1
EXHIBIT 4.1
CONFORMED COPY
__________________________________________________
GREENWOOD TRUST COMPANY
MASTER SERVICER, SERVICER AND SELLER
AND
CONTINENTAL BANK, NATIONAL ASSOCIATION
TRUSTEE
ON BEHALF OF THE CERTIFICATEHOLDERS
POOLING AND SERVICING AGREEMENT
DATED AS OF OCTOBER 1, 1993
________________________
DISCOVER CARD MASTER TRUST I
__________________________________________________
2
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS
PAGE
----
SECTION 1.01 Definitions.................................................................. 1
SECTION 1.02 Other Definitional Provisions................................................ 15
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF INVESTOR CERTIFICATES
SECTION 2.01 Conveyance of Receivables.................................................... 16
SECTION 2.02 Authentication of Certificates............................................... 16
SECTION 2.03 Acceptance by the Trustee.................................................... 16
SECTION 2.04 Representations and Warranties of Greenwood.................................. 17
SECTION 2.05 Trust Portfolio Repurchase Obligations of the Sellers........................ 18
SECTION 2.06 Series Repurchase Obligations of the Sellers................................. 20
SECTION 2.07 Repurchase Obligations of the Sellers Relating to Receivables................ 21
SECTION 2.08 Intention of Parties......................................................... 22
SECTION 2.09 Covenants of the Sellers..................................................... 22
SECTION 2.10 Addition of Accounts......................................................... 23
SECTION 2.11 Removal of Accounts.......................................................... 27
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 Acceptance of Appointment and Other Matters Relating to the Master Servicer.. 28
SECTION 3.02 Acceptance of Appointment and Other Matters Relating to Servicers............ 29
SECTION 3.03 Servicing Compensation....................................................... 30
SECTION 3.04 Representations and Warranties of Greenwood, as Master Servicer and Servicer. 31
SECTION 3.05 Representations and Warranties of Other Servicers............................ 32
SECTION 3.06 Reports and Records for the Trustee.......................................... 32
SECTION 3.07 Master Servicer's and Servicers' Annual Certificates......................... 33
SECTION 3.08 Independent Public Accountants' Annual Servicing Report...................... 33
SECTION 3.09 Tax Treatment................................................................ 34
SECTION 3.10 Notices by the Master Servicer and the Servicers............................. 34
ARTICLE IV
RIGHTS OF INVESTOR CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.01 Rights of Investor Certificateholders......................................... 34
i
3
PAGE
SECTION 4.02 Establishment and Administration of Investor Accounts......................... 35
SECTION 4.03 Collections and Allocations................................................... 35
SECTION 4.04 Sellers' or Master Servicer's Failure to Make a Deposit or Payment............ 38
SECTION 4.05 Adjustments For Miscellaneous Debits and Credits and Fraudulent Charges....... 38
SECTION 4.06 Reallocation of Series Among Groups........................................... 39
ARTICLE V
DISTRIBUTIONS AND REPORTS TO
INVESTOR CERTIFICATEHOLDERS
SECTION 5.01 Distributions................................................................. 39
SECTION 5.02 Investor Certificateholders' Monthly Statement................................ 39
SECTION 5.03 Certificateholders' Annual Tax Statement...................................... 39
ARTICLE VI
THE INVESTOR CERTIFICATES
SECTION 6.01 The Certificates.............................................................. 40
SECTION 6.02 Book-Entry Certificates....................................................... 41
SECTION 6.03 Authentication of Certificates................................................ 42
SECTION 6.04 Registration of Transfer and Exchange of Certificates......................... 43
SECTION 6.05 Mutilated, Destroyed, Lost or Stolen Certificates............................. 45
SECTION 6.06 Issuances of New Series....................................................... 45
SECTION 6.07 Persons Deemed Owners......................................................... 46
SECTION 6.08 Appointment and Duties of Paying Agent........................................ 47
SECTION 6.09 Access to List of Names and Addresses of Holders of Registered Certificate's.. 47
SECTION 6.10 Authenticating Agent.......................................................... 48
SECTION 6.11 Global Certificate; Exchange Date............................................. 49
SECTION 6.12 Meetings of Certificateholders................................................ 50
SECTION 6.13 Special Provisions for Certain Series......................................... 52
SECTION 6.14 Exchange of Investor Certificates for Seller Interest......................... 52
ARTICLE VII
OTHER MATTERS RELATING TO THE SELLERS
SECTION 7.01 Liability of Sellers.......................................................... 53
SECTION 7.02 Merger or Consolidation of, or Assumption of the Obligations of,
Greenwood, or any Additional Seller......................................... 53
SECTION 7.03 Limitation on Liability of Certain Persons.................................... 53
SECTION 7.04 Seller Indemnification of the Trust and the Trustee........................... 54
SECTION 7.05 Transfer or Conveyance of Seller Certificate.................................. 54
SECTION 7.06 Corporate Actions............................................................. 55
SECTION 7.07 Bankruptcy Against Any Additional Seller...................................... 55
ii
4
ARTICLE VIII
OTHER MATTERS RELATING TO THE MASTER
SERVICER AND THE SERVICERS
PAGE
----
SECTION 8.01 Master Servicer and Servicer Liability........................................ 55
SECTION 8.02 Merger or Consolidation of, or Assumption of the Obligations of,
the Master Servicer or any Servicer........................................... 56
SECTION 8.03 Limitation on Liability of the Master Servicer and each Servicer and Others... 56
SECTION 8.04 Master Servicer or Servicer Resignation....................................... 56
SECTION 8.05 Access to Certain Documentation and Information Regarding the Receivables..... 57
SECTION 8.06 Delegation of Duties.......................................................... 57
SECTION 8.07 Examination of Records........................................................ 57
SECTION 8.08 Seller or Master Servicer to File Reports Pursuant to Securities Exchange Act. 57
ARTICLE IX
AMORTIZATION AND CERTAIN OTHER EVENTS
SECTION 9.01 Amortization Events........................................................... 58
ARTICLE X
MASTER SERVICER AND SERVICER TERMINATION EVENTS
SECTION 10.01 Master Servicer Termination Events............................................ 60
SECTION 10.02 Servicer Termination Events................................................... 61
SECTION 10.03 Trustee to Act; Appointment of Successor Master Servicer
and/or Successor Servicer................................................... 63
SECTION 10.04 Notification to Investor Certificateholders................................... 65
SECTION 10.05 Waiver of Past Breaches....................................................... 65
ARTICLE XI
THE TRUSTEE
SECTION 11.01 Duties of Trustee............................................................. 65
SECTION 11.02 Certain Matters Affecting the Trustee......................................... 67
SECTION 11.03 Trustee Not Liable for Recitals in Certificates............................... 68
SECTION 11.04 Trustee May Own Investor Certificates......................................... 68
SECTION 11.05 The Master Servicer to Pay Trustee's Fees and Expenses........................ 69
SECTION 11.06 Master Servicer and Servicer Indemnification of Trustee....................... 69
SECTION 11.07 Eligibility Requirements for Trustee.......................................... 69
SECTION 11.08 Resignation or Removal of Trustee............................................. 70
SECTION 11.09 Successor Trustee............................................................. 70
SECTION 11.10 Merger or Consolidation of Trustee............................................ 71
SECTION 11.11 Appointment of Co-Trustee or Separate Trustee................................. 71
iii
5
PAGE
----
SECTION 11.12 Tax Returns................................................................. 72
SECTION 11.13 Trustee May Enforce Claims Without Possession of Certificates............... 72
SECTION 11.14 Suits for Enforcement....................................................... 72
SECTION 11.15 Rights of Investor Certificateholders to Direct Trustee..................... 73
SECTION 11.16 Representations and Warranties of Trustee................................... 73
SECTION 11.17 Maintenance of Office or Agency............................................. 73
SECTION 11.18 Requests for Agreement...................................................... 74
ARTICLE XII
TERMINATION
SECTION 12.01 Termination of Sellers' Obligations; Termination of Trust................... 74
SECTION 12.02 Final Distribution with Respect to any Series............................... 74
SECTION 12.03 Sellers' Termination Rights................................................. 76
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Amendment................................................................... 76
SECTION 13.02 Protection of Right, Title and Interest to Trust............................ 78
SECTION 13.03 Limitations on Rights of Investor Certificateholders........................ 78
SECTION 13.04 Governing Law............................................................... 79
SECTION 13.05 Notices..................................................................... 79
SECTION 13.06 Rule 144A Information....................................................... 80
SECTION 13.07 Severability of Provisions.................................................. 80
SECTION 13.08 Assignment.................................................................. 80
SECTION 13.09 Investor Certificates Nonassessable and Fully Paid.......................... 80
SECTION 13.10 Further Assurances.......................................................... 81
SECTION 13.11 No Waiver; Cumulative Remedies.............................................. 81
SECTION 13.12 Counterparts................................................................ 81
SECTION 13.13 Third-Party Beneficiaries................................................... 81
SECTION 13.14 Actions by Investor Certificateholders...................................... 81
SECTION 13.15 Merger and Integration...................................................... 81
SECTION 13.16 Headings.................................................................... 81
iv
6
EXHIBITS
Exhibit A - Form of Assignment
Exhibit B - DISCOVER Service ▇▇▇▇
Exhibit C - Form of Reassignment
Exhibit D - Form of Seller Certificate
Exhibit E - Form of Initial Report
Exhibit F - Form of Master Servicer's Annual Certificate
Exhibit G - Form of Servicer's Annual Certificate
Exhibit H-1 - Form of CEDEL or Euroclear Statement
Exhibit H-2 - Form of Certificate with respect to U.S. Institutional Investors
Exhibit H-3 - Form of Certificate regarding Beneficial Ownership
Exhibit I - Form of Opinion of Counsel
SCHEDULE
Schedule 1 - List of Accounts (Omitted)
v
7
Tax previously paid to the Tennessee Secretary of State with the filing of
UCC-1 financing statement number 972-033947 on 5/6/97.
8
POOLING AND SERVICING AGREEMENT, dated as of October 1, 1993 by and between
GREENWOOD TRUST COMPANY, a Delaware banking corporation, as Master Servicer,
Servicer and Seller and CONTINENTAL BANK, NATIONAL ASSOCIATION, a national
banking association organized and existing under the laws of the United States
of America, as Trustee.
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other parties and for the benefit of
the Certificateholders:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. Unless, with respect to a particular Series, a
word or phrase is otherwise defined in the applicable Series Supplement, the
following words and phrases shall have the following meanings:
"Account" shall mean (i) a Discover Card account established pursuant to a
Credit Agreement between Greenwood and any Person, receivables under which are
transferred to the Trust pursuant to this Agreement or pursuant to an Assignment
of Additional Accounts (a "Greenwood Discover Card Account"); (ii) a Discover
Card account established pursuant to a Credit Agreement between an Additional
Seller and any Person, receivables under which are transferred to the Trust
pursuant to an Assignment of Additional Accounts; and (iii) a credit account
(which is not a Discover Card account) established pursuant to a Credit
Agreement between Greenwood or an Additional Seller and any Person, receivables
under which are transferred to the Trust pursuant to an Assignment of Additional
Accounts. No Account shall be a Charged-Off Account as of (i) the Account
Selection Date, with respect to Accounts the Receivables of which are
transferred to the Trust on the Initial Closing Date or (ii) the date an Account
is selected for addition to the Trust, with respect to Accounts the Receivables
under which are transferred to the Trust pursuant to an Assignment of Additional
Accounts. Each Account shall be identified by account number on Schedule 1
hereto. The definition of an Account shall include a surviving credit account
(a "Surviving Account") in the event that (i) an Account or another credit
account is combined with an Account pursuant to the Credit Guidelines for such
Account (an "Account Combination") and (ii) the Surviving Account of such
Account Combination was an Account prior to such combination. The term "Account"
shall be deemed to refer to an Additional Account only from and after the
Addition Date with respect thereto. The definition of Account shall not include
any Account removed from the Trust pursuant to Section 2.11 hereof after it has
been reassigned to the Holder of the Seller Certificate.
"Account Combination" shall have the meaning set forth in the definition of
"Account."
"Account Selection Date" shall mean, for any Account transferred to the
Trust on the Initial Closing Date, January 22, 1993, July 14, 1993 or September
22, 1993.
"Addition Date" shall mean each date as of which Additional Accounts are
included as Accounts or Participation Interests are conveyed to the Trust
pursuant to Section 2.10.
"Additional Account Cut-Off Date" shall mean, for any Additional Account,
the date specified as such in the Assignment of Additional Accounts for such
Additional Account.
9
"Additional Accounts" shall have the meaning set forth in Section 2.10.
"Additional Funds" shall have the meaning set forth in Section 4.03(e).
The amount of Additional Funds shall initially be zero.
"Additional Seller" shall mean an affiliate of Greenwood that is included
in the same "affiliated group" as Greenwood for United States federal tax
purposes and that transfers Receivables in Additional Accounts to the Trust
pursuant to Section 2.10(d).
"Adjustment" shall have the meaning set forth in Section 4.05.
"Aggregate Initial Investor Interest" shall mean at any time the sum of
the Series Initial Investor Interests of all Series of Investor Certificates
then issued and outstanding.
"Aggregate Invested Amount" shall mean at any time the sum of the Series
Invested Amounts of all Series of Investor Certificates then issued and
outstanding.
"Aggregate Investor Interest" shall mean at any time the sum of the Series
Investor Interests of all Series of Investor Certificates then issued and
outstanding.
"Aggregate Investor Percentage" shall mean at any time the sum of the
applicable Series Percentages of all Series of Investor Certificates then
issued and outstanding.
"Agreement" shall mean this Pooling and Servicing Agreement and all
amendments hereof and Series Supplements hereto, including, with respect to any
Series or Class, the related Series Supplement.
"Amortization Event" with respect to any Series shall mean any
Amortization Event specified in Section 9.01 hereof or in the applicable Series
Supplement.
"Applicable State" shall mean, with respect to any Receivable, the state
in which the chief executive office of the Seller with respect to such
Receivable is located and with respect to any Seller, the state in which the
chief executive office of such Seller is located.
"Applicants" shall have the meaning set forth in Section 6.09.
"Assignment" shall mean any and all documents necessary to assign an
interest in Additional Accounts, including an assignment substantially in the
form of Exhibit A hereto.
"Authorized Newspaper" shall mean any newspaper or newspapers of general
circulation in London, England printed in the English language (and, with
respect to any Class or Series, if and so long as the Investor Certificates of
such Class or Series 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.
2
10
"Bearer Certificate" shall have the meaning specified in Section 6.01.
"Book-Entry Certificates" with respect to any Series shall mean
certificates evidencing a beneficial interest in the Investor Certificates of
such Series, ownership and transfers of which shall be made through book
entries by a Clearing Agency as described in Section 6.02; provided, that after
the occurrence of a condition whereupon book-entry registration and transfer
are no longer permitted and Definitive Certificates are to be issued to the
Certificate Owners of such Series, such Certificates shall no longer be
"Book-Entry Certificates."
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which banking institutions in (v) New York, New York, (w) the County of New
Castle, Delaware, (x) the city in which the Corporate Trust Office is located,
(y) the city in which the principal executive offices of any Additional Seller
is located or (z) the city in which the principal banking or executive offices
of any Credit Enhancement Provider is located are authorized or obligated by
law or executive order to be closed.
"CEDEL" shall mean Centrale de Livraison de Valeurs Mobilieres S.A.
"Certificate" shall mean the Seller Certificate or any Investor
Certificate of any Series of Investor Certificates then issued and outstanding.
"Certificate Interest" with respect to any Class of any Series shall have
the meaning specified in the applicable Series Supplement.
"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 Principal" with respect to any Class of any Series shall have
the meaning specified in the applicable Series Supplement.
"Certificate Rate" with respect to any Class of any Series shall have the
meaning specified in the applicable Series Supplement.
"Certificate Register" shall mean the register maintained pursuant to
Section 6.04, providing for the registration of Registered Certificates and
transfers and exchanges thereof.
"Certificateholder" or "Holder" shall mean an Investor Certificateholder
or a Person in whose name a Certificate is registered in the Certificate
Register.
"Charged-Off Account" shall mean each Account with respect to which the
Servicer has charged-off the Receivables in such Account as uncollectible.
"Charged-Off Amount" shall mean, with respect to any Trust Distribution
Date, the aggregate amount of Receivables in Accounts that become Charged-Off
Accounts in the related Due Period, less (i) the cumulative, uncollected amount
previously billed by the Servicers to Accounts that became Charged-Off Accounts
during the related Due Period with respect to finance charges, cash
3
11
advance fees, annual membership fees and late payment charges and (ii) the full
amount of any such Receivables that have been repurchased under Section
2.07(b).
"Class" shall mean with respect to any Series, all the Investor
Certificates of such Series that are designated by the same letter of the
alphabet, pursuant to the Series Supplement for such Series. Any Series of
Investor Certificates may contain one or more Classes of Investor Certificates,
as set forth in the relevant Series Supplement.
"Class Finance Charge Collections" with respect to any Class of any Series
shall have the meaning specified in the applicable Series Supplement.
"Class Invested Amount" with respect to any Class of any Series shall have
the meaning specified in the applicable Series Supplement.
"Class Investor Charged-Off Amount" with respect to any Class of any
Series shall have the meaning specified in the applicable Series Supplement.
"Class Investor Interest" with respect to any Class of any Series shall
have the meaning specified in the applicable Series Supplement.
"Class Percentage" with respect to any Class of any Series shall have the
meaning specified in the applicable Series Supplement.
"Class Principal Collections" with respect to any Class of any Series
shall have the meaning specified in the applicable Series Supplement.
"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.
"Collections" shall mean (i) all payments by or on behalf of an Obligor
received by a Servicer in respect of Receivables in the form of cash, checks,
wire transfers or other forms of payment in accordance with the relevant Credit
Agreement in effect from time to time and (ii) amounts treated as Collections
pursuant to Sections 2.07(b), 2.09(c), 3.01(c) and 4.05(b) of this Agreement
and any amounts treated as Collections pursuant to the terms of any Series
Supplement. A Collection processed on an Account in excess of the aggregate
amount of Receivables in such Account shall be credited to such Account or
refunded to the Obligor by the Servicer in accordance with its normal practice
pursuant to Section 4.05(a). A Collection shall be deemed to have been
received at the end of the day on the Date of Processing of such Collection.
"Collections Account" shall have the meaning specified in Section 4.02(a).
"Common Depositary" with respect to any Series, if applicable, shall mean
the Person specified in the applicable Series Supplement, in its capacity as
common depositary for the respective accounts of CEDEL and Euroclear.
4
12
"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 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention:
Corporate Trust Department.
"Coupon" shall have the meaning set forth in Section 6.01.
"Credit Agreement" shall mean, with respect to an Account, the contract
governing such Account.
"Credit Enhancement" with respect to any Series shall have the meaning
specified in the applicable Series Supplement.
"Credit Enhancement Provider" with respect to any Series shall have the
meaning specified in the applicable Series Supplement.
"Credit Guidelines" shall mean, with respect to any Account, the policies
and procedures relating to the operation of such Account and similar accounts
administered by the Servicer of such Account, including, without limitation,
the written policies and procedures and the exercise of judgment by employees
of the Servicer with respect to such accounts in accordance with such
Servicer's normal practice for determining the creditworthiness of customers
holding such accounts, the extension of credit to customers, and relating to
the maintenance of such accounts and the collection of receivables with respect
to such accounts, as such policies and procedures may be amended from time to
time by the Servicer of such accounts, as such policies and procedures may be
implemented by any Person to whom such Servicer has delegated any of its duties
pursuant to Section 8.06.
"Cut-Off Date" shall mean October 1, 1993.
"Date of Processing" with respect to any transaction shall mean the date
on which such transaction is first recorded on the cardmember master file of
the accounts maintained by or on behalf of the relevant Servicer (without
regard to the effective date of such recordation).
"Deficit Accumulation Amount" with respect to any Series, if applicable,
shall have the meaning specified in the Series Supplement for such Series.
"Deficit Liquidation Amount" with respect to any Series, if applicable,
shall have the meaning specified in the Series Supplement for such Series.
"Definitive Certificates" shall have the meaning specified in Section
6.02.
"Definitive Euro-Certificates" shall have the meaning specified in Section
6.11.
"Depository Agreement" with respect to any Series, if applicable, shall
mean the agreement, dated the Series Closing Date for such Series, among the
Sellers, the Trustee and the initial Clearing Agency providing for the delivery
and transfer of Book-Entry Certificates for such Series.
5
13
"Discover Card," when used to modify the term "account," shall mean that
access to such account is afforded by, among other means, a card bearing on its
face the DISCOVER service ▇▇▇▇ (a copy of which is attached hereto as Exhibit B
or, if the use of such service ▇▇▇▇ is suspended and another service ▇▇▇▇ is
substituted therefor, a card bearing such substitute service ▇▇▇▇).
"Distribution Date" with respect to any Series shall have the meaning
specified in the Series Supplement for such Series.
"Due Period" shall mean, with respect to any Trust Distribution Date or
Distribution Date, the calendar month next preceding the calendar month in
which such Trust Distribution Date or Distribution Date occurs.
"Eligible Receivable" shall mean each Receivable:
(a) which is payable in United States dollars;
(b) which was created in compliance, in all material respects, with
all Requirements of Law applicable to the Seller and the Servicer with
respect to such Receivable, and pursuant to a Credit Agreement that
complies, in all material respects, with all Requirements of Law
applicable to such Seller and Servicer;
(c) as to which, if such Receivable was created before the Initial
Closing Date or the relevant Addition Date, as applicable, (i) at the
time of the creation of such Receivable, the Seller with respect to such
Receivable had good and marketable title thereto free and clear of all
Liens arising under or through such Seller, and (ii) at the time of the
conveyance of such Receivable to the Trust, such Seller had, or the Trust
will have, good and marketable title thereto free and clear of all Liens
arising under or through such Seller;
(d) as to which, if such Receivable was created on or after the
Initial Closing Date or the relevant Addition Date, as applicable, at the
time of the creation of such Receivable, the Trust will have good and
marketable title thereto free and clear of all Liens arising under or
through the Seller with respect to such Receivable; and
(e) which constitutes an "account" or "general intangible" under and
as defined in Article 9 of the UCC as then in effect in the Applicable
State with respect to such Receivable.
"Euroclear" shall mean ▇▇▇▇▇▇ Guaranty Trust Company of New York, Brussels
Office, as operator of the Euroclear System.
"Exchange Date," with respect to any Series or Class, the Investor
Certificates of which are represented upon initial issuance by a Global
Certificate, shall mean the first day following the expiration of 40 days after
the later of (i) the Series Closing Date or (ii) the first date on which such
Investor Certificates are offered to persons other than any underwriter, dealer
or other person who participates, pursuant to a contractual arrangement, in the
distribution of such Investor Certificates, as determined by the Manager.
"FDIC" shall mean the Federal Deposit Insurance Corporation acting through
either the Savings Association Insurance Fund or the Bank Insurance Fund.
6
14
"Final Trust Termination Date" shall mean October 16, 2014.
"Finance Charge Collections" with respect to any Due Period shall mean the
sum of (a) the lesser of the aggregate amount of Finance Charge Receivables for
the preceding Due Period or Collections actually received in such Due Period
and (b) all Recovered Amounts received during such Due Period.
"Finance Charge Receivables" with respect to any Account for any Due
Period shall mean the net amount billed by the Servicer during such Due Period
as finance charges on such Account and cash advance fees, annual membership
fees and late payment charges billed during such Due Period to such Account,
less, in the event that such Account becomes a Charged-Off Account during such
Due Period, the cumulative, uncollected amount previously billed by the
Servicer to such Account as finance charges, cash advance fees, annual
membership fees, if any, and late payment charges; provided, however, that in
the event any Account that is included in the Accounts as of the Cut-Off Date
is not selected before the beginning of the Due Period preceding the Due Period
related to the first Trust Distribution Date, the Servicer may utilize a
reasonable method of estimation to determine the amount of the Finance Charge
Receivables with respect to such Account for the period beginning on the first
day of such preceding Due Period and ending on the date on which such Account
is selected.
"Fixed Principal Allocation Event" with respect to any Series shall have
the meaning specified in the Series Supplement for such Series.
"Fractional Undivided Interest" shall mean the fractional undivided
interest in the Trust evidenced by an Investor Certificate expressed as a
portion of the Aggregate Invested Amount.
"Global Certificate" shall have the meaning specified in Section 6.11.
"Governmental Authority" shall mean the United States of America, any
state or other political subdivision thereof.
"Greenwood" shall mean Greenwood Trust Company and its successors and
assigns.
"Greenwood Discover Card Account" shall have the meaning set forth in the
definition of "Account."
"Group" shall mean, collectively, at any time, the one or more Series of
Investor Certificates designated as part of the same Group at such time,
whether by the Series Supplements establishing such Series or pursuant to
Section 4.06. The Trustee shall designate a related Group Collections Account
pursuant to Section 4.02(a) for each Group so established.
"Group Collections Account" shall have the meaning specified in Section
4.02(a).
"Holder of the Seller Certificate" shall mean, at any specified time, the
holder or holders of the Seller Certificate, each of which, if there is more
than one such holder, shall be a party to the Seller Certificate Ownership
Agreement, with the respective interests granted to each of such
7
15
parties pursuant to the Seller Certificate Ownership Agreement. The initial
Holder of the Seller Certificate shall be Greenwood.
"Ineligible Receivable" shall have the meaning specified in Section
2.07(b).
"Initial Closing Date" shall mean October 27, 1993.
"Interest Payment Date" with respect to any Series shall mean the dates
specified as such in the applicable Series Supplement.
"Internal Revenue Code" shall mean the United States Internal Revenue Code
of 1986, as amended from time to time.
"Investor Accounts" shall mean the Collections Account, the Group
Collections Accounts and any other segregated trust accounts specified as
Investor Accounts in any Series 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 a Global Certificate, as the case may be) or
Coupon.
"Investor Certificates" shall mean any one of the certificates (including
Bearer Certificates, Registered Certificates or any Global Certificate, as
applicable) executed by Greenwood on behalf of the Holder of the Seller
Certificate and authenticated by or on behalf of the Trustee, other than the
Seller Certificate.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
encumbrance, lien or other security agreement, including, without limitation,
any conditional sale or other title retention agreement, and any financing
lease having substantially the same economic effect as any of the foregoing.
"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.
"Master Servicer" shall mean initially Greenwood and thereafter any Person
appointed as the successor Master Servicer as herein provided.
"Master Servicer Termination Event" shall have the meaning set forth in
Section 10.01.
"Master Servicing Agreement" shall mean, if applicable, the agreement
entered into by Greenwood, as Master Servicer and Servicer, and any additional
or successor Servicer or Servicers pursuant to Section 3.02(d) hereof, as such
agreement may be amended or supplemented from time to time.
"Minimum Principal Receivables Balance" shall mean, on any date of
determination, an amount equal to the sum of the Series Minimum Principal
Receivables Balances for each Series then outstanding.
8
16
"Monthly Servicing Fee" shall have the meaning set forth in Section 3.03.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service Inc.
"New Issuance" shall have the meaning set forth in Section 6.06.
"Obligations" shall have the meaning specified in Section 2.08.
"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.
"Officer's Certificate" shall mean a certificate signed by a Vice
President (or an officer holding an office with equivalent or more senior
responsibilities or, in the case of each Master Servicer or any Servicer, a
Servicing Officer and, in the case of each Seller, any executive of such Seller
designated in writing by a Vice President of such Seller for this purpose) of
any Seller, the Master Servicer or any Servicer or any Successor Master
Servicer or Successor Servicer, as the case may be, and delivered to the
Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who may be
counsel for or an employee of any Seller or Greenwood or any of their
affiliates.
"Participation Interests" shall have the meaning specified in Section
2.10(a).
"Paying Agent" shall mean any paying agent appointed pursuant to Section
6.08 and shall initially be the Corporate Trust Office of the Trustee.
"Payment Date" shall mean any Interest Payment Date, any Principal Payment
Date, if applicable, and any Special Payment Date.
