustee and each Rating Agency a Tax Opinion, dated the date of
such transfer, with respect thereto, and (ii) any such transferee shall be
deemed to be a "Transferor" for purposes of Sections 7.04 and 9.02.
Section 6.04. Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall cause to be kept at the office or agency to be
maintained in accordance with the provisions of Section 11.16 a register (the
"Certificate Register") in which, subject to such reasonable regulations as it
may prescribe, a transfer agent and registrar (which may be the Trustee) (the
"Transfer Agent and Registrar") shall provide for the registration of the
Registered Certificates and of transfers and exchanges of the Registered
Certificates as herein provided. The Transfer Agent and Registrar shall
initially be the Trustee and any co-transfer agent and co-registrar chosen by
the Transferors and acceptable to the Trustee, including, if and so long as any
Series or Class is listed on the Luxembourg Stock Exchange and such exchange
shall so require, a co-transfer agent and co-registrar in Luxembourg. Any
reference in this Agreement to the Transfer Agent and Registrar shall include
any co-transfer agent and co-registrar unless the context requires otherwise.
The Trustee may revoke such appointment and remove any Transfer
Agent and Registrar if the Trustee determines in its sole discretion that such
Transfer Agent and Registrar failed to perform its obligations under this
Agreement in any material respect. Any Transfer Agent and Registrar shall be
permitted to resign as Transfer Agent and Registrar upon 30 days' notice to the
Transferors, the Trustee and the Servicer; provided, however, that such
resignation shall not be effective and such Transfer Agent and Registrar shall
continue to perform its duties as Transfer Agent and Registrar until the Trustee
has appointed a successor Transfer Agent and Registrar reasonably acceptable to
the Transferors.
Subject to paragraph (c) below, upon surrender for registration of
transfer of any Registered Certificate at any office or agency of the Transfer
Agent and Registrar maintained for such purpose, one or more new Registered
Certificates (of the same Series and Class) in authorized denominations of like
aggregate fractional undivided interests in the Certificateholders' Interest
shall be executed, authenticated and delivered, in the name of the designated
transferee or transferees.
At the option of a Registered Certificateholder, Registered
Certificates (of the same Series and Class) may be exchanged for other
Registered Certificates of authorized denominations of like aggregate fractional
undivided interests in the Certificateholders' Interest, upon surrender of the
Registered Certificates to be exchanged at any such office or agency; Registered
Certificates, including Registered Certificates received in exchange for Bearer
Certificates, may not be exchanged for Bearer Certificates. At the option of the
Holder of a Bearer Certificate, subject to applicable laws and regulations,
Bearer Certificates may be exchanged for other Bearer Certificates or Registered
Certificates (of the same Series and Class)
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of authorized denominations of like aggregate fractional undivided interests in
the Certificateholders' Interest, upon surrender of the Bearer Certificates to
be exchanged at an office or agency of the Transfer Agent and Registrar located
outside the United States. Each Bearer Certificate surrendered pursuant to this
Section shall have attached thereto all unmatured Coupons; provided that any
Bearer Certificate, so surrendered after the close of business on the Record
Date preceding the relevant payment date after the expected final payment date
need not have attached the Coupon relating to such payment date (in each case,
as specified in the applicable Supplement).
Whenever any Investor Certificates are so surrendered for exchange,
the Transferors shall execute, the Trustee shall authenticate and the Transfer
Agent and Registrar shall deliver (in the case of Bearer Certificates, outside
the United States) the Investor Certificates which the Investor
Certificateholder making the exchange is entitled to receive. Every Investor
Certificate presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in a form satisfactory
to the Trustee or the Transfer Agent and Registrar duly executed by the Investor
Certificateholder or the attorney-in-fact thereof duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Investor Certificates, but the Transfer Agent and Registrar may
require payment of a sum sufficient to cover any tax or governmental charge that
may be imposed in connection with any such transfer or exchange.
All Investor Certificates (together with any Coupons) surrendered
for registration of transfer and exchange or for payment shall be canceled and
disposed of in a manner satisfactory to the Trustee. The Trustee shall cancel
and destroy any Global Certificate upon its exchange in full for Definitive
Euro-Certificates and shall deliver a certificate of destruction to the
Transferors. Such certificate shall also state that a certificate or
certificates of a Foreign Clearing Agency to the effect referred to in Section
6.13 was received with respect to each portion of the Global Certificate
exchanged for Definitive Euro-Certificates.
The Transferors shall execute and deliver to the Trustee Bearer
Certificates and Registered Certificates in such amounts and at such times as
are necessary to enable the Trustee to fulfill its responsibilities under this
Agreement, each Supplement and the Certificates.
(b) The Transfer Agent and Registrar will maintain at its expense in
each of the Borough of Manhattan, The City of New York, and, if and so long as
any Series or Class is listed on the Luxembourg Stock Exchange, Luxembourg, an
office or agency where Investor Certificates may be surrendered for registration
of transfer or exchange (except that Bearer Certificates may not be surrendered
for exchange at any such office or agency in the United States).
(c) (i) Registration of transfer of Investor Certificates containing
a legend substantially to the effect set forth on Exhibit E-1 shall be effected
only if such transfer (x) is made pursuant to an effective registration
statement under the Act, or is exempt from the registration requirements under
the Act, and (y) is made to a Person which is not an employee benefit plan,
trust or account, including an individual retirement account, that is subject to
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ERISA or that is described in Section 4975(e)(1) of the Code or an entity whose
underlying assets include plan assets by reason of a plan's investment in such
entity (a "Benefit Plan"). In the event that registration of a transfer is to be
made in reliance upon an exemption from the registration requirements under the
Act, the transferor or the transferee shall deliver, at its expense, to the
Transferors, the Servicer and the Trustee, an investment letter from the
transferee, substantially in the form of the investment and ERISA representation
letter attached hereto as Exhibit E-2, and no registration of transfer shall be
made until such letter is so delivered.
Investor Certificates issued upon registration or transfer of, or
Investor Certificates issued in exchange for, Investor Certificates bearing the
legend referred to above shall also bear such legend unless the Transferors, the
Servicer, the Trustee and the Transfer Agent and Registrar receive an Opinion of
Counsel, satisfactory to each of them, to the effect that such legend may be
removed.
Whenever an Investor Certificate containing the legend referred to
above is presented to the Transfer Agent and Registrar for registration of
transfer, the Transfer Agent and Registrar shall promptly seek instructions from
the Servicer regarding such transfer and shall be entitled to receive
instructions signed by a Servicing Officer prior to registering any such
transfer. The Transferors hereby agree to indemnify the Transfer Agent and
Registrar and the Trustee and to hold each of them harmless against any loss,
liability or expense incurred without negligence or bad faith on their part
arising out of or in connection with actions taken or omitted by them in
relation to any such instructions furnished pursuant to this clause (i).
(i) Registration of transfer of Investor Certificates containing a
legend to the effect set forth on Exhibit E-3 shall be effected only if
such transfer is made to a Person which is not a Benefit Plan. By
accepting and holding any such Investor Certificate, an Investor
Certificateholder shall be deemed to have represented and warranted that
it is not a Benefit Plan. By acquiring any interest in a Book-Entry
Certificate which contains such legend, a Certificate Owner shall be
deemed to have represented and warranted that it is not a Benefit Plan.
(ii) If so requested by the Transferors, the Trustee will make
available to any prospective purchaser of Investor Certificates who so
requests, a copy of a letter provided to the Trustee by or on behalf of
the Transferors relating to the transferability of any Series or Class to
a Benefit Plan.
Section 6.05. Mutilated, Destroyed, Lost or Stolen Certificates. If
any mutilated Certificate (together, in the case of Bearer Certificates, with
all unmatured Coupons (if any) appertaining thereto) is surrendered to the
Transfer Agent and Registrar, or the Transfer Agent and Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and in the case of a destroyed, lost or stolen Certificate there is
delivered to the Transfer Agent and Registrar and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Trustee that such Certificate has been acquired by a
protected purchaser, the Transferors shall execute, the Trustee shall
authenticate and the Transfer Agent and Registrar shall deliver (in the case of
Bearer Certificates, outside the United States), in exchange for or in lieu of
any such mutilated,
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destroyed, lost or stolen Certificate, a new Certificate of like tenor and
aggregate fractional undivided interest. In connection with the issuance of any
new Certificate under this Section, the Trustee or the Transfer Agent and
Registrar may require the payment by the Certificateholder of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee
and Transfer Agent and Registrar) connected therewith. Any duplicate Certificate
issued pursuant to this Section shall constitute complete and indefeasible
evidence of ownership in the Trust, as if originally issued, whether or not the
lost, stolen or destroyed Certificate shall be found at any time.
Section 6.06. Persons Deemed Owners. The Trustee, the Transferors,
the Servicer, the Paying Agent, the Transfer Agent and Registrar and any agent
of any of them may (a) prior to due presentation of a Registered Certificate for
registration of transfer, treat the Person in whose name any Registered
Certificate is registered as the owner of such Registered Certificate for the
purpose of receiving distributions pursuant to the terms of the applicable
Supplement and for all other purposes whatsoever, and (b) treat the bearer of a
Bearer Certificate or Coupon as the owner of such Bearer Certificate or Coupon
for the purpose of receiving distributions pursuant to the terms of the
applicable Supplement and for all other purposes whatsoever; and, in any such
case, neither the Trustee, the Transferors, the Servicer, the Paying Agent, the
Transfer Agent and Registrar nor any agent of any of them shall be affected by
any notice to the contrary. Notwithstanding the foregoing, in determining
whether the Holders of the requisite Investor Certificates have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Certificates owned by any of the Transferors, the Servicer, any other Holder of
a Transferor Certificate, the Trustee or any Affiliate thereof, shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates which the
Trustee actually knows to be so owned shall be so disregarded. Certificates so
owned which have been pledged in good faith shall not be disregarded and may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Certificates and that
the pledgee is not any Transferor, the Servicer, any other Holder of a
Transferor Certificate or any Affiliate thereof.
Section 6.07. Appointment of Paying Agent. The Paying Agent shall
make distributions to Investor Certificateholders from the Collection Account or
any applicable Series Account pursuant to the provisions of the applicable
Supplement and shall report the amounts of such distributions to the Trustee.
Any Paying Agent shall have the revocable power to withdraw funds from the
Collection Account or any applicable Series Account for the purpose of making
the distributions referred to above. The Trustee may revoke such power and
remove the Paying Agent if the Trustee determines in its sole discretion that
the Paying Agent shall have failed to perform its obligations under this
Agreement or any Supplement in any material respect. The Paying Agent shall
initially be the Trustee and any co-paying agent chosen by the Transferors and
acceptable to the Trustee, including, if and so long as any Series or Class is
listed on the Luxembourg Stock Exchange and such exchange so requires, a
co-paying agent in Luxembourg or another western European city. Any Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' notice to the Trustee
and the Transferors. In the event that any Paying Agent shall resign, the
Trustee shall appoint a successor to act as Paying Agent. The Trustee
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shall cause each successor or additional Paying Agent to execute and deliver to
the Trustee an instrument in which such successor or additional Paying Agent
shall agree with the Trustee that it will hold all sums, if any, held by it for
payment to the Investor Certificateholders in trust for the benefit of the
Investor Certificateholders entitled thereto until such sums shall be paid to
such Investor Certificateholders. The Paying Agent shall return all unclaimed
funds to the Trustee and upon removal shall also return all funds in its
possession to the Trustee. The provisions of Sections 11.01, 11.02, 11.03 and
11.05 shall apply to the Trustee also in its role as Paying Agent, for so long
as the Trustee shall act as Paying Agent. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
Section 6.08. Access to List of Registered Certificateholders' Names
and Addresses. The Trustee will furnish or cause to be furnished by the Transfer
Agent and Registrar to the Servicer, the Transferors or the Paying Agent, within
five Business Days after receipt by the Trustee of a request therefor, a list in
such form as the Servicer, the Transferors or the Paying Agent may reasonably
require, of the names and addresses of the Registered Certificateholders. If any
Holder or group of Holders of Investor Certificates of any Series or all
outstanding Series, as the case may be, evidencing not less than 10% of the
aggregate unpaid principal amount of such Series or all outstanding Series, as
applicable (the "Applicants"), apply to the Trustee, and such application states
that the Applicants desire to communicate with other Investor Certificateholders
with respect to their rights under this Agreement or any Supplement or under the
Investor Certificates and is accompanied by a copy of the communication which
such Applicants propose to transmit, then the Trustee, after having been
adequately indemnified by such Applicants for its costs and expenses, shall
afford or shall cause the Transfer Agent and Registrar to afford such Applicants
access during normal business hours to the most recent list of Registered
Certificateholders of such Series or all outstanding Series, as applicable, held
by the Trustee, within five Business Days after the receipt of such application.
Such list shall be as of a date no more than 45 days prior to the date of
receipt of such Applicants' request.
Every Registered Certificateholder, by receiving and holding a
Registered Certificate, agrees with the Trustee that neither the Trustee, the
Servicer, the Transferors, the Transfer Agent and Registrar, nor any of their
respective agents, shall be held accountable by reason of the disclosure of any
such information as to the names and addresses of the Registered
Certificateholders hereunder, regardless of the sources from which such
information was derived.
Section 6.09. Authenticating Agent. (a) The Trustee may appoint one
or more authenticating agents with respect to the Certificates which shall be
authorized to act on behalf of the Trustee in authenticating the Certificates in
connection with the issuance, delivery, registration of transfer, exchange or
repayment of the Certificates. Whenever reference is made in this Agreement to
the authentication of Certificates by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an authenticating agent.
Each authenticating agent must be acceptable to the Transferors and the
Servicer.
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(b) Any institution succeeding to the corporate agency business of
an authenticating agent shall continue to be an authenticating agent without the
execution or filing of any power or any further act on the part of the Trustee
or such authenticating agent. An authenticating agent may at any time resign by
giving notice of resignation to the Trustee and to the Transferors. The Trustee
may at any time terminate the agency of an authenticating agent by giving notice
of termination to such authenticating agent and to the Transferors. Upon
receiving such a notice of resignation or upon such a termination, or in case at
any time an authenticating agent shall cease to be acceptable to the Trustee or
the Transferors, the Trustee promptly may appoint a successor authenticating
agent. Any successor authenticating agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
authenticating agent. No successor authenticating agent shall be appointed
unless acceptable to the Trustee and the Transferors. The Transferors agree to
pay to each authenticating agent from time to time reasonable compensation for
its services under this Section. The provisions of Sections 11.01, 11.02 and
11.03 shall be applicable to any authenticating agent.
(c) Pursuant to an appointment made under this Section, the
Certificates may have endorsed thereon, in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication in substantially the
following form:
This is one of the Certificates described in the Pooling and
Servicing Agreement.
--------------------------------------
--------------------------------------
as Authenticating Agent
for the Trustee,
by
----------------------------------
Authorized Officer
Section 6.10. Book-Entry Certificates. Unless otherwise specified in
the related Supplement for any Series or Class, the Investor Certificates, upon
original issuance, shall be issued in the form of one or more typewritten
Investor Certificates representing the Book-Entry Certificates, to be delivered
to the Clearing Agency, by, or on behalf of, the Transferors. The Investor
Certificates shall initially be registered on the Certificate Register in the
name of the Clearing Agency or its nominee, and no Certificate Owner will
receive a definitive certificate representing such Certificate Owner's interest
in the Investor Certificates, except as provided in Section 6.12. Unless and
until definitive, fully registered Investor Certificates ("Definitive
Certificates") have been issued to the applicable Certificate Owners pursuant to
Section 6.12 or as otherwise specified in any such Supplement:
(a) the provisions of this Section shall be in full force and
effect;
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(b) the Transferors, the Servicer and the Trustee may deal with the
Clearing Agency and the Clearing Agency Participants for all purposes (including
the making of distributions) as the authorized representatives of the respective
Certificate Owners;
(c) to the extent that the provisions of this Section conflict with
any other provisions of this Agreement, the provisions of this Section shall
control; and
(d) the rights of the respective Certificate Owners shall be
exercised only through the Clearing Agency and the Clearing Agency Participants
and shall be limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency or the Clearing Agency Participants.
Pursuant to the Depository Agreement, unless and until Definitive Certificates
are issued pursuant to Section 6.12, the Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the related Investor Certificates to
such Clearing Agency Participants.
For purposes of any provision of this Agreement requiring or
permitting actions with the consent of, or at the direction of, Investor
Certificateholders evidencing a specified percentage of the aggregate unpaid
principal amount of Investor Certificates, such direction or consent may be
given by Certificate Owners (acting through the Clearing Agency and the Clearing
Agency Participants) owning Investor Certificates evidencing the requisite
percentage of principal amount of Investor Certificates.
Section 6.11. Notices to Clearing Agency. Whenever any notice or
other communication is required to be given to Investor Certificateholders of
any Series or Class with respect to which Book-Entry Certificates have been
issued, unless and until Definitive Certificates shall have been issued to the
related Certificate Owners, the Trustee shall give all such notices and
communications to the applicable Clearing Agency.