"Permitted Investments" shall mean
(a) negotiable instruments or securities represented by instruments in
bearer or registered form which evidence: (i) obligations issued or fully
guaranteed, as to timely payment, by the United States of America or any
instrumentality or agency thereof when such obligations are backed by the full
faith and credit of the United States of America; (ii) time deposits in, or
bankers' acceptances issued by, any depository institution or trust company
incorporated under the laws of the United States of America or any state
thereof (or any domestic branch of a foreign bank) and subject to supervision
and examination by federal or state banking or depository institution
authorities; provided, however, that at the time of the Trust's investment or
contractual commitment to invest therein, the short-term deposits or commercial
paper or, in the absence of a rating on the short-term deposits or commercial
paper of such depository institution or trust company, the long-term unsecured
debt obligations of such depository institution or trust company shall have the
Highest Rating; (iii) commercial paper or other short-term obligations having,
at the time of the Trust's investment or contractual commitment to invest
therein, the Highest Rating; or (iv) investments in money market funds having
the Highest Rating;
(b) demand deposits in the name of the Trust or the Trustee in any
depository institution or trust company referred to in clause (a) (ii) above;
9
17
(c) securities not represented by an instrument, which are registered in
the name of the Trustee upon books maintained for that purpose by or on behalf
of the issuer thereof and identified on books maintained for that purpose by
the Trustee as held for the benefit of the Trust or the Certificateholders, and
consisting of shares of an open end diversified investment company which is
registered under the Investment Company Act of 1940, as amended, and which (i)
invests its assets exclusively in obligations of or guaranteed by the United
States of America or any instrumentality or agency thereof having in each
instance a final maturity date of less than one year from their date of
purchase or other Permitted Investments, (ii) seeks to maintain a constant net
asset value per share and (iii) has aggregate net assets of not less than
$100,000,000 on the date of purchase of such shares, and which will not result
in a reduction or withdrawal of the rating of any Class of any Series then
outstanding as confirmed in writing by the Rating Agencies;
(d) a guaranteed investment contract (guaranteed as to timely payment),
the terms of which meet the criteria of the Rating Agencies and with an entity
whose credit standards meet the criteria of the Rating Agencies necessary to
preserve the rating of each Class of each Series then outstanding; and
(e) repurchase agreements transacted with either
(i) an entity subject to the United States federal bankruptcy
code, provided that (A) the term of the repurchase agreement is
consistent with the requirements set forth in Section 4.02(c) with
regard to the maturity of Permitted Investments or is due on demand,
(B) the Trustee or a third party acting solely as agent for the Trustee
has possession of the collateral, (C) as evidenced by a certificate of
a Servicing Officer of the Master Servicer delivered to the Trustee,
the Trustee on behalf of the Trust has a perfected first priority
security interest in the collateral, (D) the market value of the
collateral is maintained at the requisite collateral percentage of the
obligation in accordance with the standards of the Rating Agencies, (E)
the failure to maintain the requisite collateral level will obligate
the Trustee to liquidate the collateral immediately, (F) the securities
subject to the repurchase agreement are either obligations of, or fully
guaranteed as to principal and interest by, the United States of
America or an agency thereof, certificates of deposit or bankers
acceptances and (G) as evidenced by a certificate of a Servicing
Officer of the Master Servicer delivered to the Trustee, the securities
subject to the repurchase agreement are free and clear of any third
party lien or claim; or
(ii) a financial institution insured by the FDIC, or any
broker-dealer with "retail customers" that is under the jurisdiction of
the Securities Investors Protection Corp. ("SIPC"), provided that (A)
the market value of the collateral is maintained at the requisite
collateral percentage of the obligation in accordance with the
standards of the Rating Agencies, (B) the Trustee or a third party
acting solely as agent for the Trustee has possession of the
collateral, (C) as evidenced by a certificate of a Servicing Officer of
the Master Servicer delivered to the Trustee, the Trustee on behalf of
the Trust has a perfected first priority security interest in the
collateral, (D) as evidenced by a certificate of a Servicing Officer of
the Master Servicer delivered to the Trustee, the collateral is free
and clear of third party liens; and, in the case of an SIPC broker, was
not acquired pursuant to a repurchase or reverse repurchase agreement
and
10
18
(E) failure to maintain the requisite collateral percentage will
obligate the Trustee to liquidate the collateral;
provided, however, that at the time of the Trust's investment or contractual
commitment to invest in any such repurchase agreement, the short-term deposits
or commercial paper rating or, in the absence of a rating on the short-term
deposits or commercial paper of such entity or institution, the long-term
unsecured debt obligations of such entity or institution shall have a credit
rating not lower than the Highest Rating. Permitted Investments shall include,
without limitation, securities of Greenwood or any of its affiliates which
otherwise qualify as a Permitted Investment under clause (a), (b), (c), (d) or
(e) above. For purposes of this definition of Permitted Investments, "Highest
Rating" shall mean, with respect to Moody's, P-1 or Aaa, and, with respect to
Standard & Poor's, A-1 + or AAA, or with respect to either Standard & Poor's or
Moody's, any rating category which will not cause a reduction in or withdrawal
of the rating of any Class of any Series then outstanding, as confirmed in
writing by the applicable Rating Agency.
"Person" shall mean an individual, a partnership or a Corporation. The
term "Corporation" for the purposes of the preceding sentence only shall mean a
corporation, joint stock company, business trust or other similar association.
"Principal Collections" shall mean, with respect to any Due Period, all
Collections other than Finance Charge Collections.
"Principal Payment Date" with respect to any Series shall mean, if
applicable, the dates specified as such in the applicable Series Supplement.
"Principal Receivable" shall mean each Receivable other than Finance
Charge Receivables. Any Principal Receivables that the relevant Seller is
unable to convey to the Trust as provided in Section 2.09(c) shall not be
included in calculating the aggregate amount of Principal Receivables.
"Qualified Institution" shall mean a depository institution organized
under the laws of the United States of America or any one of the states thereof
which at all times has a short-term certificate of deposit rating of A-1/P-1 or
better by both Rating Agencies and whose deposits are insured by the FDIC.
"Rating Agency" shall mean Moody's or Standard & Poor's, and "Rating
Agencies" shall mean Moody's and Standard & Poor's.
"Reassignment" shall mean any and all documents necessary to reassign an
interest in specified Accounts, including a reassignment substantially in the
form of Exhibit C hereto.
"Receivable" shall mean any amount owing by the Obligor under an Account
from time to time, including, without limitation, amounts owing for the payment
of goods and services, cash advances, finance charges and other charges, if
any. A Receivable shall be deemed to have been created at the end of the day on
the Date of Processing of such Receivable. A Receivable shall not include any
amount owing under a Charged-Off Account or an Account in which the Receivables
have been repurchased pursuant to Section 2.07(b).
11
19
"Receivable Repurchase Event" shall have the meaning specified in Section
2.07(a).
"Record Date" for any Distribution Date shall mean the last day of the
preceding calendar month.
"Recovered Amounts" shall mean all amounts received with respect to
Receivables that have previously been charged-off as uncollectible.
"Registered Certificateholder" shall mean the Holder of a Registered
Certificate.
"Registered Certificate" shall have the meaning specified in Section 6.01.
"Regulatory Requirements" shall have the meaning set forth in Section
7.05.
"Removal Date" shall mean the date on which certain designated Removed
Accounts will be reassigned by the Trustee to Greenwood on behalf of the Holder
of the Seller Certificate.
"Removal Notice Date" shall mean a date on or prior to the fifth Business
Day prior to a Removal Date.
"Removed Accounts" shall have the meaning set forth in Section 2.11.
"Required Daily Deposit" with respect to each Servicer with respect to any
day for any Series then outstanding shall have the meaning set forth in the
applicable Series Supplement.
"Requirements of Law" for any Person shall mean the certificate of
incorporation and by-laws or other organizational or governing documents of
such Person, and any requirement of any law, rule or regulation 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);
provided, however, that any such requirement shall not be deemed a Requirement
of Law if the enforcement of such requirement would not have a material adverse
effect upon the collectibility of the Receivables taken as a whole.
"Responsible Officer" shall mean the Chairman or any Vice Chairman of the
Board of Directors or Trustees of the Trustee, the Chairman or Vice Chairman of
the Executive or Standing Committee of the Board of Directors or Trustees of
the Trustee, the President, any Executive Vice President, Senior Vice
President, Vice President, the Secretary, any Assistant Secretary, the
Treasurer, any Assistant Treasurer, the Cashier, any Assistant or Deputy
Cashier, any Trust Officer or Assistant Trust Officer, the Controller and any
Assistant Controller 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.
"Schedule 1" shall mean the computer file, hard copy or microfiche list
delivered to the Trustee pursuant to Section 2.01(b) hereof (as such computer
file, hard copy or microfiche list may be amended from time to time) which
shall contain a true and complete list of all Accounts conveyed to the Trust
identified by account number and shall identify the originator of each Account
and the
12
20
amount of Finance Charge Receivables and Principal Receivables in such Account
as of the Cut-Off Date or the Additional Account Cut-Off Date, as applicable.
"Seller," when used with reference to specific Receivables, shall mean the
Person or Persons conveying such Receivables to the Trust.
"Seller Certificate" shall mean the certificate executed by Greenwood on
behalf of the Holder of the Seller Certificate and authenticated by the
Trustee, substantially in the form of Exhibit D hereto.
"Seller Certificate Ownership Agreement" shall mean, if applicable, the
agreement entered into by Greenwood, as Seller, and any Additional Seller, as
such agreement may be amended or supplemented from time to time.
"Seller Interest" shall mean, with respect to any Trust Distribution Date
or Distribution Date, the aggregate amount of Principal Receivables in the
Trust at the end of the related Due Period minus the Aggregate Investor
Interest at the end of such day; provided, however, that, except for purposes
of determining whether Greenwood on behalf of the Holder of the Seller
Certificate shall make a deposit pursuant to the fourth sentence of Section
2.07(b), the Seller Interest shall in no event be less than zero.
"Seller Percentage" shall mean, on any date of determination, with respect
to any specified category, an amount equal to 100% of such category minus the
applicable Aggregate Investor Percentage.
"Seller Servicing Fee" shall have the meaning set forth in Section 3.03.
"Sellers" shall mean Greenwood and any Additional Sellers.
"Series" shall mean any of the Series of Investor Certificates created
pursuant to Section 6.06.
"Series Closing Date" with respect to any Series shall mean the day the
Investor Certificates of such Series are initially issued, including the day
the Global Certificate is issued, if applicable.
"Series Cut-Off Date" with respect to any Series of Investor Certificates
shall mean the last day of the Due Period occurring in the month specified in
the applicable Series Supplement.
"Series Distribution Account" with respect to any Series shall have the
meaning specified in the applicable Series Supplement.
"Series Finance Charge Collections" with respect to any Series for any
specified period of time shall have the meaning set forth in the applicable
Series Supplement.
"Series Initial Investor Interest" with respect to any Series shall mean
the amount specified as the Series Initial Investor Interest in the applicable
Series Supplement.
13
21
"Series Interest Funding Account" with respect to any Series shall have
the meaning specified in the applicable Series Supplement.
"Series Invested Amount" with respect to any Series, with respect to any
Distribution Date with respect to such Series, shall have the meaning set forth
in the applicable Series Supplement.
"Series Investor Interest" with respect to any Series, with respect to any
Distribution Date with respect to such Series, shall have the meaning set forth
in the applicable Series Supplement.
"Series Minimum Principal Receivables Balance" with respect to any Series
shall have the meaning specified in the applicable Series Supplement.
"Series Percentage" with respect to any Series shall have the meaning
specified in the applicable Series Supplement.
"Series Principal Collections" with respect to any Series for any
specified period of time shall have the meaning set forth in the applicable
Series Supplement.
"Series Principal Funding Account" with respect to any Series shall have
the meaning specified in the applicable Series Supplement.
"Series Repurchase Event" shall have the meaning specified in Section
2.06(a).
"Series Supplement" shall mean a supplement to this Agreement complying
with the terms of Section 6.06.
"Series Termination Date" with respect to any Series shall mean the date
specified as such in the applicable Series Supplement.
"Series Termination Proceeds" shall have the meaning set forth in Section
12.02(c).
"Servicer" shall mean initially (i) with respect to Greenwood Discover
Card Accounts, Greenwood and (ii) with respect to any other Accounts, the
Person who is designated as the Servicer with respect to such Accounts in the
Assignment of Additional Accounts relating to such Accounts; and thereafter any
Person appointed as a Successor Servicer to any such Servicer, as provided in
Section 10.03. The term "Servicer" when used in this Agreement or any Series
Supplement to refer to actions to be taken with respect to any Accounts, shall
refer to one or more Servicers, as applicable, and to any particular Servicer
only with respect to Accounts serviced by such Servicer.
"Servicer Termination Event" shall have the meaning specified in Section
10.02.
"Servicing Officer" shall mean any employee of the Master Servicer or of
any Servicer, as applicable, 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 Master Servicer and each
Servicer, as such lists may from time to time be amended.
"Special Payment Date" with respect to any Series shall have the meaning
specified in the applicable Series Supplement.
14
22
"Standard & Poor's" shall mean Standard & Poor's Corporation.
"Successor Master Servicer" shall have the meaning specified in Section
10.03.
"Successor Servicer" shall have the meaning specified in Section 10.03.
"Termination Notice" shall have the meaning specified in Sections 10.01
and 10.02.
"Transfer Agent" shall have the meaning specified in Section 6.04(a) and
initially shall be the Trustee and any co-transfer agent chosen by the Transfer
Agent and acceptable to the Trustee and the Sellers, including, if and so long
as any Class of any Series is listed on the Luxembourg Stock Exchange and such
exchange shall so require, a co-transfer agent in Luxembourg. Any reference in
this Agreement or a Series Supplement to the Transfer Agent shall include any
co-transfer agent unless the context requires otherwise.
"Trust" shall mean the trust created by this Agreement, the corpus of
which shall consist of the Receivables existing as of the Cut-Off Date or
thereafter created and all monies due or to become due with respect thereto,
all proceeds (as defined in Section 9-306 of the UCC as in effect in the
Applicable State with respect to each such Receivable) of the Receivables, such
funds as from time to time are deposited in the Investor Accounts and the
benefits of any Credit Enhancement with respect to any Series then outstanding.
"Trustee" shall mean the institution executing this Agreement as Trustee,
or its successor in interest, or any successor trustee appointed as herein
provided.
"Trust Distribution Date" shall mean November 10, 1993 and the tenth day
of each calendar month thereafter, or, if such tenth day is not a Business Day,
the next succeeding Business Day.
"Trust Portfolio Repurchase Event" shall have the meaning specified in
Section 2.05(a).
"UCC" shall mean the Uniform Commercial Code, as amended from time to
time, as in effect in any specified jurisdiction.
SECTION 1.02 Other Definitional Provisions
(a) 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.
(b) As used herein and in any certificate or other document made or
delivered pursuant hereto or thereto, accounting terms not defined in Section
1.01, and accounting terms partly defined in Section 1.01 to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles in effect on the date hereof. To the extent
that the definitions of accounting terms herein are inconsistent with the
meanings of such terms under generally accepted accounting principles, the
definitions contained herein shall control.
15
23
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF INVESTOR CERTIFICATES
SECTION 2.01 Conveyance of Receivables.
(a) Effective on the Initial Closing Date, Greenwood hereby sells,
transfers, assigns and otherwise conveys to the Trust for the benefit of the
Certificateholders, without recourse, all right, title and interest of
Greenwood in and to the Receivables existing as of the Cut-Off Date and
thereafter created (which become the property of the Trust on a daily basis as
they arise), all monies due or to become due with respect thereto, and all
proceeds (as defined in Section 9-306 of the UCC as in effect in the State of
Delaware) of such Receivables. Greenwood intends such sale, transfer,
assignment and conveyance to be an absolute transfer of such property.
However, because, and only because, of the possibility that such sale,
transfer, assignment or conveyance may be deemed to be a pledge of such
property, Greenwood does hereby grant to the Trust, for the benefit of the
Certificateholders, a security interest in such property.
(b) In connection with such sale, Greenwood further agrees, at its own
expense, on or prior to the Initial Closing Date to (i) indicate in its
computer files that Receivables created in connection with the Accounts have
been sold to the Trust pursuant to this Agreement for the benefit of the
Certificateholders by identifying the Accounts in its computer files with a
"41" or "42" in field captioned "CHD-Portfolio - No. ___" and (ii) deliver
Schedule 1 to the Trustee.
SECTION 2.02 Authentication of Certificates. The Trustee shall, as of
the Initial Closing Date, cause a Seller Certificate evidencing the entire
ownership of the Trust to be duly authenticated and delivered to or upon the
order of Greenwood pursuant to Section 6.03; provided, however, that such Seller
Certificate need not evidence the entire ownership of the Trust if one or more
Series is issued as of the Initial Closing Date.
SECTION 2.03 Acceptance by the Trustee.
(a) The Trustee hereby undertakes to perform its obligations as set forth
herein. Subject to Section 4.03(b), the Trustee on behalf of the Trust, with
the consent of Greenwood on behalf of the Holder of the Seller Certificate,
hereby agrees to allow (without further action by the Trustee) each Servicer to
use all Collections in respect of the Receivables serviced by such Servicer
until the funds are transferred to, or at the direction of, the Master Servicer
for disbursement in accordance with the terms of Article IV hereof. The
Trustee hereby acknowledges its acceptance on behalf of the Trust of all right,
title and interest previously held by Greenwood in and to the Receivables
conveyed by Greenwood pursuant to Section 2.01 hereof existing as of the
Cut-Off Date and thereafter created, and declares that it shall maintain such
right, title and interest, upon the trust herein set forth, for the benefit of
all Certificateholders. The Trustee further acknowledges that, on or prior to
the Initial Closing Date, Greenwood delivered to the Trustee Schedule 1 hereto
pursuant to Section 2.01 hereof.
(b) The obligation of the Trustee to accept the Receivables shall be
subject to the condition that Greenwood record and file, at its own expense,
one or more financing statements, with respect to the Receivables then existing
and thereafter created, for the sale of "accounts" as defined in Section 9-106
of the UCC as in effect in the State of Delaware meeting the requirements of
Delaware
16
24
law in such manner as is necessary to perfect the sale and assignment of such
Receivables to the Trust, and to deliver a file-stamped copy of such financing
statement or other evidence of such filing to the Trustee on or prior to the
Initial Closing Date.
(c) The Trustee hereby agrees not to disclose to any Person any
information contained in Schedule 1 or delivered to the Trustee by any Seller
pursuant to Sections 2.01 or 2.10, except (i) as is required in connection with
the performance of its duties hereunder; (ii) as is required in connection with
enforcing the rights of the Certificateholders or to a Successor Master
Servicer appointed pursuant to Section 10.03 or (iii) as is required to comply
with Requirements of Law or any court order applicable to the Trustee. The
Trustee shall, through the Sellers as provided in Section 2.09(a), make all
necessary disclosures in order to comply with the UCC as in effect in any
Applicable State. The Trustee agrees to protect and maintain the security and
confidentiality of such information, and, in connection therewith, shall allow
the Sellers to inspect the Trustee's security and confidentiality arrangements
from time to time during normal business hours. The Trustee shall provide the
Sellers with written notice five days prior to any disclosure pursuant to this
Section 2.03(c), unless such disclosure is required sooner by law or by any
court order applicable to the Trustee.
(d) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Certificateholders or the
Trust other than as contemplated in this Agreement.
SECTION 2.04 Representations and Warranties of Greenwood. Greenwood
hereby represents and warrants to the Trust, in the case of subsections (a),
(b), (f) and (g) below, as of the date of this Agreement and the Initial Closing
Date, and, in the case of subsections (c), (d) and (e) below, as of the dates
specified therein, that:
(a) Organization, etc. Greenwood has been duly incorporated and is
validly existing as a Delaware banking corporation, and has full corporate
power and authority to execute and deliver this Agreement and each Assignment
of Receivables to be delivered by it and to perform the terms and provisions
hereof and thereof.
(b) Due Authorization. The execution, delivery and performance of this
Agreement by Greenwood have been, and each Assignment of Receivables to be
delivered by it at the time of delivery will have been, duly authorized by all
necessary corporate action, do not require any approval or consent of any
governmental agency or authority, do not and will not conflict with any
material provision of the Certificate of Incorporation or By-Laws of Greenwood,
and do not and will not conflict with or result in a breach which would
constitute a material default under, any agreement for borrowed money binding
upon or applicable to it or such of its property that is material to it, or to
the best of Greenwood's knowledge, any law or governmental regulation or court
decree applicable to it or such material property, and this Agreement and any
Assignment of Receivables delivered by Greenwood on such Initial Closing Date
are the valid, binding and enforceable obligations of Greenwood, except as the
same may be limited by receivership, insolvency, reorganization, moratorium or
other laws relating to the enforcement of creditors' rights generally or by
general equity principles.
(c) Accuracy of Information. All information heretofore furnished by
Greenwood in writing to the Trustee for purposes of or in connection with this
Agreement or any transaction
17
25
contemplated hereby is, and all such information hereafter furnished by
Greenwood in writing to the Trustee will be, true and accurate in every material
respect or based on reasonable estimates on the date as of which such
information is stated or certified.
(d) Transfer of Receivables. As of the Initial Closing Date, each
Receivable conveyed by Greenwood to the Trust then existing on such date is an
Eligible Receivable, except that Greenwood makes no representation or warranty
with respect to the existence of any statutory or other non-consensual Liens
with respect to the Receivables. In the case of Additional Accounts, as of any
applicable Addition Date, each Receivable conveyed by Greenwood to the Trust
then existing under such Additional Accounts is an Eligible Receivable, except
that Greenwood makes no representation or warranty with respect to the
existence of any statutory or other non-consensual Liens with respect to the
Receivables.
(e) Creation of Receivables. As of the date of the creation of any
Receivable transferred to the Trust by Greenwood subsequent to the Cut-Off
Date, such Receivable is an Eligible Receivable, except that Greenwood makes no
representation or warranty with respect to the existence of any statutory or
other non-consensual Liens with respect to the Receivables.
(f) Selection of Accounts. The Accounts were not selected on any basis
indicative of creditworthiness, except that charged-off accounts were not
included.
(g) Adverse Proceedings. To the best knowledge of Greenwood, there are no
proceedings or investigations pending against Greenwood before any court,
regulatory body, administrative agency, or other tribunal or governmental
instrumentality having jurisdiction over Greenwood (A) asserting the invalidity
of this Agreement, (B) seeking to prevent the consummation of any of the
transactions contemplated by this Agreement or (C) seeking any determination or
ruling which in Greenwood's judgment would materially and adversely affect the
performance by Greenwood of its obligations under this Agreement or the
validity or enforceability of this Agreement.
The representations and warranties set forth in this Section 2.04 shall
survive the transfer and assignment to the Trust of the Receivables transferred
to the Trust by Greenwood.
SECTION 2.05 Trust Portfolio Repurchase Obligations of the Sellers.
(a) Trust Portfolio Repurchase Events. If as of the Initial Closing Date
or, with respect to any Additional Accounts, as of any date on which there is
an assignment of such Additional Accounts:
(i) this Agreement or the appropriate Assignment, as the case may
be, does not constitute a legal, valid and binding obligation of each
Seller enforceable against each Seller in accordance with its terms,
except as such enforceability may be limited by insolvency, bankruptcy,
reorganization or other laws relating to the enforcement of creditors'
rights or by general equity principles; or
(ii) this Agreement or the appropriate Assignment, as the case may
be, constitutes a sale of the Receivables existing as of the Cut-Off Date
(or the Additional Account Cut-Off Date, as applicable) and thereafter
created, and of all proceeds (as defined in the UCC as in effect in the
Applicable State with respect to such Receivables) of such Receivables,
but does
18
26
not constitute a valid transfer and assignment to the Trust of all right,
title and interest of each Seller in and to such property, or such
property will not be owned by the Trust free and clear of any Lien of any
Person claiming through or under any Seller; or
(iii) this Agreement or the appropriate Assignment, as the case may
be, does not constitute a sale of such property, and it further does not
constitute a grant of a security interest (as defined in the UCC as in
effect in the Applicable State with respect to any Receivable) in such
property to the Trust which is enforceable with respect to existing
Receivables and the proceeds thereof upon execution and delivery of the
Agreement or Assignment, and which will be enforceable with respect to
such Receivables hereafter or thereafter created and the proceeds thereof
upon such creation; or
(iv) this Agreement or the appropriate Assignment, as the case may
be, constitutes the grant of a security interest to the Trust in such
property, upon the filing of the financing statements described in
Section 2.03(b) or the appropriate Assignment, as the case may be, and in
the case of the Receivables hereafter created and proceeds thereof, upon
such creation, and the Trust does not then have a first priority
perfected security interest in such property except for statutory or
other non-consensual liens; or
(v) any Seller or a Person claiming through or under any Seller has
any claim to or interest in any of the Investor Accounts, other than (A)
the interest of the Certificateholders and (B) if the Agreement or
appropriate Assignment, as the case may be, constitutes the grant of a
security interest in such property, the interest of any Seller in such
property as a debtor for purposes of the UCC as in effect in the
Applicable State with respect to any Receivable; or
(vi) any of the representations and warranties set forth in Section
2.04(a), (b) or (c) (or, in the case of any Additional Sellers, the
corresponding representations and warranties of any such Additional
Seller contained in the applicable Assignment) are not true and correct
and such breach is not cured within 60 days of the earlier of (A) actual
knowledge of such breach by the relevant Seller or (B) receipt by such
Seller and the Master Servicer of written notice of such breach by either
the Trustee or the Holders of Investor Certificates evidencing Fractional
Undivided Interests aggregating not less than 51% of the Aggregate
Invested Amount (and to the Trustee if given by the Investor
Certificateholders)
then a Trust Portfolio Repurchase Event shall have occurred. The Trustee shall
have no duty to conduct any affirmative investigation for purposes of this
Section 2.05(a).
(b) Repurchase of Trust Portfolio. If at any time a Trust Portfolio
Repurchase Event shall have occurred and be continuing, either the Trustee or
the Holders of Investor Certificates evidencing Fractional Undivided Interests
aggregating not less than 51% of the Aggregate Invested Amount, by notice then
given in writing to the Sellers and the Master Servicer (and to the Trustee if
given by the Investor Certificateholders), may direct Greenwood on behalf of
the Holder of the Seller Certificate to purchase an amount of Principal
Receivables (as specified below) within 60 days of such notice, or within such
longer period as may be specified in such notice, and Greenwood on behalf of
the Holder of the Seller Certificate shall be obligated to purchase such
Receivables with respect to each Series then outstanding on or before the
Distribution Date with respect to each such Series occurring within such period
subject to the provisions of Section 2.08, on the terms and conditions set
forth below; provided, however, that no such purchase shall be required to be
made if, at any time during
19
27
such period, such Trust Portfolio Repurchase Event shall not adversely affect in
any material respect the interests of the Investor Certificateholders as a
whole. In such case, (i) Greenwood on behalf of the Holder of the Seller
Certificate shall deposit into each Series Distribution Account for each Series
then outstanding on or before the Distribution Date with respect to such Series
an amount equal to the purchase price for such Series, as set forth in the next
sentence, and (ii) the Trustee shall, except in the case of a Trust Portfolio
Repurchase Event caused by an Assignment of Additional Accounts, pay the amount
on deposit in each Series Principal Funding Account with respect to Series
Principal Collections to the Series Distribution Account with respect to each
such Series on such Distribution Date, and the total amount deposited into the
Series Distribution Account pursuant to clauses (i) and (ii) shall be
distributed to the Investor Certificateholders pursuant to Section 12.02.
The purchase price with respect to each Series will be equal to (i) the
Series Investor Interest on the Distribution Date with respect to such Series
immediately preceding the date such deposit is made (after giving effect to any
distributions made on such Distribution Date) plus (ii) all accrued but unpaid
Certificate Interest on the outstanding amount of Investor Certificates of such
Series to be so purchased through the date set for such purchase; provided,
however, that if an assignment of Additional Accounts results in a Trust
Portfolio Repurchase Event, only the Receivables of such Additional Accounts
shall be repurchased at a price with respect to each Series equal to the product
of (i) the Series Percentage with respect to Principal Receivables for the next
following Distribution Date with respect to such Series and (ii) the amount of
Receivables attributable to the Additional Accounts, and such purchase price
shall be applied as Collections in respect of such Receivables in accordance
with each applicable Series Supplement and deposited in the Group Collections
Account relating to each Series. Payment of the purchase price and the amounts
on deposit in the Collections Account with respect to the preceding Due Period
shall be considered a prepayment in full of such Receivables. On each
Distribution Date on which such amount is scheduled to be deposited, the
Receivables to be so purchased and all the monies due or to become due with
respect thereto and all proceeds of such Receivables (including, if applicable,
all amounts on deposit in the Series Interest Funding Account for each Series)
shall be released to Greenwood on behalf of the Holder of the Seller
Certificate, and the Trustee shall execute and deliver such instruments of
transfer or assignment including, without limitation, any document necessary to
release the Trust's security interest in such Receivables and to release any
filing evidencing or perfecting such security interest, in each case without
recourse, representation or warranty (except for the warranty that since the
date of transfer by any Seller under this Agreement the Trustee has not sold,
transferred or encumbered any such Receivables or interest therein), as shall be
reasonably requested by Greenwood on behalf of the Holder of the Seller
Certificate to vest in Greenwood on behalf of the Holder of the Seller
Certificate, or its designee or assignee, all right, title and interest of the
Trust in and to such Receivables, all monies due or to become due with respect
thereto and all proceeds of such Receivables.
SECTION 2.06 Series Repurchase Obligations of the Sellers.
(a) Series Repurchase Event. If, as of the Series Closing Date with
respect to any Series, the Series Supplement for such Series does not constitute
a legal, valid and binding obligation of each Seller enforceable against each
Seller in accordance with its terms, except as such enforceability may be
limited by insolvency, bankruptcy, reorganization or other laws relating to the
enforcement of creditors' rights or by general equity principles, then a Series
Repurchase Event shall have occurred. The Trustee shall have no duty to conduct
any affirmative investigation for purposes of this Section 2.06(a).
20
28
(b) Repurchase of Series. If at any time a Series Repurchase Event shall
have occurred and be continuing, either the Trustee or the Holders of Investor
Certificates evidencing Fractional Undivided Interests aggregating not less
than 51% of the Series Invested Amount with respect to such Series, by notice
then given in writing to the Sellers and the Master Servicer (and to the
Trustee if given by the Investor Certificateholders of such Series), may direct
Greenwood on behalf of the Holder of the Seller Certificate to purchase the
Investor Certificates of such Series within 60 days of such notice, or within
such longer period as may be specified in such notice, and Greenwood on behalf
of the Holder of the Seller Certificate shall be obligated to purchase such
Investor Certificates on a Distribution Date with respect to such Series
occurring within such period, subject to the provisions of Section 2.08, on the
terms and conditions set forth below; provided, however, that no such purchase
shall be required to be made if, at any time during such period, such Series
Repurchase Event shall not adversely affect in any material respect the
interests of the Investor Certificateholders of such Series as a whole. In
such case, on such Distribution Date, (i) Greenwood on behalf of the Holder of
the Seller Certificate shall deposit into the Series Distribution Account an
amount equal to the sum of (x) the Series Investor Interest on the Distribution
Date with respect to such Series immediately preceding the date such deposit is
made (after giving effect to any distributions made on such Distribution Date)
and (y) all accrued but unpaid Certificate Interest on the outstanding amount
of Investor Certificates to be so purchased through the date set for such
purchase, and (ii) the Trustee shall pay the amount on deposit in the Series
Principal Funding Account with respect to such Series to the Series
Distribution Account with respect to such Series, and the total amount
deposited into the Series Distribution Account pursuant to clauses (i) and (ii)
shall be distributed to the Investor Certificateholders of such Series pursuant
to Section 12.02.
SECTION 2.07 Repurchase Obligations of the Sellers Relating to
Receivables.
(a) Receivable Repurchase Events. In the event that each Receivable that
is transferred to the Trust is not, as of the time of such transfer, an
Eligible Receivable and such event has a material adverse effect on the
Certificateholders' interest in the Receivables as a whole and is not cured
within 60 days of the earlier of (i) actual knowledge of such event by the
relevant Seller or (ii) receipt by such Seller of written notice of any such
event given by the Trustee, then a Receivable Repurchase Event shall have
occurred. Upon receipt of actual knowledge of any such event, such Seller
shall deliver a written notice to such effect to the Rating Agencies and the
Trustee. The determination of materiality pursuant to this Section 2.07(a)
shall be made by an officer of the Master Servicer in his sole reasonable
judgment. The Trustee shall have no duty to conduct any affirmative
investigation as to the eligibility of any Receivable for purposes of this
Section 2.07(a).
(b) Purchase of Ineligible Receivables. If at any time a Receivable
Repurchase Event shall have occurred and be continuing, Greenwood on behalf of
the Holder of the Seller Certificate shall purchase all the Receivables in each
Account in which there is any Receivable as to which such event relates (an
"Ineligible Receivable"), subject to the provisions of Section 2.08, on the
terms and conditions set forth below. Greenwood on behalf of the Holder of the
Seller Certificate shall purchase all the Receivables in each Account with an
Ineligible Receivable on the Trust Distribution Date related to the then
current Due Period by directing the Master Servicer to deduct the amount of
such Receivables which are Principal Receivables from the aggregate amount of
Principal Receivables in the Trust. On and after the date of such repurchase,
Receivables so purchased shall not be included in the calculation of any Series
Percentage, the Seller Percentage or the Seller Interest. In the event that
such an exclusion of Receivables from the calculation of the Seller Interest
would cause such Seller Interest to be a negative number on the date of
purchase of such Receivables, Greenwood on behalf of
21
29
the Holder of the Seller Certificate shall make a deposit in the Collections
Account in immediately available funds in an amount equal to the amount by which
the Seller Interest would be reduced below zero. Such deposit shall be
considered a payment in full of such Receivables and shall be applied as
Collections in respect of such Receivables in accordance with Section 4.03. Upon
each such purchase of Receivables by Greenwood on behalf of the Holder of the
Seller Certificate, the Trust shall automatically and without further action be
deemed to sell, transfer, assign and otherwise convey to Greenwood on behalf of
the Holder of the Seller Certificate without recourse, representation or
warranty (except for the warranty that since the date of transfer by any Seller
under this Agreement the Trustee has not sold, transferred or encumbered any
such Receivable or interest therein), all the right, title and interest of the
Trust in and to such Receivables, all monies due or to become due with respect
thereto, all proceeds thereof and all Receivables thereafter created in such
Account. The Trustee shall execute such documents and instruments of transfer
or assignment including, without limitation, any document necessary to release
the Trust's security interest in such Receivables and to release any filings
evidencing or perfecting such security interest and take such other actions as
shall reasonably be requested by Greenwood on behalf of the Holder of the Seller
Certificate to effect the conveyance of such Receivables pursuant to this
section. The obligation of Greenwood on behalf of the Holder of the Seller
Certificate to purchase any Ineligible Receivables, and to make the deposits, if
any, required to be made to the Collections Account as provided in this Section
2.07(b), shall constitute the sole remedy respecting the event giving rise to
such obligation available to the Certificateholders (or the Trustee on behalf of
the Certificateholders).
SECTION 2.08 Intention of Parties. In the event that the covenants and
obligations of Greenwood under Sections 2.05, 2.06 and 2.07, or the obligation
of Greenwood on behalf of the Holder of the Seller Certificate to deposit
certain late payment charges and cash advance fees with respect to the Accounts
into the Collections Account or to pay servicing fees to the Master Servicer
pursuant to Section 3.03 or the applicable provisions of any Series Supplements
(collectively, the "Obligations") are at any time the subject of concurrent
Obligations of one or more other parties to the Seller Certificate Ownership
Agreement, it is the intention of the parties to this Agreement that such
obligations of Greenwood shall be conditioned on Greenwood's ability to enforce
such concurrent Obligations against such other parties.
SECTION 2.09 Covenants of the Sellers. The Sellers hereby covenant that:
(a) Security Interests. Except for the conveyances hereunder, no Seller
will sell, pledge, assign or transfer to any other Person, or grant, create,
incur, assume or suffer to exist any Lien on any Receivable transferred to the
Trust by such Seller, whether existing as of the Cut-Off Date or thereafter
created, or any interest therein, and each Seller shall defend the right,
title, and interest of the Trust in, to and under such Receivables, whether now
existing or hereafter created, against all claims of third parties claiming
through or under such Seller. Each Seller shall, if so requested by the
Trustee, as agent for the Sellers, provide information to third parties (which
information may be provided by the Sellers directly or through the Trustee)
concerning the Accounts and the Receivables sufficient to comply with the UCC
as in effect in the Applicable State.
(b) Credit Agreements. Each Seller shall cause the respective Servicer,
as its agent, to service and administer the Accounts, the Receivables under
which have been transferred to the Trust by such Seller, and which are serviced
by such Servicer, in a particular state or similar jurisdiction in accordance
with policies identical to those used in servicing and administering other of
such Seller's credit card accounts in such jurisdiction. The terms and
provisions of a Credit
22
30
Agreement may be changed in any respect (including, without limitation, the
calculation of the amount, or the timing, of charge-offs) only if such change is
made applicable to such Seller's entire portfolio of accounts of that general
type, obligors of which are resident in a particular affected state or similar
jurisdiction, and not only to such Accounts.
(c) Account Allocations. In the event that any Seller is unable for any
reason to transfer Receivables to the Trust in accordance with the provisions of
this Agreement (including, without limitation, by reason of any governmental
agency having regulatory authority over any Seller or any court of competent
jurisdiction ordering that any Seller not convey any additional Principal
Receivables to the Trust) then, in any such event, such Seller agrees to
allocate and pay to the Trust, after the date of such inability, all Collections
with respect to Receivables that would have been Principal Receivables but for
the inability to transfer such Receivables (up to an aggregate amount equal to
the amount of Principal Receivables in the Trust on such date with respect to
Principal Receivables transferred to the Trust by such Seller); and such Seller
agrees to have such amounts applied as Collections in accordance with Section
4.03. If such Seller is unable pursuant to any Requirement of Law to allocate
payments on the Accounts as described above, such Seller agrees that it shall,
in any such event, allocate after such date payments on each Account with
respect to the principal balance of such Account first to the oldest principal
balance of such Account and to have such payments applied as Collections in
accordance with Section 4.03. The parties hereto agree that Finance Charge
Receivables, whenever created, accrued in respect of Principal Receivables that
have been conveyed to the Trust by any Seller shall continue to be a part of the
Trust notwithstanding any cessation of the transfer of additional Principal
Receivables to the Trust, and Collections with respect thereto shall continue to
be allocated and paid in accordance with Section 4.03.
(d) Receivables Not to be Evidenced by Promissory Notes. No Seller will
take any action to cause any Receivable to be evidenced by any instrument (as
defined in the UCC as in effect in the Applicable State with respect to such
Seller) except in connection with its enforcement or collection of an Account.
(e) Notice to Trustee. Promptly upon receipt of notice by any officer of
any Seller that any liens (other than those contemplated by this Agreement or
any Assignment) have been placed on the Receivables, such Seller shall notify
the Trustee in writing of such liens.
SECTION 2.10 Addition of Accounts.
(a) Required Additions. (i) In the event that the amount of Principal
Receivables in the Trust at the end of any Due Period is less than the Minimum
Principal Receivables Balance, Greenwood on behalf of the Holder of the Seller
Certificate shall designate, effective no later than the commencement of the
following Due Period, additional credit accounts ("Additional Accounts") to be
included as Accounts, which may be credit accounts originated by Greenwood or
affiliates of Greenwood, whether or not such accounts are Discover Card
accounts, in each case subject to the conditions set forth in Section 2.10(b),
(c) or (d), as applicable, in a sufficient amount such that, after giving effect
to such addition, the amount of Principal Receivables in the Trust is at least
equal to the Minimum Principal Receivables Balance.
(ii) In lieu of, or in addition to, designating Additional Accounts
pursuant to paragraph (i) above, Greenwood on behalf of the Holder of the
Seller Certificate may, subject to the applicable conditions set forth in
Section 2.10(e), convey to the Trust participations representing undivided
23
31
interests in a pool of assets primarily consisting of receivables in revolving
credit card accounts and collections thereon ("Participation Interests"). The
addition of Participation Interests to the Trust pursuant to this Section 2.10
shall be effected by an amendment to this Agreement, dated the applicable
Addition Date, pursuant to Section 13.01(a).
(b) Discretionary Additions. Greenwood on behalf of the Holder of the
Seller Certificate may, in its sole discretion, designate from time to time
Additional Accounts to be included as Accounts, subject to the conditions set
forth in this Section 2.10(b). Such accounts shall be Greenwood Discover Card
accounts or any other type of revolving credit card account previously included
in the Trust, unless the initial Assignment of Additional Accounts with respect
to such other type of Account expressly provides that such type of Account shall
not be eligible for designation pursuant to this Section 2.10(b). Greenwood on
behalf of the Holder of the Seller Certificate may designate such Additional
Accounts pursuant to this Section 2.10(b) only if the following conditions are
satisfied:
(i) the Seller or Sellers with respect to such Additional Accounts
shall have delivered to the Trustee a written assignment (including an
acceptance by the Trustee on behalf of the Trust for the benefit of the
Certificateholders) in substantially the form of Exhibit A and a computer
file, hard copy or microfiche list containing a true and complete list of
all such Additional Accounts identified by account number, which computer
file, hard copy or microfiche list shall be deemed to be an amendment to
Schedule 1 hereto as of the date of such Assignment;
(ii) the Servicer with respect to such Additional Accounts shall
have delivered to Greenwood on behalf of the Holder of the Seller
Certificate and to the Trustee a certificate of a Servicing Officer
confirming that the Additional Accounts were not selected on the basis of
any selection criteria believed by such Servicer to be materially adverse
to the interests of the Holders of any Class of any Series then
outstanding or any Credit Enhancement Provider;
(iii) Greenwood on behalf of the Holder of the Seller Certificate
shall have delivered to the Trustee and the Rating Agencies an Opinion or
Opinions of Counsel concerning the perfection of the Trust's security
interest in the Receivables in such Additional Accounts, and concerning
insolvency and related matters with respect to such Receivables;
(iv) any limitations to the right of the Sellers to designate
Additional Accounts pursuant to this Section 2.10(b) provided to
Greenwood on behalf of the Holder of the Seller Certificate in writing by
the Rating Agencies shall have been complied with; and
(v) unless each Rating Agency otherwise consents, as of the last day
of any calendar year, the number of Accounts designated as Additional
Accounts pursuant to this Section 2.10(b) with respect to such calendar
year or the amount of Principal Receivables in such Accounts, as
applicable, as of the Addition Date with respect to each such Additional
Account, shall not exceed a number equal to 20% of the number of Accounts
or the amount of Principal Receivables in the Trust, as applicable, in
each case as of the first day of such calendar year, (or, in the case of
1993, as of the Initial Closing Date); and, as of the last day of any
three calendar month period, the number of Accounts designated as
Additional Accounts pursuant to this Section 2.10(b) with respect to such
three month period or the amount of Principal Receivables in such
Accounts, as applicable, as of the Addition Date with respect to
24
32
each such Additional Account, shall not exceed a number equal to 15% of
the number of Accounts or the amount of Principal Receivables in the
Trust, as applicable, in each case as of the first day of such three month
period (or, in the case of the first three month period, as of the Initial
Closing Date).
Greenwood on behalf of the Holder of the Seller Certificate shall promptly
notify the Rating Agencies of the designation of any Additional Accounts
pursuant to this Section 2.10(b).
(c) Conditions to the Designation of Discover Card Accounts Originated by
Greenwood as Additional Accounts. In addition to discretionary designations of
Additional Accounts as described in Section 2.10(b), Greenwood on behalf of the
Holder of the Seller Certificate also shall be permitted to designate Discover
Card accounts originated by Greenwood as "Additional Accounts" if, on or prior
to the Addition Date, the following conditions are satisfied:
(i) the Seller or Sellers with respect to such Additional Accounts
shall have delivered to the Trustee a written assignment (including an
acceptance by the Trustee on behalf of the Trust for the benefit of the
Certificateholders) in substantially the form of Exhibit A and a computer
file, hard copy or microfiche list containing a true and complete list of
all such Additional Accounts identified by account number, which computer
file, hard copy or microfiche list shall be deemed to be an amendment to
Schedule 1 hereto as of the date of such Assignment;
(ii) the Servicer with respect to such Additional Accounts shall have
delivered a certificate of a Servicing Officer confirming that the
Additional Accounts were not selected on the basis of any selection
criteria believed by such Servicer to be materially adverse to the
interests of the Holders of any Class of any Series then outstanding or any
Credit Enhancement Provider;
(iii) Greenwood on behalf of the Holder of the Seller Certificate
shall have delivered to the Trustee an Opinion or Opinions of Counsel
concerning the perfection of the Trust's security interest in the
Receivables in such Additional Accounts, and concerning insolvency and
related matters with respect to such Receivables, that will not cause the
rating of any Class of any Series then outstanding to be withdrawn or
lowered by either Rating Agency; and
(iv) Greenwood on behalf of the Holder of the Seller Certificate
shall have delivered notice of such proposed assignment of Additional
Accounts to the Rating Agencies and Standard & Poor's (and, in the event
that the proposed assignment of Additional Accounts is not required
pursuant to Section 2.10(a), Moody's) shall have advised Greenwood on
behalf of the Holder of the Seller Certificate that such assignment of
Additional Accounts would not cause the rating of any Class of any Series
then outstanding to be lowered or withdrawn.
(d) Conditions to Designation of Additional Accounts, other than Discover
Card Accounts Originated by Greenwood. In addition to designations of
Additional Accounts as described in Sections 2.10(b) and 2.10(c), subject to the
conditions set forth below, Greenwood on behalf of the Holder of the Seller
Certificate shall be permitted to designate as Additional Accounts (x) credit
accounts originated by Greenwood which are not Discover Card accounts and/or (y)
credit accounts originated
25
33
by an affiliate of Greenwood (an "Additional Seller"), which may or may not be
Discover Card accounts. Greenwood on behalf of the Holder of the Seller
Certificate shall be permitted to designate such accounts as Additional Accounts
if, on or prior to the Addition Date, the following conditions are satisfied:
(i) the Seller or Sellers with respect to such Additional
Accounts shall have delivered to the Trustee a written assignment
(including an acceptance by the Trustee on behalf of the Trust for
the benefit of the Certificateholders) in substantially the form
of Exhibit A and a computer file, hard copy or microfiche list
containing a true and complete list of all such Additional
Accounts, identified by originator and account number, which
computer file, hard copy or microfiche list shall be deemed to be
an amendment to Schedule 1 hereto as of the date of such
Assignment;
(ii) the Servicer with respect to such Additional Accounts
shall have delivered a certificate of a Servicing Officer
confirming that such Additional Accounts were not selected on the
basis of any selection criteria believed by such Servicer to be
materially adverse to the interests of the Holders of any Class of
any Series then outstanding or any Credit Enhancement Provider;
(iii) Greenwood on behalf of the Holder of the Seller
Certificate shall have delivered to the Trustee an Opinion or
Opinions of Counsel concerning the perfection of the Trust's
security interest in the Receivables in such Additional Accounts,
and concerning insolvency and related matters with respect to such
Receivables, that will not cause the rating of any Class of any
Series then outstanding to be withdrawn or lowered by either
Rating Agency; and
(iv) Greenwood on behalf of the Holder of the Seller
Certificate shall have delivered notice of such proposed
assignment of Additional Accounts to the Rating Agencies and the
Rating Agencies shall have advised Greenwood on behalf of the
Holder of the Seller Certificate that such assignment of
Additional Accounts would not cause the rating of any Class of any
Series then outstanding to be lowered or withdrawn.
(e) Conditions to Designation of Participation Interests. In addition to
designations of Additional Accounts as described in Sections 2.10(b), 2.10(c)
and 2.10(d), subject to the conditions set forth below, Greenwood on behalf of
the Holder of the Seller Certificate shall be permitted to convey to the Trust
Participation Interests. Greenwood on behalf of the Holder of the Seller
Certificate shall be permitted to convey such Participation Interests to the
Trust if, on or prior to the Addition Date, the following conditions are
satisfied:
(i) Greenwood on behalf of the Holder of the Seller Certificate
shall have delivered a certificate stating that Greenwood on behalf of
the Holder of the Seller Certificate reasonably believes that the
addition of the Participation Interests will not be materially adverse to
the interests of the Holders of any Class of any Series then outstanding
or any Credit Enhancement Provider;
(ii) Greenwood on behalf of the Holder of the Seller Certificate
shall have delivered to the Trustee an Opinion or Opinions of Counsel
concerning the perfection of the
26
34
Trust's security interest in the Participation Interests and concerning
insolvency and related matters with respect to such Participation
Interests, that will not cause the rating of any Class of any Series then
outstanding to be withdrawn or lowered by either Rating Agency; and
(iii) Greenwood on behalf of the Holder of the Seller Certificate
shall have delivered notice of such proposed conveyance of Participation
Interests to the Rating Agencies and the Rating Agencies shall have
advised Greenwood on behalf of the Holder of the Seller Certificate that
such conveyance of Participation Interests would not cause the rating of
any Class of any Series then outstanding to be lowered or withdrawn.
(f) Calculation of Finance Charge Receivables. The Servicer with respect
to any Additional Accounts shall prepare a reasonable estimate of the amount of
Finance Charge Receivables billed in such Additional Accounts in the Due Period
in which such Receivables are first included in the Trust, which estimate shall
be deemed to be the amount of Finance Charge Receivables billed in such
Additional Accounts in such Due Period, absent manifest error. Such Servicer
shall provide to the Trustee, upon request, a certificate of a Servicing Officer
setting forth in reasonable detail its calculation of such estimate.
SECTION 2.11 Removal of Accounts.
(a) Optional Removals. From time to time, Greenwood on behalf of the
Holder of the Seller Certificate may, but shall not be obligated to, designate
Accounts for deletion and removal from the Trust ("Removed Accounts"), such
deletion and removal to be effective as of the last day of any Due Period (the
"Removal Date"), subject to the notice requirement and other conditions set
forth below. On or before the fifth Business Day prior to the Removal Date
(the "Removal Notice Date"), Greenwood on behalf of the Holder of the Seller
Certificate shall give the Trustee, the Master Servicer and any Credit
Enhancement Provider written notice that the Receivables from such Removed
Accounts are to be reassigned by the Trustee to Greenwood on behalf of the
Holder of the Seller Certificate effective as of the Removal Date.
(b) Conditions to the Designation of Removed Accounts. Greenwood on
behalf of the Holder of the Seller Certificate shall be permitted to designate
and require reassignment to the Holder of the Seller Certificate of the
Receivables from Removed Accounts only upon satisfaction of the following
conditions:
(i) As of the Removal Date, the aggregate amount of Principal
Receivables in the Trust, less the aggregate amount of Principal
Receivables in such Removed Accounts, shall not be less than the Minimum
Principal Receivables Balance;
(ii) The removal of the Removed Accounts on any Removal Date shall
not, in the reasonable belief of Greenwood cause either (A) an
Amortization Event to occur or (B) the Deficit Accumulation Amount or
Deficit Liquidation Amount, as applicable, with respect to any Series
then outstanding on any Distribution Date to be greater than zero;
(iii) On or prior to the fifth Business Day following the Removal
Date, the Seller or Sellers with respect to such Removed Accounts shall
have delivered to the Trustee (A) for execution a written assignment
substantially in the form of Exhibit C hereto, which shall include a
warranty of the Trustee that since the date of transfer by such Seller or
Sellers under
27
35
this Agreement the Trustee has not sold, transferred or encumbered any
such Receivable or interest therein and (B) a computer file, microfiche
list or hard copy containing a true and complete list of all such Removed
Accounts identified by originator and account number and containing the
amount of Principal Receivables in such Removed Accounts as of the Removal
Date, which computer file or microfiche list shall as of the Removal Date
modify and amend Schedule 1 hereto by deleting therefrom information with
respect to any Removed Account and be made a part of this Agreement;
(iv) Greenwood on behalf of the Holder of the Seller Certificate
shall represent and warrant that no selection procedures believed by
Greenwood to be materially adverse to the interests of the Holders of any
Class of any Series then outstanding, or any Credit Enhancement Provider,
were utilized in selecting the Removed Accounts;
(v) Greenwood on behalf of the Holder of the Seller Certificate
shall have delivered notice of such proposed reassignment to the Rating
Agencies and the Rating Agencies shall have advised Greenwood that such
reassignment would not cause the rating of any Class of any Series then
outstanding to be lowered or withdrawn; and
(vi) Greenwood on behalf of the Holder of the Seller Certificate
shall have delivered to the Trustee an Officer's Certificate confirming
the items set forth in (i), (ii), (iv) and (v) above. The Trustee may
conclusively rely on such Officer's Certificate, shall have no duty to
make inquiries with regard to the matters set forth therein and shall
incur no liability in so relying.
Upon satisfaction of the above conditions, the Trustee shall execute and
deliver the reassignment to Greenwood on behalf of the Holder of the Seller
Certificate, and the Receivables from the Removed Accounts shall no longer
constitute a part of the Trust.
(c) Calculation of Finance Charge Receivables. The Servicer with respect
to any Removed Accounts shall prepare a reasonable estimate of the amount of
Finance Charge Receivables billed in such Removed Accounts in the Due Period in
which such Receivables are removed from the Trust, which estimate shall be
deemed to be the amount of Finance Charge Receivables billed in such Removed
Accounts in such Due Period, absent manifest error. Such Servicer shall
provide the Trustee, upon request, a certificate of a Servicing Officer setting
forth in reasonable detail its calculation of such estimate.
28
36
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
SECTION 3.01 Acceptance of Appointment and Other Matters Relating to the
Master Servicer.
(a) In connection with and in consideration for the conveyance of the
Receivables to the Trust by the Sellers, and the issuance of the Seller
Certificate to the Sellers, Greenwood on behalf of the Holder of the Seller
Certificate and the Trustee agree to cause Greenwood to act as Master Servicer
under this Agreement and Greenwood agrees to act as Master Servicer under this
Agreement.
(b) Subject to Section 10.01, the Master Servicer is hereby authorized and
empowered (i) unless such power and authority is revoked by the Trustee, to
instruct the Trustee to make withdrawals and payments from the Investor
Accounts in accordance with the instructions set forth in this Agreement and in
the Series Supplements, (ii) to make drawings on any Credit Enhancement as set
forth in the Series Supplements, (iii) to make any filings or registrations
with, and seek any consents or authorizations from, the Securities and Exchange
Commission and any securities authority of any jurisdiction on behalf of the
Trust as may be necessary or advisable to comply with the securities or
reporting requirements laws of the United States or any state or other
jurisdiction and (iv) to take any other action and exercise any other power
permitted to be taken or exercised by the Master Servicer pursuant to the terms
of this Agreement or any Series Supplement. The Trustee agrees that it shall
promptly follow the written instructions of the Master Servicer to withdraw
funds from the Investor Accounts and make drawings under any Credit Enhancement
as required by this Agreement or any applicable Series Supplement. The Trustee
shall furnish the Master Servicer with any powers of attorney and other
documents necessary or appropriate under the laws of any jurisdiction with
authority over the Receivables to enable the Master Servicer to carry out its
servicing and administrative duties hereunder.