Section 6.12. Definitive Certificates. If Book Entry Certificates
have been issued with respect to any Series or Class and the Transferors advise
the Trustee that the Clearing Agency is no longer willing or able to discharge
properly its responsibilities under the Depository Agreement with respect to
such Series or Class and the Trustee or the Transferors are unable to locate a
qualified successor, the Transferors, at their option, advise the Trustee that
they elect to terminate the book-entry system with respect to such Series or
Class through the Clearing Agency or after the occurrence of a Servicer Default,
Certificate Owners of such Series or Class evidencing more than 50% of the
aggregate unpaid principal amount of such Series or Class advise the Trustee and
the Clearing Agency through the Clearing Agency Participants that the
continuation of a book-entry system with respect to the Investor Certificates of
such Series or Class through the Clearing Agency is no longer in the best
interests of the Certificate Owners with respect to such Certificates, then the
Trustee shall notify all Certificate Owners of such Certificates, through the
Clearing Agency, of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the same. Upon
surrender to the Trustee of any such Certificates by the Clearing Agency,
accompanied by registration instructions from the Clearing Agency for
registration, the Bank shall execute and the Trustee shall authenticate and
deliver such Definitive Certificates. Neither the Transferors nor the Trustee
shall be liable for any delay in delivery of such instructions and may
conclusively rely on, and shall be protected in relying on, such instructions.
Upon the issuance of such Definitive
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Certificates, all references herein to obligations imposed upon or to be
performed by the Clearing Agency shall be deemed to be imposed upon and
performed by the Trustee, to the extent applicable with respect to such
Definitive Certificates, and the Trustee shall recognize the Holders of such
Definitive Certificates as Investor Certificateholders hereunder.
Section 6.13. Global Certificate; Exchange Date.
(a) If specified in the related Supplement for any Series or Class,
the Investor Certificates for such Series or Class will initially be issued in
the form of a single temporary global Certificate (the "Global Certificate") in
bearer form, without interest coupons, in the denomination of the entire
aggregate principal amount of such Series or Class and substantially in the form
set forth in the exhibit with respect thereto attached to the related
Supplement. The Global Certificate will be executed by the Transferors and
authenticated by the Trustee upon the same conditions, in substantially the same
manner and with the same effect as the Definitive Certificates. The Global
Certificate may be exchanged as described below for Bearer or Registered
Certificates in definitive form (the "Definitive Euro-Certificates").
(b) The Manager shall, upon its determination of the date of
completion of the distribution of the Investor Certificates of such Series or
Class, so advise the Trustee, the Transferors, the Depositaries, and each
Foreign Clearing Agency forthwith. Without unnecessary delay, but in any event
not prior to the Exchange Date, the Transferors will execute and deliver to the
Trustee at its London office or its designated agent outside the United States
definitive Bearer Certificates in an aggregate principal amount equal to the
entire aggregate principal amount of such Series or Class. All Bearer
Certificates so issued and delivered will have Coupons attached. The Global
Certificate may be exchanged for an equal aggregate principal amount of
Definitive Euro-Certificates only on or after the Exchange Date. An
institutional investor that is a U.S. Person may exchange the portion of the
Global Certificate beneficially owned by it only for an equal aggregate
principal amount of Registered Certificates bearing the applicable legend set
forth in the form of Registered Certificates attached to the related Supplement
and having a minimum denomination of $500,000, which may be in temporary form if
the Transferors so elect. The Transferors may waive the $500,000 minimum
denomination requirement if they so elect. Upon any demand for exchange for
Definitive Euro-Certificates in accordance with this paragraph, the Transferors
shall cause the Trustee to authenticate and deliver the Definitive
Euro-Certificates to the Holder (x) outside the United States, in the case of
Bearer Certificates, and (y) according to the instructions of the Holder, in the
case of Registered Certificates, but in either case only upon presentation to
the Trustee of a written statement substantially in the form of Exhibit F-1 with
respect to the Global Certificate or portion thereof being exchanged, signed by
a Foreign Clearing Agency and dated on the Exchange Date or a subsequent date,
to the effect that it has received in writing or by tested telex a certification
substantially in the form of (i) in the case of beneficial ownership of the
Global Certificate or a portion thereof being exchanged by a United States
institutional investor pursuant to the second preceding sentence, the
certificate in the form of Exhibit F-2 signed by the Manager which sold the
relevant Certificates or (ii) in all other cases, the certificate in the form of
Exhibit F-3, the certificate referred to in this clause (ii) being dated on the
earlier of the first actual payment of interest in respect of such Certificates
and the date of the delivery of such Certificate in definitive form. Upon
receipt of such certification, the Trustee shall cause the Global Certificate to
be endorsed in accordance with paragraph (d) below. Any exchange as
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provided in this Section shall be made free of charge to the Holders and the
beneficial owners of the Global Certificate and to the beneficial owners of the
Definitive Euro-Certificates issued in exchange, except that a person receiving
Definitive Euro-Certificates must bear the cost of insurance, postage,
transportation and the like in the event that such person does not receive such
Definitive Euro-Certificates in person at the offices of a Foreign Clearing
Agency.
(c) The delivery to the Trustee by a Foreign Clearing Agency of any
written statement referred to above may be relied upon by the Transferors and
the Trustee as conclusive evidence that a corresponding certification or
certifications has or have been delivered to such Foreign Clearing Agency
pursuant to the terms of this Agreement.
(d) Upon any such exchange of all or a portion of the Global
Certificate for a Definitive Euro-Certificate or Certificates, such Global
Certificate shall be endorsed by or on behalf of the Trustee to reflect the
reduction of its principal amount by an amount equal to the aggregate principal
amount of such Definitive Euro-Certificate or Certificates. Until so exchanged
in full, such Global Certificate shall in all respects be entitled to the same
benefits under this Agreement as Definitive Euro-Certificates authenticated and
delivered hereunder except that the beneficial owners of such Global Certificate
shall not be entitled to receive payments of interest on the Certificates until
they have exchanged their beneficial interests in such Global Certificate for
Definitive Euro-Certificates.
Section 6.14. Meetings of Certificateholders.
(a) If at the time any Bearer Certificates are issued and
outstanding with respect to any Series or Class to which any meeting described
below relates, the Servicer, the Transferors or the Trustee may at any time call
a meeting of Investor Certificateholders of any Series or Class or of all
Series, to be held at such time and at such place as the Servicer, the
Transferors or the Trustee, as the case may be, shall determine, for the purpose
of approving a modification of or amendment to, or obtaining a waiver of any
covenant or condition set forth in, this Agreement, any Supplement or the
Investor Certificates or of taking any other action permitted to be taken by
Investor Certificateholders hereunder or under any Supplement. Notice of any
meeting of Investor Certificateholders, setting forth the time and place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given in accordance with Section 13.05, the first mailing and
publication to be not less than 20 nor more than 180 days prior to the date
fixed for the meeting. To be entitled to vote at any meeting of Investor
Certificateholders a person shall be (i) a Holder of one or more Investor
Certificates of the applicable Series or Class or (ii) a person appointed by an
instrument in writing as proxy by the Holder of one or more such Investor
Certificates. The only persons who shall be entitled to be present or to speak
at any meeting of Investor Certificateholders shall be the persons entitled to
vote at such meeting and their counsel and any representatives of the
Transferors, the Servicer and the Trustee and their respective counsel.
(b) At a meeting of Investor Certificateholders, persons entitled to
vote Investor Certificates evidencing a majority of the aggregate unpaid
principal amount of the applicable Series or Class or all outstanding Series, as
the case may be, shall constitute a quorum. No business shall be transacted in
the absence of a quorum, unless a quorum is present when the meeting is called
to order. In the absence of a quorum at any such meeting, the
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meeting may be adjourned for a period of not less than 10 days; in the absence
of a quorum at any such meeting, such adjourned meeting may be further adjourned
for a period of not less than 10 days; at the reconvening of any meeting further
adjourned for lack of a quorum, the persons entitled to vote Investor
Certificates evidencing at least 25% of the aggregate unpaid principal amount of
the applicable Series or Class or all outstanding Series, as the case may be,
shall constitute a quorum for the taking of any action set forth in the notice
of the original meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided above except that such notice must be given not less
than five days prior to the date on which the meeting is scheduled to be
reconvened. Notice of the reconvening of an adjourned meeting shall state
expressly the percentage of the aggregate principal amount of the outstanding
applicable Investor Certificates which shall constitute a quorum.
(c) Any Investor Certificateholder who has executed an instrument in
writing appointing a person as proxy shall be deemed to be present for the
purposes of determining a quorum and be deemed to have voted; provided that such
Investor Certificateholder shall be considered as present or voting only with
respect to the matters covered by such instrument in writing. Subject to the
provisions of Section 13.01, any resolution passed or decision taken at any
meeting of Investor Certificateholders duly held in accordance with this Section
shall be binding on all Investor Certificateholders whether or not present or
represented at the meeting.
(d) The holding of Bearer Certificates shall be proved by the
production of such Bearer Certificates or by a certificate, satisfactory to the
Servicer, executed by any bank, trust company or recognized securities dealer,
wherever situated, satisfactory to the Servicer. Each such certificate shall be
dated and shall state that on the date thereof a Bearer Certificate bearing a
specified serial number was deposited with or exhibited to such bank, trust
company or recognized securities dealer by the Person named in such certificate.
Any such certificate may be issued in respect of one or more Bearer Certificates
specified therein. The holding by the Person named in any such certificate of
any Bearer Certificate specified therein shall be presumed to continue for a
period of one year from the date of such certificate unless at the time of any
determination of such holding (i) another certificate bearing a later date
issued in respect of the same Bearer Certificate shall be produced, (ii) the
Bearer Certificate specified in such certificate shall be produced by some other
Person or (iii) the Bearer Certificate specified in such certificate shall have
ceased to be outstanding. The appointment of any proxy shall be proved by having
the signature of the Person executing the proxy guaranteed by any bank, trust
company or recognized securities dealer satisfactory to the Trustee.
(e) The Trustee shall appoint a temporary chairman of the meeting. A
permanent chairman and a permanent secretary of the meeting shall be elected by
vote of the Holders of Investor Certificates evidencing a majority of the
aggregate unpaid principal amount of Investor Certificates of the applicable
Series or Class or all outstanding Series, as the case may be, represented at
the meeting. No vote shall be cast or counted at any meeting in respect of any
Investor Certificate challenged as not outstanding and ruled by the chairman of
the meeting to be not outstanding. The chairman of the meeting shall have no
right to vote except as an Investor Certificateholder or proxy. Any meeting of
Investor Certificateholders duly called at which a quorum is present may be
adjourned from time to time, and the meeting may be held as so adjourned without
further notice.
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(f) The vote upon any resolution submitted to any meeting of
Investor Certificateholders shall be by written ballot on which shall be
subscribed the signatures of Investor Certificateholders or proxies and on which
shall be inscribed the serial number or numbers of the Investor Certificates
held or represented by them. The permanent chairman of the meeting shall appoint
two inspectors of votes who shall count all votes cast at the meeting for or
against any resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes cast at the
meeting. A record in duplicate of the proceedings of each meeting of Investor
Certificateholders shall be prepared by the secretary of the meeting and there
shall be attached to said record the original reports of the inspectors of votes
on any vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was published as provided above. The record shall be
signed and verified by the permanent chairman and secretary of the meeting and
one of the duplicates shall be delivered to the Servicer and the other to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
Section 6.15. Uncertificated Classes. Notwithstanding anything to
the contrary contained in this Article VI or in Article XII, unless otherwise
specified in any Supplement, any provisions contained in this Article VI and in
Article XII relating to the registration, form, execution, authentication,
delivery, presentation, cancellation and surrender of Certificates shall not be
applicable to any uncertificated Certificates.
[END OF ARTICLE VI]
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ARTICLE VII
Other Matters Relating to the Transferors
Section 7.01. Liability of the Transferors. Each Transferor
(including any Additional Transferors) shall be liable only for the obligations,
covenants, representations and warranties undertaken by it pursuant to this
Agreement or any Supplement and shall not be liable for the obligations,
covenants, representations and warranties of any other Transferor. A Transferor
shall be liable only to the extent of the obligations specifically undertaken by
it in its capacity as Transferor.
Section 7.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Transferors.
(a) None of the Transferors shall consolidate with or merge into any
corporation or other entity or convey or transfer its properties and assets
substantially as an entirety to any Person unless:
(i) (x) the entity formed by such consolidation or into which such
Transferor is merged or the Person which acquires by conveyance or
transfer the properties and assets of such Transferor substantially as an
entirety shall be, if such Transferor is not the surviving entity, a
corporation or limited liability company organized and existing under the
laws of the United States of America or any State or the District of
Columbia, and shall be a savings association, a national banking
association, a bank or other entity which is not eligible to be a debtor
in a case under Title 11 of the United States Code or is a special purpose
corporation or other special purpose entity whose powers and activities
are limited to substantially the same degree as provided in the governing
documents of FCCF, and, if such Transferor is not the surviving entity,
such corporation or limited liability company shall expressly assume, by
an agreement supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee, the performance of every covenant and
obligation of such Transferor hereunder, including its obligations under
Section 7.04; and (y) such Transferor has delivered to the Trustee an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
agreement comply with this Section, that such supplemental agreement is a
valid and binding obligation of such surviving entity enforceable against
such surviving entity in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally from time to time in effect and except as such
enforceability may be limited by general principles of equity (whether
considered in a suit at law or in equity), and that all conditions
precedent herein provided for relating to such transaction have been
complied with;
(ii) the Rating Agency Condition shall have been satisfied with
respect to such consolidation, merger, conveyance or transfer; and
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(iii) if any Series of Investor Certificates are outstanding that
were characterized as debt at the time of their issuance, the relevant
Transferor shall have delivered to the Trustee and each Rating Agency a
Tax Opinion, dated the date of such consolidation, merger, conveyance or
transfer, with respect thereto.
(b) Except for the assignment and assumption to occur as of the
Substitution Date as provided in Section 1.03, and except for any subsequent
transfer from FCCF to Fleet (RI) in connection with any amendments to this
Agreement to provide for the Account Owner to became a Transferor hereunder, the
obligations of the Transferors hereunder shall not be assignable nor shall any
Person succeed to the obligations of the Transferors hereunder except in each
case in accordance with the provisions of the foregoing paragraph.
Section 7.03. Limitations on Liability of the Transferors. Subject
to Sections 7.01 and 7.04, none of the Transferors nor any of the directors,
officers, employees or agents of any of the Transferors acting in their
capacities as Transferors shall be under any liability to the Trust, the
Trustee, the Servicer, the Certificateholders, the Certificate Owners, any
Series Enhancer or any other Person for any action taken or for refraining from
the taking of any action in good faith in their capacities as Transferors
pursuant to this Agreement, it being expressly understood that such liability is
expressly waived and released as a condition of, and consideration for, the
execution of this Agreement and any Supplement and the issuance of the
Certificates; provided, however, that this provision shall not protect any
Transferor or any such Person against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. Each Transferor and any director, officer, employee or agent
of any of such Transferor may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person (other than such
Transferor) respecting any matters arising hereunder.
Section 7.04. Liabilities. Each Transferor shall indemnify and hold
harmless the Trust and the Trustee, its officers, directors, employees and
agents, from and against any loss, liability, expense, damage or injury suffered
or sustained by reason of any acts or omissions or alleged acts or omissions of
such Transferor with respect to such Transferor's activities or arising under or
related to this Agreement or any Supplement or with respect to activities of the
Trust or the Trustee pursuant to this Agreement or any Supplement, including,
but not limited to any judgment, award, settlement, reasonable attorneys' fees
and other costs or expenses incurred in connection with the defense of any
actual or threatened action, proceeding or claim; provided, however, that the
Transferor shall not indemnify any Person who would otherwise be entitled to
indemnity under the terms of this Section 7.04, with respect to (i) acts,
omissions or alleged acts or omissions that constitute or are caused by fraud,
negligence, or willful misconduct by such Person, (ii) any liabilities, costs or
expenses of such Person with respect to any action taken by such Person at the
request of the Investor Certificateholders, (iii) any losses, claims or damages
incurred by such Person in its capacity as investor, including, without
limitation, losses incurred as a result of Defaulted Receivables, or (iv) any
liabilities, costs or expenses of such Person arising under any tax law,
including without limitation, any Federal, state, local or foreign income or
franchise taxes or any other tax imposed on or measured by income (or any
interest or penalties with respect thereto or arising from a failure to comply
therewith) required to be paid by such Person in connection herewith to any
taxing authority. Any such indemnification shall
77
not be payable from the Trust Assets. The provisions of this indemnity shall run
directly to and be enforceable by an injured party subject to the limitations
hereof.
[END OF ARTICLE VII]
78
ARTICLE VIII
Other Matters Relating to the Servicer
Section 8.01. Liability of the Servicer. The Servicer shall be
liable under this Article only to the extent of the obligations specifically
undertaken by the Servicer in its capacity as Servicer.