(c) In the event that any Seller is unable for any reason to transfer
Receivables to the Trust in accordance with the provisions of this Agreement
(including, without limitation, by reason of the application of the provisions
of Section 9.01 or any governmental agency having regulatory authority over any
Seller or any court of competent jurisdiction ordering that any Seller not
convey any additional Principal Receivables to the Trust) then, in any such
event, the Master Servicer agrees to allocate, after the date of such
inability, all Collections with respect to Principal Receivables, and all
amounts that would have constituted Collections with respect to Receivables
that would have been Principal Receivables but for such Seller's inability to
transfer such Receivables (up to an aggregate amount equal to the amount of the
Principal Receivables in the Trust as of such date that were transferred to the
Trust by such Seller) in accordance with Section 2.09(c) and to apply such
amounts as Collections in accordance with Section 4.03; provided, however, that
if the Master Servicer is unable pursuant to any Requirement of Law or
otherwise to allocate payments on the Accounts as described above, the Master
Servicer agrees that it shall, in any such event, after such date allocate
payments on the Accounts with respect to the principal balance of such Accounts
first to the oldest principal balance of such Accounts.
(d) The Master Servicer agrees that upon a request by the Sellers or the
Trustee it will use its best efforts to obtain and maintain the listing of the
Investor Certificates of any Class of any
29
37
Series on any specified securities exchange. If any such request is made, the
Master Servicer shall give notice to the Sellers and the Trustee of the date on
which such Investor Certificates are approved for such listing and within three
Business Days following receipt of notice by the Master Servicer of any actual,
proposed or contemplated delisting of such Investor Certificates by any such
securities exchange. The Trustee or the Master Servicer, each in its sole
discretion, 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 Acceptance of Appointment and Other Matters Relating to
Servicers.
(a) In connection with and in consideration for the conveyance of the
Receivables to the Trust by the Sellers, and the issuance of the Seller
Certificate to the Sellers, Greenwood on behalf of the Holder of the Seller
Certificate and the Trustee agree to cause (i) Greenwood to act as Servicer with
respect to Greenwood Discover Card Accounts under this Agreement and Greenwood
agrees to act as such Servicer under this Agreement and (ii) Greenwood or an
affiliate of Greenwood to act as Servicer with respect to each type of account,
other than Greenwood Discover Card Accounts, which are designated as Additional
Accounts pursuant to Section 2.10 and Greenwood or such affiliate of Greenwood
shall agree to act as such Servicer under this Agreement, pursuant to the
Assignment of Additional Accounts with respect to such Accounts.
(b) Each Servicer is hereby authorized in the name and on behalf of the
Trustee and the Holder of the Seller Certificate, and agrees, to service and
administer the Receivables with respect to which it is acting as Servicer, and
collect payments due under such Receivables in accordance with its customary and
usual servicing procedures for servicing credit receivables comparable to the
Receivables and in accordance with its Credit Guidelines, and acting alone or
through any party designated by it pursuant to Section 8.06, shall do any and
all things in connection with such servicing and administration that it may deem
necessary or desirable. Without limiting the generality of the foregoing and
subject to Section 10.02, each Servicer is hereby authorized and empowered (i)
to execute and deliver, on behalf of the Trust for the benefit of the
Certificateholders but in its own name, without reference to the fact that it is
acting for the Trust, any and all instruments of satisfaction or cancellation,
or of partial or full release or discharge, and all other comparable
instruments, with respect to the Receivables with respect to which it is acting
as Servicer, and (ii) after the delinquency of any such Receivable and to the
extent permitted under and in compliance with applicable law and regulations, to
commence collection proceedings with respect to such Receivables. The Trustee
shall furnish each Servicer with any powers of attorney and other documents
necessary or appropriate under the laws of any jurisdiction with authority over
the Receivables to enable such Servicer to carry out its servicing and
administrative duties hereunder.
(c) No Servicer shall under any circumstances be obligated to use separate
servicing procedures, offices, employees or accounts for servicing Accounts from
the procedures, offices, employees and accounts used by such Servicer in
connection with servicing its other accounts.
(d) Until such time as an additional Servicer shall be appointed in
conjunction with the addition to the Trust of Additional Accounts that are not
Greenwood Discover Card Accounts, Greenwood shall act as Master Servicer and as
the sole Servicer hereunder. Upon the appointment of any Servicer in addition
to Greenwood (or any Successor Master Servicer, as applicable), Greenwood (or
such Successor Master Servicer, as applicable) and any such additional Servicer
shall enter into a
30
38
Master Servicing Agreement, which agreement shall set forth the respective
rights and duties of the Master Servicer and each Servicer.
SECTION 3.03 Servicing Compensation.
(a) Monthly Servicing Fee. As compensation for its servicing activities
hereunder and reimbursement for its expenses, the Master Servicer shall be
entitled to receive a monthly servicing fee in respect of any Due Period (or
portion thereof) prior to the termination of the Trust pursuant to Section 12.01
(the "Monthly Servicing Fee"), payable in arrears on each Trust Distribution
Date with respect to the Seller Servicing Fee (as defined below) and payable in
accordance with the terms of the applicable Series Supplement with respect to
the share of the Monthly Servicing Fee allocable to each Series then
outstanding. The Monthly Servicing Fee shall in no event be less than an amount
equal to the product of (A) 2.0% per annum calculated on the basis of a 360-day
year of twelve 30-day months and (B) the amount of Principal Receivables in the
Trust as of the first day of the Due Period related to such Trust Distribution
Date (or in the case of the first Trust Distribution Date, the amount of
Principal Receivables in the Trust on the Cut-Off Date). The share of each
Monthly Servicing Fee allocable to each Series on each Distribution Date with
respect to each such Series shall be set forth in the Series Supplement with
respect to each Series, and shall be paid to the Master Servicer in accordance
with the terms of the applicable Series Supplement by the Person or Persons
specified in the applicable Series Supplement. The share of each Monthly
Servicing Fee allocable to the Holder of the Seller Certificate (the "Seller
Servicing Fee") on any Trust Distribution Date shall be equal to the product of
(A) the product of (x) 2.0% per annum calculated on the basis of a 360-day year
of twelve 30-day months and (y) and the amount of Principal Receivables in the
Trust as of the first day of the Due Period related to such Trust Distribution
Date (or in the case of the first Trust Distribution Date, the amount of
Principal Receivables in the Trust on the Cut-Off Date) and (B) a fraction the
numerator of which shall be the amount of the Seller Interest and the
denominator of which shall be the greater of (x) the amount of Principal
Receivables in the Trust and (y) the Aggregate Investor Interest, and shall be
paid to the Master Servicer by Greenwood on behalf of the Holder of the Seller
Certificate on or before each Trust Distribution Date. In no event shall the
Trustee or the Investor Certificateholders be liable for the Seller Servicing
Fee. The Master Servicer's expenses include the amounts due to the Trustee
pursuant to Section 11.05, the reasonable fees and disbursements of independent
accountants, the fees of each Servicer other than Greenwood (which shall be set
forth in the Master Servicing Agreement) and all other expenses incurred by the
Master Servicer in connection with its activities hereunder, and including all
other fees and expenses of the Trust not expressly stated herein or in any
Series Supplement to be for the account of the Certificateholders; provided,
that in no event shall the Master Servicer (or any Servicer) be liable for any
federal, state or local income or franchise tax, or any interest or penalties
with respect thereto, assessed on the Trust, the Trustee or the
Certificateholders. The Master Servicer shall be required to pay such expenses
for its own account, and shall not be entitled to any payment therefor other
than the Monthly Servicing Fee.
(b) Use of Collections. Subject to Section 4.03(b), the Trustee on behalf
of the Trust, with the consent of Greenwood on behalf of the Holder of the
Seller Certificate, hereby agrees to allow (without further action by the
Trustee) each Servicer to use Collections in respect of Receivables collected by
such Servicer until such Collections are to be disbursed by the Master Servicer
in accordance with the terms of Article IV hereof or the terms of any applicable
Series Supplement.
31
39
SECTION 3.04 Representations and Warranties of Greenwood, as Master
Servicer and Servicer. Greenwood, as Master Servicer and Servicer, hereby
represents and warrants to the Trust as of the date of this Agreement and the
Initial Closing Date that:
(a) Organization, etc. Greenwood has been duly incorporated and is
validly existing as a Delaware banking corporation, and has full corporate
power and authority to execute and deliver this Agreement and to perform the
terms and provisions hereof.
(b) Due Authorization. The execution, delivery and performance of this
Agreement by Greenwood, as Master Servicer and Servicer, have been duly
authorized by all necessary corporate action, do not require any approval or
consent of any governmental agency or authority, do not and will not conflict
with any material provision of the Certificate of Incorporation or By-Laws of
Greenwood, and do not and will not conflict with, or result in a breach which
would constitute a material default under, any agreement for borrowed money
binding upon or applicable to it or such of its property that is material to it
or its subsidiaries (whether or not consolidated) taken as a whole, or to
Greenwood's knowledge, any law or governmental regulation or court decree
applicable to it or such material property, and this Agreement is the valid,
binding and enforceable obligation of Greenwood, except as the same may be
limited by receivership, insolvency, reorganization, moratorium or other laws
relating to the enforcement of creditors' rights generally or by general equity
principles.
(c) Accuracy of Information. All information heretofore furnished by
Greenwood, as Master Servicer and Servicer, in writing to the Trustee for
purposes of or in connection with this Agreement or any transaction
contemplated hereby is, and all such information hereafter furnished by
Greenwood in writing to the Trustee will be, true and accurate in every
material respect or based on reasonable estimates on the date as of which such
information is stated or certified.
SECTION 3.05 Representations and Warranties of Other Servicers. Each
Servicer, other than Greenwood, shall represent and warrant to the Trust as of
the date of the Assignment of Additional Accounts with respect to such Servicer
that:
(a) Organization, etc. Such Servicer has been duly incorporated and is
validly existing as a banking, industrial loan or other similar corporation, or
as a trust company, savings and loan association, savings bank or other similar
entity in its state of incorporation or as a national banking association,
savings and loan association or savings bank organized and existing under the
laws of the United States of America, and has full corporate power and
authority to execute and deliver the Assignment of Additional Accounts and this
Agreement and to perform the terms and provisions thereof and hereof.
(b) Due Authorization. The execution, delivery and performance of the
Assignment of Additional Accounts and this Agreement by such Servicer have been
duly authorized by all necessary corporate action, do not require any approval
or consent of any governmental agency or authority, do not and will not
conflict with any material provision of the Certificate of Incorporation or
By-Laws of such Servicer, and do not or will not conflict with, or result in a
breach which would constitute a material default under, any agreement for
borrowed money binding upon or applicable to it or such of its property that is
material to it or its subsidiaries (whether or not consolidated) taken as a
whole, or to such Servicer's knowledge, any law or governmental regulation or
court decree applicable to it or such material property, and the Assignment of
Additional Accounts and this Agreement are the
32
40
valid, binding and enforceable obligations of such Servicer, except as may be
limited by receivership, insolvency, reorganization, moratorium or other laws
relating to the enforcement of creditors' rights generally or by general equity
principles.
(c) Accuracy of Information. All information furnished by such Servicer in
writing to the Trustee for purposes of or in connection with the Assignment of
Additional Accounts or this Agreement or any transaction contemplated thereby or
hereby is, and all such information hereafter furnished by such Servicer in
writing to the Trustee will be, true and accurate in every material respect or
based on reasonable estimates on the date as of which such information is stated
or certified.
SECTION 3.06 Reports and Records for the Trustee.
(a) Initial Report. On the Initial Closing Date, the Master Servicer
shall prepare and deliver to Greenwood as Seller and the Trustee an Officer's
Certificate substantially in the form of Exhibit E hereto setting forth (i) the
aggregate amount of Principal Receivables as of the Cut-Off Date and (ii) the
aggregate amount of Finance Charge Receivables billed during the Due Period
next preceding the month in which the Cut-Off Date occurs, which amount may be
based partially or entirely on the reasonable estimate of the Master Servicer.
(b) Servicer's Monthly Certificates. On the seventh Business Day of the
month in which each Trust Distribution Date occurs, the Master Servicer shall
forward to Greenwood on behalf of the Holder of the Seller Certificate, the
Trustee, the Paying Agent and any other Person specified in the Series
Supplement for any then outstanding Series, a certificate substantially in the
form specified in the applicable Series Supplement. Each Servicer shall
provide the Master Servicer with such information as the Master Servicer may
reasonably request to allow the Master Servicer to prepare such certificates.
SECTION 3.07 Master Servicer's and Servicers' Annual Certificates.
(a) Master Servicer's Annual Certificate. The Master Servicer will deliver
to the Trustee, Greenwood on behalf of the Holder of the Seller Certificate and
the Rating Agencies, on or about April 15 of each calendar year, beginning in
April, 1994, an Officer's Certificate substantially in the form of Exhibit F
hereto stating that (a) in the course of the performance by the signer of his
duties as an officer of the Master Servicer he would normally obtain knowledge
of any Master Servicer Termination Event, and (b) whether or not he has obtained
knowledge of any such Master Servicer Termination Event during the preceding
calendar year, and, if so, specifying each such Master Servicer Termination
Event of which the signer has knowledge and the nature thereof. A copy of such
certificate may be obtained by any Investor Certificateholder by a request in
writing to the Trustee addressed to the Corporate Trust Office.
33
41
(b) Servicers' Annual Certificates. Each Servicer will deliver to the
Trustee, Greenwood on behalf of the Holder of the Seller Certificate and the
Rating Agencies, on or about April 15 or each calendar year, beginning in April,
1994 with respect to Greenwood as Servicer, and, for any other Servicer,
beginning in the calendar year following the calendar year in which Receivables
in Accounts serviced by such Servicer are first added to the Trust, an Officer's
Certificate substantially in the form of Exhibit G hereto stating that (a) in
the course of the performance by the signer of his duties as an officer of such
Servicer he would normally obtain knowledge of any Servicer Termination Event,
and (b) whether or not he has obtained knowledge of any such Servicer
Termination Event during the preceding calendar year, and, if so, specifying
each such Servicer Termination Event of which the signer has knowledge and the
nature thereof. A copy of any such certificate may be obtained by any Investor
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
SECTION 3.08 Independent Public Accountants' Annual Servicing Report.
(a) On or about April 15 of each calendar year, beginning in April, 1994,
the Master Servicer shall cause a firm of nationally recognized independent
public accountants (who may also render other services to the Master Servicer,
any Servicer or any Seller) to furnish a report to the Trustee, the Master
Servicer, each Servicer and the Rating Agencies to the effect that such firm is
of the opinion that the system of internal accounting controls in effect on the
date of such statement relating to the servicing procedures performed by the
Master Servicer and each Servicer under this Agreement, taken as a whole, was
sufficient for the prevention and detection of errors and irregularities which
would be material to the assets of the Trust and that nothing has come to their
attention that would cause them to believe that such servicing has not been
conducted in compliance with Sections 3.03, 4.03, 4.04, 4.05 and 8.07 of this
Agreement and the provisions relating to servicing or the allocation and payment
of Collections in any Series Supplements, except for such exceptions as they
believe to be immaterial and such other exceptions as shall be set forth in such
report. A copy of such report may be obtained by any Investor Certificateholder
by a request in writing to the Trustee addressed to the Corporate Trust Office.
(b) On or about April 15 of each calendar year, beginning in April, 1994,
the Master Servicer shall cause a firm of nationally recognized independent
public accountants (who may also render other services to the Master Servicer,
any Servicer or any Seller) to furnish a report to the Trustee, the Master
Servicer, each Servicer and the Rating Agencies, to the effect that they have
compared the mathematical calculations of each amount set forth in the monthly
certificates forwarded by the Master Servicer pursuant to the applicable Series
Supplements during the preceding calendar year with the computer reports of the
Master Servicer and each Servicer and 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 report. A
copy of such report may be obtained by any Investor Certificateholder by a
request in writing to the Trustee addressed to the Corporate Trust Office.
SECTION 3.09 Tax Treatment. It is the intent of the Sellers and the
Investor Certificateholders that, for United States federal, state and local
income and franchise tax purposes only, the Investor Certificates will be
treated as evidence of indebtedness of the Sellers and the Sellers and each
Investor Certificateholder, by the acceptance of its Certificate, agree to treat
the Investor
34
42
Certificates for United States federal, state and local income and franchise
tax purposes as indebtedness of the Sellers secured by the Receivables and
other assets held in the Trust.
SECTION 3.10 Notices by the Master Servicer and the Servicers. In the
event that Greenwood is no longer acting as Master Servicer or Servicer, or any
other Servicer shall cease to act as a Servicer, any Successor Master Servicer
or Successor Servicer, as applicable, appointed pursuant to Section 10.03 shall
deliver or make available to Greenwood on behalf of the Holder of the Seller
Certificate each certificate and report required to be prepared, forwarded or
delivered thereafter pursuant to this Agreement.
ARTICLE IV
RIGHTS OF INVESTOR CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.01 Rights of Investor Certificateholders. Each Investor
Certificate shall represent a Fractional Undivided Interest in the Trust,
including the right to receive the Collections and other amounts at the times
and in the amounts specified herein and in the Series Supplements to be
deposited in Investor Accounts or paid to the Investor Certificateholders and,
with respect to any particular Series, any additional rights set forth in the
applicable Series Supplement; provided, however, that the aggregate interest
represented by all Investor Certificates outstanding at any one time in the
assets of the Trust shall not exceed an amount equal to the Aggregate Invested
Amount plus all accrued but unpaid Certificate Interest and any interest
thereon. The Seller Certificate shall represent a Fractional Undivided Interest
in the Trust, including the right to receive the Collections and other amounts
at the times and in the amounts specified herein and in the Series Supplements
to be paid to the Holder of the Seller Certificate.
SECTION 4.02 Establishment and Administration of Investor Accounts.
(a) Establishment of the Collections Account and the Group Collections
Accounts. The Trustee, for the benefit of the Certificateholders, shall cause
to be established and maintained in the name of the Trust, with the corporate
trust department of an office or branch of either the Trustee or a Qualified
Institution, one non-interest bearing segregated trust account designated the
"Collections Account" and one additional non-interest bearing segregated trust
account for each Group (each, a "Group Collections Account"), in each case
marked to indicate clearly that the funds deposited therein are held for the
benefit of the Certificateholders. Subject to subsection (c) below, the Trust
shall possess all right, title and interest in all funds on deposit from time
to time in the Collections Account and each Group Collections Account and in
all proceeds thereof. Pursuant to authority granted to it pursuant to Section
3.01(b), the Master Servicer shall have the revocable power to instruct the
Trustee to withdraw funds from the Collections Account and the Group
Collections Accounts for the purpose of carrying out the duties of the Master
Servicer hereunder. The Master Servicer at all times shall maintain accurate
records reflecting each transaction in the Collections Account and the Group
Collections Accounts.
35
43
(b) Establishment of Other Investor Accounts. The Trustee shall, from time
to time, establish additional Investor Accounts as provided in applicable Series
Supplements.
(c) Administration of the Investor Accounts. Unless otherwise specified in
a relevant Series Supplement, any funds on deposit in any Investor Account for
more than one Business Day shall at all times be invested in Permitted
Investments at the written direction of the Master Servicer or its agent,
subject to the restrictions set forth below. The Trustee shall maintain, or
cause to be maintained, for the benefit of the Certificateholders possession of
the negotiable instruments or securities evidencing the Permitted Investments
described in clause (a) of the definition thereof from the time of purchase
thereof until the time of sale or maturity. Any Permitted Investment with a
stated maturity shall mature on or prior to the Distribution Date applicable to
the Investor Account for which the Permitted Investments are held related to the
earliest Due Period in which Collections invested in such Permitted Investments
were received and any funds received with respect to the maturity of a Permitted
Investment shall be available in sufficient time to allow for any payments to be
made to Investor Certificateholders on such Distribution Date. For purposes of
the preceding sentence, withdrawals from the Collections Account pursuant to
Section 4.03(c) shall be deemed to be made from Collections in the order in
which such Collections were deposited into the Collections Account.
On each applicable Distribution Date, all interest and earnings (less
investment expenses) on funds on deposit in any Investor Account (other than any
Series Principal Funding Accounts), if any, shall be deposited by the Trustee in
a separate deposit account in the name of the Holder of the Seller Certificate,
which account shall not constitute a part of the Trust, or such interest and
earnings shall otherwise be turned over by the Trustee to the Holder of the
Seller Certificate not less frequently than monthly. For purposes of
determining the availability of funds or the balances in such Investor Accounts
for any reason under this Agreement or any Series Supplement, all investment
earnings on such funds shall be deemed not to be available or on deposit.
SECTION 4.03 Collections and Allocations
(a) Collections. The Master Servicer shall apply all Collections received
during each Due Period as described in this Section 4.03 and any applicable
Series Supplements.
(b) Daily Collections. If, at any time, either (i) with respect to any
Accounts, the then current Servicer with respect to such Accounts does not have
a short-term debt rating of at least A-1 by Standard & Poor's and P-1 by ▇▇▇▇▇'▇
(if the then current Servicer is the original Servicer with respect to such
Accounts or an affiliate of the original Servicer) or a short-term debt rating
of at least A-1+ by Standard & Poor's and P-1 by ▇▇▇▇▇'▇ (if the then current
Servicer with respect to such Accounts is not the original Servicer or an
affiliate of the original Servicer) or (ii) the conditions specified in clause
(i) or pursuant to this clause (ii) are superseded by any conditions
subsequently agreed to in writing by Greenwood on behalf of the Holder of the
Seller Certificate and either Rating Agency, and any of such subsequently agreed
to conditions occurs; then, as promptly as possible after each Date of
Processing with respect to the Receivables serviced by the applicable Servicer
occurring on and after such event, but in no event later than two Business Days
following such Date of Processing, such Servicer shall pay to, or at the
direction of, the Master Servicer, for deposit into the Collections Account,
from the Collections received by such Servicer on or after the date of such
event and recorded on such Date of Processing, an amount equal to the sum of the
Required Daily Deposits with respect to such Servicer for each Series then
outstanding with respect to such Date of Processing; provided, that if the first
such deposit occurs following a period during which such Servicer has been
36
44
using Collections in accordance with Section 3.03(b), then, on the sixth
Business Day following the event giving rise to the making of Required Daily
Deposits by such Servicer, in addition to the Required Daily Deposits for that
day, such Servicer shall pay to, or at the direction of, the Master Servicer,
the amount that would have been on deposit in the Collections Account with
respect to such Servicer had such Servicer been making the Required Daily
Deposits since the beginning of the Due Period, less any amounts previously so
paid or deposited. Amounts made available to any Servicer pursuant to Section
3.03 shall be repayable upon the occurrence of the conditions in this Section
4.03(b) in the manner and to the extent set forth herein.
(c) Deposits with Respect to Each Distribution Date.
(i) On or before each Distribution Date, the Master Servicer shall
deposit into the Collections Account that portion of Collections with
respect to the related Due Period that are to be allocated on such
Distribution Date and that have not previously been deposited into the
Collections Account.
(ii) On or before each Distribution Date, the Master Servicer shall
direct the Trustee in writing to withdraw from the Collections Account
and pay to Greenwood on behalf of the Holder of the Seller Certificate an
amount equal to that portion of the sum of (x) the total amount of
Finance Charge Collections for the related Due Period less the sum of the
amount of Series Finance Charge Collections for each Series then
outstanding for the related Due Period and (y) the total amount of
Principal Collections for the related Due Period less the sum of the
amount of Series Principal Collections for each Series then outstanding
for the related Due Period, that is to be allocated to the Holder of the
Seller Certificate on such Distribution Date.
(iii) On or before each Distribution Date, after giving effect to
the payments made pursuant to clause (ii) above with respect to such
Distribution Date, the Master Servicer shall direct the Trustee in
writing to withdraw from the Collections Account and pay to each Group
Collections Account an amount equal to the sum of (x) the sum of the
Series Finance Charge Collections for each Series that is a member of
such Group and (y) the sum of the Series Principal Collections for each
Series that is a member of such Group.
(iv) Amounts on deposit in each Group Collections Account shall be
distributed on or before each Distribution Date with respect to each such
Group in accordance with the terms of the Series Supplements for each
Series then outstanding.
(d) Aggregate and Net Payments. All payments made pursuant to this
Agreement or any Series Supplement on or before any Trust Distribution Date or
Distribution Date on which Greenwood is the Master Servicer, between the Master
Servicer or the Holder of the Seller Certificate and the Investor Accounts, may
be aggregated for such Trust Distribution Date or Distribution Date such that
Greenwood, acting as Master Servicer and as agent of the Holder of the Seller
Certificate, may make only one payment to each applicable account in
satisfaction of all payments of the Holder of the Seller Certificate and the
Master Servicer pursuant to this Agreement and all Series Supplements for
Series then outstanding, to the extent that all payment obligations of the
Master Servicer and of the Holder of the Seller Certificate to each applicable
account on such Trust Distribution Date or Distribution Date exceed all payment
obligations of each such account to the Master Servicer and the Holder of the
Seller Certificate on such Trust Distribution Date or Distribution Date. Any
amounts payable on a given Trust Distribution Date to the Holder of the Seller
Certificate pursuant to Section
37
45
4.03(c)(ii) hereof, or on a Distribution Date to the Master Servicer with
respect to Monthly Servicing Fees pursuant to the provisions of any Series
Supplement then outstanding, shall be deemed to have been paid if, and to the
extent, Greenwood (as Servicer) already is in possession of such amounts on such
Distribution Date (or was in possession of such amounts for more than two
Business Days during the related Due Period) as a result of its permitted use of
Collections during the prior Due Period pursuant to Section 3.03(b) and in
accordance with the definition of "Required Daily Deposit" (as defined in the
relevant Series Supplement), except to the extent Greenwood has deposited such
amounts into the Collections Account.
Notwithstanding the other provisions of this Section 4.03 and the
applicable provisions of any Series Supplement then outstanding, the allocations
of Collections pursuant to Section 4.03(c) and the applicable provisions of any
Series Supplements then outstanding shall be deemed to be made on the date on
which the Master Servicer delivers the Servicer's Monthly Statement and the
information required to be included in the Investor Certificateholders' Monthly
Statement with respect to each Series then outstanding to the Trustee. The
Trustee is hereby authorized, upon receipt of the Servicer's Monthly Statement
and the information required to be included in the Investor Certificateholders'
Monthly Statement with respect to each Series then outstanding, together with
written instructions from the Master Servicer, to immediately transfer to
Greenwood on behalf of the Holder of the Seller Certificate or the Master
Servicer, as applicable, any funds in any Investor Account that would otherwise
be paid to Greenwood on behalf of the Holder of the Seller Certificate or the
Master Servicer, as applicable, on the Trust Distribution Date or any
Distribution Date related to such Due Period.
(e) Additional Funds. Greenwood on behalf of the Holder of the Seller
Certificate may, from time to time, elect to add certain funds to the Trust (any
such funds, "Additional Funds") by delivering a written notice of such election
to the Trustee, the Master Servicer and the Rating Agencies, which notice shall
specify the method of calculating the amount of such funds to be added to the
Trust as of any Distribution Date and the source of such funds. No such election
shall become effective until Standard & Poor's has advised the Master Servicer
and Greenwood on behalf of the Holder of the Seller Certificate that such
election would not cause the rating of any Class of any Series then outstanding
to be lowered or withdrawn. During any time that Additional Funds are being
added to the Trust, with respect to each Series then outstanding, on or before
each Distribution Date with respect to each such Series, the Master Servicer
shall cause an amount equal to the product of (i) a fraction the numerator of
which shall be the Series Investor Interest and the denominator of which shall
be the Aggregate Investor Interest and (ii) the amount of Additional Funds for
the preceding Due Period, to be deposited into the Series Collections Account
for each such Series. Such amounts shall then be allocated in accordance with
the provisions of the applicable Series Supplement.
SECTION 4.04 Sellers' or Master Servicer's Failure to Make a Deposit or
Payment.
(a) If the Master Servicer or any Seller fails to make, or give
instructions to make, any payment or deposit (other than as required by Section
2.05(b), 2.06(b) or 2.07(b) or in connection with Section 12.02) required to be
made or given by the Master Servicer or such Seller, respectively, at the time
specified in this Agreement (including applicable grace periods), the Trustee
shall make such payment or deposit from the applicable Investor Account without
instruction from the Master Servicer or such Seller (or, to the extent that
sufficient funds are not available in the applicable Investor Account to make
such payment and the relevant Series Supplement provides for Credit Enhancement
for such purpose, shall make a drawing from the available Credit Enhancement,
if any); provided, that the Trustee shall be required to make such payment,
deposit or draw only to the extent it
38
46
has sufficient information to allow it to determine the amount thereof, which
information the Trustee shall be deemed to have with respect to the amount of
Certificate Interest payable on each Distribution Date. The Master Servicer
shall, upon request of the Trustee, promptly provide the Trustee with all
information necessary to allow the Trustee to make such a payment, deposit or
draw. Such funds or the proceeds of such drawing shall be applied by the Trustee
in the same manner in which such payment or deposit should have been made by
such Seller or the Master Servicer, as the case may be.