Section 8.02. Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer. The Servicer shall not consolidate with or merge
into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(a) (i) the corporation formed by such consolidation or into which
the Servicer is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Servicer substantially as an entirety shall be,
if the Servicer is not the surviving entity, a corporation organized and
existing under the laws of the United States of America or any State or the
District of Columbia and, if the Servicer is not the surviving entity, such
corporation shall expressly assume, by an agreement supplemental hereto,
executed and delivered to the Trustee, in form satisfactory to the Trustee, the
performance of every covenant and obligation of the Servicer hereunder;
(ii) the Servicer has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
agreement comply with this Section, that such supplemental agreement
is a valid and binding obligation of such surviving entity
enforceable against such surviving entity in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally from time to time in
effect and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity), and that all conditions precedent herein provided for
relating to such transaction have been complied with;
(b) the Rating Agency Condition shall have been satisfied with
respect to such assignment and succession; and
(c) the corporation formed by such consolidation or into which the
Servicer is merged or the Person which acquires by conveyance or transfer the
properties and assets of the Servicer substantially as an entirety shall be an
Eligible Servicer.
Section 8.03. Limitation on Liability of the Servicer and Others.
Except as provided in Section 8.04, neither the Servicer nor any of the
directors, officers, employees or agents of the Servicer in its capacity as
Servicer shall be under any liability to the Trust, the Trustee, the
Transferors, the Certificateholders, any Series Enhancer or any other Person for
any action taken or for refraining from the taking of any action in good faith
in its capacity as Servicer pursuant to this Agreement; provided, however, that
this provision shall not protect the Servicer or any such Person against any
liability which would otherwise be imposed by reason of
79
willful misfeasance, bad faith or gross negligence in the performance of duties
or by reason of reckless disregard of obligations and duties hereunder. The
Servicer and any director, officer, employee or agent of the Servicer may rely
in good faith on any document of any kind prima facie properly executed and
submitted by any Person (other than the Servicer) respecting any matters arising
hereunder. The Servicer shall not be under any obligation to appear in,
prosecute or defend any legal action which is not incidental to its duties as
Servicer in accordance with this Agreement and which in its reasonable judgment
may involve it in any expense or liability. The Servicer may, in its sole
discretion, undertake any such legal action which it may deem necessary or
desirable for the benefit of the Certificateholders with respect to this
Agreement and the rights and duties of the parties hereto and the interests of
the Certificateholders hereunder.
Section 8.04. Servicer Indemnification of the Trust and the Trustee.
The Servicer shall indemnify and hold harmless the Trustee, its officers,
directors, employees and agents from and against any loss, liability, expense,
damage or injury suffered or sustained by reason of any acts or omissions or
alleged acts or alleged omissions or otherwise arising out of or based upon the
arrangement created by this Agreement or any Supplement, and the Servicer shall
indemnify and hold harmless the Trust from and against any loss, liability,
expense, damage or injury suffered or sustained by reason of any acts or
omissions of the Servicer with respect to the Trust pursuant to this Agreement,
including, in each case, any judgment, award, settlement, reasonable attorneys'
fees and other costs or expenses incurred in connection with the defense of any
action, proceeding or claim; provided, however, that the Servicer shall not
indemnify any Person who would otherwise be entitled to indemnity under the
terms of this Section 8.04, with respect to (i) acts, omissions or alleged acts
or omissions that constitute or are caused by fraud, negligence, or willful
misconduct by such Person, (ii) any liabilities, costs or expenses of such
Person with respect to any action taken by such Person at the request of the
Investor Certificateholders, (iii) any losses, claims or damages incurred by
such Person in its capacity as investor, including, without limitation, losses
incurred as a result of Defaulted Receivables, or (iv) any liabilities, costs or
expenses of such Person arising under any tax law, including without limitation,
any Federal, state, local or foreign income or franchise taxes or any other tax
imposed on or measured by income (or any interest or penalties with respect
thereto or arising from a failure to comply therewith) required to be paid by
such Person in connection herewith to any taxing authority. Indemnification
pursuant to this Section shall not be payable from the Trust Assets. The
provisions of this indemnity shall run directly to and be enforceable by an
injured party subject to the limitations hereof.
Section 8.05. The Servicer Not To Resign. The Servicer shall not
resign from the obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is no longer
permissible under any Requirement of Law and (ii) there is no reasonable action
which the Servicer could take to make the performance of its duties hereunder
permissible under any such Requirements of Law. Any determination permitting the
resignation of the Servicer shall be evidenced by an Opinion of Counsel to such
effect delivered to the Trustee. No resignation shall become effective until the
Trustee or a Successor Servicer shall have assumed the responsibilities and
obligations of the Servicer in accordance with Section 10.02. If within 120 days
of the date of the determination that the Servicer may no longer act as Servicer
the Trustee is unable to appoint a Successor Servicer, the Trustee shall serve
as Successor Servicer. Notwithstanding the foregoing, the Trustee shall, if it
is legally unable so to act, petition a court of competent jurisdiction to
appoint any established
80
institution that is an Eligible Servicer as the Successor Servicer hereunder.
The Trustee shall give prompt notice to each Rating Agency upon the appointment
of a Successor Servicer.
Section 8.06. Access to Certain Documentation and Information
Regarding the Receivables. The Servicer shall provide to the Trustee access to
the documentation regarding the Accounts and the Receivables in such cases where
the Trustee is required in connection with the enforcement of the rights of
Certificateholders or by applicable statutes or regulations to review such
documentation, such access being afforded without charge but only (a) upon
reasonable request, (b) during normal business hours, (c) subject to the
Servicer's normal security and confidentiality procedures and (d) at reasonably
accessible offices in the continental United States designated by the Servicer.
Nothing in this Section shall derogate from the obligation of the Transferors,
the Trustee and the Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors and the failure of the Servicer
to provide access as provided in this Section as a result of such obligation
shall not constitute a breach of this Section.
Section 8.07. Delegation of Duties. In the ordinary course of
business, the Servicer may at any time delegate any duties hereunder to any
Person who agrees to conduct such duties in accordance with the Credit Card
Guidelines and this Agreement; provided, however, in the case of significant
delegation to a Person other than FleetBoston Financial Corporation, a
Transferor, any Affiliate of a Transferor, or First Data Corporation, (i) at
least 30 days prior written notice shall be given to the Trustee, the
Transferors and each Rating Agency of such delegation and (ii) at or prior to
the end of such 30-day period the Servicer shall have determined that the Rating
Agency Condition has been met. Any such delegations shall not relieve the
Servicer of its liability and responsibility with respect to such duties, and
shall not constitute a resignation within the meaning of Section 8.05.
Section 8.08. Examination of Records. The Servicer shall clearly and
unambiguously indicate in its computer files or other records that the
Receivables arising in the Accounts have been conveyed to the Trustee, pursuant
to this Agreement. The Servicer shall, prior to the sale or transfer to a third
party of any receivable held in its custody, examine its computer and other
records to determine that such receivable is not a Receivable.
[END OF ARTICLE VIII]
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ARTICLE IX
Pay Out Events
Section 9.01. Trust Pay Out Events. If any one of the following
events shall occur with respect to the Trust ("Trust Pay Out Events"):
(i) (x) an Account Owner shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings of or
relating to an Account Owner or of or relating to all or substantially all
of its property, or a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshaling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against an Account Owner; or an Account Owner shall admit in writing its
inability to pay its debts generally as they become due, file a petition
to take advantage of any applicable insolvency or reorganization statute,
make any assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations; or (y) any Transferor shall consent or
fail to object to the appointment of a bankruptcy trustee or conservator,
receiver or liquidator in any bankruptcy proceeding or other insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings of or relating to such Transferor or relating to all or
substantially all of such Transferor's property, or the commencement of an
action seeking a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
bankruptcy trustee or conservator, receiver or liquidator in any
insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings, or for the winding-up, insolvency, bankruptcy,
reorganization, conservatorship, receivership or liquidation of a
Transferor's affairs, or notwithstanding an objection by the Transferor
any such action shall have remained undischarged or unstayed for a period
of sixty (60) days or upon entry of any order or decree providing for such
relief; or a Transferor shall admit in writing its inability to pay its
debts generally as they become due, file, or consent or fail to object (or
object without dismissal of any such filing within sixty (60) days of such
filing or the earlier entry of any order providing for such relief) to the
filing of, a petition to take advantage of any applicable bankruptcy,
insolvency or reorganization, receivership or conservatorship statute,
make an assignment for the benefit of its creditors or voluntarily suspend
payment of its obligations (any such event described in this clause (i) an
"Insolvency Event");
(ii) the Trust shall become subject to regulation by the Commission
as an "investment company" within the meaning of the Investment Company
Act; or
(iii) a Transfer Restriction Event as defined in this Agreement
shall occur or a Transfer Restriction Event as defined in the Receivables
Purchase Agreement between Fleet (RI) and FCCF shall occur;
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then, a Pay Out Event shall occur with respect to each Series without any notice
or other action on the part of the Trustee or the Investor Certificateholders,
immediately upon the occurrence of such event.
Section 9.02. Additional Rights Upon the Occurrence of
Certain Events.
(a) If an Insolvency Event occurs with respect to any of the
Transferors, the Transferors shall on the day any such Insolvency Event occurs
(the "Appointment Date"), immediately cease to transfer Principal Receivables to
the Trustee and shall promptly give notice to the Trustee thereof.
Notwithstanding any cessation of the transfer to the Trustee of additional
Principal Receivables, Principal Receivables transferred to the Trustee prior to
the occurrence of such Insolvency Event and Collections in respect of such
Principal Receivables and Finance Charge Receivables whenever created, accrued
in respect of such Principal Receivables, shall continue to be a part of the
Trust. Within 15 days after receipt of such notice by the Trustee of the
occurrence of such Insolvency Event, the Trustee shall (i) publish a notice in
an Authorized Newspaper that an Insolvency Event has occurred and that the
Trustee intends to sell, dispose of or otherwise liquidate the Receivables on
commercially reasonable terms and in a commercially reasonable manner and (ii)
give notice to the Investor Certificateholders describing the provisions of this
Section and requesting instructions from such Holders. Unless the Trustee shall
have received instructions within 90 days from the date notice pursuant to
clause (i) above is first published from (x) Holders of Investor Certificates
evidencing more than 50% of the Investor Amount of each Series or, with respect
to any Series with two or more Classes, of each Class, to the effect that such
Investor Certificateholders disapprove of the liquidation of the Receivables and
wish to continue having Principal Receivables transferred to the Trustee as
before such Insolvency Event, and (y) each of the Transferors (other than the
Transferor that is the subject of such Insolvency Event), including any
Additional Transferor, any Holder of a Supplemental Certificate and any
permitted assignee or successor under Section 7.02, to such effect, the Trustee
shall promptly sell, dispose of or otherwise liquidate the Receivables in a
commercially reasonable manner and on commercially reasonable terms, which shall
include the solicitation of competitive bids. The Trustee may obtain a prior
determination from any such conservator, receiver or liquidator that the terms
and manner of any proposed sale, disposition or liquidation are commercially
reasonable. The provisions of Sections 9.01 and 9.02 shall not be deemed to be
mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of the
Receivables pursuant to paragraph (a) ("Insolvency Proceeds") shall be
immediately deposited in the Collection Account. The Trustee shall determine
conclusively the amount of the Insolvency Proceeds which are deemed to be
Finance Charge Receivables and Principal Receivables. The Insolvency Proceeds
shall be allocated and distributed to Investor Certificateholders in accordance
with Article IV and the terms of each Supplement and the Trust shall terminate
immediately thereafter.
(c) The Trustee may appoint an agent or agents to assist with its
responsibilities pursuant to this Article IX with respect to competitive bids.
[END OF ARTICLE IX]
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ARTICLE X
Servicer Defaults
Section 10.01. Servicer Defaults. If any one of the following
events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer
or deposit or to give instructions or notice to the Trustee pursuant to the
terms of this Agreement or any Supplement on or before the date occurring five
Business Days after the date such payment, transfer or deposit or such
instruction or notice is required to be made or given, as the case may be, under
the terms of this Agreement or any Supplement;
(b) failure on the part of the Servicer duly to observe or
perform in any material respect any other covenants or agreements of the
Servicer set forth in this Agreement or any Supplement which has a material
adverse effect on the interests hereunder of the Investor Certificateholders of
any Series or Class and which continues unremedied for a period of 60 days after
the date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee, or to the
Servicer and the Trustee by Holders of Investor Certificates evidencing more
than 50% of the Aggregate Investor Amount (or, with respect to any such failure
that does not relate to all Series, 50% of the aggregate Investor Amount of all
Series to which such failure relates); or the Servicer shall delegate its duties
under this Agreement, except as permitted by Section 8.02, 8.07 or 13.08, a
Responsible Officer of the Trustee has actual knowledge of such delegation and
such delegation continues unremedied for 15 days after the date on which written
notice thereof, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee, or to the Servicer and the Trustee by Holders of
Investor Certificates evidencing more than 50% of the Aggregate Investor Amount;
(c) any representation, warranty or certification made by the
Servicer in this Agreement or any Supplement or in any certificate delivered
pursuant to this Agreement or any Supplement shall prove to have been incorrect
when made, which has a material adverse effect on the rights of the Investor
Certificateholders of any Series or Class and which continues to be incorrect in
any material respect for a period of 60 days after the date on which written
notice of such failure, requiring the same to be remedied, shall have been given
to the Servicer by the Trustee, or to the Servicer and the Trustee by the
Holders of Investor Certificates evidencing more than 50% of the Aggregate
Investor Amount (or, with respect to any such representation, warranty or
certification that does not relate to all Series, 50% of the aggregate Investor
Amount of all Series to which such representation, warranty or certification
relates); or
(d) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property, or a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer, and such decree or order
shall have remained in force undischarged or unstayed for a period of 60 days;
or
84
the Servicer shall admit in writing its inability to pay its debts generally as
they become due, file a petition to take advantage of any applicable insolvency
or reorganization statute, make any assignment for the benefit of its creditors
or voluntarily suspend payment of its obligations;
then, in the event of any Servicer Default, so long as the Servicer Default
shall not have been remedied, either the Trustee or the Holders of Investor
Certificates evidencing more than 50% of the Aggregate Investor Amount, by
notice then given to the Servicer (and to the Trustee if given by the Investor
Certificateholders) (a "Termination Notice"), may terminate all but not less
than all the rights and obligations of the Servicer as Servicer under this
Agreement; provided, however, if within 60 days of receipt of a Termination
Notice the Trustee does not receive any bids from Eligible Servicers in
accordance with subsection 10.02(c) to act as a Successor Servicer and receives
an Officer's Certificate of the Servicer to the effect that the Servicer cannot
in good faith cure the Servicer Default which gave rise to the Termination
Notice, the Trustee shall offer the Transferors the right at their option to
purchase the Certificateholders' Interest on the Distribution Date next
succeeding 60 days after the receipt by the Servicer of a Termination Notice.
The purchase price for the Certificateholders' Interest shall be equal to the
sum of the amounts specified therefor with respect to each outstanding Series in
the related Supplement. The Transferors shall notify the Trustee prior to the
Record Date for the Distribution Date of the purchase if they are exercising
such option. If any of the Transferors exercise such option, such Transferors
shall (x) if short-term deposits or long-term unsecured debt obligations of the
parent of such Transferors are not rated at the time at least P-3 or Baa3,
respectively, by ▇▇▇▇▇'▇, deliver to the Trustee an Opinion of Counsel (which
must be an independent outside counsel) to the effect that, in reliance on
certain certificates to the effect that the Transferors have received reasonably
equivalent value and as to the solvency of such Transferors, the purchase would
not be considered a fraudulent transfer and (y) deposit the purchase price into
the Collection Account not later than 12:00 noon, New York City time, on such
Distribution Date in immediately available funds. The purchase price shall be
allocated and distributed to Investor Certificateholders in accordance with
Article IV and the terms of each Supplement.
After receipt by the Servicer of such Termination Notice, and
on the date that a Successor Servicer shall have been appointed by the Trustee
pursuant to Section 10.02, all authority and power of the Servicer under this
Agreement shall pass to and be vested in a Successor Servicer; and, without
limitation, the Trustee is hereby authorized and empowered (upon the failure of
the Servicer to cooperate) to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments upon the
failure of the Servicer to execute or deliver such documents or instruments, and
to do and accomplish all other acts or things necessary or appropriate to effect
the purposes of such transfer of servicing rights. The Servicer agrees to
cooperate with the Trustee and such Successor Servicer in effecting the
termination of the responsibilities and rights of the Servicer to conduct
servicing hereunder including, without limitation, the transfer to such
Successor Servicer of all authority of the Servicer to service the Receivables
provided for under this Agreement, including, without limitation, all authority
over all Collections which shall on the date of transfer be held by the Servicer
for deposit, or which have been deposited by the Servicer, in the Collection
Account, or which shall thereafter be received with respect to the Receivables,
and in assisting the Successor Servicer and in enforcing all rights to Insurance
Proceeds. The Servicer shall promptly transfer its electronic records relating
to the Receivables to the Successor Servicer in such electronic form as the
Successor Servicer may reasonably request and shall promptly transfer to the
85
Successor Servicer all other records, correspondence and documents necessary for
the continued servicing of the Receivables in the manner and at such times as
the Successor Servicer shall reasonably request. To the extent that compliance
with this Section 10.01 shall require the Servicer to disclose to the Successor
Servicer information of any kind which the Servicer reasonably deems to be
confidential, the Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as the Servicer shall deem
necessary to protect its interests.