(b) If a drawing from a Credit Enhancement is made pursuant to this
Section 4.04 in lieu of a deposit or payment from the applicable Investor
Account, the Master Servicer or the Sellers, as the case may be, shall, as
promptly as practicable and from the appropriate source, make the required
payment, deposit or transfer or give the Trustee instructions to transfer the
required payment or deposit in respect of which such drawing was made to
reinstate the Credit Enhancement, as set forth in any applicable Series
Supplement.
SECTION 4.05 Adjustments For Miscellaneous Debits and Credits and
Fraudulent Charges.
(a) With respect to any Receivable to which any adjustment without payment
by or on behalf of an Obligor has been made (an "Adjustment") including, but
not limited to, any Receivable that (1) was created as a result of a fraudulent
or counterfeit charge, (2) the Servicer with respect to such Receivable
otherwise adjusts, increases, reduces, modifies or cancels in accordance with
the applicable Credit Guidelines without receiving cash or other payment
therefor by the Obligor with respect to such Receivable, (3) was created in
respect of merchandise returned by the Obligor thereunder, or (4) was created
or cancelled through an Account Combination, Greenwood on behalf of the Holder
of the Seller Certificate shall increase or reduce, as the case may be, the
aggregate amount of Receivables.
(b) In the event that the exclusion of the amount of an Adjustment from
the calculation of the Seller Interest would cause the Seller Interest to be an
amount less than zero, Greenwood on behalf of the Holder of the Seller
Certificate shall, no later than the Business Day following the last day of the
Due Period during which such Adjustment is made, make a deposit into the
Collections Account in immediately available funds in an amount equal to the
amount by which such Adjustment causes the Seller Interest to be less than
zero. Such deposit shall be applied as a Collection in accordance with Section
4.03.
SECTION 4.06 Reallocation of Series Among Groups. The Master Servicer may
elect, at any time, by written notice to the Trustee and to Greenwood on behalf
of the Holder of the Seller Certificate, and subject to the conditions set forth
below, to move any Series from the Group of which it is then a member to any
other Group, including without limitation to a new Group established at such
time of which the Series to be moved is the only Series. Any such election by
the Master Servicer shall become effective on the day specified in the notice of
such election.
The Master Servicer may make such election only if the following
conditions are satisfied: (i) a Series may only be moved from one Group to
another Group if the Series in both Groups have the same Distribution Date;
(ii) the Master Servicer shall have delivered to the Trustee a certificate to
the effect that the Master Servicer reasonably believes that the movement of
the applicable Series would not (x) result in any delay in the payment of
principal to the Investor Certificateholders of any Series then outstanding, or
(y) cause an Amortization Event to occur with respect to any Series
39
47
then outstanding; and (iii) the Rating Agencies shall have advised the Master
Servicer and Greenwood on behalf of the Holder of the Seller Certificate that
the movement of the applicable Series would not cause the rating of any Class of
any Series then outstanding to be lowered or withdrawn.
ARTICLE V
DISTRIBUTIONS AND REPORTS TO INVESTOR CERTIFICATEHOLDERS
SECTION 5.01 Distributions. On each Payment Date, with respect to each
Series then outstanding, the Paying Agent shall distribute to each Investor
Certificateholder of record on the close of business of the preceding Record
Date, in accordance with the certificate delivered by the Master Servicer to the
Trustee pursuant to the applicable Series Supplement (other than as provided in
Section 2.05 or in Section 2.06 or Section 12.02 hereof respecting a final
distribution) such Certificateholder's share of amounts on deposit in the
applicable Series Distribution Account, Series Principal Funding Account and/or
Series Interest Funding Account, pursuant to the applicable Series Supplement,
by check mailed to each Certificateholder (unless otherwise provided in the
applicable Series Supplement), except that with respect to Investor Certificates
registered in the name of CEDE & Co., the nominee registration for The
Depository Trust Company, such distribution shall be made in immediately
available funds by wire transfer to such account as CEDE & Co. shall direct in
writing. If such wire transfer cannot be made for any reason, payment shall be
made by check.
SECTION 5.02 Investor Certificateholders' Monthly Statement. On each
Distribution Date, the Paying Agent shall forward to each Certificateholder of
each Series then outstanding to which such Distribution Date is applicable, a
statement substantially in the form specified in the applicable Series
Supplement prepared by the Master Servicer and executed by the Trustee. The
Paying Agent shall also forward a copy of each such statement to the Rating
Agencies.
SECTION 5.03 Certificateholders' Annual Tax Statement. On or before
January 31 of each calendar year, beginning with calendar year 1994, the
Transfer Agent shall furnish to the Master Servicer and Paying Agent a list of
each Person who at any time during the preceding calendar year was an Investor
Certificateholder and received any payment thereon and the dates such Person
held an Investor Certificate. The Paying Agent shall furnish to each such
Investor Certificateholder a statement prepared by the Master Servicer setting
forth, with respect to the Series of which such Investor Certificate is a part,
(i) the total amount paid in respect of each Class of such Series, (ii) the
amount of such payments allocable to Certificate Principal with respect to each
Class of such Series and (iii) the amount of such payments allocable to
Certificate Interest with respect to each Class of such Series, in each case
stated on the basis of an original principal amount of $1,000 per Investor
Certificate, aggregated for such calendar year or the applicable portion thereof
during which such Person was an Investor Certificateholder, together with such
other customary information as the Trustee or the Master Servicer deems
necessary or desirable to enable the Investor Certificateholders to prepare
their tax returns. Such obligation of the Paying Agent shall be deemed to have
been satisfied to the extent that substantially comparable information shall be
provided by the Master Servicer on behalf of the Trustee pursuant to any
requirements of the Internal Revenue Code.
40
48
ARTICLE VI
THE INVESTOR CERTIFICATES
SECTION 6.01 The Certificates.
(a) The Investor Certificates of any Series or Class may be issued,
subject to applicable laws and regulations, in bearer form ("Bearer
Certificates") with attached interest coupons and a special 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 Series Supplement. The Seller
Certificate will be issued in registered form and shall, upon issue, be
executed and delivered by Greenwood as Seller to the Trustee for authentication
and redelivery as provided in Sections 2.02 and 6.03. Except as otherwise
provided in any Series Supplement or in Section 6.11, Bearer Certificates shall
be issued in denominations of $5,000, $50,000 and $100,000 and Registered
Certificates shall be issued in minimum denominations of $1,000 Fractional
Undivided Interests and in integral multiples of $1,000 in excess thereof. If
specified in any Series Supplement, the Investor Certificates of any Series or
Class shall be issued upon initial issuance as a single certificate evidencing
the Series Initial Investor Interest or Class Initial Investor Interest, as
applicable, as described in Section 6.11. The Seller Certificate shall be a
single certificate and shall represent the entire Seller Interest. The
Certificates shall be executed on behalf of the Trust by Greenwood on behalf of
the Holder of the Seller Certificate by any of its Chairman of the Board of
Directors, its President or one of its Vice Presidents. The signature of any
of these officers on the Certificates may be manual or facsimile.
(b) Certificates bearing the manual or facsimile signatures of individuals
who were at any time the proper officers of Greenwood shall not become invalid,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Certificates or did
not hold such offices at the date of such Certificates.
(c) No Certificate shall be entitled to any benefit under this Agreement
(or any Series Supplement), or be valid or obligatory for any purpose unless
there appears on such Certificate a certificate of authentication substantially
in the form attached to Exhibit D hereto (in the case of the Seller
Certificate) or attached to the appropriate exhibits to a Series Supplement, as
applicable, executed by the Trustee by manual signature, and such certificate
upon any Certificate shall be conclusive evidence, and the only evidence, that
such Certificate has been duly authenticated and delivered hereunder and is
entitled to the benefits of this Agreement and the relevant Series Supplement.
Bearer Certificates shall be dated the Series Closing Date. All Registered
Certificates and the Seller Certificate shall be dated the date of their
authentication.
SECTION 6.02 Book-Entry Certificates
(a) Unless otherwise provided in the applicable Series Supplement, the
Investor Certificates, upon original issuance, shall be issued in fully
registered form, in the form of one or more typewritten Certificates
representing the Book-Entry Certificates, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on the behalf of, the
Sellers. The Investor Certificates shall initially be registered in the
Certificate Register in the name of CEDE & Co., the nominee of the initial
Clearing Agency, and no Certificate Owner will receive a definitive certificate
representing such Certificate Owner's interest in the Investor Certificates,
except as provided in
41
49
Section 6.02(c). Unless and until definitive, fully registered Investor
Certificates ("Definitive Certificates") have been issued to the beneficial
owners of the Investor Certificates pursuant to Section 6.02(c):
(i) the provisions of this Section 6.02(a) shall be in full force
and effect;
(ii) any Seller, the Master Servicer and the Trustee may deal with
the Clearing Agency and the Clearing Agency Participants for all purposes
(including the making of distributions on the Investor Certificates) as
the authorized representatives of the Certificate Owners;
(iii) to the extent that the provisions of this Section 6.02(a)
conflict with any other provisions of this Agreement, the provisions of
this Section 6.02(a) shall control; and
(iv) the rights of 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 and/or the Clearing Agency
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 6.02(c), the
initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of principal
and interest on the Investor Certificates to such Clearing Agency
Participants.
For purposes of any provision of this Agreement or any applicable Series
Supplement requiring or permitting actions with the consent of, or at the
direction of, Investor Certificateholders evidencing a specified percentage of
the Class Invested Amount of any Class, such direction or consent may be given
by Certificate Owners (acting through the Clearing Agency and the Clearing
Agency Participants).
(b) Whenever notice or other communication is required to be given to
Investor Certificateholders of any 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 pursuant to Section 6.02(c),
the Trustee shall give all such notices and communications specified herein to
be given to such Investor Certificateholders to the Clearing Agency.
(c) If, with respect to any Series the Investor Certificates of which are
originally issued in the form of Book-Entry Certificates:
(i) (A) the Master Servicer advises the Trustee in writing that the
Clearing Agency is no longer willing or able to properly discharge its
responsibilities under the Depository Agreement, and (B) the Trustee or
the Master Servicer is unable to locate a qualified successor,
(ii) the Master Servicer, at its option, advises the Trustee in
writing that it elects to terminate the book-entry system with respect to
such Series through the Clearing Agency, or
42
50
(iii) after the occurrence of a Master Servicer Termination Event,
Certificate Owners representing beneficial interests aggregating not less
than 51% of the Invested Amount of any Class of such Series advise the
Trustee and the Clearing Agency through the Clearing Agency Participants
in writing that the continuation of a book-entry system through the
Clearing Agency is no longer in the best interests of the Certificate
Owners of such Class,
then the Trustee shall notify all Certificate Owners of each Class of such
Series upon the occurrence of an event described in clauses (i) and (ii) above
or all Certificate Owners of the applicable Class upon the occurrence of the
event described in clause (iii) above, through the Clearing Agency, of the
occurrence of any such event and of the availability of Definitive Certificates
to Certificate Owners of such Class of such Series requesting the same. Upon
surrender to the Trustee of the applicable Investor Certificates by the Clearing
Agency, accompanied by registration instructions from the Clearing Agency for
registration, the Trustee shall issue the Definitive Certificates for the
applicable Class. Neither any Seller 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 Definitive
Certificates all references herein to obligations imposed upon or to be
performed by the Clearing Agency with respect to the applicable Class of the
applicable Series of Investor Certificates 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 Certificateholders hereunder.
SECTION 6.03 Authentication of Certificates. On or about the Initial
Closing Date, the Trustee shall authenticate and deliver the Seller Certificate
to the Holder of the Seller Certificate. The Trustee also shall authenticate
and deliver, upon the order of Greenwood on behalf of the Holder of the Seller
Certificate, the Investor Certificates of each Series, if any, to be issued as
of the Initial Closing Date. From time to time after the Initial Closing Date,
pursuant to Section 6.06 hereof and the terms of the applicable Series
Supplement, the Trustee shall authenticate and deliver the Investor Certificates
of additional Series (with the designation provided in the applicable Series
Supplement), upon the order of Greenwood on behalf of the Holder of the Seller
Certificate, to the persons designated in such Series Supplement. If specified
in the related Series Supplement, the Trustee shall authenticate and deliver
outside the United States a Global Certificate representing the Series Initial
Investor Interest for such Series or the Class Initial Investor Interest for a
specified Class of such Series. The Investor Certificates of each Series shall
be duly authenticated by or on behalf of the Trustee as provided herein and in
the applicable Series Supplement, in authorized denominations equal to (in the
aggregate) the Series Initial Investor Interest of each Series. At any time,
the Investor Certificates outstanding at such time, together with the Seller
Certificate, shall evidence the entire ownership of the Trust.
43
51
SECTION 6.04 Registration of Transfer and Exchange of Certificates.
(a) (i) Greenwood on behalf of the Holder of the Seller Certificate
shall keep or cause to be kept by a transfer agent ("Transfer Agent") a
register for the Registered Certificates issued pursuant to this Agreement
and the Series Supplements for all Series then outstanding (the
"Certificate Register") at any office or agency of the Sellers to be
maintained in accordance with the provisions of Section 6.04(c) in which,
subject to such reasonable regulations as it may prescribe, the Sellers
shall provide for the registration and transfer of Registered Certificates.
The Certificate Register shall be in written form or capable of being
converted into written form within a reasonable time. Unless otherwise
specifically designated by Greenwood on behalf of the Holder of the Seller
Certificate in a written notice to the Trustee, the Certificate Register
shall be maintained at the Corporate Trust Office.
(ii) Investor Certificates of certain Classes of certain Series may
be ineligible for purchase by an employee benefit plan, trust or account
subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or described in Section 4975(e)(l) of the Code, and not excepted
under Section 4975(g) (a "Plan"). No transfer of such an Investor
Certificate shall be made nor shall any interest therein be transferred to
a Plan. Each Holder of such a Certificate, by its acceptance thereof,
shall be deemed to represent and warrant that it is not (i) an employee
benefit plan (as defined in Section 3(3) of ERISA) that is subject to the
provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(l)
of the Code, and not excepted under Section 4975(g) or (iii) an entity
that is using assets to purchase such Certificates that constitute plan
assets by reason of a plan's investment in such entity. The Series
Supplement with respect to each Series shall set forth which Class or
Classes of such Series, if any, shall be subject to the restrictions set
forth in this Section 6.04(a)(ii).
(iii) Upon surrender for registration of transfer of any Registered
Certificate at any office or agency to be maintained in accordance with the
provisions of Section 6.04(c), Greenwood on behalf of the Holder of the
Seller Certificate shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or
more Registered Certificates of the same Class and Series, of a like
Fractional Undivided Interest and bearing a number not contemporaneously
outstanding.
(iv) At the option of a Holder of a Registered Certificate, such
Holder's Registered Certificates may be exchanged for other Registered
Certificates of the same Class and Series, of a like Fractional Undivided
Interest and bearing a number not contemporaneously outstanding upon
surrender of the Registered Certificates to be exchanged at any such office
or agency. Whenever any Registered Certificates are so surrendered for
exchange, Greenwood on behalf of the Holder of the Seller Certificate shall
execute, and the Trustee shall authenticate and deliver the Registered
Certificates which the Holder making the exchange is entitled to receive.
Registered Certificates, including Registered Certificates received in
exchange for Bearer Certificates, may not be exchanged for Bearer
Certificates.
(v) 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, in denominations smaller than those of the
Bearer Certificates being exchanged, or for Registered Certificates, in
either case of the same Class and Series, of a like Fractional Undivided
Interest and bearing a number not contemporaneously outstanding, upon
surrender of the Bearer
44
52
Certificates to be exchanged at an office or agency of the Transfer Agent
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
need not have attached the Coupon relating to such Payment Date (as
specified in the applicable Series Supplement).
(vi) The preceding provisions of this Section notwithstanding, the
Transfer Agent shall not be required to register the transfer of or
exchange any Certificate for a period of 15 days preceding any Payment
Date with respect to the Certificate.
(vii) Every Registered Certificate presented or surrendered for
registration of transfer or for exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer in form satisfactory to
the Sellers and the Trustee duly executed, by the Certificateholder
thereof or his attorney duly authorized in writing.
(viii) No service charge shall be made for any registration of
transfer or exchange of Certificates, but the Trustee may require payment
of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or
exchange of Certificates.
(ix) 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 Sellers. Such certificate
shall also state that a certificate or certificates of CEDEL or Euroclear
to the effect referred to in Section 6.11 was received with respect to
each portion of the Global Certificate exchanged for Definitive
Euro-Certificates.
(x) Greenwood on behalf of the Holder of the Seller Certificate
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 Series Supplement and the Certificates.
(b) It is the understanding of the parties to this Agreement that
Greenwood has particular expertise in performing the functions given by this
Agreement to the Master Servicer and that the Investor Certificateholders will
be purchasing the Investor Certificates relying on Greenwood exercising such
expertise in performing such functions. Except as provided in Sections 8.04
and 8.06, the Master Servicer is not permitted to resign and the parties
understand that the Master Servicer's performance of its functions and the
quality of the Receivables will best be ensured if Greenwood, together with any
Additional Sellers, retains the Seller Certificate. Accordingly (subject to
the condition that Greenwood shall at all times retain sole control over its
properties and except as provided in Section 7.02), the Seller Certificate
shall not be transferred, assigned, exchanged, or otherwise conveyed except as
provided in Section 7.05.
(c) The Sellers will maintain at their expense in the Borough of
Manhattan, The City of New York, and, if and so long as any Class of any Series
is listed on the Luxembourg Stock Exchange and such exchange shall so require,
in Luxembourg, an office or offices or agency or
45
53
agencies 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).
SECTION 6.05 Mutilated, Destroyed, Lost or Stolen Certificates.
(a) If any mutilated Certificate (together, in the case of a Bearer
Certificate, with all unmatured Coupons appertaining thereto) is surrendered to
the Trustee, Greenwood on behalf of the Holder of the Seller Certificate shall
execute and the Trustee shall authenticate and deliver (in the case of a Bearer
Certificate, outside the United States) in exchange therefor a Certificate of
the same Class and Series, of a like Fractional Undivided Interest and bearing
a number not contemporaneously outstanding.
(b) If there shall be delivered to Greenwood on behalf of the Holder of
the Seller Certificate and the Trustee (i) evidence to their satisfaction of
the destruction, loss or theft of any Certificate and (ii) such security or
indemnity as may be required by them to save each of them and any agent of
either of them harmless, then, in the absence of notice to Greenwood on behalf
of the Holder of the Seller Certificate or the Trustee that such Certificate
has been acquired by a bona fide purchaser, Greenwood on behalf of the Holder
of the Seller Certificate shall execute and, upon its request, the Trustee
shall authenticate and deliver (in the case of a Bearer Certificate, outside
the United States), in lieu of any such destroyed, lost or stolen Certificate,
a Certificate of the same Class and Series, of a like Fractional Undivided
Interest and bearing a number not contemporaneously outstanding.
(c) Upon the issuance of any Certificate pursuant to this Section, the
Sellers may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses, including counsel fees, of the Sellers and the Trustee, and any
Paying Agent or Transfer Agent connected therewith, and in addition a further
sum not exceeding two dollars for each Certificate so issued in substitution.
(d) Every Certificate and Coupon issued pursuant to this Section in lieu
of any destroyed, lost or stolen Certificate or Coupon shall constitute an
original additional contractual obligation of the Trust, whether or not the
destroyed, lost or stolen Certificate or Coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Agreement and the applicable Series Supplement equally and proportionately with
any and all other Certificates or Coupons of the same Class and Series duly
issued hereunder.
46
54
SECTION 6.06 Issuances of New Series.
(a) The Sellers may direct the Trustee to issue, from time to time, one or
more Series subject to the conditions described below (each such issuance, a
"New Issuance"). The Sellers may effect a New Issuance by notifying the
Trustee, in writing, at least three days in advance of the date upon which the
New Issuance is to occur. Any notice of the New Issuance shall state the
designation of any Series to be issued on the date of the New Issuance and, with
respect to each such Series: (i) its Series Initial Investor Interest, (ii) the
Certificate Rate of each Class or Subclass, if applicable, of such Series; (iii)
its Payment Dates and the date from which interest shall accrue; (iv) its Series
Termination Date and (v) any other terms that the Sellers set forth in such
notice of a New Issuance. On the date of the New Issuance, the Trustee shall
authenticate and deliver any such Series only upon satisfaction of the following
conditions: (a) Greenwood on behalf of the Holder of the Seller Certificate
shall have delivered to the Trustee a Series Supplement executed by the Sellers,
the Master Servicer, the Servicers and the Trustee that specifies the terms of
such Series, including, without limitation, the Series Initial Investor
Interest, the Certificate Rate for each Class of such Series, the terms for the
allocation of Collections available to such New Issuance and the assignment of
such Series to a Group and such other terms the Sellers may deem appropriate,
(b) the Sellers shall have delivered to the Trustee written confirmation from
the Rating Agencies that the New Issuance will not result in the reduction or
withdrawal of the ratings of any Class of any Series then outstanding rated by
each Rating Agency, (iii) the Sellers shall have delivered to the Trustee and
the Rating Agencies (A) with respect to each New Issuance, an opinion of counsel
dated as of the date of such New Issuance to the effect that, although not free
from doubt, the Investor Certificates of such New Issuance will be treated as
indebtedness of the Sellers for federal income and state (for any state where a
Servicer conducts substantial servicing activities with respect to Accounts
serviced by such Servicer) income or franchise tax purposes and (B) with respect
to each New Issuance other than the New Issuance related to the first Series
issued by the Trust, an opinion of counsel dated as of the date of such New
Issuance to the effect that such New Issuance will not adversely affect the
conclusion set forth in any prior opinion of counsel delivered pursuant to this
clause (iii) as to the treatment of the Investor Certificates of any such prior
Series as indebtedness of the Sellers or as to the treatment of the Trust as a
mere security device and (iv) Greenwood on behalf of the Holder of the Seller
Certificate shall not be required to designate Additional Accounts or convey
Participation Interests to the Trust pursuant to Section 2.10(a) as a result of
such New Issuance. The Series Supplement with respect to any New Issuance may
modify or amend the terms of this Agreement, provided, that such modifications
or amendments shall apply solely with respect to such Series. Upon satisfaction
of such conditions, the Trustee shall issue, as provided in Section 6.06(d),
such Series of Investor Certificates dated as of the date of the New Issuance.
(b) The Sellers may direct the Trustee to issue one or more Series which
is subordinate in right of payment, in whole or in part, to one or more other
Series, whether or not any such Series are issued contemporaneously. The
manner and extent to which any Series shall be subordinated to any other Series
shall be set forth in the Series Supplement for the subordinated Series.
(c) The Sellers may designate that one or more Groups be subordinate in
right of payment, in whole or in part, to one or more other Groups, whether or
not the Series in any such subordinate Group are issued contemporaneously with
the Series in any non-subordinate Group. The manner and extent to which any
Group shall be subordinated to any other Group shall be set forth in the Series
Supplements for each Series which is a member of such subordinate Group.
47
55
(d) Upon any New Issuance, Greenwood on behalf of the Holder of the Seller
Certificate shall execute and deliver to the Trustee, and the Trustee shall
authenticate pursuant to Section 6.03, one or more Series of Investor
Certificates. The Investor Certificates of any such Series shall be
substantially in the form specified in the applicable Series Supplement and
shall each bear, upon its face, the designation for such Series.
SECTION 6.07 Persons Deemed Owners. Prior to due presentation of a
Certificate for registration of transfer or exchange, the Trustee, the Paying
Agent, the Transfer Agent and any agent of any of them may (a) 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
Section 5.01 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 Section 5.01 and for all
other purposes whatsoever; and, in either case, neither the Trustee, the Paying
Agent, the Transfer Agent nor any agent of any of them shall be affected by any
notice to the contrary.
SECTION 6.08 Appointment and Duties of Paying Agent
(a) The Paying Agent shall make distributions to Investor
Certificateholders from the Series Distribution Accounts, the Series Interest
Funding Accounts and the Series Principal Funding Accounts pursuant to Section
5.01 and the relevant provisions of the applicable Series Supplement. Any
Paying Agent shall have the revocable power to withdraw funds from the Series
Distribution Accounts, the Series Interest Funding Accounts and the Series
Principal Funding Accounts 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 Series Supplement
in any material respect. The Paying Agent shall initially be the Trustee and
any co-paying agent or paying agencies chosen by the Paying Agent and acceptable
to the Trustee and the Sellers, including, if and for so long as any Class of
any Series is represented by Bearer Certificates or is listed on the Luxembourg
Stock Exchange and such exchange so requires, a co-paying agent or paying agency
in Luxembourg or another city in western Europe. The Trustee shall be permitted
to resign as Paying Agent upon 30 days' written notice to the Sellers and upon
the appointment of a successor to act as Paying Agent. For so long as the
Trustee shall act as Paying Agent, the provisions of Sections 11.01, 11.02 and
11.03 shall apply to the Trustee in its role as Paying Agent.
(b) The Trustee shall cause any Paying Agent other than the Trustee to
execute and deliver to the Trustee an instrument in which such Paying Agent
shall agree with the Trustee that such Paying Agent will hold all sums 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.
SECTION 6.09 Access to List of Names and Addresses of Holders of
Registered Certificates. The Trustee will furnish or cause to be furnished by
the Transfer Agent to the Master Servicer or the Paying Agent, within five
Business Days after receipt by the Trustee of a request therefor from the Master
Servicer or the Paying Agent, respectively, in writing, a list in such form as
the Master Servicer or the Paying Agent may reasonably require, of the names and
addresses of the Holders of Registered Certificates of any Class or Series as of
the most recent Record Date for payment of distributions to such Holders of
Registered Certificates. If three or more Holders of Registered Certificates of
any Class of any Series (the "Applicants") representing Fractional Undivided
48
56
Interests aggregating not less than 5% of the Series Invested Amount of any
Series apply in writing to the Trustee, and such application states that the
Applicants desire to communicate with other Holders of Registered Certificates
of such Class of such Series, or such Series, with respect to their rights under
this Agreement, the relevant Series Supplement or 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 to afford such Applicants access during normal business hours to the most
recent list of Holders of Registered Certificates of such Class of such Series,
or such Series, 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 Holder of a
Registered Certificate, by receiving and holding such Certificate, agrees with
the Trustee that neither the Trustee, the Transfer Agent, 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 such Certificateholders
hereunder, regardless of the source from which such information was derived.
SECTION 6.10 Authenticating Agent.
(a) The Trustee may appoint one or more authenticating agents with respect
to one or more Series which shall be authorized to act on behalf of the Trustee
in authenticating the Certificates of such Series in connection with the
issuance, delivery, registration of transfer, exchange or repayment of such
Certificates. Wherever 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 Sellers.
(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 paper or any further act on the part of the Trustee
or such authenticating agent.
(c) An authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Sellers. 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 Sellers. 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
Sellers, 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 Sellers.
(d) The Trustee agrees to pay to each authenticating agent from time to
time reasonable compensation for its services under this Section 6.10, and the
Trustee shall be entitled to be reimbursed and the Master Servicer shall
reimburse the Trustee for such payments, subject to the provisions of Section
11.05.
(e) The provisions of Sections 11.01, 11.02 and 11.03 shall be applicable
to any authenticating agent.
49
57
(f) Pursuant to an appointment made under this Section 6.10, the
Certificates of an applicable Series 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 and Series Supplement.
_______________________________________
_______________________________________
as Authenticating Agent for the Trustee,
By:____________________________________
Authorized Officer"
SECTION 6.11 Global Certificate; Exchange Date
(a) If specified in the related Series Supplement for any Series or Class,
the Investor Certificates of such Series or Class, as applicable, will initially
be issued as a single temporary global certificate (the "Global Certificate") in
bearer form, without Coupons, in the denomination of the Series Initial Investor
Interest or the Class Initial Investor Interest, as applicable, and
substantially in the form set forth in the exhibit with respect thereto attached
to the related Series Supplement. The Global Certificate will be 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 Certificates or Registered
Certificates in definitive form (the "Definitive Euro-Certificates").
(b) The Manager shall advise the Trustee, the Sellers, the Common
Depositary, CEDEL and Euroclear of the Exchange Date. Not later than the
Exchange Date, Greenwood on behalf of the Holder of the Seller Certificate will
execute and deliver to the Trustee or its designated agent, in either case,
outside the United States, definitive Bearer Certificates in an aggregate
principal amount equal to the Series Initial Investor Interest or the Class
Initial Investor Interest, as applicable, less, in either case, the aggregate
principal amount of the Global Certificate expected to be issued to United
States institutional investors, as described below. All Bearer Certificates so
issued and delivered will have Coupons attached. The Global Certificate may be
exchanged for Definitive Euro-Certificates only on or after the Exchange Date. A
United States institutional investor 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 Certificate attached to the related Series Supplement and
having a minimum denomination of $500,000. The Sellers 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 Sellers
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 H-1 with
respect to the Global Certificate or portion thereof being exchanged signed by
CEDEL or Euroclear and dated on or after the Exchange Date, to the effect that
it has received in writing or by tested telex a certification substantially in
the
50
58
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 H-2 signed by the Manager which sold the relevant Certificates or (ii)
in all other cases, the certificate in the form of Exhibit H-3, the certificate
referred to in this clause (ii) being dated on or after the 15th day before the
Exchange Date. Upon receipt of such certification, the Trustee shall cause the
Global Certificate to be endorsed in accordance with paragraph (d) below. Any
exchange as 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 CEDEL or Euroclear.
(c) The delivery to the Trustee by CEDEL or Euroclear of any written
statement referred to above may be relied upon by the Sellers and the Trustee as
conclusive evidence that a corresponding certification or certifications has or
have been delivered to CEDEL or Euroclear, as applicable, pursuant to the terms
of this Agreement. The Trustee, CEDEL and Euro-clear, as the case may be, shall
retain each certificate delivered pursuant to Section 6.11 for a period of four
calendar years following the year in which such certificate is received.
(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 6.12 Meetings of Certificateholders. (a) If, with respect to any
Series then outstanding, any Bearer Certificates are issued and outstanding with
respect to any Class of such Series, the Master Servicer or the Trustee may at
any time call a meeting of Investor Certificateholders of any such Series or
Class or of all such Series, to be held at such time and at such place as the
Master Servicer 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 applicable Series
Supplement or the Investor Certificates or of taking any other action permitted
to be taken by Investor Certificateholders hereunder or under any Series
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
Bearer Certificates of the applicable Series or Class, as described in Section
6.12(d), or (ii) the Holder of or a person appointed by an instrument in writing
as proxy by the Holder of one or more Registered 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 Sellers, the Master Servicer and
the Trustee and their respective counsel.
51
59
(b) At a meeting of Investor Certificateholders, persons entitled to vote
Investor Certificates evidencing a majority of the Series Invested Amount or the
Class Invested Amount, as applicable, of the applicable Series or Class or the
sum of the Series Invested Amounts for all applicable Series, as the case may
be, shall constitute a quorum. For purposes of determining whether a quorum is
present, the applicable Class Invested Amount and Series Invested Amount shall
be calculated without taking into account the Class Investor Interest
represented by any Investor Certificates beneficially owned by any Seller or any
affiliate of any Seller. 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 meeting may be adjourned for a
period of not less than 10 days; in the absence of a quorum at any such
adjourned 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 Series Invested Amount or the Class Invested
Amount, as applicable, of the applicable Series or Class or the sum of the
Series Invested Amounts for all applicable 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 Series Invested Amount or the Class Invested Amount, as
applicable, or of the sum of the Series Invested Amounts for all applicable
Series, as the case may be, which shall constitute a quorum.
(c) Any Holder of a Registered Certificate 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 Holder of a Registered Certificate 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(b), any resolution passed or
decision taken at any meeting of Certificateholders duly held in accordance
with this Section shall be binding on all Investor Certificateholders of the
applicable Class or Series, whether or not present or represented at the
meeting.
(d) The holding of Bearer Certificates for purposes of this Section 6.11
shall be proved by the production of such Bearer Certificates or by a
certificate, satisfactory to the Master Servicer, executed by any bank, trust
company or recognized securities dealer, wherever situated, satisfactory to the
Master 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 holding of Registered Certificates
shall be proved by the Certificate Register. The appointment of any proxy with
respect to a Registered Certificate 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 Master Servicer.
52
60
(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 persons entitled to vote evidencing a majority of the Series Invested
Amount or the Class Invested Amount, as applicable, of the applicable Series or
Class or the sum of the Series Invested Amounts for all applicable 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.
(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 Master 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 6.13 Special Provisions for Certain Series. Except with respect
to the provisions of Sections 6.03, 6.04(b) and 6.06 and provisions relating
specifically to the Seller Certificate, the foregoing provisions of this Article
VI may be modified with respect to any Series to the extent provided in the
applicable Series Supplement.
SECTION 6.14 Exchange of Investor Certificates for Seller Interest. In
the event that any Seller becomes a Certificate Owner or an Investor
Certificateholder (in the event that Definitive Certificates are issued pursuant
to Section 6.02), Greenwood on behalf of the Holder of the Seller Certificate
may cancel such Investor Certificates on a Distribution Date with respect to
such Investor Certificates by providing notice to the Trustee of such
cancellation; provided, however, that no Investor Certificates, except Class A
Certificates, may be cancelled unless Greenwood on behalf of the Holder of the
Seller Certificate shall have been advised by the Rating Agencies that such
cancellation would not cause the rating of any Class of any Series then
outstanding to be lowered or withdrawn. Such cancellation shall be deemed to
occur after giving effect to all allocations and payments pursuant to Article IV
hereof and the applicable provisions of the Series Supplements for each Series
then outstanding as of such Distribution Date and the related Trust Distribution
Date. Simultaneously with such cancellation, the Class Investor Interest of the
applicable Class and the Series Investor Interest of the Series under which such
Investor Certificates were issued shall be reduced, and the Seller Interest
shall be increased, by the aggregate Class Investor Interest represented by such
cancelled Investor Certificates, in each case as of the end of the related Due
Period. Such reduction in the Class Investor Interest will not result in any
change in any numerator for purposes of determining any Class
53
61
Percentage with respect to such Class if a Fixed Principal Allocation Event with
respect to such Series has previously occurred. Greenwood on behalf of the
Holder of the Seller Certificate shall promptly notify the Rating Agencies of
any exchange of Investor Certificates for Seller Interest pursuant to this
Section 6.14.
ARTICLE VII
OTHER MATTERS RELATING TO THE SELLERS
SECTION 7.01 Liability of Sellers. Each Seller shall be liable in
accordance herewith only to the extent of the obligations specifically
undertaken by such Seller in such capacity herein.
SECTION 7.02 Merger or Consolidation of, or Assumption of the Obligations
of, Greenwood, or any Additional Seller.
(a) Nothing in this Agreement shall prevent any consolidation or merger of
Greenwood or any Additional Seller with or into any other corporation, or any
consolidation or merger of any other corporation with or into Greenwood or any
such Additional Seller, or any sale or transfer of all or substantially all of
the property and assets of Greenwood or any such Additional Seller to any other
corporation lawfully entitled to acquire the same; provided, however, that
(i) if Greenwood or such Additional Seller, as applicable, is not
the surviving entity, such successor corporation shall be organized and
existing under the laws of the United States of America or any state or
the District of Columbia and shall be a banking corporation or other
entity that is not subject to the bankruptcy laws of the United States of
America, provided that such entity shall not be an insurance company; or
(ii) Greenwood or such Additional Seller, as applicable, shall have
been advised by the Rating Agency that the rating of any Investor
Certificates of any Class of any Series then outstanding would not be
lowered or withdrawn as a result of such transaction; and
provided, further, that, so long as Certificates are outstanding hereunder,
Greenwood or such Additional Seller, as applicable, covenants and agrees that
any such consolidation, merger, sale or transfer shall be upon the condition
that the due and punctual performance and observance of all the terms, covenants
and conditions of this Agreement to be kept or performed by Greenwood or such
Additional Seller, as applicable, shall, by an agreement supplemental hereto,
executed and delivered to the Trustee, be assumed by the corporation (if other
than Greenwood or such Additional Seller, as applicable) formed by or resulting
from any such consolidation or merger, or which shall have received the transfer
of all or substantially all of the property and assets of Greenwood, just as
fully and effectually as if such successor corporation had been the original
party of the first part hereto; and in the event of any such sale or transfer
Greenwood or such Additional Seller, as applicable, may be dissolved, wound up
and liquidated at any time thereafter.
(b) The obligations of Greenwood or any Additional Seller hereunder shall
not be assignable, nor shall any Person succeed to the obligations of Greenwood
or any Additional Seller hereunder, except in each case in accordance with the
provisions of the foregoing subsection (a).
54
62
(c) Greenwood or such Additional Seller, as applicable, shall notify the
Rating Agencies on or before the date of any consolidation, merger or transfer
of all or substantially all of its property and assets pursuant to subsection
(a) of this Section 7.02.
SECTION 7.03 Limitation on Liability of Certain Persons. No recourse
under or upon any obligation or covenant of this Agreement or any Series
Supplement, or of any Certificate, or for any claim based thereon or otherwise
in respect thereof, shall be had against any incorporator, stockholder, officer
or director, as such, past, present or future, of any Seller or of any successor
corporation, either directly or through such Seller, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that this Agreement and any
Series Supplement and the obligations incurred hereunder and thereunder are
solely corporate obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by the incorporators, stockholders,
officers or directors, as such, of any Seller or of any successor corporation to
such Seller, or any of them, because of the creation of the indebtedness hereby
authorized, or under or by reason of the obligations or covenants contained in
this Agreement, any Series Supplement or in any of the Certificates or implied
therefrom; and that any and all such personal liability, either at common law or
in equity or by constitution or statute, of, and any and all such rights and
claims against, every such incorporator, stockholder, officer or director, as
such, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Agreement or any Series Supplement or in any of the Certificates or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Agreement and any Series Supplement and
the issuance of such Certificates. Any Seller and any director or officer or
employee or agent of any Seller may rely in good faith on any document of any
kind prima facie properly executed and submitted by any Person respecting any
matters arising hereunder.
SECTION 7.04 Seller Indemnification of the Trust and the Trustee.
Greenwood on behalf of the Holder of the Seller Certificate shall indemnify and
hold harmless the Trust and the Trustee from and against any loss, liability,
expense, damage or injury suffered or sustained by reason of any acts, omissions
or alleged acts or omissions arising out of activities of the Sellers with
respect to the Trust, the Trust or the Trustee pursuant to this Agreement or any
Series 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 Greenwood on behalf of the Holder of the Seller
Certificate shall not indemnify the Trustee if such acts, omissions or alleged
acts or omissions constitute fraud, negligence, breach of fiduciary duty or
misconduct by the Trustee; and provided, further, that Greenwood on behalf of
the Holder of the Seller Certificate shall not indemnify the Trust or the
Investor Certificateholders for any liabilities, costs or expenses of the Trust
with respect to any action taken by the Trustee at the request of the Investor
Certificateholders; and provided, further, that Greenwood on behalf of the
Holder of the Seller Certificate shall not indemnify the Trust or the Investor
Certificateholders with respect to any federal, state or local income or
franchise taxes (or any interest or penalties with respect thereto) required to
be paid by the Trust or the Investor Certificateholders in connection herewith
to any taxing authority, which taxes shall be the sole obligation of the Trust
or the Investor Certificateholders. Any such indemnification shall only be from
assets of the Sellers, shall be subordinate to the security interest of the
Trust in the Receivables and shall not constitute a claim against any Seller in
excess of the lesser of (i) such Seller's assets available to pay such claim or
(ii) the amount of such claim multiplied by a fraction the numerator of which is
the aggregate amount of Principal Receivables in the Trust which were originated
by such Seller and the denominator of which
55
63
is the aggregate amount of Principal Receivables in the Trust. The obligations
under this Section shall survive the termination of the Trust and the
resignation or removal of the Trustee.
SECTION 7.05 Transfer or Conveyance of Seller Certificate. It is the
understanding of the parties that the Seller Certificate will be issued
initially to Greenwood, and that any Additional Sellers will enter into the
Seller Certificate Ownership Agreement with Greenwood and, thereafter, hold the
Seller Certificate, together with Greenwood, as tenants-in-common. Except with
respect to any such transfer of a portion of their interest in the Seller
Certificate to any Additional Seller pursuant to the terms of this Agreement, or
the transfer of all or part of any Seller's interest in the Seller Certificate
to an affiliate of Greenwood that is included in the same "affiliated group" as
Greenwood for United States federal income tax purposes, no Seller may transfer,
assign, sell or otherwise convey, pledge or hypothecate or otherwise grant a
security interest in (each, for purposes of this Section 7.05, a "transfer") any
portion of the Seller Interest represented by the Seller Certificate; provided,
however, that a Seller may transfer a portion of the Seller Interest so long as
the agreements and other documentation relating thereto are consistent with, and
subject to, the terms hereof and do not require any action prohibited or
prohibit any action required on the part of the Master Servicer, the Sellers or
the Trustee by the terms of this Agreement or any Series Supplement, or as
necessary to protect the interests of the Investor Certificateholders; and,
provided that such Seller shall have been advised by the Rating Agencies that
such transfer would not cause the ratings of any Class of any Series then
outstanding to be lowered or withdrawn. Notwithstanding the foregoing, such
advice shall not be required if the principal objective of such conveyance or
transfer is compliance with Regulatory Requirements, provided that Greenwood
shall notify the Rating Agencies of such conveyance or transfer. For purposes
of the foregoing sentence, Regulatory Requirements shall mean Requirements of
Law applicable to any Seller or any of its affiliates as a result of the
affiliation of any Seller or any of its affiliates with a depository institution
or applicable to any Seller or any of its affiliates as a depository
institution, including, without limitation, any condition under such
Requirements of Law that must be satisfied in order for any affiliate of any
Seller to avoid being treated as a bank holding company (or any similar
designation under the Bank Holding Company Act of 1956, as said act may be
amended from time to time) under the Bank Holding Company Act of 1956, as
amended, notwithstanding such affiliation, or to avoid limitations under said
act upon the activities in which affiliates of any Seller may engage.
SECTION 7.06 Corporate Actions. So long as any Investor Certificates are
outstanding, each Seller's board of directors will hold appropriate meetings or
will take appropriate action by written consent in accordance with applicable
state law to authorize all of such Seller's corporate actions.
SECTION 7.07 Bankruptcy Against Any Additional Seller. Each of the Master
Servicer, each Servicer, each Seller, the Trustee and the Paying Agent hereby
covenants and agrees that, prior to the date which is one year and one day after
the payment in full of all Series of Investor Certificates, it will not
institute against, or join with any other Person in instituting against, any
Additional Seller that is subject to the bankruptcy laws of the United States of
America, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any federal or state bankruptcy or
similar law.
56
64
ARTICLE VIII
OTHER MATTERS RELATING TO THE MASTER
SERVICER AND THE SERVICERS
SECTION 8.01 Master Servicer and Servicer Liability. The Master Servicer
and each Servicer shall be liable in accordance herewith only to the extent of
the obligations specifically undertaken by the Master Servicer or such Servicer
in such capacity herein.
SECTION 8.02 Merger or Consolidation of, or Assumption of the Obligations
of, the Master Servicer or any Servicer. Nothing in this Agreement shall
prevent any consolidation or merger of the Master Servicer or any Servicer with
or into any other corporation, or any consolidation or merger of any other
corporation with or into the Master Servicer or any Servicer, or any sale or
transfer of all or substantially all of the property and assets of the Master
Servicer or any Servicer to any other corporation lawfully entitled to acquire
the same; provided, however, that, so long as Certificates are outstanding
hereunder, the Master Servicer and each Servicer covenants and agrees that any
such consolidation, merger, sale or transfer shall be upon the condition that
the due and punctual performance and observance of all the terms, covenants and
conditions of this Agreement to be kept or performed by the Master Servicer or
such Servicer, as applicable, shall, by an agreement supplemental hereto,
executed and delivered to the Trustee, be assumed by the corporation (if other
than the Master Servicer or such Servicer) formed by or resulting from any such
consolidation or merger, or which shall have received the transfer of all or
substantially all of the property and assets of the Master Servicer or such
Servicer, just as fully and effectually as if such successor corporation had
been the original party of the first part hereto; and in the event of any such
sale or transfer the predecessor Master Servicer or such predecessor Servicer
may be dissolved, wound up and liquidated at any time thereafter. The Master
Servicer shall notify ▇▇▇▇▇'▇ of any consolidation, merger or transfer of all or
substantially all of its property or assets or of the property or assets of any
Servicer pursuant to this Section 8.02.
SECTION 8.03 Limitation on Liability of the Master Servicer and each
Servicer and Others. No recourse under or upon any obligation or covenant of
this Agreement or any Series Supplement, or of any Certificate, or for any claim
based thereon or otherwise in respect thereof, shall be had against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Master Servicer or any Servicer or of any successor corporation,
either directly or through the Master Servicer or any Servicer, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Agreement and any Series Supplement and the obligations incurred hereunder are
solely corporate obligations, and that no such personal liability whatever shall
attach to, or is or shall be incurred by the incorporators, shareholders,
officers or directors, as such, of the Master Servicer or any Servicer or of any
successor corporation, or any of them, because of the creation of any
indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Agreement or any Series Supplement or
in any of the Certificates or implied therefrom; and that any and all such
personal liability, either at common law or in equity or by constitution or
statute, of, and any and all such rights and claims against, every such
incorporator, shareholder, officer or director, as such, because of the creation
of the indebtedness hereby authorized, or under or by reason of the obligations
or covenants contained in this Agreement or any Series Supplement or in any of
the Certificates or implied therefrom, are hereby expressly waived and released
as a condition of, and as a consideration for, the execution of this Agreement
and any Series Supplement and the issue of such
57
65
Certificates. The Master Servicer and each Servicer and any director or officer
or employee or agent of the Master Servicer and each Servicer may rely in good
faith on any document of any kind prima facie properly executed and submitted by
any Person respecting any matters arising hereunder. Neither the Master
Servicer nor any Servicer shall be under any obligation to appear in, prosecute
or defend any legal action which is not incidental to its duties to service the
Receivables in accordance with this Agreement or any Series Supplement which in
its reasonable opinion may involve it in any expense or liability.
SECTION 8.04 Master Servicer or Servicer Resignation. Neither the Master
Servicer nor any Servicer shall 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 applicable law and (ii) there is no
reasonable action which the Master Servicer or such Servicer could take to make
the performance of its duties hereunder permissible under applicable law. Any
such determination permitting the resignation of the Master Servicer or such
Servicer shall be evidenced as to clause (i) above by an Opinion of Counsel to
such effect delivered to the Trustee. No such resignation shall become
effective until the Trustee or a Successor Master Servicer or Successor
Servicer, as applicable, shall have assumed the responsibilities and obligations
of the Master Servicer or such Servicer in accordance with Section 10.03 hereof.
SECTION 8.05 Access to Certain Documentation and Information Regarding the
Receivables. The Master Servicer and each Servicer shall provide to the Trustee
access to its documentation regarding the Accounts and the Receivables in such
cases where the Trustee is required in connection with the enforcement of the
rights of the Investor Certificateholders, or by applicable statutes or
regulations, to review such documentation, such access being afforded without
charge but only (i) upon reasonable request, (ii) during normal business hours,
(iii) subject to the Master Servicer's or the Servicer's normal security and
confidentiality procedures and (iv) at offices designated by the Master Servicer
or the Servicer, as applicable. Nothing in this Section 8.05 shall derogate
from the obligation of the Sellers, the Trustee, the Master Servicer and each
Servicer to observe any applicable law prohibiting disclosure of information
regarding the Obligors. The failure of the Master Servicer or the Servicer, as
applicable, to provide access as provided in this Section 8.05 as a result of
such obligation shall not constitute a breach of this Section 8.05.
SECTION 8.06 Delegation of Duties. In the ordinary course of business,
the Master Servicer and each Servicer may at any time delegate any of its duties
hereunder to any Person who agrees to conduct such duties in accordance with the
applicable Credit Guidelines. Such delegation shall not relieve the Master
Servicer or any Servicer of its liabilities and responsibilities with respect to
such duties, and shall not constitute a resignation within the meaning of
Section 8.04 hereof. Greenwood shall provide the Rating Agencies and the
Trustee with written notice prior to the delegation of any of its duties as
Master Servicer or Servicer to any Person other than Greenwood or its affiliates
or their respective successors and assigns. The Master Servicer shall provide
the Rating Agencies with written notice prior to the delegation by any other
Servicer of any of the duties of such Servicer to any other Person, other than
such Servicer's affiliates or their respective successors and assigns.
SECTION 8.07 Examination of Records. Each Servicer shall clearly and
unambiguously identify each Account with respect to which it is the Servicer
(including any Additional Account designated pursuant to Section 2.10) in its
computer records to reflect that the Receivables arising in such Account have
been conveyed to the Trust pursuant to this Agreement or an Assignment.
58
66
Each 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.
SECTION 8.08 Seller or Master Servicer to File Reports Pursuant to
Securities Exchange Act. Each Seller and the Master Servicer are hereby
authorized by the Trustee to file on behalf of the Trust all reports required to
be filed with the Securities and Exchange Commission or any exchange or
association of securities dealers pursuant to the Securities Exchange Act of
1934, as amended, or any rules or regulations thereunder. The Trustee shall not
be obligated to file on behalf of the Trust any such reports described in the
preceding sentence.
ARTICLE IX
AMORTIZATION AND CERTAIN OTHER EVENTS
SECTION 9.01 Amortization Events. If any one of the following events
shall occur with respect to any Series of Investor Certificates:
(a) failure on the part of any Seller (i) to make any payment or deposit
required by the terms of this Agreement or a related Series Supplement on or
before the date occurring five Business Days after the date such payment or
deposit is required to be made herein or (ii) duly to observe or perform in any
material respect any other material covenants or agreements of such Seller set
forth in this Agreement or a Series Supplement, 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 such Seller by the
Trustee, or to such Seller and the Trustee by the Investor Certificateholders
evidencing Fractional Undivided Interests aggregating not less than 25% of the
Class Invested Amount of any Class of any Series materially adversely affected
thereby;
(b) any representation or warranty made by any Seller in this Agreement or
a Series Supplement or any information contained in Schedule 1 hereto shall
prove to have been incorrect in any material respect when made or when
delivered, which representation, warranty or Schedule 1 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 applicable Seller by the Trustee, or to such Seller and
the Trustee by the Holders of Investor Certificates evidencing Fractional
Undivided Interests aggregating not less than 25% of the Class Invested Amount
of any Class of any Series materially adversely affected thereby;
(c) any Additional Seller that is subject to the bankruptcy laws of the
United States of America shall file a petition commencing a voluntary case
under any chapter of the federal bankruptcy laws; any such Additional Seller
shall file a petition or answer or consent seeking reorganization, arrangement,
adjustment, or composition under any other similar applicable federal law, or
shall consent to the filing of any such petition, answer, or consent; or any
such Additional Seller shall appoint, or consent to the appointment of, a
custodian, receiver, liquidator, trustee, assignee, sequestrator or other
similar official in bankruptcy or insolvency of it or of any substantial part
of its property; or shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they become
due;
59
67
(d) Greenwood, or any Additional Seller that is not subject to the
bankruptcy laws of the United States of America, shall consent to the
appointment of a conservator or receiver or liquidator in any insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings 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, marshalling of assets
and liabilities or similar proceedings, or for the winding-up or liquidation of
its affairs, shall have been entered against Greenwood or any such Additional
Seller; or Greenwood or any such Additional Seller 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 an
assignment for the benefit of its creditors or voluntarily suspend payment of
its obligations;
(e) any order for relief against any Additional Seller that is subject to
the bankruptcy laws of the United States of America shall have been entered by
a court having jurisdiction in the premises under any chapter of the federal
bankruptcy laws, and such order shall have continued undischarged or unstayed
for a period of 120 days; or a decree or order by a court having jurisdiction
in the premises shall have been entered approving as properly filed a petition
seeking reorganization, arrangement, adjustment, or composition of any such
Additional Seller under any other similar applicable federal law, and such
decree or order shall have continued undischarged or unstayed for a period of
120 days; or a decree or order of a court having jurisdiction in the premises
for the appointment of a custodian, receiver, liquidator, trustee, assignee,
sequestrator, or other similar official in bankruptcy or insolvency of any such
Additional Seller, or of any substantial part of the property of any such
Additional Seller, or for the winding up or liquidation of its affairs, shall
have been entered, and such decree or order shall have remained in force
undischarged or unstayed for a period of 120 days;
(f) Greenwood as Seller shall become unable for any reason to transfer
Receivables to the Trust in accordance with the provisions of this Agreement
and such inability shall continue for five Business Days;
(g) any Seller other than Greenwood shall become unable for any reason to
transfer Receivables to the Trust in accordance with the provisions of this
Agreement and such inability shall continue for five Business Days;
(h) the Trust shall become an "investment company" within the meaning of
the Investment Company Act of 1940, as amended;
(i) any Master Servicer Termination Event or any Servicer Termination
Event shall occur;
(j) the amount of Principal Receivables in the Trust at the end of any Due
Period shall be less than the Minimum Principal Receivables Balance and
Greenwood shall have failed to assign Receivables in Additional Accounts or
Participation Interests to the Trust on behalf of the Holder of the Seller
Certificate in at least the amount of such deficiency by the tenth day of the
calendar month of the following due Period (for purposes of this clause (i) the
amount of Receivables in Additional Accounts shall be determined as of the last
day of the Due Period preceding the assignment of such Receivables to the
Trust); or
60
68
(k) any other event specified as an Amortization Event in the Series
Supplement for such Series shall occur;
then
(w) in the case of any event described in subparagraph (a), (b), (g) or
(i), after any applicable grace period set forth in such subparagraphs, either
the Trustee or the Holders of Investor Certificates of any Class materially
adversely affected thereby evidencing Fractional Undivided Interests
aggregating not less than 51% of the Class Invested Amount of such Class by
notice then given in writing to Greenwood on behalf of the Holder of the Seller
Certificate and the Master Servicer (and to the Trustee if given by the
Investor Certificateholders) may declare that an amortization event (an
"Amortization Event") has occurred with respect to such Series as of the date
of such notice;
(x) in the case of any event described in subparagraphs (c), (d), (e),
(f), (h) or (j) an Amortization Event shall occur immediately upon the
occurrence of such event; and
(y) in the case of any event described in subparagraph (k), an
Amortization Event shall occur with respect to such Series pursuant to the
terms of such Series Supplement.
If an Amortization Event described in subparagraphs (c), (d), (e), (f), (h) or
(j) shall occur, this Section 9.01 constitutes written notice by the Trustee
and not less than 51% of the Class Invested Amount of each Class of each Series
then outstanding to the Master Servicer and Sellers that such Amortization
Event has occurred. No additional notice of any kind, which is hereby waived
by the Sellers and the Master Servicer, shall be required as a condition of the
occurrence of any Amortization Event described in subparagraphs (c), (d), (e),
(f), (h) or (j). Greenwood on behalf of the Holder of the Seller Certificate
(or the Master Servicer with respect to an Amortization Event that relates to
the Master Servicer or any Servicer) shall give prompt notice to the Rating
Agencies of the occurrence of any Amortization Event.