Notwithstanding the foregoing, any delay in or failure of
performance under subsection 10.01(a) for a period of 5 Business Days or under
subsection 10.01(b) or (c) for a period of 60 days (in addition to any period
provided in subsection 10.01(a), (b) or (c)) shall not constitute a Servicer
Default until the expiration of such additional 5 Business Days or 60 days,
respectively, if such delay or failure could not be prevented by the exercise of
reasonable diligence by the Servicer and such delay or failure was caused by an
act of God or the public enemy, acts of declared or undeclared war, terrorism,
public disorder, rebellion or sabotage, epidemics, landslides, lightning, fire,
hurricanes, earthquakes, floods or similar causes. The preceding sentence shall
not relieve the Servicer from using its best efforts to perform its respective
obligations in a timely manner in accordance with the terms of this Agreement
and any Supplement and the Servicer shall provide the Trustee, each Rating
Agency, the Holders of the Transferor Certificates and the Investor
Certificateholders with an Officer's Certificate giving prompt notice of such
failure or delay by it, together with a description of its efforts to so perform
its obligations.
Section 10.02. Trustee To Act, Appointment of Successor.
(a) On and after the receipt by the Servicer of a Termination
Notice pursuant to Section 10.01, the Servicer shall continue to perform all
servicing functions under this Agreement until the date specified in the
Termination Notice or otherwise specified by the Trustee or until a date
mutually agreed upon by the Servicer and Trustee. The Trustee shall as promptly
as possible after the giving of a Termination Notice appoint an Eligible
Servicer as a successor servicer (the "Successor Servicer"), and such Successor
Servicer shall accept its appointment by a written assumption in a form
acceptable to the Trustee. In the event that a Successor Servicer has not been
appointed or has not accepted its appointment at the time when the Servicer
ceases to act as Servicer, the Trustee without further action shall
automatically be appointed the Successor Servicer. The Trustee may delegate any
of its servicing obligations to an Affiliate of the Trustee or agent in
accordance with Section 3.01(b) and 8.07. Notwithstanding the foregoing, the
Trustee shall, if it is legally unable so to act, petition a court of competent
jurisdiction to appoint any established institution qualifying as an Eligible
Servicer as the Successor Servicer hereunder. The Trustee shall give prompt
notice to the Transferors and each Rating Agency upon the appointment of a
Successor Servicer.
(b) Upon its appointment, the Successor Servicer shall be the
successor to the Servicer with respect to servicing functions under this
Agreement and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Servicer by the terms and provisions
hereof, and all references in this Agreement to the Servicer shall refer to the
Successor Servicer.
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(c) In connection with any Termination Notice, the Trustee
will review any bids which it obtains from Eligible Servicers and shall be
permitted to appoint any Eligible Servicer submitting such a bid as a Successor
Servicer for servicing compensation not in excess of the aggregate Servicing
Fees for all Series; provided, however, that the Holders of the Transferor
Certificates shall be responsible for payment of the Transferors' portion of
such aggregate Servicing Fees and that no such monthly compensation paid out of
Collections shall be in excess of such aggregate Servicing Fees. Each Holder of
a Transferor Certificate agrees that, if Fleet (RI) (or any Successor Servicer)
is terminated as Servicer hereunder, the portion of the Collections in respect
of Finance Charge Receivables that such Holders are entitled to receive pursuant
to this Agreement or any Supplement shall be reduced by an amount sufficient to
pay such Holders' share (determined by reference to the Supplements with respect
to any outstanding Series) of the compensation of the Successor Servicer.
Section 10.03. Notification to Certificateholders. Within two
Business Days after the Servicer becomes aware of any Servicer Default, the
Servicer shall give notice thereof to the Trustee, the Transferors and each
Rating Agency and the Trustee shall give notice to the Investor
Certificateholders. Upon any termination or appointment of a Successor Servicer
pursuant to this Article, the Trustee shall give prompt notice thereof to the
Investor Certificateholders.
[END OF ARTICLE X]
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ARTICLE XI
The Trustee
Section 11.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of a Servicer Default
and after the curing of all Servicer Defaults which may have occurred,
undertakes to perform such duties and only such duties as are specifically set
forth in this Agreement. If a Responsible Officer has received written notice
that a Servicer Default has occurred (which has not been cured or waived) the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement, and use the same degree of care and skill in its exercise, as a
prudent man would exercise or use under the circumstances in the conduct of such
man's own affairs.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee that are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them to
determine whether they substantially conform to the requirements of this
Agreement.
(c) Subject to subsection 11.01(a), no provision of this
Agreement shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act or its own misconduct;
provided, however, that:
(i) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be personally liable with respect
to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the Holders of Investor
Certificates evidencing more than 50% of the Investor Amount of any
Series relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any
trust or power conferred upon the Trustee in relation to such Series,
under this Agreement; and
(iii) the Trustee shall not be charged with knowledge of any
failure by the Servicer referred to in clauses (a) and (b) of Section
10.01 unless a Responsible Officer of the Trustee obtains actual
knowledge of such failure or the Trustee receives written notice of
such failure from the Servicer or a Transferor or any Holders of
Investor Certificates evidencing not less than 10% of the Investor
Amount of any Series adversely affected thereby.
(d) The Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the performance of any of
its duties hereunder or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of the Servicer under this Agreement except during such time,
if any, as the Trustee
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shall be the successor to, and be vested with the rights, duties, powers and
privileges of, the Servicer in accordance with the terms of this Agreement.
(e) Except for actions expressly authorized by this Agreement,
the Trustee shall take no action reasonably likely to (i) impair the interests
of the Trustee in any Receivable now existing or hereafter created or (ii)
impair the value of any Receivable now existing or hereafter created.
(f) The Trustee shall have no power to vary the corpus of the
Trust, except as expressly provided in this Agreement.
(g) In the event that the Paying Agent or the Transfer Agent
and Registrar shall fail to perform any obligation, duty or agreement in the
manner or on the day required to be performed by the Paying Agent or the
Transfer Agent and Registrar, as the case may be, under this Agreement, the
Trustee shall be obligated as soon as possible upon knowledge of a Responsible
Officer thereof and receipt of appropriate records, if any, to perform such
obligation, duty or agreement in the manner so required.
(h) If any of the Transferors has agreed to transfer any of
its consumer revolving credit card receivables (other than the Receivables) to
another Person, upon the written request of such Transferor, the Trustee will
enter into such intercreditor agreements with the transferee of such receivables
as are customary and necessary to separately identify the rights, if any, of the
Trustee and such other Person in such Transferor's consumer revolving credit
card receivables; provided, that the Trustee shall not be required to enter into
any intercreditor agreement which could adversely affect the interests of the
Certificateholders and, upon the request of the Trustee, such Transferor will
deliver an Opinion of Counsel on any matters relating to such intercreditor
agreement, reasonably requested by the Trustee.
Section 11.02. Certain Matters Affecting the Trustee. Except
as otherwise provided in Section 11.01:
(a) the Trustee may rely on and shall be protected in acting
on, or in refraining from acting in accord with, any Assignment, the initial
report, the annual Servicer's certificate, the monthly payment instructions and
notification to the Trustee, the monthly Certificateholder's statement, any
resolution, Officer's Certificate, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented to it pursuant to this Agreement by the
proper party or parties;
(b) the Trustee may consult with counsel, and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Agreement or any Enhancement
Agreement, or to institute, conduct or defend any litigation hereunder or in
relation hereto, at the request, order or direction of any of the
Certificateholders, or any Enhancement Provider, pursuant to the provisions of
this
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Agreement or any Enhancement Agreement, unless such Certificateholders or any
Enhancement Provider shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; nothing contained herein shall, however, relieve the Trustee
of the obligations, upon the occurrence of any Servicer Default (which has not
been cured), to exercise such of the rights and powers vested in it by this
Agreement and any Series Enhancement, and to use the same degree of care and
skill in its exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs;
(d) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) the Trustee shall not be bound to make any investigation
into the facts of matters stated in any Assignment, the initial report, the
annual Servicer's certificate, the monthly payment instructions and notification
to the Trustee, the monthly Certificateholder's statement, any resolution,
certificate, statement, instrument, opinion, report, notice, request, consent,
order, approval, bond or other paper or document, unless requested in writing so
to do by Holders of Investor Certificates evidencing more than 50% of the
Investor Amount of any Series which could be adversely affected if the Trustee
does not perform such acts;
(f) Except as provided in subsection 4.03(d), the Trustee may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys or a custodian, and the
Trustee shall not be responsible for any misconduct or negligence on the part of
any such agent, attorney or custodian appointed with due care by it hereunder;
and
(g) except as may be required by subsection 11.01(a) hereof,
the Trustee shall not be required to make any initial or periodic examination of
any documents or records related to the Receivables or the Accounts for the
purpose of establishing the presence or absence of defects, the compliance by
the Transferors with their representations and warranties or for any other
purpose.
Section 11.03. Trustee Not Liable for Recitals in
Certificates. The Trustee assumes no responsibility for the correctness of the
recitals contained herein and in the certificates (other than the certificate of
authentication on the Certificates). Except as set forth in Section 11.15, the
Trustee makes no representations as to the validity or sufficiency of this
Agreement or any Supplement or of the Certificates (other than the certificate
of authentication on the Certificates) or of any Receivable or related document.
The Trustee shall not be accountable for the use or application by the
Transferors of any of the Certificates or of the proceeds of such Certificates,
or for the use or application of any funds paid to the Transferors or the
Holders of the Transferor Certificates in respect of the Receivables or
deposited in or withdrawn from the Collection Account, the Excess Funding
Account or any Series Account by the Servicer.
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Section 11.04. Trustee May Own Certificates. Subject to
Section 6.06, the Trustee in its individual or any other capacity may become the
owner or pledgee of Investor Certificates or Supplemental Certificates with the
same rights as it would have if it were not the Trustee.
Section 11.05. The Servicer To Pay Trustee's Fees and
Expenses. The Servicer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to receive, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by it
in the execution of the trust hereby created and in the exercise and performance
of any of the powers and duties hereunder of the Trustee, and, subject to
Section 7.04, the Servicer will pay or reimburse the Trustee (without
reimbursement from the Collection Account or otherwise) upon its request for all
reasonable expenses, disbursements and advances (if any) incurred or made by the
Trustee (including the fees and expenses of Trustee's counsel) in accordance
with any of the provisions of this Agreement except any such expense,
disbursement or advance as may arise from its own negligence or bad faith and
except as provided in the following sentence. If the Trustee is appointed
Successor Servicer pursuant to Section 10.02, the provisions of this Section
11.05 shall not apply to expenses, disbursements and advances made or incurred
by the Trustee in its capacity as Successor Servicer. The obligations of the
Servicer under Section 8.04 and this Section 11.05 shall survive the termination
of the Trust and the resignation or removal of the Trustee. The Transferors
agree to reimburse the Servicer for any amount the Servicer pays to the Trustee
under this Section 11.05. Notwithstanding anything to the contrary in this
Agreement or in any other agreement, payments made by the Transferors to the
Servicer under this Section 11.05 shall only be made to the extent the
Transferors have available funds for such payments. The Servicer agrees that
failure of the Transferors to make any payment to the Servicer under this
Section 11.05 shall not constitute a "claim" (as defined in ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code) against the Transferor. The parties to this
Agreement also agree that nothing herein shall limit the obligation of the
Servicer to pay all amounts due to the Trustee as provided in this Section
11.05.
Section 11.06. Eligibility Requirements for Trustee. The
Trustee hereunder shall at all times be a bank or a corporation organized and
doing business under the laws of the United States of America or any state
thereof and subject to supervision or examination by Federal or state authority
and authorized under such laws to exercise corporate trust powers that either
(x) has a long-term unsecured debt rating of at least Baa3 by ▇▇▇▇▇'▇ and BBB-
by Standard & Poor's and, in the case of an entity that is subject to risk-based
capital adequacy requirements, risk-based capital of at least $50,000,000 or, in
the case of an entity that is not subject to risk-based capital adequacy
requirements, a combined capital and surplus of at least $50,000,000 or (y)
shall otherwise be acceptable to each Rating Agency. If such bank or corporation
publishes reports of condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority, then for the
purpose of this Section 11.06, the combined capital and surplus of such bank or
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. In case at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section 11.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 11.07.
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Section 11.07. Resignation or Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from
the trust hereby created by giving written notice thereof to the Servicer and
the Transferors. Upon receiving such notice of resignation, the Servicer shall
promptly appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.06 and shall fail to resign after
written request therefor by the Servicer or the Transferors, or if at any time
the Trustee shall be legally unable to act, or shall be adjudged a bankrupt or
insolvent, or a receiver or conservator of the Trustee or of its property shall
be appointed, or any public officer shall take charge or control of the Trustee
or of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Servicer or Transferors may, but shall not be required to,
remove the Trustee and promptly appoint a successor trustee by written
instrument, in duplicate, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section 11.07
shall not become effective until acceptance of appointment by the successor
trustee as provided in Section 11.08 and any liability of the Trustee arising
hereunder shall survive such appointment of a successor trustee.
Section 11.08. Successor Trustee.
(a) Any successor trustee appointed as provided in Section
11.07 shall execute, acknowledge and deliver to the Transferors, to the Servicer
and to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor Trustee
shall become effective and such successor trustee, without any further act, deed
or conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as Trustee herein. The predecessor Trustee shall deliver to the successor
trustee all documents, statements, money, and other property held by it
hereunder, and the Transferors, the Servicer and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may reasonably
be required for fully and certainly vesting and confirming in the successor
trustee all such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided
in this Section 11.08 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 11.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 11.08, such successor trustee shall provide notice of
such succession hereunder to all
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Investor Certificateholders and the Servicer shall provide such notice to each
Rating Agency and any Series Enhancer entitled thereto pursuant to the relevant
Supplement.
Section 11.09. Merger or Consolidation of Trustee. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 11.06, without the execution or filing of any paper or any
further act on the part of any of the parties hereto, anything herein to the
contrary notwithstanding.
Section 11.10. Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at
any time, for the purpose of meeting any legal requirements of any jurisdiction
in which any part of the Trust may at the time be located, the Trustee shall
have the power and may execute and deliver all instruments to appoint one or
more Persons to act as a co-trustee or co-trustees, or separate trustee or
separate trustees, of all or any part of the Trust, and to vest in such Person
or Persons, in such capacity and for the benefit of the Certificateholders, such
title to the Trust, or any part thereof, and, subject to the other provisions of
this Section 11.10, such powers, duties, obligations, rights and trusts as the
Trustee may consider necessary or desirable; provided, however, that the Trustee
shall exercise due care in the appointment of any co-trustee. No co-trustee or
separate trustee hereunder shall be required to meet the terms of eligibility as
a successor trustee under Section 11.06 and no notice to Certificateholders of
the appointment of any co-trustee or separate trustee shall be required under
Section 11.08.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act) except to the extent that under any laws of any
jurisdiction in which any particular act or acts are to be performed
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trustee or co-trustee, but solely at the direction of the
Trustee;
(ii) no trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given
93
to each of them. Every instrument appointing any separate trustee or co-trustee
shall refer to this Agreement and the conditions of this Article XI. Each
separate trustee and co-trustee, upon its acceptance of the trusts conferred,
shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the Trustee or separately, as may be provided
therein, subject to all the provisions of this Agreement, specifically including
every provision of this Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee and a copy thereof given to the Servicer and the
Transferors.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect to this Agreement on its behalf and in its name. If any separate trustee
or co-trustee shall die, become incapable of acting, resign or be removed, all
of its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 11.11. Tax Returns. In the event the Trust shall be
required to file tax returns, the Servicer, as soon as practicable after it is
made aware of such requirement, shall prepare or cause to be prepared any tax
returns required to be filed by the Trust and, to the extent possible, shall
file such returns at least five days before such returns are due to be filed.
The Trustee is hereby authorized to sign any such return on behalf of the Trust.
The Servicer shall prepare or shall cause to be prepared all tax information
required by law to be distributed to Certificateholders and shall deliver such
information to the Trustee at least five days prior to the date it is required
by law to be distributed to Certificateholders. The Servicer, upon request, will
furnish the Trustee with all such information known to the Servicer as may be
reasonably required in connection with the preparation of all tax returns of the
Trust. In no event shall the Trustee, the Transferors, or the Servicer be liable
for any liabilities, costs or expenses of the Trust, the Investor
Certificateholders or the Certificate Owners arising under any tax law,
including without limitation federal, state, local or foreign income or excise
taxes or any other tax imposed on or measured by income (or any interest or
penalty with respect thereto or arising from a failure to comply therewith).
Section 11.12. Trustee May Enforce Claims Without Possession
of Certificates. All rights of action and claims under this Agreement or any
Series of Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of any Series of Certificates in respect of which such judgment
has been obtained.
Section 11.13. Suits for Enforcement.
(a) If a Servicer Default shall occur and be continuing, the
Trustee, in its discretion may, subject to the provisions of Sections 10.01 and
11.14, proceed to protect and enforce its rights and the rights of any Series of
Certificates under this Agreement by a suit, action or proceeding in equity or
at law or otherwise, whether for the specific performance of
94
any covenant or agreement contained in this Agreement or in aid of the execution
of any power granted in this Agreement or for the enforcement of any other
legal, equitable or other remedy as the Trustee, being advised by counsel, shall
deem most effectual to protect and enforce any of the rights of the Trustee or
any Series of Certificates.
(b) If an Insolvency Event shall have occurred with respect to
a Transferor or an Account Owner, the Trustee shall:
(i) unless prohibited by applicable law, promptly take or
cause to be taken any and all necessary or advisable commercially
reasonable action as a secured creditor on behalf of the
Certificateholders to recover, repossess, collect or liquidate the
Receivables or any other Trust Assets on a "self-help" basis or
otherwise and exercise any rights or remedies of a secured party under
the applicable UCC and take any other appropriate action to protect and
enforce the rights and remedies of the Trustee and the
Certificateholders;
(ii) promptly, and in any case within any applicable claims
bar period specified under applicable law, file and prove a claim or
claims under applicable law, by filing proofs of claim, protective
proofs of claim or otherwise, for the whole amount of unpaid principal
and interest in respect of the Certificates and file such other papers
or documents as may be necessary or advisable in order to have the
claims of the Trustee and the Certificateholders allowed in any
judicial, administrative, corporate or other proceedings relating to
such Transferor, its creditors or its property, including any actions
relating to the preservation of deficiency claims or for the protection
against loss of any claim in the event the Trustee's or the
Certificateholders' status as secured creditors are successfully
challenged; and
(iii) collect and receive any moneys or other property payable
or deliverable on any such claims and distribute all amounts with
respect to the claims of the Certificateholders to the
Certificateholders.
(c) Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Certificateholder any plan of reorganization, arrangement, adjustment or
composition affecting the Certificates or the rights of any Holder thereof, or
to authorize the Trustee to vote in respect of the claim of any
Certificateholder in any such proceeding.
Section 11.14. Rights of Certificateholders To Direct Trustee.
Holders of Investor Certificates evidencing more than 50% of the Aggregate
Investor Amount (or, with respect to any remedy, trust or power that does not
relate to all Series, 50% of the aggregate Investor Amount of all Series to
which such remedy, trust or power relates) shall have the right to direct the
time, method, and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred on the Trustee;
provided, however, that, subject to Section 11.01, the Trustee shall have the
right to decline to follow any such direction if the Trustee being advised by
counsel determines that the action so directed may not lawfully be taken, or if
the Trustee in good faith shall, by a Responsible Officer or Responsible
Officers of the Trustee, determine that the proceedings so directed would be
illegal or involve it in personal
95
liability or be unduly prejudicial to the rights of Certificateholders not
parties to such direction; and provided further, that nothing in this Agreement
shall impair the right of the Trustee to take any action deemed proper by the
Trustee and which is not inconsistent with such direction of such Holders of
Investor Certificates.
Section 11.15. Representations and Warranties of Trustee. The
Trustee represents and warrants as of each Closing Date that:
(a) the Trustee is a banking corporation organized, existing
and authorized to engage in the business of banking under the laws of the State
of New York;
(b) the Trustee has full power, authority and right to
execute, deliver and perform this Agreement and each Supplement, and has taken
all necessary action to authorize the execution, delivery and performance by it
of this Agreement and each Supplement; and
(c) this Agreement and each Supplement has been duly executed
and delivered by the Trustee.
Section 11.16. Maintenance of Office or Agency. The Trustee
will maintain at its expense an office or agency (the "Corporate Trust Office")
where notices and demands to or upon the Trustee in respect of the Certificates
and this Agreement may be served (a) in the Borough of Manhattan, The City of
New York, in the case of Registered Certificates and Holders thereof, and (b) in
London or Luxembourg, in the case of Bearer Certificates and Holders thereof, if
and for so long as any Bearer Certificates are outstanding. The Corporate Trust
Office shall initially be located at Four ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇. The Trustee will give prompt notice to the Servicer, the Transferors and
to Investor Certificateholders of any change in the location of the Certificate
Register or any such office or agency.
Section 11.17. Capacity of Trustee. It is expressly understood
and agreed by the parties hereto that (a) the Trustee accepts all right, title
and interest to the Receivables, the proceeds thereof, and the other property,
now existing and hereafter created, conveyed to the Trustee under this Agreement
as Trustee for the benefit of the Certificateholders and, if provided in a
Supplement, the Series Enhancers, and not in its individual capacity, (b) under
no circumstance will the Trustee be deemed to make any representations or
warranties in its individual capacity in respect of the Receivables so conveyed,
(c) the Trustee shall have no obligation to expend its own funds to purchase
Receivables pursuant to the terms of this Agreement, and (d) under no
circumstance shall Bankers Trust Company be personally liable for the payment of
any indebtedness or expenses of the Trust.
[END OF ARTICLE XI]
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ARTICLE XII
Termination
Section 12.01. Termination of Trust. The Trust and the
respective obligations and responsibilities of the Transferors, the Servicer and
the Trustee created hereby (other than the obligation of the Trustee to make
payments to Investor Certificateholders as hereinafter set forth) shall
terminate, except with respect to the duties described in Sections 7.04, 8.04,
12.02(b) and 13.11 upon the earliest of (i) December 31, 2044, (ii) the day
following the payment date on which the Investor Amount and the Enhancement
Investor Amount, if any, for each Series is zero (provided that the Transferors
have delivered a written notice to the Trustee electing to terminate the Trust)
and (iii) the time provided in subsection 9.02(b).
Section 12.02. Final Distribution.
(a) The Servicer shall give the Trustee at least 30 days prior
notice of the payment date on which the Investor Certificateholders of any
Series or Class may surrender their Investor Certificates for payment of the
final distribution on and cancellation of such Investor Certificates (or, in the
event of a final distribution resulting from the application of Section 2.06,
9.02 or 10.01, notice of such payment date promptly after the Servicer has
determined that a final distribution will occur, if such determination is made
less than 30 days prior to such payment date). Such notice shall be accompanied
by an Officer's Certificate setting forth the information specified in Section
3.05 covering the period during the then-current calendar year through the date
of such notice. Not later than the fifth day of the month in which the final
distribution in respect of such Series or Class is payable to Investor
Certificateholders, the Trustee shall provide notice to Investor
Certificateholders of such Series or Class specifying (i) the date upon which
final payment of such Series or Class will be made upon presentation and
surrender of Investor Certificates of such Series or Class at the office or
offices therein designated, (ii) the amount of any such final payment and (iii)
that the Record Date otherwise applicable to such payment date is not
applicable, payments being made only upon presentation and surrender of such
Investor Certificates at the office or offices therein specified (which, in the
case of Bearer Certificates, shall be outside the United States). The Trustee
shall give such notice to the Transfer Agent and Registrar and the Paying Agent
at the time such notice is given to Investor Certificateholders.
(b) Notwithstanding a final distribution to the Investor
Certificateholders of any Series or Class (or the termination of the Trust),
except as otherwise provided in this paragraph, all funds then on deposit in the
Collection Account and any Series Account allocated to such Investor
Certificateholders shall continue to be held in trust for the benefit of such
Investor Certificateholders and the Paying Agent or the Trustee shall pay such
funds to such Investor Certificateholders upon surrender of their Investor
Certificates (and any excess shall be paid in accordance with the terms of any
relevant Enhancement Agreement). In the event that all such Investor
Certificateholders shall not surrender their Investor Certificates for
cancellation within six months after the date specified in the notice from the
Trustee described in paragraph (a), the Trustee shall give a second notice to
the remaining such Investor Certificateholders to surrender their Investor
Certificates for cancellation and receive the final distribution with respect
thereto (which surrender and payment, in the case of Bearer Certificates, shall
be outside the United States). If within one year after the second notice all
such Investor Certificates shall
97
not have been surrendered for cancellation, the Trustee may take appropriate
steps, or may appoint an agent to take appropriate steps, to contact the
remaining such Investor Certificateholders concerning surrender of their
Investor Certificates, and the cost thereof shall be paid out of the funds in
the Collection Account or any Series Account held for the benefit of such
Investor Certificateholders. The Trustee and the Paying Agent shall pay to the
Transferors any moneys held by them for the payment of principal or interest
that remains unclaimed for two years. After payment to the Transferors, Investor
Certificateholders entitled to the money must look to the Transferors for
payment as general creditors unless an applicable abandoned property law
designates another Person.
(c) In the event that the Investor Amount with respect to any
Series is greater than zero on its Series Termination Date or such earlier date
as is specified in the related Supplement (after giving effect to deposits and
distributions otherwise to be made on such date), the Trustee will sell or cause
to be sold on such Series Termination Date, in accordance with the procedures
and subject to the conditions described in such Supplement, Principal
Receivables and the related Finance Charge Receivables (or interests therein) in
an amount equal to 100% of the Investor Amount and accrued and unpaid interest
thereon with respect to such Series on such date (after giving effect to such
deposits and distributions; provided, however, that in no event shall such
amount exceed such Series' Series Percentages of Receivables on such Series
Termination Date). The proceeds from any such sale shall be allocated and
distributed in accordance with the terms of the applicable Supplement.
Section 12.03. Transferors' Termination Rights. Upon the
termination of the Trust pursuant to Section 12.01 and, if any part of the
Transferors' Interest is then evidenced by a certificate or certificates, the
surrender of such certificate or certificates, the Trustee shall sell, assign
and convey to the Holders of the Transferors' Interest or their designee,
without recourse, representation or warranty, all right, title and interest of
the Trustee in the Receivables, whether then existing or thereafter created, all
moneys due or to become due and all amounts received with respect thereto and
all proceeds thereof except for amounts held by the Trustee pursuant to
subsection 12.02(b). The Trustee shall execute and deliver such instruments of
transfer and assignment, in each case without recourse, as shall be reasonably
requested by the Holders of the Transferors' Interest to vest in the Holders of
the Transferors' Interest or their designee all right, title and interest which
the Trustee had in the Receivables and such other related assets.
Section 12.04. Defeasance. Notwithstanding anything to the
contrary in this Agreement or any Supplement:
(a) The Transferor may at its option be discharged from its
obligations hereunder with respect to any Series or all outstanding Series (the
"Defeased Series") on the date the applicable conditions set forth in subsection
12.04(c) are satisfied (a "Defeasance"); provided, however, that the following
rights, obligations, powers, duties and immunities shall survive with respect to
the Defeased Series until otherwise terminated or discharged hereunder: (i) the
rights of the Holders of Investor Certificates of the Defeased Series to
receive, solely from the trust fund provided for in subsection 12.04(c),
payments in respect of principal of and interest on such Investor Certificates
when such payments are due; (ii) the Transferors' obligations with respect to
such Certificates under Sections 6.04 and 6.05; (iii) the rights, powers,
trusts, duties,
98
and immunities of the Trustee, the Paying Agent and the Registrar hereunder; and
(iv) this Section 12.04 and Section 13.11.
(b) Subject to subsection 12.04(c), the Transferors at their
option may cause Collections allocated to the Defeased Series and available to
purchase additional Receivables to be applied to purchase Eligible Investments
rather than additional Receivables.
(c) The following shall be the conditions to Defeasance under
subsection 12.04(a):
(i) the Transferors irrevocably shall have deposited or caused
to be deposited with the Trustee (such deposit to be made from other
than the Transferors' or any Affiliate of the Transferors' funds),
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, as trust funds in trust for making the
payments described below, (A) Dollars in an amount, or (B) Eligible
Investments which through the scheduled payment of principal and
interest in respect thereof will provide, not later than the due date
of payment thereon, money in an amount, or (C) a combination thereof,
in each case sufficient to pay and discharge (without relying on income
or gain from reinvestment of such amount), and which shall be applied
by the Trustee to pay and discharge, all remaining scheduled interest
and principal payments on all outstanding Investor Certificates of the
Defeased Series on the dates scheduled for such payments in this
Agreement and the applicable Supplements and all amounts owing to the
Series Enhancers with respect to the Defeased Series;
(ii) a statement from a firm of nationally recognized
independent public accountants (who may also render other services to
the Transferors) to the effect that such deposit is sufficient to pay
the amounts specified in clause (i) above;
(iii) prior to its first exercise of its right pursuant to
this Section 12.04 with respect to a Defeased Series to substitute
money or Eligible Investments for Receivables, if any Series of
Investor Certificates are outstanding that were characterized as debt
at the time of their issuance, the Transferor shall have delivered to
the Trustee a Tax Opinion with respect to such deposit and termination
of obligations, and (in any case) an Opinion of Counsel to the effect
that (A) such deposit and termination of obligations will not result in
the Trust being required to register as an "investment company" within
the meaning of the Investment Company Act and (B) if the short-term
deposit or long-term unsecured debt obligations of the ultimate parent
of the Transferors are not rated at least P-3 or Baa3, respectively, by
▇▇▇▇▇'▇, such deposit and termination of obligations would not be a
fraudulent transfer (based in reliance on certain certificates to the
effect that the Transferors have received reasonably equivalent value
and as to the solvency of the Transferors);
(iv) the Transferors shall have delivered to the Trustee an
Officer's Certificate of the Transferors stating the Transferors
reasonably believe that such deposit and termination of obligations
will not, based on the facts known to such officer at the time of such
certification, then cause a Pay Out Event with respect to any Series or
any event
99
that, with the giving of notice or the lapse of time, would result in
the occurrence of a Pay Out Event with respect to any Series; and
(v) the Rating Agency Condition shall have been satisfied and
the Transferors shall have delivered copies of such written notice to
the Servicer and the Trustee.
Section 12.05. Optional Purchase.
(a) If so provided in any Supplement, the Transferors may (so
long as the Transferor causing such distribution is the Servicer or an Affiliate
of the Servicer), but shall not be obligated to, cause a final distribution to
be made in respect of the related Series of Investor Certificates on a specified
Distribution Date or when the Investor Amount reaches a specified level or under
any circumstances specified in such Supplement by depositing into the Collection
Account or the applicable Series Account, not later than the Transfer Date
preceding such Distribution Date, for application in accordance with Section
12.02, the amount specified in such Supplement; provided, however that if the
short-term deposits or long-term unsecured debt obligations of the Transferors
or the parent or parents of the Transferors are not rated at the time of such
purchase of Receivables at least P-3 or Baa3, respectively, by ▇▇▇▇▇'▇, no such
event shall occur unless the Transferors shall deliver an Opinion of Counsel
reasonably acceptable to the Trustee that such deposit into the Collection
Account or any Series Account as provided in the related Supplement would not
constitute a fraudulent transfer of the Transferors (based in reliance on
certificates to the effect that the Transferors have received reasonably
equivalent value and as to the solvency of the Transferors).
(b) The amount deposited pursuant to subsection 12.05(a) shall
be paid to the Investor Certificateholders of the related Series pursuant to
Section 12.02 on the related Distribution Date following the date of such
deposit. All Certificates of a Series which are purchased by the Transferors
pursuant to subsection 12.05(a) shall be delivered by the Transferors upon such
purchase to, and be cancelled by, the Transfer Agent and Registrar and be
disposed of in a manner satisfactory to the Trustee and the Transferors. The
Investor Amount of each Series which is purchased by the Transferors pursuant to
subsection 12.05(a) shall, for the purposes of the definitions of "Series
Invested Amount" and "Transferor Amount," be equal to zero on the Distribution
Date following the making of the deposit, and the Transferor Amount shall
thereupon be increased by the Series Invested Amount of such Series.
[END OF ARTICLE XII]
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ARTICLE XIII
Miscellaneous Provisions
Section 13.01. Amendment; Waiver of Past Defaults.
(a) This Agreement or any Supplement may be amended from time
to time (including in connection with (x) the provision of additional Series
Enhancement for the benefit of the Certificateholders of any Series (or the
reduction of such Series Enhancement), (y) the addition of a Participation
Interest to the Trust or (z) the designation of an Additional Transferor) by the
Servicer, the Transferors (including, if applicable, any Additional Transferor
being designated) and the Trustee without the consent of any of the
Certificateholders, provided that (i) each Transferor shall have delivered to
the Trustee an Officer's Certificate to the effect that such Transferor
reasonably believes that such action will not have an Adverse Effect and (ii)
the Rating Agency Condition shall have been satisfied with respect to any such
amendment.
(b) This Agreement or any Supplement may also be amended from
time to time by the Servicer, the Transferors and the Trustee, with the consent
of the Holders of Investor Certificates evidencing not less than 66-2/3% of the
aggregate Investor 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 this Agreement or any Supplement or of
modifying in any manner the rights of the 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 amount available under any
Series Enhancement without the consent of each affected Certificateholder, (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 Investor Amount of the
Investor Certificates of such Series or Class. Any amendment to be effected
pursuant to this paragraph shall be deemed not to adversely affect any
outstanding Series with respect to which the Transferors shall deliver an
Opinion of Counsel, addressed and delivered to the Trustee, that such action
will not, in such counsel's reasonable opinion, have an Adverse Effect with
respect to such Series. 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.
(c) Promptly after the execution of any such amendment or
consent (other than an amendment pursuant to paragraph (a)), the Trustee shall
furnish notification of the substance of such amendment to each Investor
Certificateholder, and the Servicer shall furnish notification of the substance
of such amendment to each Rating Agency.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such
101
consents and of evidencing the authorization of the execution thereof by
Investor Certificateholders shall be subject to such reasonable requirements as
the Trustee may prescribe.