ARTICLE X
MASTER SERVICER AND SERVICER TERMINATION EVENTS
SECTION 10.01 Master Servicer Termination Events. If any one of the
following events (a "Master Servicer Termination Event") shall occur and be
continuing:
(a) any failure by the Master Servicer to make any payment, transfer or
deposit or to give instructions to the Trustee to make any withdrawal on or
before the date occurring five Business Days after the date such payment,
transfer or deposit or instruction is required to be made or given as the case
may be, under the terms of this Agreement, any Series Supplement or the Master
Servicing Agreement;
(b) failure on the part of the Master Servicer duly to observe or perform
in any respect any other covenants or material agreements of the Master
Servicer set forth in this Agreement, any Series Supplement or the Master
Servicing Agreement, 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 Master Servicer by the Trustee, or to
the Master Servicer and the Trustee by the
61
69
Holders of Investor Certificates evidencing Fractional Undivided Interests
aggregating not less than 25% of the Class Invested Amount of any Class of any
Series materially adversely affected thereby; or
(c) any representation, warranty or certification made by the Master
Servicer in this Agreement, any Series Supplement, the Master Servicing
Agreement or in any certificate delivered pursuant to this Agreement, any
Series Supplement or the Master Servicing Agreement shall prove to have been
incorrect when made, which has a material adverse effect on the rights of the
Certificateholders of any Class of any Series 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 Master Servicer by the Trustee, or to the Master
Servicer and the Trustee by the Holders of Investor Certificates evidencing
Fractional Undivided Interests aggregating not less than 25% of the Class
Invested Amount of any Class of any Series materially adversely affected
thereby; or
(d) the Master Servicer shall consent to the appointment of a conservator
or receiver or liquidator in any insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings of or relating to the Master
Servicer or of or relating to all or substantially all its property, or a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings, or the winding-up or liquidation of its
affairs, shall have been entered against the Master Servicer and such decree or
order shall have remained in force undischarged or unstayed for a period of 120
days; or the Master 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 such Master Servicer Termination Event, so long as
the Master Servicer Termination Event shall not have been remedied, either the
Trustee, or the Holders of Investor Certificates evidencing Fractional
Undivided Interests aggregating not less than 51% of the Class Invested Amount
of any Class materially adversely affected thereby, by notice then given in
writing to the Master Servicer (and to the Trustee if given by the Investor
Certificateholders) (a "Termination Notice"), may terminate all of the rights
and obligations of the Master Servicer under this Agreement and any Series
Supplements then outstanding. After receipt by the Master Servicer of such
Termination Notice, and on the date that a Successor Master Servicer shall have
been appointed by the Trustee pursuant to Section 10.03, all authority and
power of the Master Servicer under this Agreement shall pass to and be vested
in a Successor Master Servicer; and, without limitation, the Trustee is hereby
authorized and empowered to execute and deliver, on behalf of the Master
Servicer, as attorney-in-fact or otherwise, all documents and other instruments
upon the failure of the Master 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
Master Servicer agrees to cooperate with the Trustee and such Successor Master
Servicer in effecting the termination of the responsibilities and rights of the
Master Servicer to conduct servicing hereunder, including, without limitation,
the transfer to such Successor Master Servicer of all authority of the Master
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 Master Servicer for deposit, or which
have been deposited by the Master Servicer in any Investor Account, or which
shall thereafter be received with respect to the Receivables, and in assisting
the Successor Master Servicer. The terminated Master Servicer shall promptly
make available its electronic records
62
70
relating to the Receivables to the Successor Master Servicer in such electronic
form as the Successor Master Servicer may reasonably request and shall promptly
make available to the Successor Master 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 Master Servicer
shall reasonably request. To the extent that compliance with this Section
10.01 shall require the terminated Master Servicer to disclose to the Successor
Master Servicer information of any kind which the Master Servicer reasonably
deems to be confidential, the Successor Master Servicer shall be required to
enter into such customary licensing and confidentiality agreements as the
Master Servicer shall deem necessary to protect its interests.
SECTION 10.02 Servicer Termination Events. If any one of the following
events (a "Servicer Termination Event") shall occur and be continuing with
respect to any Servicer:
(a) any failure by any Servicer to make any payment, transfer or deposit
on or before the date occurring five Business Days after the date such payment,
transfer or deposit is required to be made under the terms of this Agreement,
any Series Supplement or the Master Servicing Agreement; or
(b) failure on the part of any Servicer duly to observe or perform in any
respect any covenants or material agreements of such Servicer set forth in this
Agreement, any Series Supplement or the Master Servicing Agreement, 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 such Servicer by the Trustee, or to such Servicer and the Trustee by
the Holders of Investor Certificates evidencing Fractional Undivided Interests
aggregating not less than 25% of the Class Invested Amount of any Class of any
Series materially adversely affected thereby; or
(c) any representation, warranty or certification made by any Servicer in
this Agreement, any Series Supplement, the Master Servicing Agreement or in any
certificate delivered pursuant to this Agreement, any Series Supplement or the
Master Servicing Agreement shall prove to have been incorrect when made, which
has a material adverse effect on the rights of the Certificateholders of any
Class of any Series 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 such Servicer by
the Trustee, or to such Servicer and the Trustee by the Holders of Investor
Certificates evidencing Fractional Undivided Interests aggregating not less
than 25% of the Class Invested Amount of any Class of any Series materially
adversely affected thereby; or
(d) any Servicer that is not subject to the bankruptcy laws of the United
States of America shall consent to the appointment of a conservator or receiver
or liquidator in any insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings of or relating to such 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, marshalling of assets and liabilities or
similar proceedings, or the winding-up or liquidation of its affairs, shall
have been entered against any Servicer and such decree or order shall have
remained in force undischarged or unstayed for a period of 120 days; or any
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
63
71
statute, make any assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations; or
(e) any Servicer that is subject to the bankruptcy laws of the United
States of America shall file a petition commencing a voluntary case under any
chapter of the federal bankruptcy laws; or any such Servicer shall file a
petition or answer or consent seeking reorganization, arrangement, adjustment
or composition under any other similar applicable federal law, or shall consent
to the filing of any such petition, answer or consent; or any such Servicer
shall appoint, or consent to the appointment of, a custodian, receiver,
liquidator, trustee, assignee, sequestrator or other similar official in
bankruptcy or insolvency of it or of any substantial part of its property; or
shall make an assignment for the benefit of creditors, or shall admit in
writing its inability to pay its debts generally as they become due; or
(f) any order for relief against any Servicer that is subject to the
bankruptcy laws of the United States of America shall have been entered by a
court having jurisdiction in the premises under any chapter of the federal
bankruptcy laws, and such order shall have continued undischarged or unstayed
for a period of 120 days; or a decree or order by a court having jurisdiction
in the premises shall have been entered approving as properly filed a petition
seeking reorganization, arrangement, adjustment, or composition of any such
Servicer under any other similar applicable federal law, and such decree or
order shall have continued undischarged or unstayed for a period of 120 days;
or a decree or order of a court having jurisdiction in the premises for the
appointment of a custodian, receiver, liquidator, trustee, assignee,
sequestrator, or other similar official in bankruptcy or insolvency of any such
Servicer, or of any substantial part of the property of any such Servicer, or
for the winding up or liquidation of its affairs, shall have been entered, and
such decree or order shall have remained in force undischarged or unstayed for
a period of 120 days;
then, in the event of any Servicer Termination Event, so long as the Servicer
Termination Event shall not have been remedied, either the Trustee, or the
Holders of Investor Certificates evidencing Fractional Undivided Interests
aggregating not less than 51% of the Class Invested Amount of any Class
materially adversely affected thereby, by notice then given in writing to the
Master Servicer and to the Servicer to which any such Servicer Termination
Event relates (and to the Trustee if given by the Investor Certificateholders)
(a "Termination Notice"), may terminate all of the rights and obligations of
such Servicer under this Agreement, any Series Supplements then outstanding and
the Master Servicing Agreement. After receipt by such Servicer of such
Termination Notice, and on the date that a Successor Servicer shall have been
appointed by the Trustee pursuant to Section 10.03 with respect to such
Servicer, all authority and power of such Servicer under this Agreement, any
Series Supplements then outstanding and the Master Servicing Agreement shall
pass to and be vested in such Successor Servicer; and, without limitation, the
Trustee is hereby authorized and empowered to execute and deliver, on behalf of
such Servicer, as attorney-in-fact or otherwise, all documents and other
instruments upon the failure of such 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. Such Servicer agrees to cooperate with the Trustee and such Successor
Servicer in effecting the termination of the responsibilities and rights of
such Servicer to conduct servicing hereunder, including, without limitation,
the transfer to such Successor Servicer of all authority of such Servicer to
service such Servicer's Receivables provided for under this Agreement,
including, without limitation, all authority over all collections which shall
thereafter be received with respect to such Receivables, and in assisting the
Successor Servicer. The terminated Servicer shall promptly make available its
electronic records relating to the Receivables to the Successor Servicer in
64
72
such electronic form as the Successor Servicer may reasonably request and shall
promptly make available to the Successor Servicer all other records,
correspondence and documents necessary for the continued servicing of the
Receivables in the manner and at such times as the Successor Servicer shall
reasonably request. To the extent that compliance with this Section 10.02
shall require the terminated Servicer to disclose to the Successor Servicer
information of any kind which such Servicer reasonably deems to be
confidential, such Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as such Servicer shall deem
necessary to protect its interest.
SECTION 10.03 Trustee to Act; Appointment of Successor Master Servicer
and/or Successor Servicer.
(a) On and after the receipt by the Master Servicer or any Servicer of a
Termination Notice pursuant to Section 10.01 or 10.02, the Master Servicer or
such Servicer, as applicable, shall continue to perform all servicing functions
performed by it under this Agreement until the date specified in the
Termination Notice or otherwise specified by the Trustee in writing or, if no
such date is specified in such Termination Notice, or otherwise specified by
the Trustee, until a date mutually agreed upon by Master Servicer or such
Servicer, as applicable, and the Trustee. The Trustee shall as promptly as
possible appoint a successor master servicer or servicer, as applicable, (the
"Successor Master Servicer" or "Successor Servicer," as applicable) and such
Successor Master Servicer or Successor Servicer shall accept its appointment by
a written assumption in a form acceptable to the Trustee. In the event that a
Successor Master Servicer or Successor Servicer has not been appointed or has
not accepted its appointment at the time when the Master Servicer or such
Servicer, as applicable, ceases to act as such, the Trustee without further
action shall automatically be appointed the Successor Master Servicer or
Successor Servicer, as applicable. Notwithstanding the above, the Trustee
shall, if it is legally unable so to act, petition a court of competent
jurisdiction to appoint any bank or other corporation having a net worth of not
less than $100,000,000 and whose regular business includes the servicing of
credit card receivables as the Successor Master Servicer or Successor Servicer,
as applicable, hereunder.
(b) Upon its appointment, the Successor Master Servicer or Successor
Servicer, as applicable, shall be the successor in all respects to the
terminated Master Servicer or Servicer, as applicable, with respect to
servicing functions under this Agreement and shall be subject to all the
responsibilities, duties, liabilities and protections relating thereto placed
on or provided to the Master Servicer or Servicer by the terms and provisions
hereof and the Successor Master Servicer or Successor Servicer, as applicable,
shall be deemed to have made the representations and warranties set forth in
Section 3.05 hereof, and all references in this Agreement to the Master
Servicer or such Servicer, as applicable, shall be deemed to refer to the
Successor Master Servicer or Successor Servicer, as applicable, except, if
agreed upon by Greenwood and any Successor Master Servicer or Successor
Servicer, for the references in Section 11.05, which shall continue to refer to
Greenwood; provided, however, that Greenwood shall not pay or reimburse the
Trustee pursuant to Section 11.05 for any expense, disbursement or advance of
the Trustee related to or arising as a result of the negligence or bad faith of
the Successor Master Servicer or Successor Servicer. Any Successor Master
Servicer or Successor Servicer, as applicable, shall expressly be authorized,
subject to Section 8.06, to delegate any of its duties hereunder to Greenwood
on and after the date of any transfer of servicing pursuant to this Section
10.03.
65
73
(c) Upon its appointment, any Successor Master Servicer or Successor
Servicer shall enter into the Master Servicing Agreement, and the former Master
Servicer or Servicer, as applicable, shall cease to be a party to the Master
Servicing Agreement.
(d) In connection with the appointment of a Successor Master Servicer, the
Trustee may make such arrangements for the compensation of any Successor Master
Servicer out of Collections as it and such Successor Master Servicer shall
agree; provided, however, that no such compensation shall be in excess of the
Monthly Servicing Fee set forth in Section 3.03. The Holder of the Seller
Certificate agrees that if the Master Servicer or any Servicer is terminated
hereunder, it will, at the request of the Trustee or any Successor Master
Servicer or Successor Servicer, deposit a portion of the Finance Charge
Collections that it is entitled to receive pursuant to Section 4.03(c)(ii) to
pay its share of the compensation of such Successor Master Servicer or
Successor Servicer.
(e) All authority and power granted to any Successor Master Servicer or
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 Holder of the Seller Certificate and, without limitation,
Greenwood on behalf of the Holder of the Seller Certificate is hereby
authorized and empowered to execute and deliver, on behalf of any Successor
Master Servicer or Successor 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. Any Successor Master Servicer or Successor Servicer agrees
to cooperate with the Holder of the Seller Certificate in effecting the
termination of the responsibilities and rights of such Successor Master
Servicer or Successor Servicer to conduct servicing on the Receivables. Any
Successor Master Servicer or Successor Servicer shall transfer its electronic
records relating to the Receivables to Greenwood on behalf of the Holder of the
Seller Certificate in such electronic form as Greenwood may reasonably request
and shall transfer all other records, correspondence and documents to Greenwood
on behalf of the Holder of the Seller Certificate in the manner and at such
times as Greenwood shall reasonably request. To the extent that compliance
with this Section 10.03 shall require any Successor Master Servicer or
Successor Servicer to disclose to any Seller information of any kind which such
Successor Master Servicer or Successor Servicer deems to be confidential, such
Seller shall be required to enter into such customary licensing and
confidentiality agreements as such Successor Master Servicer or Successor
Servicer shall deem necessary to protect its interests.
SECTION 10.04 Notification to Investor Certificateholders. Upon the
occurrence of any Master Servicer Termination Event or any Servicer Termination
Event, the Master Servicer or Servicer, as applicable, shall give prompt written
notice thereof to the Trustee and the Trustee shall give notice to the Investor
Certificateholders. Upon any termination or appointment of a Successor Master
Servicer or a Successor Servicer pursuant to this Article X, the Trustee shall
give prompt written notice thereof to the Rating Agencies and to the Investor
Certificateholders.
66
74
SECTION 10.05 Waiver of Past Breaches. The Holders of Investor
Certificates evidencing Fractional Undivided Interests aggregating not less than
51% of the Class Invested Amount of any Class of any Series affected by any
default by the Master Servicer, any Servicer or the Sellers may, on behalf of
all Holders of Certificates of such affected Class, waive the effect of any
Master Servicer Termination Event or Servicer Termination Event or breach by any
Seller in the performance of its obligations hereunder and its consequences,
except a failure to make any required deposits or payments in accordance with
Section 4.03 or the applicable Series Supplement and except any Amortization
Event arising under Sections 9.01(c), (d) or (e). Upon any such waiver of a
past breach, such breach shall cease to exist with respect to such Class of such
Series, and any breach arising therefrom shall be deemed to have been remedied
for every purpose of this Agreement with respect to such Class of such Series.
No such waiver shall extend to any subsequent or other breach or impair any
right consequent thereon except to the extent expressly so waived.
ARTICLE XI
THE TRUSTEE
SECTION 11.01 Duties of Trustee
(a) The Trustee, prior to the occurrence of any Master Servicer
Termination Event or any Servicer Termination Event of which it has knowledge
and after the curing of all Master Servicer Termination Events and all Servicer
Termination Events that may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Agreement or any
Series Supplement. If any Master Servicer Termination Event or any Servicer
Termination Event of which the Trustee has knowledge 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 or any Series Supplement, and use the
same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person'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 or any Series Supplement, shall examine them to
determine whether they conform to the requirements of this Agreement or such
Series Supplement. The Trustee shall give prompt written notice to the
Certificateholders of any lack of conformity of any such instrument to the
applicable requirements of this Agreement or any Series Supplement discovered
by the Trustee that would entitle a specified percentage of the
Certificateholders of any Class of any Series to take any action pursuant to
this Agreement or any Series Supplement.
(c) Subject to Section 11.01(a) no provision of this Agreement or any
Series Supplement 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 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;
67
75
(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 Fractional Undivided Interests aggregating not less than 51%
of the Class Invested Amount of any Class of any Series materially
adversely affected thereby 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, under this
Agreement;
(iii) The Trustee shall not be charged with knowledge of any Master
Servicer Termination Event referred to in Section 10.01(d) or any
Servicer Termination Event referred to in Section 10.02(c) or with
knowledge of any Amortization Event described in Sections 9.01(b), (c),
(d), (e), (f), (g), (i) or (j) (but only, in the case of Section 9.01(i),
if such Amortization Event relates to either a Master Servicer
Termination Event described in Section 10.01(d) or a Servicer Termination
Event described in Section 10.02(c)) unless a Responsible Officer of the
Trustee obtains actual knowledge of such failure or the Trustee receives
written notice of such failure from the Master Servicer, any Servicer or
any Holders of Investor Certificates evidencing Fractional Undivided
Interests aggregating not less than 10% of the Class Invested Amount of
any Class of any Series materially adversely affected thereby; and
(iv) The Trustee shall not be liable for any loss attributable to
the investment of funds in any Permitted Investment pursuant to this
Agreement or any Series Supplement nor shall the Trustee be liable for
the default or misconduct of the Master Servicer with regard to its
obligations in respect of funds on deposit in any Series Principal
Funding Account (as set forth in each applicable Series Supplement). In
no event shall the Trustee be liable for the payment of interest on any
funds in its possession, except as expressly provided in this Agreement.
(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 or any Series Supplement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Master Servicer or any
Servicer under this Agreement or any Series Supplement except during such time,
if any, as the Trustee shall be the successor to, and be vested with the
rights, duties, powers and privileges of, the Master Servicer or any Servicer
in accordance with the terms of this Agreement or any Series Supplement.
(e) Except for actions expressly authorized by this Agreement or any
Series Supplement, the Trustee shall take no action reasonably likely to impair
the interests of the Trust in any Receivable existing as of the Cut-Off Date or
thereafter created or to impair the value of any Receivable now existing or
hereafter created.
(f) Except as provided in Section 2.10 or an applicable Series Supplement,
the Trustee shall have no power to vary the corpus of the Trust including,
without limitation, the power to (i) accept any substitute obligation for a
Receivable initially assigned to the Trust under Section 2.01 or 2.10 hereof,
(ii) add any other investment, obligation or security to the Trust, or (iii)
withdraw from
68
76
the Trust any Receivables, except for a withdrawal permitted under Sections
2.05(b), 2.07(b), 2.11, 12.01 or 12.02.
(g) In the event that the Paying Agent or the Transfer Agent 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, as the case may be,
under this Agreement, the Trustee shall be obligated promptly to perform such
obligation, duty or agreement in the manner so required.
(h) If any Seller has agreed to transfer any of its credit receivables
(other than the Receivables) to another Person, upon the written request of
such Seller, the Trustee will enter into such agreements with the transferee of
such receivables as are necessary and desirable to separately identify the
rights of the Trust and such other Person in such Seller's receivables;
provided, however, that the Trustee shall not be required to enter into any
agreement which could adversely affect the interests of the Certificateholders;
and provided, further, that such Seller shall provide the Rating Agencies with
notice of any written agreement entered into pursuant to this Section 11.01(h).
(i) Any action, suit or proceeding brought in respect of one or more
particular Class or Series shall have no effect on the Trustee's rights, duties
and obligations hereunder with respect to any Classes or Series not the subject
of such action, suit or proceeding.
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 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 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 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 Series Supplement, or to
institute, conduct or defend any litigation hereunder or in relation hereto, at
the request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement or any Series Supplement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; provided, however, that nothing contained herein shall
relieve the Trustee of the obligations, upon the occurrence of any Master
Servicer Termination Event or any Servicer Termination Event (which has not
been cured), to exercise such of the rights and powers vested in it by this
Agreement or any Series Supplement, and to use the same degree of care and
skill in their exercise as a prudent person would exercise or use under the
circumstances in the conduct of such person's 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
or any Series Supplement;
69
77
(e) The Trustee shall not be bound to make any investigation into the
facts of matters stated in 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 Fractional Undivided Interests aggregating not less
than 51% of the Class Invested Amount of any Class of any Series which could be
materially adversely affected if the Trustee does not make such investigation;
(f) 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 Section 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
Sellers with their respective 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 11.16, the Trustee makes no
representations as to the validity or sufficiency of this Agreement or any
Series 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 Sellers
of any of the Certificates or of the proceeds of such Certificates, or for the
use or application of any funds paid to the Holder of the Seller Certificate in
respect of the Receivables or any deficiency in amounts deposited in any
Investor Accounts by the Master Servicer.
SECTION 11.04 Trustee May Own Investor Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of Investor
Certificates with the same rights with respect to such Investor Certificates as
it would have if it were not the Trustee.
SECTION 11.05 The Master Servicer to Pay Trustee's Fees and Expenses. The
Master 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 the Master Servicer will pay or
reimburse the Trustee (without reimbursement from any Investor Account or
otherwise) upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Agreement or any Series Supplement (including the reasonable
fees and expenses of its agents and counsel) except any such expense,
disbursement or advance as may arise from its negligence or bad faith and except
as provided in the following sentence. If the Trustee is appointed Successor
Master Servicer or Successor Servicer pursuant to Section 10.03, the provision
of this Section 11.05 shall not apply to expenses, disbursements and advances
made or incurred by the Trustee in its capacity as Successor Master Servicer or
Successor Servicer, as applicable, and the compensation of the Trustee as
Successor Master Servicer or Successor Servicer shall be determined in
accordance with Section 10.03 or the relevant provisions of the Master Servicing
Agreement, as applicable. The
70
78
Master Servicer's obligations under this Section shall survive the termination
of the Trust and the resignation or removal of the Trustee.
SECTION 11.06 Master Servicer and Servicer Indemnification of Trustee.
The Master Servicer and each Servicer shall indemnify and hold harmless the
Trustee from and against any loss, liability, expense, damage or injury
(including but not limited to any judgment, award, settlement, reasonable
attorneys' fees and other costs or other expenses incurred in connection with
the defense of any actual or threatened action, proceeding or claim) that may be
imposed on, incurred by or asserted at any time against the Trustee (whether or
not indemnified against by other parties) arising out of any acts or omissions
of the Master Servicer or such Servicer, as applicable, hereunder including,
without limitation, acts or omissions of the Master Servicer or such Servicer
relating to the administration of the Trust, the servicing and administration of
the Receivables, the collection of payments due under the Receivables, the
preparation of reports and other information with respect to the Receivables or
the Trust, the execution and delivery of any documents relating to the
Receivables or the Trust, and the registration or filing of any document with
the Securities and Exchange Commission, the Internal Revenue Service or any
other securities or tax authority of any jurisdiction with respect to the
Receivables or the Trust; provided, however, that neither the Master Servicer
nor any Servicer shall indemnify the Trustee to the extent any such loss,
liability, expense, damage or injury results from fraud, negligence, breach of
fiduciary duty or misconduct by the Trustee or from action taken by the Trustee
at the request of the Investor Certificateholders. The Master Servicer's and
each Servicer's obligations under this Section shall survive the termination of
the Trust and the resignation or removal of the Trustee.
SECTION 11.07 Eligibility Requirements for Trustee. The Trustee hereunder
shall at all times be a bank or trust company in good standing, organized and
doing business under the laws of the United States of America or any state
thereof authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and a long-term debt rating
from ▇▇▇▇▇'▇ of at least Baa3 and subject to supervision or examination by
federal or state banking authority. If such 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 11.07, the combined capital and surplus of such 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 11.07, the
Trustee shall resign immediately in the manner and with the effect specified in
Section 11.08.
SECTION 11.08 Resignation or Removal of Trustee.
(a) The Trustee may, upon the giving of written notice to the Sellers and
the Master Servicer and the appointment of a successor trustee, resign and be
discharged from the trust hereby created. Upon receiving such notice of
resignation, the Master 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 appointment
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 11.07 hereof and shall fail to resign after
written request therefor by the Sellers,
71
79
or if at any time the Trustee shall be legally unable to act, or shall be
adjudged a bankrupt or insolvent, or a receiver 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 Master Servicer may 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 11.08 shall
not become effective until acceptance of appointment by the successor trustee
as provided in Section 11.09 hereof. The Master Servicer shall provide written
notice to the Rating Agencies of any resignation or removal of the Trustee and
the appointment of any successor trustee.
SECTION 11.09 Successor Trustee.
(a) Any successor trustee appointed as provided in Section 11.08 hereof
shall execute, acknowledge and deliver to the Sellers 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 and under any Series Supplement, with like effect as if
originally named as Trustee herein. The predecessor Trustee shall deliver to
the successor trustee all documents and statements held by it hereunder; and
the Sellers 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,
power, duties and obligations.
(b) No successor trustee shall accept appointment as provided in this
Section 11.09 unless at the time of such acceptance (i) such successor trustee
shall be eligible under the provisions of Section 11.07 hereof and (ii) such
successor trustee shall have a long-term debt rating of Baa3 (or a rating
comparable thereto) or higher from ▇▇▇▇▇'▇; provided that, in the case of a
bank or trust company which is the principal subsidiary in a holding company
system, the rating referred to above shall be the rating of the bank or trust
company in such system.
(c) Upon acceptance of appointment by a successor trustee as provided in
this Section 11.09, such successor trustee shall notify all Certificateholders
of such succession hereunder.
SECTION 11.10 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
11.07 hereof, 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. The Trustee shall promptly notify ▇▇▇▇▇'▇ of the occurrence of
any such event.
SECTION 11.11 Appointment of Co-Trustee or Separate Trustee.
72
80
(a) Notwithstanding any other provisions of this Agreement or any Series
Supplement, 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 11.11, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 11.07 and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 11.09 hereof.
(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 applicable law of any jurisdiction in
which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Master Servicer or any Servicer
hereunder), 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 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 to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Section 11.11. 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 and any Series Supplement, specifically including
every provision of this Agreement or any Series Supplement 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 Master Servicer and the Rating Agencies.
(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 or any Series Supplement 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
73
81
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 11.12 Tax Returns. In the event the Trust shall be required to
file tax returns, the Master Servicer shall cause a firm of nationally
recognized independent public accountants to prepare any tax returns required to
be filed by the Trust and shall remit such returns to the Trustee for signature
at least five days before such returns are due to be filed. The Master Servicer
shall also 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 Trustee, upon request, will furnish the
Master Servicer with all such information known to the Trustee as may be
reasonably required in connection with the preparation of all tax returns of the
Trust, and shall, upon request, execute such returns. In no event shall the
Trustee or the Master Servicer be liable for any liabilities, costs or expenses
of the Trust or the Investor Certificateholders 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 11.13 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action and claims under this Agreement or any
Series Supplement or the 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 the Certificateholders in respect of which such
judgment has been obtained.
SECTION 11.14 Suits for Enforcement.
(a) If a Master Servicer Termination Event or any Servicer Termination
Event with respect to any Servicer shall occur and be continuing, the Trustee,
in its discretion may, subject to the provisions of Sections 10.01 and 10.02,
proceed to protect and enforce its rights and the rights of the
Certificateholders under this Agreement or any Series Supplement by a suit,
action or proceeding in equity or at law or otherwise, whether for the specific
performance of any covenant or agreement contained in this Agreement or any
Series Supplement or in aid of the execution of any power granted in this
Agreement or any Series Supplement 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 the
Certificateholders.
(b) 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 Certificateholder thereof or to authorize
the Trustee to vote in respect of the claim of any Certificateholder in any
such proceeding.
SECTION 11.15 Rights of Investor Certificateholders to Direct Trustee.