(e) Any Supplement executed in accordance with the provisions
of subsection 6.03(b) shall not be considered an amendment to this Agreement for
the purposes of this Section.
(f) The Holders of Investor Certificates evidencing more than
66-2/3% of the aggregate Investor Amount of the Investor Certificates of each
Series, or with respect to any Series with two or more Classes, of each Class
(or with respect to any default that does not relate to all Series, 66-2/3% of
the aggregate Investor Amount of the Investor Certificates of each Series to
which such default relates or, with respect to any such Series with two or more
Classes, of each Class) may, on behalf of all Certificateholders, waive any
default by the Transferors or the Servicer in the performance of their
obligations hereunder and its consequences, except the failure to make any
distributions required to be made to Investor Certificateholders or to make any
required deposits of any amounts to be so distributed. Upon any such waiver of a
past default, such default shall cease to exist, and any default arising
therefrom shall be deemed to have been remedied for every purpose of this
Agreement. No such waiver shall extend to any subsequent or other default or
impair any right consequent thereon except to the extent expressly so waived.
Section 13.02. Protection of Right, Title and Interest to
Trust.
(a) The Transferors shall cause this Agreement, all amendments
and supplements hereto and all financing statements and continuation statements
and any other necessary documents covering the Certificateholders' and the
Trustee's right, title and interest to the Trust Assets to be promptly recorded,
registered and filed, and at all times to be kept recorded, registered and
filed, all in such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of the Certificateholders and
the Trustee hereunder to all property comprising the Trust Assets. The
Transferors shall deliver to the Trustee file-stamped copies of, or filing
receipts for, any document recorded, registered or filed as provided above, as
soon as available following such recording, registration or filing. The
Transferors shall cooperate fully with the Servicer in connection with the
obligations set forth above and will execute any and all documents reasonably
required to fulfill the intent of this paragraph.
(b) No Transferor shall change its name, or its type or
jurisdiction of organization unless it has first (i) made all filings in all
relevant jurisdictions under the UCC and other applicable law as are necessary
to continue and maintain the first-priority perfected ownership or security
interest of the Trustee in the Receivables, the proceeds thereof, and the other
property conveyed to the Trustee hereunder, and (ii) delivered to the Servicer
and the Trustee an Opinion of Counsel to the effect that all necessary filings
have been made under the UCC in all relevant jurisdictions as are necessary to
continue and maintain the first-priority perfected ownership or security
interest of the Trustee in the Receivables, the proceeds thereof, and the other
property conveyed to the Trustee hereunder.
(c) Each Transferor and the Servicer will at all times
maintain each office from which it services Receivables and its principal
executive offices within the United States.
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(d) The Transferors will deliver to the Trustee: (i) upon the
execution and delivery of each amendment of this Agreement or any Supplement, an
Opinion of Counsel to the effect specified in Exhibit G-1; (ii) on each Addition
Date on which any Additional Accounts (other than Automatic Additional Accounts)
are to be designated as Accounts pursuant to subsection 2.08(a) or (b) and on
each date specified in subsection 2.08(d)(iii) with respect to the designation
of Automatic Additional Accounts as Accounts, an Opinion of Counsel
substantially in the form of Exhibit G-2, and on each Addition Date on which any
Participation Interests are to be included in the Trust pursuant to subsection
2.08(a) or (b), an Opinion of Counsel covering the same substantive legal issues
addressed by Exhibit G-2 but conformed to the extent appropriate to relate to
Participation Interests; and (iii) on or before March 31 of each year, beginning
with March 31, 1995 and ending with March 31, 2001 and on or before May 31 of
each year, beginning with May 31, 2002, an Opinion of Counsel substantially in
the form of Exhibit G-2.
Section 13.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor shall such death or
incapacity entitle such Certificateholders' legal representatives or heirs to
claim an accounting or to take any action or commence any proceeding in any
court for a partition or winding up of the Trust, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
(b) No Investor Certificateholder shall have any right to vote
(except as expressly provided in this Agreement) or in any manner otherwise
control the operation and management of the Trust, or the obligations of the
parties hereto, nor shall anything herein set forth, or contained in the terms
of the Certificates, be construed so as to constitute the Investor
Certificateholders from time to time as partners or members of an association,
nor shall any Investor Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this Agreement pursuant
to any provision hereof.
(c) No Investor Certificateholder shall have any right by
virtue of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement,
unless such Investor Certificateholder previously shall have made, and unless
the Holders of Investor Certificates evidencing more than 50% of the aggregate
unpaid principal amount of all Investor Certificates (or, with respect to any
such action, suit or proceeding that does not relate to all Series, 50% of the
aggregate unpaid principal amount of the Investor Certificates of all Series to
which such action, suit or proceeding relates) shall have made, a request to the
Trustee to institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity as it
may require against the costs, expenses and liabilities to be incurred therein
or thereby, and the Trustee, for 60 days after such request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding; it being understood and intended, and being expressly covenanted by
each Investor Certificateholder with every other Investor Certificateholder and
the Trustee, that no one or more Investor Certificateholders shall have any
right in any manner whatever by virtue or by availing itself or themselves of
any provisions of this Agreement to affect, disturb or prejudice the rights of
the Holders of any other of the Investor Certificates, or to obtain or seek to
obtain priority over or preference to any other such
103
Investor Certificateholder, or to enforce any right under this Agreement, except
in the manner herein provided and for the equal, ratable and common benefit of
all Investor Certificateholders except as otherwise expressly provided in this
Agreement. For the protection and enforcement of the provisions of this Section,
each and every Investor Certificateholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Section 13.04. GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 13.05. Notices; Payments.
(a) All demands, notices, instructions, directions and
communications (collectively, "Notices") under this Agreement shall be in
writing and shall be deemed to have been duly given if personally delivered at,
mailed by registered mail, return receipt requested, or sent by facsimile
transmission (i) in the case of the Transferors to Fleet Credit Card Funding,
LLC, Suite PA EH 066 01L, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
President, with a copy to General Counsel of Fleet Credit Card Funding, LLC,
Mail Stop: PA EH 066 02L, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; (ii) in the
case of the Servicer, to Fleet Bank (RI), National Association, Securitization
Department, Mail Stop: PA EH 066 01H, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Director of Securitization Structuring, with a copy to General
Counsel, Mail Stop: PA EH 066 02L, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇; (iii)
in the case of the Trustee, to The Corporate Trust Office (facsimile no.
(▇▇▇)-▇▇▇-▇▇▇▇, in the case of ▇▇▇▇▇'▇, to ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attn: ABS ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ (facsimile no. 212-553-4600);
(iv) in the case of Standard & Poor's, to ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Asset Backed Group, (facsimile no. 212-438-2648); (v) in
the case of the Paying Agent or the Transfer Agent and Registrar, to the
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attn: Corporate Trust and
Agency Group/Structured Finance Group (facsimile no. (▇▇▇) ▇▇▇-▇▇▇▇), and (vi)
to any other Person as specified in any Supplement; or, as to each party, at
such other address or facsimile number as shall be designated by such party in a
written notice to each other party.
(b) Any Notice required or permitted to be given to a Holder
of Registered Certificates shall be given by first-class mail, postage prepaid,
at the address of such Holder as shown in the Certificate Register. No Notice
shall be required to be mailed to a Holder of Bearer Certificates or Coupons but
shall be given as provided below. Any Notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been duly
given, whether or not the Investor Certificateholder receives such Notice. In
addition, (a) if and so long as any Series or Class is listed on the Luxembourg
Stock Exchange and such Exchange shall so require, any Notice to Investor
Certificateholders shall be published in an Authorized Newspaper of general
circulation in Luxembourg within the time period prescribed in this Agreement
and (b) in the case of any Series or Class with respect to which any Bearer
Certificates are outstanding, any Notice required or permitted to be given to
Investor Certificateholders of such Series or Class shall be published in an
Authorized Newspaper within the time period prescribed in this Agreement.
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(c) All Notices to be made to the Transferors shall be deemed
given if one Notice is provided to the address of FCCF. All payments hereunder
to Fleet (RI) shall be made to such account as Fleet (RI) may specify in
writing. All payments hereunder to the Transferors shall be deemed made if made
to such account as FCCF may specify in writing.
Section 13.06. Rule 144A Information. For so long as any of
the Investor Certificates of any Series or Class are "restricted securities"
within the meaning of Rule 144(a)(3) under the Act, each of the Transferors, the
Trustee, the Servicer and any Series Enhancer agree to cooperate with each other
to provide to any Investor Certificateholders of such Series or Class and to any
prospective purchaser of Certificates designated by such an Investor
Certificateholder, upon the request of such Investor Certificateholder or
prospective purchaser, any information required to be provided to such holder or
prospective purchaser to satisfy the condition set forth in Rule 144A(d)(4)
under the Act.
Section 13.07. Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such provisions shall be deemed
severable from the remaining provisions of this Agreement and shall in no way
affect the validity or enforceability of the remaining provisions or of the
Certificates or the rights of the Certificateholders.
Section 13.08. Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Section 8.02, this Agreement
may not be assigned by the Servicer without the prior consent of Holders of
Investor Certificates evidencing not less than 66-2/3% of the Aggregate Investor
Amount.
Section 13.09. Certificates Nonassessable and Fully Paid. It
is the intention of the parties to this Agreement that the Certificateholders
shall not be personally liable for obligations of the Trust, that the interests
in the Trust represented by the Certificates shall be nonassessable for any
losses or expenses of the Trust or for any reason whatsoever and that
Certificates upon authentication thereof by the Trustee pursuant to Section 6.02
are and shall be deemed fully paid.
Section 13.10. Further Assurances. The Transferors and the
Servicer agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments required or reasonably requested by the
Trustee more fully to effect the purposes of this Agreement, including the
execution of any financing statements or continuation statements relating to the
Receivables for filing under the provisions of the UCC of any applicable
jurisdiction.
Section 13.11. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, the Servicer, the Trustee, each Transferor, each
Series Enhancer and each Holder of a Transferor Certificate shall not, prior to
the date which is one year and one day after the termination of this Agreement
with respect to the Trust, acquiesce, petition or otherwise invoke or cause the
Trust to invoke the process of any Governmental Authority for the purpose of
commencing or sustaining a case against the Trust under any Debtor Relief Law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Trust or any substantial part of its property or
ordering the winding-up or liquidation of the affairs of the Trust.
105
Notwithstanding any prior termination of this Agreement,
neither the Servicer, the Trustee, any Transferor nor the Certificateholders
shall institute, or join in instituting a proceeding against any Transferor
under any Debtor Relief Law or other proceedings under any United States federal
or state bankruptcy or similar law.
Section 13.12. No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee or the
Certificateholders, any right, remedy, power or privilege under this Agreement
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right, remedy, power or privilege under this Agreement preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege. The rights, remedies, powers and privileges provided under this
Agreement are cumulative and not exhaustive of any rights, remedies, powers and
privileges provided by law.
Section 13.13. Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall constitute
one and the same instrument.
Section 13.14. Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the
Certificateholders, any Series Enhancer (to the extent provided in this
Agreement and the related Supplement) and their respective successors and
permitted assigns. Except as otherwise expressly provided in this Agreement, no
other Person will have any right or obligation hereunder.
Section 13.15. Actions by Certificateholders. (a) Wherever in
this Agreement a provision is made that an action may be taken or a Notice given
by Certificateholders, such action or Notice may be taken or given by any
Certificateholder, unless such provision requires a specific percentage of
Certificateholders.
Any Notice, request, authorization, direction, consent, waiver
or other act by the Holder of a Certificate shall bind such Holder and every
subsequent Holder of such Certificate and of any Certificate issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or omitted to be done by the Trustee, the Transferors
or the Servicer in reliance thereon, whether or not notation of such action is
made upon such Certificate.
Section 13.16. Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 13.17. Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
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IN WITNESS WHEREOF, Fleet (RI) as Servicer and as Seller prior
to the Substitution Date, FCCF, as Transferor on and after the Substitution Date
and the Trustee have caused this Agreement to be duly executed by their
respective officers as of the day and year first above written.
FLEET CREDIT CARD FUNDING, LLC,
Transferor,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
FLEET BANK (RI), NATIONAL ASSOCIATION,
Seller prior to the Substitution Date and as Servicer,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
BANKERS TRUST COMPANY,
not in its individual capacity, but solely as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Assistant Vice President
EXHIBIT A
FORM OF BASE CERTIFICATE
THIS BASE CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED. NEITHER THIS BASE CERTIFICATE NOR ANY
PORTION HEREOF OR ANY INTEREST HEREIN MAY BE OFFERED OR SOLD EXCEPT IN
COMPLIANCE WITH THE REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM SUCH REGISTRATION PROVISIONS.
THIS BASE CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED EXCEPT IN COMPLIANCE WITH
THE TERMS OF THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
No. __ One Unit
FLEET CREDIT CARD MASTER TRUST II
BASE CERTIFICATE
THIS CERTIFICATE REPRESENTS AN INTEREST
IN CERTAIN ASSETS OF THE
FLEET CREDIT CARD MASTER TRUST II
Evidencing an 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 consumer revolving credit card accounts originated or acquired by
Fleet Bank (RI), National Association ("Fleet RI"), and, in certain
circumstances, certain Additional Account Owners (as defined in the Pooling and
Servicing Agreement referred to below).
(Not an interest in or obligation of the Transferors
or any affiliate thereof)
This certifies that FLEET CREDIT CARD FUNDING, LLC is the
registered owner of a fractional interest in the assets of a trust (the "Trust")
not allocated to the Certificateholders' Interest or the interest of any holder
of a Supplemental Certificate pursuant to the Amended and Restated Pooling and
Servicing Agreement dated as of December 1, 1993, as amended and restated as of
January 1, 2002 (as amended and supplemented, the "Agreement"), between Fleet
Credit Card Funding, LLC, a Delaware limited liability company ("FCCF"), as
Transferor, Fleet Bank (RI), National Association, a national banking
association, as Servicer, and Bankers Trust Company, a New York banking
corporation, as trustee (the "Trustee"). The corpus of the Trust consists of (i)
a portfolio of all receivables (the "Receivables") existing in the revolving
credit card accounts identified under the Agreement from time to time (the
"Accounts"), (ii) all Allocated Interchange and Recoveries as provided in the
Agreement, (iii) all monies due or to
A-1
become due and all amounts received with respect thereto and all proceeds
(including "proceeds" as defined in the UCC) of and Collections of such
Receivables (iv) all funds which are from time to time on deposit in the
Collection Account, the Excess Funding Account and in the Series Accounts, (v)
the benefits of any Series Enhancements issued and to be issued by Series
Enhancers with respect to one or more Series of Investor Certificates, (vi) the
rights, remedies, powers, privileges and claims of the Transferor with respect
to the Receivables Purchase Agreement dated as of January 1, 2002 between Fleet
(RI) and FCCF; and (vii) all other assets and interests constituting the Trust
Assets.
Although a summary of certain provisions of the Agreement is
set forth below, this Certificate does not purport to summarize the Agreement
and reference is made to the Agreement 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
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.
This Certificate is issued under and is subject to the terms,
provisions and conditions of the Agreement, to which Agreement, as amended and
supplemented from time to time, FCCF by virtue of the acceptance hereof assents
and is bound.
The Receivables consist of Principal Receivables which arise
generally from the purchase of merchandise and services and amounts advanced to
cardholders as cash advances and Finance Charge Receivables which arise
generally from Periodic Finance Charges, Cash Advance Fees, Late Fees, annual
membership fees and other fees and charges with respect to the Accounts.
This Certificate is the Base Certificate, which represents
FCCF's interest in certain assets of the Trust, including the right to receive a
portion of the Collections and other amounts at the times and in the amounts
specified in the Agreement. The aggregate interest represented by the Base
Certificate at any time in the Receivables in the Trust shall not exceed the
Transferors' Interest at such time. In addition to the Base Certificate, (i)
Investor Certificates will be issued to investors pursuant to the Agreement,
which will represent the Certificateholders' Interest, and (ii) Supplemental
Certificates may be issued pursuant to the Agreement, which will represent that
portion of the Transferors' Interest not allocated to FCCF. This Base
Certificate shall not represent any interest in the Collection Account, the
Excess Funding Account or the Series Accounts, except as expressly provided in
the Agreement, or any Series Enhancements.
FCCF has entered into the Agreement, and this Certificate is
issued, with the intention that, except as otherwise provided for in any
Supplement, for Federal, state and local income and franchise tax purposes only,
the Investor Certificates will qualify as indebtedness secured by the
Receivables. FCCF, by entering into the Agreement and by the acceptance of this
Certificate, agrees to treat such Investor Certificates for Federal, state and
local income and franchise tax purposes as indebtedness.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual or facsimile signature, this
Certificate shall not be entitled to any benefit under the Agreement or be valid
for any purpose.
A-2
IN WITNESS WHEREOF, FCCF caused this Certificate to be duly
executed.
FLEET CREDIT CARD FUNDING, LLC
By: ________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Base Certificate described in the within-mentioned
Agreement.
BANKERS TRUST COMPANY,
as Trustee
By: ________________________
Authorized Officer
A-3
EXHIBIT B
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
ASSIGNMENT No. ____ OF RECEIVABLES IN ADDITIONAL ACCOUNTS,
dated as of __________ ____, ____ by and among Fleet Credit Card Funding, LLC, a
Delaware limited liability company ("FCCF"), as Transferor (the "Transferor"),
Fleet Bank (RI), National Association, as Servicer (the "Servicer"),
[[__________], an Additional Transferor] ([__________] and, together with
[FCCF], the "Participating Transferor(s)") and Bankers Trust Company, a banking
corporation organized and existing under the laws of the State of New York (the
"Trustee"), pursuant to the Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS the Participating Transferor(s), the Servicer, and the
Trustee are parties to the Amended and Restated Pooling and Servicing Agreement,
dated as of December 1, 1993 as amended and restated as of January 1, 2002
(hereinafter as such agreement may have been, or may from time to time be,
amended, supplemented or otherwise modified, the "Agreement");
WHEREAS pursuant to the Agreement, the Participating
Transferor(s) wish[es] to designate Additional Accounts to be included as
Accounts and to convey the Receivables in such Additional Accounts, whether
existing in such Additional Accounts on the Addition Cut-Off Date or thereafter
created, to the Trustee (as each such term is defined in the Agreement);
WHEREAS the Trustee is willing to accept designation and
conveyance subject to the terms and conditions hereof; and
WHEREAS the Servicer is willing to service the Receivables
hereby conveyed under the terms and conditions specified in the Agreement and
herein.
NOW, THEREFORE, the Participating Transferor(s), the Servicer
and the Trustee hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have
the meanings ascribed to them in the Agreement unless otherwise defined herein.
"Addition Cut-Off Date" shall mean __________ ____, ____.
"Addition Date" shall mean, with respect to the Additional
Accounts, __________ ____, ____.
"Additional Accounts" shall mean the Additional Accounts, as
defined in the Agreement, that are designated hereby and listed on Schedule 1
hereto.
"Notice Date" shall mean, with respect to the Additional
Accounts designated hereby, the fifth Business Day prior to the Addition Date.
B-1
2. Designation of Additional Accounts. The Servicer does
hereby deliver herewith a computer file or microfiche list containing a true and
complete schedule identifying all the Additional Accounts, specifying for each
such Additional Account, as of the Addition Cut-Off Date, its account number,
its collection status, the aggregate amount of Receivables outstanding in such
Additional Account and the aggregate amount of Principal Receivables in such
Additional Account. Such computer file or microfiche list shall be, as of the
date of this Assignment, incorporated into and made part of this Assignment and
the Agreement and is marked as Schedule 1 to this Assignment.
3. Conveyance of Receivables.
(a) Each of the Participating Transferor(s) do[es] hereby
transfer, assign, set over and otherwise convey to the Trustee, without
recourse, all of its right, title and interest in and to (i) the Receivables now
existing and hereafter created from time to time until the termination of the
Trust and arising in connection with the Additional Accounts, (ii) all monies
due or to become due and all amounts received with respect to such Receivables
and (iii) all proceeds (including "proceeds" as defined in the UCC) of and
Collections of such Receivables, including Insurance Proceeds and Recoveries
relating to such Receivables, and (iv) to the extent not otherwise included in
such Receivables, Allocated Interchange allocable to such Accounts. The
foregoing transfer, assignment, set over and conveyance does not constitute and
is not intended to result in a creation or an assumption by the Trust, the
Trustee or any Investor Certificateholder of any obligation of the Servicer, the
Participating Transferor(s) or any other Person in connection with the
Additional Accounts, the Receivables or under any agreement or instrument
relating thereto, including, without limitation, any obligation to any Obligors,
VISA, MasterCard or insurers.
(b) In connection with such transfer, assignment, set over and
conveyance, [the/each] Participating Transferor agrees to record and file, at
its own expense, any financing statements (and continuation statements and
amendments with respect to such financing statements when applicable) with
respect to the Receivables now existing and hereafter created in the Additional
Accounts, meeting the requirements of applicable state law in such manner and in
such jurisdictions as are necessary to perfect the transfer and assignment of
such Receivables to the Trust, and to deliver file-stamped copies of such
financing statements or other evidence of such filings (which may, for purposes
of this Section 3, consist of a telecopy of file-stamped copies of such
financing statements, continuation statements, or amendments, with the original
of such file-stamped financing statement delivered within 24 hours) to the
Trustee on or prior to the date of this Assignment. The Trustee shall be under
no obligation whatsoever to file such financing statement, continuation
statement or amendment to such financing statement, or make any other filing
under the UCC in connection with such transfer.
(c) In connection with such conveyance, each Participating
Transferor has, at its own expense, on or prior to the Addition Date, indicated
and identified in its books and records (including its computer files) that all
Receivables created in connection with the Additional Accounts have been
conveyed to the Trustee pursuant to this Assignment for the benefit of the
Certificateholders, by identifying such Additional Accounts in such
Participating Transferor's computer files by including such Participating
Transferor's Code "____" or "____" in the PORTF_CD field of such Participating
Transferor's computer files (the "Code"). [The/Each] Participating Transferor
agrees not to alter the Code or the field referenced above with respect to any
such Additional Account during the term of this Assignment and the Agreement
unless and
B-2
until such Additional Accounts become Removed Accounts or unless and until (i)
such Participating Transferor shall give written notice of any such alteration
to the Trustee, such written notice to be as of the date of its receipt by the
Trustee incorporated into and made part of this assignment and the Agreement,
and (ii) the Trustee and such Participating Transferor shall execute and file
any UCC financing statement or amendment thereof necessitated by such
alteration; provided, that such Participating Transferor may alter the Code of
any such Additional Account from "____" to "____" during the term of this
Assignment and the Agreement without providing any notice to the Trustee or
filing any UCC financing statements or amendment thereof.
(d) The parties hereto intend that each transfer of
Receivables and other property pursuant to this Assignment constitutes a sale,
and not a secured borrowing, for accounting purposes. If and to the extent that
the foregoing conveyance is not deemed to be a sale, [the/each] Participating
Transferor hereby grants to the Trustee a first priority perfected security
interest in all of such Participating Transferor's right, title and interest in
and to (i) the Receivables now existing and hereafter created and arising in
connection with the Additional Accounts, (ii) all monies due to or to become due
and all amounts received with respect thereto, (iii) all proceeds (including
"proceeds" as defined in the UCC) of and Collections of such Receivables,
including Insurance Proceeds and Recoveries relating thereto and (iv) to the
extent not otherwise included in the Receivables, Allocated Interchange
allocable to such Accounts. This Assignment shall constitute a security
agreement under applicable law.
4. Acceptance by Trustee. Subject to the satisfaction of the
conditions set forth in Section 6 of this Assignment, the Trustee hereby
acknowledges its acceptance of all right, title and interest in and to the
property, now existing and hereafter created, conveyed to the Trustee pursuant
to subsection 3(a) of this Assignment, and declares that it shall maintain such
right, title and interest upon the trust set forth in the Agreement for the
benefit of all the Investor Certificateholders. Subject to the satisfaction of
the conditions set forth in Section 6 of this Assignment, the Trustee hereby
acknowledges its acceptance of a security interest in all right, title and
interest in and to the property, now existing and hereafter created, granted to
the Trustee pursuant to subsection 3 (d) of this Assignment, and declares that
it shall maintain such right, title and interest, upon the trust set forth in
the Agreement for the benefit of all the Certificateholders and further
acknowledges that, prior to or simultaneously with the execution and delivery of
this Assignment, the Participating Transferors delivered to the Trustee the
computer file or microfiche list described in Section 2 of this Agreement.
5. Representations and Warranties of the Participating
Transferor(s). [The/Each] Participating Transferor hereby represents and
warrants to the Trustee, on behalf of the Trust, as of the date of this
Assignment and as of the Addition Date, that:
(a) Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of such Participating
Transferor, enforceable against such Participating Transferor in
accordance with its terms, except as such enforceability may be subject
to bankruptcy, insolvency, reorganization, moratorium or similar laws
of general applicability relating to or affecting creditors' rights,
and to general principles of equity;
(b) List of Accounts. As of the Addition Date, to the best
knowledge of such Participating Transferor, the computer file or
microfiche list of Additional Accounts complies with the requirements
of Section 2 hereof.
B-3
(c) Eligibility of Receivables. As of the Addition Cut-Off
Date, to the best knowledge o such Participating Transferor, each
Receivable in the related Additional Accounts is an Eligible Receivable
in all material respects;
(d) Selection Procedures. No selection procedures believed by
such Participating Transferor to be adverse to the interests of
Investor Certificateholders of any Series was utilized in selecting the
Additional Accounts from the available Eligible Accounts available to
such Participating Transferor;
(e) Insolvency. Such Participating Transferor is not insolvent
and will not be made insolvent by the transfer of the Receivables of
the Additional Accounts, and such transfer has not been made after the
commission of an act of insolvency or in contemplation thereof or with
a view to the preference of one creditor over another or with the
intent to hinder, delay or defraud such Participating Transferor or any
creditor of such Participating Transferor;
(f) Security Interest. This Assignment constitutes a valid and
continuing security interest in favor of the Trustee in (i) the
Receivables now existing and hereafter created from time to time until
the termination of the Trust and arising in connection with the
Additional Accounts, (ii) all monies due or to become due and all
amounts received with respect to such Receivables and (iii) all
proceeds (including "proceeds" as defined in the UCC) of and
Collections of such Receivables, including Insurance Proceeds and
Recoveries relating to such Receivables, and (iv) to the extent not
otherwise included in such Receivables, Allocated Interchange allocable
to such Accounts, such security interest is prior to all other Liens
and is enforceable as such as against creditors of and purchasers from
the Participating Transferor and which, in the case of existing
Receivables in the Additional Accounts and the proceeds thereof,
including Insurance Proceeds and Recoveries, is enforceable upon the
conveyance of the Receivables to the Trustee, and which will be
enforceable with respect to the Receivables hereafter created in
respect of the Additional Accounts and the proceeds thereof upon such
creation. Upon the filing of the financing statements or amendments
thereof described in Section 3 of this Assignment and, in the case of
the Receivables of the Additional Accounts thereafter created and the
proceeds thereof, upon such creation, the Trustee shall have a first
priority perfected security interest in such property, except for (i)
Liens permitted under subsection 2.07(b) of the Agreement, (ii) the
interests of the holders of the Transferors' Interest under the
Agreement and (iii) the right to receive interest and investment
earnings (net of losses and investment expenses) in respect of the
Collection Account or any Series Account as provided in the Agreement.
The Receivables described in Section 3 of this Assignment constitute
"accounts" within the meaning of the applicable UCC;
(g) Creation. At the time of its transfer of any Receivable to
the Trustee pursuant to this Assignment, the Transferor owned and had
good and marketable title to such Receivables free and clear of any
Lien, claim or encumbrance of any Person;
(h) Perfection. The Participating Transferor has caused or
will have caused, within 10 days of the initial execution of this
Assignment, the filing of all appropriate financing statements in the
proper filing office in the appropriate jurisdictions under applicable
law in
B-4
order to perfect the security interest in the Receivables granted to
the Trustee pursuant to this Assignment;
(i) Priority. Other than the security interest granted to the
Trustee pursuant to this Assignment, the Participating Transferor has
not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed the Receivables described in Section 3 of this
Assignment. The Participating Transferor has not authorized the filing
of and is not aware of any financing statements against the
Participating Transferor that cover such Receivables other than any
financing statement relating to the transfer and security interest
granted to the Trustee pursuant to this Assignment or that has been
terminated. The Participating Transferor is not aware of any judgment
or tax lien filings against the Participating Transferor;
(j) No Pay Out Event. The addition of any Receivable in the
Additional Accounts designated hereby on the Addition Date will not, in
the reasonable belief of such Participating Transferor, cause a Pay Out
Event to occur.
6. Conditions Precedent. The acceptance of the Trustee set
forth in Section 4 of this Assignment and the amendment of the Agreement as set
forth in Section 7 of this Assignment are subject to the satisfaction, on or
prior to the Addition Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Participating Transferor(s)
in Section 5 of this Assignment shall be true and correct as of the
Addition Date.
(b) Officer's Certificate. The Participating Transferor(s)
shall have delivered to the Trustee an Officer's Certificate confirming
the items set forth in subsections 2.08(c)(ii) through (vi) of the
Agreement.
(c) Opinion of Counsel. The Participating Transferor shall
have delivered to the Trustee Opinions of Counsel with respect to the
Additional Accounts designated hereby substantially in the form of
Exhibit G-2 to the Agreement and as required pursuant to subsections
13.02(d) and 2.08(c)(vi) of the Agreement.
[(d) Rating Agencies. The Rating Agency Condition shall have
been satisfied.]
7. Amendment of the Agreement. The Agreement is hereby amended
by providing that all references to the "Pooling and Servicing Agreement", to
"this Agreement" and "herein" shall be deemed from and after the Addition Date
to be a reference to the Agreement as supplemented by this Assignment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Agreement shall remain unamended and shall
continue to be and shall remain in full force and effect in accordance with its
terms and except as expressly provided herein shall not constitute or be deemed
to constitute a waiver of compliance with or consent to noncompliance with any
term or provision of the Agreement.
8. Counterparts. This Assignment may be executed in any number
of counterparts, all of which taken together shall constitute one and the same
instrument.
B-5
9. Governing Law. This Assignment shall be construed in
accordance with the laws of the State of New York, without reference to its
conflict of law provisions, and the obligation, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
B-6
IN WITNESS WHEREOF, the undersigned have caused this
Assignment of Additional Accounts to be duly executed and delivered by their
respective duly authorized officers on the day and the year first above written.
FLEET CREDIT CARD FUNDING, LLC,
[Participating] Transferor
By: ____________________
Title:
[-------------------],
Participating Transferor,
By: ____________________
Title:
FLEET BANK (RI), NATIONAL ASSOCIATION,
Servicer
By: ____________________
Title:
BANKERS TRUST COMPANY,
Trustee,
By: ____________________
Title:
B-7
EXHIBIT C
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
REASSIGNMENT No. OF RECEIVABLES dated as of __________,
____,(1) by and among Fleet Credit Card Funding, LLC, a Delaware limited
liability company ("FCCF"), as Transferor, Fleet Bank (RI), National
Association, as Servicer, [__________], an Additional Transferor ([__________]
and, together with [FCCF], the "Participating Transferors"), and Bankers Trust
Company, a New York banking corporation (the "Trustee"), pursuant to the Amended
and Restated Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS the Participating Transferors, [_____________] and the
Trustee are parties to the Amended and Restated Pooling and Servicing Agreement
dated as of December 1, 1993 as amended and restated as of January 1, 2002 (as
amended and supplemented, the "Agreement");
WHEREAS pursuant to the Agreement, the Participating
Transferors wish to remove from the Trust all Receivables in certain designated
Accounts (the "Removed Accounts") and to cause the Trustee to reconvey the
Receivables of such Removed Accounts, whether now existing or hereafter created,
to the Participating Transferors; and
WHEREAS the Trustee is willing to accept such designation and
to reconvey the Receivables in the Removed Accounts subject to the terms and
conditions hereof;
NOW, THEREFORE, the Participating Transferors and the Trustee
hereby agree as follows:
1. Defined Terms. All terms defined in the Agreement and used
herein shall have such defined meanings when used herein, unless otherwise
defined herein.
"Removal Date" shall mean, with respect to the Removed
Accounts, _________ __, ____.
"Removal Notice Date" shall mean, with respect to the Removed
Accounts, ________ __, ____.
"Removed Accounts" shall mean the Removed Accounts, as defined
in the Agreement, that are designated hereby and listed on the computer file or
microfiche list described in Section 2 hereof.
2. Designation of Removed Accounts. On or before the date that
is 10 Business Days after the Removal Date, the Participating Transferors will
deliver to the Trustee a computer file or microfiche list containing a true and
complete schedule identifying all Accounts the
--------
(1) To be dated as of the Removal Date.
C-1
Receivables of which are being removed from the Trust, specifying for each
Removed Account, as of the Removal Notice Date, its account number, the
aggregate amount outstanding in each Removed Account and the aggregate amount of
Principal Receivables in each Removed Account, which computer file or microfiche
list shall supplement Schedule 1 to the Agreement.
3. Conveyance of Receivables. (a) The Trustee does hereby
transfer, assign, set over and otherwise convey to each Participating
Transferor, without recourse, on and after the Removal Date, all right, title
and interest of the Trustee in, to and under the Receivables existing at the
close of business on the Removal Date and thereafter created from time to time
in the Removed Accounts, all monies due or to become due and all amounts
received with respect thereto and all proceeds thereof but excluding all
Recoveries relating thereto.
(b) In connection with such transfer, the Trustee agrees to
execute and deliver to the Participating Transferors on or prior to the date
this Reassignment is delivered, applicable termination statements with respect
to the Receivables existing at the close of business on the Removal Date and
thereafter created from time to time in the Removed Accounts and the proceeds
thereof evidencing the release by the Trustee of its interest in the Receivables
in the Removed Accounts, and meeting the requirements of applicable state law,
in such manner and such jurisdictions as are necessary to terminate such
interest.
4. Representations and Warranties of the Participating
Transferors. Each of the Participating Transferors hereby severally represents
and warrants to the Trustee, as of the Removal Date:
(a) Legal, Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of such Participating
Transferor, enforceable against such Participating Transferor in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now or
hereafter in effect affecting the enforcement of creditors' rights in general
and except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(b) Pay Out Event. Such Participating Transferor reasonably
believes that (A) the removal of the Receivables existing in the Removed
Accounts will not, based on the facts known to such Participating Transferor,
then or thereafter cause a Pay Out Event to occur with respect to any Series and
(B) no selection procedure was utilized by such Participating Transferor which
would result in a selection of Removed Accounts that would be materially adverse
to the interests of the Investor Certificateholders of any Series as of the
Removal Date.
(c) List of Removed Accounts. The list of Removed Accounts
delivered pursuant to subsection 2.09(b) of the Agreement, as of the Removal
Date, is true and complete in all material respects.
5. Ratification of Agreement. As supplemented by this
Reassignment, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Reassignment shall be read, taken and
construed as one and the same instrument.
C-2
6. Counterparts. This Reassignment may be executed in two or
more counterparts, and by different parties on separate counterparts, each of
which shall be an original, but all of which shall constitute one and the same
instrument.
7. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the Participating Transferors and the
Trustee have caused this Reassignment to be duly executed by their respective
officers as of the day and year first above written.
FLEET CREDIT CARD FUNDING, LLC,
[Participating] Transferor
By: ____________________
Title:
[-------------------],
Participating Transferor,
By: ____________________
Title:
FLEET BANK (RI), NATIONAL ASSOCIATION,
Servicer
By: ____________________
Title:
BANKERS TRUST COMPANY,
Trustee,
By: ____________________
Title:
C-3
EXHIBIT D
FORM OF ANNUAL SERVICER'S CERTIFICATE
(To be delivered on or before November 30 of
each calendar year beginning with November 30, 1994,
pursuant to Section 3.05 of the
Pooling and Servicing Agreement referred to below)
FLEET BANK (RI), NATIONAL ASSOCIATION
----------------------------
FLEET CREDIT CARD MASTER TRUST II
----------------------------
The undersigned, a duly authorized representative of Fleet
Bank (RI), National Association, as Servicer ("Fleet"), pursuant to the Amended
and Restated Pooling and Servicing Agreement dated as of December 1, 1993 and
amended and restated as of January 1, 2002 (as amended and supplemented, the
"Agreement"), among Fleet Credit Card Funding, LLC, as Transferor, Fleet, as
Servicer, and Bankers Trust Company, as Trustee, does hereby certify that:
1. Fleet is, as of the date hereof, the Servicer under the
Agreement. Capitalized terms used in this Certificate have their
respective meanings as set forth in the Agreement.
2. The undersigned is a Servicing Officer who is duly
authorized pursuant to the Agreement to execute and deliver this
Certificate to the Trustee.
3. A review of the activities of the Servicer during the
period ended September 30, ____, and of its performance under the
Agreement was conducted under my supervision.
4. Based on such review, the Servicer has, to the best of my
knowledge, performed in all material respects its obligations under the
Agreement throughout such year and no default in the performance of
such obligations has occurred or is continuing except as set forth in
paragraph 5 below.
5. The following is a description of each default in the
performance of the Servicer's obligations under the provisions of the
Agreement known to me to have been made by the Servicer during the
period ended September 30, ____, which sets forth in detail (i) the
nature of each such default, (ii) the action taken by the Servicer, if
any, to remedy each such default and (iii) the current status of each
such default: [If applicable, insert "None."]
D-1
IN WITNESS WHEREOF, the undersigned has duly executed this
Certificate this ___ day of _________, _____.
FLEET BANK (RI), NATIONAL ASSOCIATION,
Servicer,
by
-------------------------
Name:
Title:
D-2
EXHIBIT E-1
THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "1933 ACT"). NEITHER THIS CERTIFICATE NOR ANY
INTEREST HEREIN MAY BE OFFERED OR SOLD EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF THE 1933 ACT AND ANY APPLICABLE PROVISIONS OF ANY
STATE BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
SUCH REGISTRATION PROVISIONS. THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO
CERTAIN CONDITIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN.
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF
A BENEFIT PLAN (AS DEFINED BELOW).
E-1
EXHIBIT E-2
[FORM OF UNDERTAKING LETTER]
[Date]
[Bankers Trust Company
Four ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust and Agency Group/Structured Finance Group]
[Fleet Credit Card Funding, LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇ EH 066 01L
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, General Counsel to Fleet Credit Card Funding, LLC]
Re: Purchase of $__________ principal amount of Fleet
Credit Card Master Trust II, [____%] [Floating Rate]
Asset Backed Certificates, Series [____]
Dear Sirs:
In connection with our purchase of the above Asset Backed
Certificates (the "Certificates") we confirm that:
(i) we understand that the Certificates are not being
registered under the Securities Act of 1933, as amended (the "1933
Act"), and are being sold to us in a transaction that is exempt from
the registration requirements of the 1933 Act;
(ii) any information we desire concerning the Certificates or
any other matter relevant to our decision to purchase the Certificates
is or has been made available to us;
(iii) we have such knowledge and experience in financial and
business matters as to be capable of evaluating the merits and risks of
an investment in the Certificates, and we (and any account for which we
are purchasing under paragraph (iv) below) are able to bear the
economic risk of an investment in the Certificates; we (and any account
for which we are purchasing under paragraph (iv) below) are an
"accredited investor" (as such term is defined in Rule 501(a)(1), (2)
or (3) of Regulation D under the ▇▇▇▇ ▇▇▇); and we are not, and none of
such accounts is, a Benefit Plan;
(iv) we are acquiring the Certificates for our own account or
for accounts as to which we exercise sole investment discretion and not
with a view to any distribution of the Certificates, subject
nevertheless to the understanding that the disposition of our property
shall at all times be and remain within our control;
E-2-1
(v) we agree that the Certificates must be held indefinitely
by us unless subsequently registered under the 1933 Act or an exemption
is available from any registration requirements of that Act and any
applicable state securities law;
(vi) we agree that in the event that at some future time we
wish to dispose of or exchange any of the Certificates (such
disposition or exchange not being currently foreseen or contemplated),
we will not transfer or exchange any of the Certificates unless:
(A)(1) the sale is to an Eligible Purchaser
(as defined below), (2) a letter to substantially the same
effect as paragraphs (i), (ii), (iii), (iv), (v) and (vi) of
this letter is executed promptly by the purchaser and (3) all
offers or solicitations in connection with the sale, whether
directly or through any agent acting on our behalf, are
limited only to Eligible Purchasers and are not made by means
of any form of general solicitation or general advertising
whatsoever; or
(B) the Certificates are transferred
pursuant to Rule 144 under the 1933 Act by us after we have
held them for more than three years; or
(C) the Certificates are sold in any other
transaction that does not require registration under the 1933
Act and, if the Transferors, the Servicer, the Trustee or the
Transfer Agent and Registrar so requests, we therefore have
furnished to such party an opinion of counsel satisfactory to
such party, in form and substance satisfactory to such party,
to such effect; or
(D) the Certificates are transferred
pursuant to an exception from the registration requirements of
the 1933 Act under Rule 144A under the 1933 Act; and
(vii) we understand that the Certificates will bear a legend
to substantially the following effect:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"). NEITHER THIS
CERTIFICATE NOR ANY INTEREST HEREIN MAY BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF THE 1933 ACT AND ANY APPLICABLE PROVISIONS OF ANY STATE
BLUE SKY OR SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
SUCH PROVISIONS. THE TRANSFER OF THIS CERTIFICATE IS SUBJECT TO CERTAIN
CONDITIONS SET FORTH IN THE POOLING AND SERVICING AGREEMENT REFERRED TO
HEREIN."
"THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF
A BENEFIT PLAN (AS DEFINED BELOW)."
The first paragraph of this legend may be removed if the Transferors, the
Servicer, the Trustee and the Transfer Agent and Registrar have received an
opinion of counsel satisfactory to them, in form and substance satisfactory to
them, to the effect that such paragraph may be removed.
E-2-2
"Eligible Purchaser" means either an Eligible Dealer or a
corporation, partnership or other entity which we have reasonable grounds to
believe and do believe can make representations with respect to itself to
substantially the same effect as the representations set forth herein. "Eligible
Dealer" means any corporation or other entity the principal business of which is
acting as a broker or dealer in securities. "Benefit Plan" means any employee
benefit plan, trust or account, including an individual retirement account, that
is subject to the Employee Retirement Income Security Act of 1974, as amended,
or that is described in Section 4975(e)(1) of the Internal Revenue Code of 1986,
as amended, or an entity whose underlying assets include plan assets by reason
of a plan's investment in such entity. Capitalized terms used but not defined
herein shall have the meanings given to such terms in the Pooling and Servicing
Agreement dated as of December 1, 1993, as amended and restated as of January 1,
2002 and as thereafter amended and supplemented, among Fleet Credit Card
Funding, LLC, Fleet Bank (RI), National Association and Bankers Trust Company,
as trustee.
Very truly yours,
----------------------------
(Name of Purchaser)
by _________________________
(Authorized Officer)
E-2-3
EXHIBIT E-3
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE
ACCOUNT OF A BENEFIT PLAN (AS DEFINED BELOW).(1)
--------
(1) The following text should be included in any Certificate in which the
above legend appears:
The [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 the Employee Retirement Income Security
Act of 1974, as amended, or that is described in Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended, 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.
E-3-1
EXHIBIT F-1
[FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CLEARSTREAM BANKING FOR
DELIVERY OF DEFINITIVE CERTIFICATES
IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL SECURITY]
FLEET CREDIT CARD MASTER TRUST II,
[____%] [Floating Rate] Asset Backed
Certificates, Series [____]
[Insert title or sufficient description
of Certificates to be delivered]
We refer to that portion of the temporary Global Certificate
in respect of the above-captioned issue which is herewith submitted to be
exchanged for definitive Certificates (the "Submitted Portion") as provided in
the Amended and Restated Pooling and Servicing Agreement dated as of December 1,
1993 and amended and restated as of January 1, 2002 (as amended and
supplemented, the "Agreement") in respect of such issue. This is to certify that
(i) we have received a certificate or certificates, in writing or by tested
telex, with respect to each of the persons appearing in our records as being
entitled to a beneficial interest in the Submitted Portion and with respect to
such persons beneficial interest either (a) from such person, substantially in
the form of Exhibit F-2 to the Agreement, or (b) from [____________________],
substantially in the form of Exhibit F-3 to the Agreement, and (ii) the
Submitted Portion includes no part of the temporary Global Certificate excepted
in such certificates.
We further certify that as of the date hereof we have not
received any notification from any of the persons giving such certificates to
the effect that the statements made by them with respect to any part of the
Submitted Portion are no longer true and cannot be relied on as of the date
hereof.
We understand that this certificate is required in connection
with certain securities and tax laws of the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with which this certificate is or would be relevant, we irrevocably authorize
you to produce this certificate or a copy thereof to any interested party in
such proceedings.
Dated: __________ ____, ____(1)
[Euroclear Bank S.A./N.V.
as operator of the Euroclear System](2)
[Clearstream Banking, societe anonyme](2)
by ________________________
--------
(1) To be dated on the Exchange Date.
(2) Delete the inappropriate reference.
F-1-2
EXHIBIT F-2
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CLEARSTREAM BANKING
BY [INSERT NAME OF MANAGER]
WITH RESPECT TO REGISTERED CERTIFICATES SOLD TO
QUALIFIED INSTITUTIONAL BUYERS]
FLEET CREDIT CARD MASTER TRUST II,
[____%] [Floating Rate] Asset Backed Certificates, Series [____]
In connection with the initial issuance and placement of the
above referenced Asset Backed Certificates (the "Certificates"), an
institutional investor in the United States ("institutional investor") is
purchasing U.S. $__________ aggregate principal amount of the Certificates held
in our account at [Euroclear Bank S.A./N.V., as operator of the Euroclear
System] [Clearstream Banking, societe anonyme] on behalf of such investor.
We reasonably believe that such institutional investor is a
qualified institutional buyer as such term is defined under Rule 144A of the
Securities Act of 1933, as amended.
[We understand that this certificate is required in connection
with United States laws. We irrevocably authorize you to produce this
certificate or a copy hereof to any interested party in any administrative or
legal proceedings or official inquiry with respect to the matters covered by
this certificate.]
The Definitive Certificates in respect of this certificate are
to be issued in registered form in the minimum denomination of U.S. $__________
and such Definitive Certificates (and, unless the Pooling and Servicing
Agreement or Supplement relating to the Certificates otherwise provides, any
Certificates issued in exchange or substitution for or on registration of
transfer of Certificates) shall bear the following legend:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933. NEITHER THIS CERTIFICATE NOR ANY PORTION HEREOF
MAY BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR
TO U.S. PERSONS (EACH AS DEFINED HEREIN), EXCEPT IN COMPLIANCE WITH THE
REGISTRATION PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE
EXEMPTION FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER OF THIS
CERTIFICATE IS
F-2-1
SUBJECT TO CERTAIN CONDITIONS SET FORTH IN THE AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. THIS CERTIFICATE
CANNOT BE EXCHANGED FOR A BEARER CERTIFICATE."
Dated: __________ ____, ____
[-------------------------]
By ________________________
Authorized Officer
F-2-2
EXHIBIT F-3
[FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CLEARSTREAM BANKING BY A BENEFICIAL OWNER
OF CERTIFICATES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER]
FLEET CREDIT CARD MASTER TRUST II,
[____%] [Floating Rate] Asset Backed Certificates, Series [____]
This is to certify that as of the date hereof and except as
provided in the third paragraph hereof, the above-captioned Certificates held by
you for our account (i) are owned by a person that is a United States Person, or
(ii) are owned by a United States Person that is (A) the foreign branch of a
United States financial institution (as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v)) (a "financial institution") purchasing for its own
account or for resale, or (B) a United States person who acquired the
Certificates through the foreign branch of a financial institution and who holds
the Certificates through the financial institution on the date hereof (and in
either case (A) or (B), the financial institution hereby agrees to comply with
the requirements of Section 165(j)(3)(A), (B) or (C) of the Internal Revenue
Code of 1986, as amended, and the regulations thereunder), or (iii) are owned by
a financial institution for purposes of resale during the Restricted Period (as
defined in U.S. Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)). In
addition, financial institutions described in clause (iii) of the preceding
sentence (whether or not also described in clause (i) or (ii)) certify that they
have not acquired the Certificates for purposes of resale directly or indirectly
to a United States Person or to a person within the United States or its
possessions.
We undertake to advise you by tested telex if the above
statement as to beneficial ownership is not correct on the date of delivery of
the above-captioned Certificates in bearer form with respect to such of said
Certificates as then appear in your books as being held for our account.
This certificate excepts and does not related to U.S.
$__________ principal amount of Certificates held by you for our account, as to
which we are not yet able to certify beneficial ownership. We understand that
delivery of Definitive Certificates in such principal amount cannot be made
until we are able to so certify.
We understand that this certificate is required in connection
with certain securities and tax laws of the United States of America. If
administrative or legal proceedings are commenced or threatened in connection
with this certificate is or would be relevant, we irrevocably authorize you to
produce this certificate or a copy thereof to any interested party in such
proceedings. As used herein, "United States" means the United States of America
(including the States and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction; and "United States
Person" means a citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the laws of the
United States, or any political
F-3-1
subdivision thereof, or an estate or trust the income of which is subject to
United States federal income taxation regardless of its source.
Dated: (1)
By: _________________________________
As, or as agent for, the beneficial owner(s)
of the interest in the Certificates to which
this certificate relates.
F-3-2
--------
(1) This Certificate must be dated on the earlier of the date of the first
actual payment of interest in respect of the Certificates and the date
of delivery of the Certificates in definitive form.
EXHIBIT G-1
FORM OF OPINION OF COUNSEL
WITH RESPECT TO AMENDMENTS
Provisions to be included in
Opinion of Counsel to be delivered pursuant
to Section 13.02(d)(i)
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
Opinions of Counsel delivered on any applicable Closing Date.
(i) The amendment to the [Pooling and Servicing Agreement],
[Supplement], attached hereto as Schedule 1 (the "Amendment"), has been duly
authorized, executed and delivered by the Transferors and constitutes the legal,
valid and binding agreement of the Transferors, enforceable in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other laws from time to
time in effect affecting creditors' rights generally or the rights of creditors
of national banking associations. The enforceability of the Transferors'
obligations is also subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding in equity or at law).
(ii) The Amendment has been entered into in accordance with
the terms and provisions of Section 13.01 of the Pooling and Servicing
Agreement.
G-1-1
EXHIBIT G-2
FORM OF OPINION OF COUNSEL
WITH RESPECT TO ACCOUNTS
Provisions to be included in
Opinion of Counsel to be
delivered pursuant to
Section 13.02(d)(ii) or (iii)
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
Opinions of Counsel delivered on any applicable Closing Date.
1. The Receivables constitute "accounts" as defined in the
UCC.
2. The Amended and Restated Pooling and Servicing Agreement
creates in favor of the Trustee a security interest in the Receivables and the
proceeds thereof. Such security interest is perfected and of first priority.
G-2-1
SCHEDULE 1
List of Accounts