Holders of Investor Certificates evidencing Fractional Undivided Interests
aggregating not less than 51% of the Class Invested Amount of any Class of any
Series affected by the conduct of any proceeding or the
74
82
exercise of any right conferred by the Trustee shall have the right to direct
the time, method, and place of conducting any proceeding for any remedy
available to 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 liability or be unduly
prejudicial to the rights of Certificateholders not parties to such direction;
and provided, further, that nothing in this Agreement or any Series Supplement
shall impair the right of the Trustee to take any action deemed proper by the
Trustee and which is not inconsistent with such direction by the
Certificateholders.
SECTION 11.16 Representations and Warranties of Trustee. The Trustee
represents and warrants and any successor trustee shall represent and warrant
that:
(a) The Trustee is organized, existing and in good standing under the
laws of the United States of America;
(b) The Trustee has full power, authority and right to execute, deliver
and perform this Agreement, and has taken all necessary action to authorize the
execution, delivery and performance by it of this Agreement; and
(c) This Agreement has been duly executed and delivered by the Trustee.
SECTION 11.17 Maintenance of Office or Agency. The Holder of the Seller
Certificate will maintain at its expense (a) in the Borough of Manhattan, The
City of New York and in Chicago, Illinois in the case of Registered Certificates
and (b) in the case of Bearer Certificates, in London, if and for so long as any
Bearer Certificates are outstanding, and in Luxembourg, if and for so long as
any Bearer Certificates are outstanding and are listed on the Luxembourg Stock
Exchange, and such exchange shall so require, an office or offices or agency or
agencies where notices and demands to or upon the Trustee in respect of the
Certificates, this Agreement and any Series Supplement may be served. The
Holder of the Seller Certificate initially appoints the Corporate Trust Office
of the Trustee as the office for such purposes in Chicago, Illinois and the
Trustee's agent in New York, Mellon Securities Transfer Services, Inc., ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as their agent for such purposes
in New York. The Trustee will give prompt written notice to the Master Servicer
and each Servicer and to Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
SECTION 11.18 Requests for Agreement. A copy of the Agreement or any
Series Supplement may be obtained by any Investor Certificateholder by a request
in writing to the Trustee addressed to the Corporate Trust Office and will be
provided at the expense of the Master Servicer.
75
83
ARTICLE XII
TERMINATION
SECTION 12.01 Termination of Sellers' Obligations; Termination of Trust.
(a) The respective obligations and responsibilities of the Sellers, the
Master Servicer, each Servicer and the Trustee created hereby shall terminate
(other than the obligation of the Trustee to make payments to
Certificateholders as hereafter set forth), except with respect to the duties
described in Sections 7.04, 11.06 and Section 12.02(b), upon the Final Trust
Termination Date or, if earlier, at the option of the Sellers, on the day after
the Distribution Date on which funds shall have been deposited in the Series
Distribution Accounts sufficient to pay in full the Aggregate Investor Interest
plus accrued and unpaid Certificate Interest at the applicable Certificate
Rates on all Series then outstanding.
(b) If as of the Distribution Date with respect to each Series then
outstanding in the month immediately preceding the month in which the Final
Trust Termination Date occurs the Aggregate Investor Interest would be greater
than zero (after giving effect to all transfers, withdrawals and deposits to
occur on such date pursuant to applicable Series Supplements), all the
Receivables shall be sold and the proceeds therefor paid to the Trust on or
prior to the last Distribution Date with respect to each Series then
outstanding before the Final Trust Termination Date by an institution
acceptable to the Trustee and the Master Servicer that is either (i) a
nationally recognized investment bank, (ii) a nationally recognized commercial
bank or (iii) any other institution whose regular business includes the sale of
receivables or trust certificates similar to the Investor Certificates. The
proceeds of such sale shall be treated as Collections on the Receivables and
shall be allocated among outstanding Series and deposited in accordance with
Section 4.03 and the applicable Series Supplements; provided, however, that any
such proceeds received after the end of the Due Period related to the last
Distribution Date before the Final Trust Termination Date shall nevertheless be
deemed to have been received during such Due Period. During such period ending
on such Distribution Date, the Master Servicer and the Servicers shall continue
to process Collections on the Receivables and deposit such Collections in
accordance with the provisions of Section 4.03.
76
84
SECTION 12.02 Final Distribution with Respect to any Series.
(a) Written notice of the termination of any Series, specifying the
Distribution Date upon which the Investor Certificateholders of such Series may
surrender their Certificates for payment of the final distribution and
cancellation, shall be given (subject to at least two days' prior notice from
the Master Servicer to the Trustee) by the Trustee to Investor
Certificateholders of such Series not later than the 10th day of the month of
such final distribution specifying (i) the Distribution Date (which shall be
the Distribution Date upon which the deposit is made pursuant to Section
2.05(b), 12.01(b) or 12.02(a)) upon which final payment for such Investor
Certificates will be made upon presentation and surrender of such Investor
Certificates at the office or offices therein designated (which in the case of
Bearer Certificates shall be outside the United States), (ii) the amount of any
such final payment and (iii) that the Record Date otherwise applicable to such
Distribution Date is not applicable, payments being made only upon presentation
and surrender of the Investor Certificates at the office or offices therein
specified. The Master Servicer's notice to the Trustee in accordance with the
preceding sentence shall be accompanied by an Officer's Certificate setting
forth the information specified in Sections 3.07(a) and 3.07(b) covering the
period during the then current calendar year through the date of such notice.
The Trustee shall give such notice to the Transfer Agent, the Paying Agent and
▇▇▇▇▇'▇ at the time such notice is given to such Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to Section
12.01(a) or the occurrence of the Series Termination Date with respect to any
Series pursuant to Section 12.02(a) and the applicable Series Supplement, all
funds then on deposit in the Series Distribution Account shall continue to be
held in trust for the benefit of the Certificateholders of such Series and the
Paying Agent or the Trustee shall pay such funds to such Certificateholders
upon surrender of their Certificates. In the event that all of the Investor
Certificateholders of such Series shall not surrender their Certificates for
cancellation within six months after the date specified in the above-mentioned
written notice, the Trustee shall give a second written notice to the remaining
Investor Certificateholders of such Series to surrender their 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 the Investor
Certificates of such Series shall 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 Investor Certificateholders of such
Series concerning surrender of their Certificates, and the cost thereof shall
be paid out of the funds in the Series Distribution Account held for the
benefit of such Investor Certificateholders.
(c) If as of the Distribution Date in the month immediately preceding the
month in which a Series Termination Date occurs, the Series Investor Interest
with respect to such Series is greater than zero (after giving effect to all
transfers to occur on such date), Receivables (or interests therein) in an
amount sufficient to yield proceeds equal to the Series Investor Interest plus
any accrued and unpaid Certificate Interest and with respect to such Series and
any amounts owing to the Credit Enhancement Provider with respect to such
Series pursuant to the Series Supplement for such Series, if applicable, on
such Series Termination Date (after giving effect to such transfers,
withdrawals and deposits) shall be sold by an institution acceptable to the
Trustee and the Master Servicer that is either (i) a nationally recognized
investment bank, (ii) a nationally recognized commercial bank or (iii) any
other institution whose regular business includes the sale of receivables or of
trust certificates similar to the Investor Certificates; provided, however,
that in no event shall the amount of Receivables sold hereunder with respect to
any Series exceed the product of (A) the aggregate amount of Receivables in the
Trust and (B) a fraction the numerator of which is the Series Investor Interest
of such Series and
77
85
the denominator of which is the Aggregate Investor Interest, in each case, on
such Distribution Date in the month immediately preceding the month in which
such Series Termination Date occurs; and provided, further, the Receivables
selected to be sold hereunder shall not be materially different from the
Receivables remaining in the Trust as of such Distribution Date. The proceeds
(the "Series Termination Proceeds") therefrom shall be paid to the Trust by
such institution and immediately deposited into the Series Distribution Account
with respect to such Series and paid to the Investor Certificateholders of such
Series and to the Credit Enhancement Provider or otherwise, if applicable,
pursuant to the terms of the Series Supplement, on the Distribution Date with
respect to such Series immediately following such deposit. Such payment shall
be deemed to be a final distribution with respect to such Series.
SECTION 12.03 Sellers' Termination Rights. Upon the termination of the
Sellers' obligations and responsibilities with respect to the Trust pursuant to
Section 12.01 and the surrender of the Seller Certificate, the Trustee shall
sell, assign, and convey to Greenwood on behalf of the Holder of the Seller
Certificate (without recourse, representation or warranty except for the
warranty that since the date of transfer by any Seller under this Agreement the
Trustee has not sold, transferred or encumbered any such Receivables or interest
therein) all right, title and interest of the Trust in the Receivables, whether
then existing or thereafter created, and all proceeds thereof except, if
applicable, for amounts held by the Trustee pursuant to Section 12.02(b). The
Trustee shall execute and deliver such instruments of transfer and assignment
including, without limitation, any document necessary to release the Trust's
security interest in such Receivables and to release any filing evidencing or
perfecting such security interest, in each case without recourse, as shall be
reasonably requested by the Holder of the Seller Certificate to vest in the
Holder of the Seller Certificate all right, title and interest which the Trust
had in the Receivables.
ARTICLE XIII
MISCELLANEOUS PROVISIONS
SECTION 13.01 Amendment.
(a) This Agreement and any Series Supplement may be amended from time to
time by the Master Servicer, the Sellers, the Trustee and the Servicers,
without the consent of any of the Certificateholders, for one or more of the
following purposes:
(i) to add to the covenants and agreements of this Agreement or any
Series Supplement for the benefit of the Investor Certificateholders of
all or any Classes of all or any Series (and if such covenants and
agreements are for the benefit of less than all Classes of all Series,
stating that such covenants and agreements are expressly being included
solely for the benefit of such Class of such Series), or to surrender any
right or power herein reserved to or conferred upon the Sellers, the
Master Servicer or any Servicer; provided, however, that such action
shall not adversely affect in any material respect the interests of the
Holders of any Class of any Series then outstanding;
(ii) to add provisions to or change or eliminate any of the
provisions of this Agreement or any Series Supplement, provided that any
such addition, change or elimination
78
86
shall not adversely affect in any material respect the interests of the
Holders of any Class of any Series then outstanding;
(iii) to add provisions to or change any of the provisions of this
Agreement or any Series Supplement for the purpose of accommodating the
addition of Participation Interests to the Trust pursuant to Section
2.10; or
(iv) to cure any ambiguity or to correct or supplement any
defective or inconsistent provision contained in this Agreement, any
Series Supplement or in any amendment to this Agreement or any Series
Supplement.
The Trustee is hereby authorized to join with the Sellers, the Master
Servicer and the Servicers in the execution of any amendment authorized or
permitted by the terms of this Agreement, and to make any further appropriate
agreements and stipulations which may be therein contained, but the Trustee
shall not be obligated to enter into any such amendment which affects the
Trustee's rights, duties or immunities under this Agreement or otherwise. A
copy of each amendment adopted pursuant to this Section 13.01(a) shall be sent
to the Rating Agencies.
(b) This Agreement and any Series Supplement may also be amended from time
to time by the Master Servicer, the Sellers, the Trustee and the Servicers with
the consent of the Holders of Investor Certificates evidencing Fractional
Undivided Interests aggregating not less than 66-2/3% of the Class Invested
Amount of each Class adversely affected or, with respect to any Class the
Investor Certificates of which are, in whole or in part, represented by Bearer
Certificates, by vote of persons entitled to vote Fractional Undivided
Interests evidencing not less than 66-2/3% of the Class Invested Amount with
respect to such Class represented and voting at a meeting of the Investor
Certificateholders of such Class at which a quorum is present, as described in
Section 6.12, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or any Series
Supplement or of modifying in any manner the rights of the Investor
Certificateholders of any Class then outstanding; provided, however, that the
Trustee shall have been advised by the Rating Agencies that such amendment will
not result in the downgrading or withdrawal of the rating assigned to any Class
of any Series then outstanding by each Rating Agency and provided, further that
no such amendment shall materially and adversely affect the interests of the
Investor Certificateholders of any Class then outstanding by reducing in any
manner the amount of, or delaying the timing of, distributions which are
required to be made on any Investor Certificate of any Class without the
consent of the affected Investor Certificateholders or reducing the aforesaid
percentage required to consent to any such amendment, without the consent of
each Investor Certificateholder of each affected Class. For purposes of
calculating whether a 66-2/3% consent has been achieved pursuant to this
Section 13.01(b), the applicable Class Invested Amount or Series Invested
Amount shall be calculated without taking into account the Class Investor
Interest represented by any Investor Certificates beneficially owned by any
Seller or any affiliate of any Seller, and no Seller or affiliate of a Seller
shall be entitled to vote on any amendment pursuant to this Section 13.01(b).
The Trustee shall give prompt notice to the Rating Agencies of the solicitation
of any consents for the purpose of amending this Agreement or any Series
Supplement pursuant to this Section 13.01(b).
(c) Promptly after the execution of any such amendment or consent pursuant
to Section 13.01(b), the Trustee shall notify the Investor Certificateholders
of the substance of such amendment. No notice will be given to the Investor
Certificateholders with regard to any amendment made pursuant to Section
13.01(a).
79
87
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section 13.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Investor
Certificateholders shall be subject to such reasonable requirements as the
Trustee may prescribe.
(e) Notwithstanding the foregoing provisions of this Section 13.01, none
of (i) the execution and delivery of any Series Supplement pursuant to Section
6.06, (ii) the addition of Receivables to the Trust pursuant to Section 2.10,
(iii) the removal of Receivables from the Trust pursuant to Section 2.11, (iv)
the addition or removal of any Seller or Servicer in connection with an
addition to or removal from the Trust of Receivables, or (v) the replacement of
any Servicer, Master Servicer or Trustee pursuant to the terms hereof, shall
constitute an amendment for purposes of this Section 13.01.
(f) For purposes of Sections 2.05, 2.06, 2.07 and 13.01(a) of this
Agreement, any material adverse effect on any Credit Enhancement Provider of
any Series shall be deemed to constitute a material adverse effect on the
interests of the Investor Certificateholders of such Series.
SECTION 13.02 Protection of Right, Title and Interest to Trust.
(a) The Master Servicer shall cause all financing statements and
continuation statements and any other necessary documents covering the
Certificateholders and the Trustee's right, title and interest to the
Receivables to be promptly 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
Trustee hereunder to all property comprising the Trust. The Master Servicer
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 Sellers shall
cooperate fully with the Master Servicer in connection with the obligations set
forth above and will execute any and all documents reasonably required to
fulfill the intent of this Section 13.02(a). The Trustee shall not bear
responsibility for filing status.
(b) Within fifteen days after any Seller makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-402(7) of the UCC as in effect in
the Applicable State with respect to such Seller, such Seller shall give the
Trustee notice of any such change and shall file such financing statements or
amendments as may be necessary to continue the perfection of the Trust's
security interest in the Receivables and the proceeds thereof.
(c) Each of the Sellers, the Master Servicer and each Servicer will give
the Trustee prompt written notice of any relocation of any office from which it
services Receivables or keeps records concerning the Receivables or of its
principal executive office and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new
financing statement and shall file any such financing statements or amendments
as may be necessary to continue the perfection of the Trust's security interest
in the Receivables and the proceeds thereof. Each of the Sellers, the Master
80
88
Servicer and each Servicer will at all times maintain its principal executive
office within the United States of America.
(d) The Master Servicer will deliver to the Trustee on or before April 30
of each year beginning in April, 1994 an opinion of counsel containing
substantially the provisions set forth in Exhibit I hereto. A copy of such
opinion of counsel shall also be sent to the Rating Agencies.
SECTION 13.03 Limitations on Rights of Investor Certificateholders.
(a) The death or incapacity of any Certificateholder shall not operate to
terminate this Agreement, any Series or the Trust, nor shall such death or
incapacity entitle such Certificateholder's 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 Certificateholder shall have any right to vote (except with respect
to the Investor Certificateholders as provided in Section 13.01 hereof) 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 Certificateholders from time to time as partners or members of an
association; nor, except as required by law, shall any 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 Certificateholder shall have any right by virtue of any provisions
of this Agreement or any Series Supplement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this Agreement
or any Series Supplement, unless such Certificateholder previously shall have
given to the Trustee, and unless the Holders of Investor Certificates
evidencing Fractional Undivided Interests aggregating not less than 51% of the
Class Invested Amount of any Class of any Series which may be materially
adversely affected but for the institution of such action or proceeding shall
have made, written request upon 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 its receipt of such notice, 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
Certificateholder with every other Certificateholder and the Trustee, that no
one or more Certificateholders shall have any right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Agreement
or any Series Supplement to affect, disturb or prejudice the rights of the
Certificateholders of any other of the Certificates, or to obtain or seek to
obtain priority over or preference to any other such Certificateholder, or to
enforce any right under this Agreement or any Series Supplement, except in the
manner herein provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section 13.03, each and every 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. EXCEPT AS OTHERWISE SPECIFICALLY
PROVIDED HEREIN, THIS AGREEMENT AND THE CERTIFICATES SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE
81
89
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
SECTION 13.05 Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, or by
overnight courier, or telecopied, to (a) in the case of Greenwood as Seller,
Master Servicer or Servicer, ▇▇ ▇▇▇▇'▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: Secretary, telecopy (▇▇▇) ▇▇▇-▇▇▇▇, (b) in the case of the Trustee,
the Corporate Trust Office, telecopy ▇▇▇-▇▇▇-▇▇▇▇, and (c) in the case of any
other Seller or any other Servicer, at such address as such party shall
designate in the Assignment of Additional Accounts with respect to such Seller
or Servicer; or, as to each party, at such other address as shall be designated
by such party in a written notice to each other party. Unless otherwise
specified in the relevant Series Supplement, any notice required or permitted to
be mailed to a Holder of a Registered Certificate shall be given by first class
mail, postage prepaid, at the address of such Certificateholder as shown in the
Certificate Register. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
such Certificateholder receives such notice.
No Notice shall be required to be mailed to a Holder of Bearer
Certificates or Coupons but shall be given as provided below. 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 Holders of Bearer Certificates shall
be published in an Authorized Newspaper within the time period prescribed in
this Agreement or the relevant Series Supplement and, 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 or the relevant Series Supplement.
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 Securities Act of 1933, as amended, each of
the Sellers, the Trustee, the Master Servicer, each Servicer and any Credit
Enhancement Provider 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 Securities Act of
1933, as amended.
SECTION 13.07 Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement or of any Series
Supplement shall for any reason whatsoever be held invalid, then such covenants,
agreements, provisions or terms shall be deemed severable from the remaining
covenants, agreements, provisions or terms of this Agreement or of such Series
Supplement and shall in no way affect the validity or enforceability of the
other provisions of this Agreement or of such Series Supplement or of the
Certificates or rights of the Certificateholders thereof.
SECTION 13.08 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Sections 8.02 and 8.04, this Agreement,
including any Series Supplement, may not be assigned by the Master Servicer or
any Servicer without the prior consent of Holders of Investor Certificates
evidencing Fractional Undivided Interests aggregating not less than
82
90
51% of the Class Invested Amount of each Class of each Series of Investor
Certificates on a Class-by-Class basis.
SECTION 13.09 Investor Certificates Nonassessable and Fully Paid. It is
the intention of the parties to this Agreement that, to the extent permitted by
law, the Certificateholders shall not be personally liable for obligations of
the Trust, that the Fractional Undivided Interests 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 Sections 2.02 and 6.03 and payment therefor at time of
issuance are and shall be deemed fully paid.
SECTION 13.10 Further Assurances. The Sellers, the Master Servicer and
each 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,
without limitation, 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 No Waiver; Cumulative Remedies. No failure to exercise and
no delay in exercising, on the part of the Trustee or the Investor
Certificateholders, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges therein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
SECTION 13.12 Counterparts. This Agreement and any Series Supplement may
be executed in two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
SECTION 13.13 Third-Party Beneficiaries. This Agreement and any Series
Supplement will inure to the benefit of and be binding upon the parties hereto
and thereto, any Credit Enhancement Providers, the Certificateholders and their
respective successors and permitted assigns. Except as otherwise provided in
this Section 13.13, no other person will have any right or obligation hereunder.
SECTION 13.14 Actions by Investor Certificateholders.
(a) Wherever in this Agreement a provision is made that an action may be
taken or a notice, demand or instruction given by Investor Certificateholders,
such action, notice or instruction may be taken or given by any Investor
Certificateholder of any Class of any Series, unless such provision requires a
specific percentage of Investor Certificateholders of a certain Class of a
certain Series of all Classes of all Series.
(b) Any request, demand, authorization, direction, notice, consent, waiver
or other act by a Certificateholder shall bind such Certificateholder and every
subsequent holder of such 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 or the Master Servicer in reliance
thereon, whether or not notation of such action is made upon such Certificate.
83
91
SECTION 13.15 Merger and Integration. Except as specifically stated
otherwise herein, this Agreement, together with the Series Supplements executed
pursuant to this Agreement from time to time, set 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, together with
such Series Supplements. This Agreement and the Series Supplements may not be
modified, amended, waived or supplemented except as provided herein or therein.
SECTION 13.16 Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
84
92
IN WITNESS WHEREOF, Greenwood as Seller, Master Servicer and Servicer and
the Trustee have caused this Agreement to be duly executed by their respective
officers as of the day and year first above written.
GREENWOOD TRUST COMPANY,
as Seller, Master Servicer and Servicer
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Title: Vice President and Treasurer
------------------------------
CONTINENTAL BANK, NATIONAL
ASSOCIATION,
as Trustee
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Vice President
------------------------------
85
93
EXHIBIT A
FORM OF ASSIGNMENT OF ADDITIONAL ACCOUNTS
ASSIGNMENT NO. ___ OF ADDITIONAL ACCOUNTS, dated as of _________________,
____, by [name of Seller] (the "Seller") to Continental Bank, National
Association (the "Trustee") pursuant to the Pooling and Servicing Agreement
referred to below.
WITNESSETH:
WHEREAS, Greenwood Trust Company, a Delaware banking corporation
("Greenwood") and the Trustee are parties to the Pooling and Servicing
Agreement, dated as of October 1, 1993 (hereinafter as such agreement may have
been, or may from time to time be, amended, supplemented or otherwise modified,
the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the Seller
wishes to designate Additional Accounts of the Seller to be included as
Accounts and to convey the Receivables of such Additional Accounts, now
existing and hereafter created, to the Trustee as part of the corpus of the
Trust (as each such term is defined in the Pooling and Servicing Agreement);
and
WHEREAS, the Trustee is willing to accept such designation and conveyance
subject to the terms and conditions hereof;
NOW THEREFORE, the Seller and the Trustee hereby agree as follows:
1. Defined Terms. All capitalized terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings when used
herein, unless otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
designated hereby, __________, _____.
"Additional Account Cut-Off Date" shall mean, with respect to the
Additional Accounts designated hereby, ______________, _____.
2. Designation of Additional Accounts. The Seller does hereby deliver
herewith a computer file, hard copy or microfiche list containing a true and
complete list of each credit account which as of the Addition Date shall be
deemed to be an Additional Account, such accounts being identified by account
number. Such list is marked as Schedule 1 to this Assignment and is hereby
incorporated into and made a part of this Assignment and Schedule 1 attached to
the Pooling and Servicing Agreement.
3. Conveyance of Receivables. (a) The Seller hereby sells, transfers,
assigns and otherwise conveys to the Trust for the benefit of the
Certificateholders, without recourse on and after the Additional Account
Cut-Off Date, all right, title and interest of the Seller in and to the
Receivables then existing and thereafter created in the Additional Accounts
designated hereby, all monies due or to
A-1
94
become due with respect thereto, and all proceeds (as defined in Section 9-306
of the UCC as in effect in the State of Delaware) of such Receivables. In the
event such sale, transfer, assignment, or conveyance is deemed to create a
security interest in such property, the Seller does hereby grant to the Trust a
security interest therein and this Assignment shall constitute a security
agreement under applicable law.
(b) To the extent necessary to perfect the sale and assignment to the
Trust of the Receivables now existing and hereafter created in the Additional
Accounts designated hereby, the Seller agrees to record and file, at its own
expense, a financing statement with respect to such Receivables (which may be a
single financing statement with respect to all such Receivables) for the sale of
accounts or general intangibles as defined in Section 9-106 of the UCC as in
effect in the Applicable State meeting the requirements of applicable state law
in such manner and in such jurisdictions as are necessary to perfect the sale
and assignment of such Receivables to the Trust, and to deliver a file stamped
copy of such financing statement or other evidence of such filing (which may,
for purposes of this Section 3, consist of telephone confirmation of such
filing) to the Trustee on or prior to the date of this Assignment.
(c) In connection with such sale, the Seller further agrees, at its own
expense, on or prior to the date of this Assignment to indicate, or to cause to
be indicated, in the computer files of the Servicer with respect to the
Additional Accounts designated hereby, that Receivables created in connection
with the Additional Accounts designated hereby have been sold to the Trustee
pursuant to this Assignment for the benefit of the Certificateholders.
4. Acceptance by Trustee. Subject to the satisfaction of the conditions
set forth in Section 6, the Trustee hereby acknowledges its acceptance on behalf
of the Trust of all right, title and interest previously held by the Seller in
and to the Receivables now existing and hereafter created in the Additional
Accounts designated hereby, and declares that it shall maintain such right,
title and interest, upon the trust herein set forth, for the benefit of all
Certificateholders. The Trustee further acknowledges that, prior to or
simultaneously with the execution and delivery of this Assignment, the Seller
delivered to the Trustee the computer file, hard copy or microfiche list
described in Section 2 of this Assignment.
5. Representations and Warranties of Seller. The Seller represents and
warrants that the Additional Accounts were not selected on the basis of any
selection criteria believed by the Seller to be materially adverse to the
interests of the Holders of any Class of any Series outstanding on the date
hereof or any Credit Enhancement Provider.
6. Conditions Precedent. The acceptance of the Trustee set forth in
Section 4 and the amendment of the Pooling and Servicing Agreement set forth in
Section 7 is subject to the conditions that (a) the Seller shall have delivered
to the Trustee a certificate of a Vice President or more senior officer,
certifying that all requirements set forth in Section 2.10 of the Pooling and
Servicing Agreement for designating Additional Accounts and conveying the
Principal Receivables of such Accounts, whether now existing or hereafter
created, to the Trust have been satisfied, (b) if the Seller is not Greenwood,
such Seller shall have entered into an amendment to, and become a party to, the
Pooling and Servicing Agreement, the Seller Certificate Ownership Agreement and
each Series Supplement outstanding on the date hereof, together with each other
party to each such agreement or supplement and (c) if the Servicer with respect
to the Additional Accounts is not Greenwood, such Servicer shall have entered
into an amendment to, and become a party to, the Pooling and Servicing Agreement
and each Series Supplement outstanding on the date hereof, together with each
other party
A-2
95
to such agreement or supplement, and such Servicer shall have entered into a
Master Servicing Agreement, or an amendment thereto, with Greenwood and each
other Servicer, if any.
7. Amendment of the Pooling and Servicing Agreement. The Pooling and
Servicing Agreement is hereby amended by providing that all references to the
"Pooling and Servicing Agreement," "this Agreement" and "herein" shall be deemed
from and after the Addition Date to be a dual reference to the Pooling and
Servicing Agreement as supplemented by this Assignment. Except as expressly
amended hereby, all of the representations, warranties, terms, covenants and
conditions of the Pooling and Servicing Agreement shall remain unamended and the
Pooling and Servicing Agreement shall continue to be, and shall remain, in full
force and effect in accordance with its terms and except as expressly provided
herein, this Assignment of Additional Accounts shall not constitute or be deemed
to constitute a waiver of compliance with or consent to noncompliance with any
term or provision of the Pooling and Servicing 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.
A-3
96
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 year first above written.
[NAME OF SELLER],
as Seller
By:_________________________________
Title:
CONTINENTAL BANK, NATIONAL ASSOCIATION,
as Trustee
By:_________________________________
Title:
Acknowledged:
GREENWOOD TRUST COMPANY,
as Master Servicer
By: __________________________________
Title:
[NAME OF SERVICER],
as Servicer with respect to
the Additional Accounts
By: ___________________________________
Title:
A-4
97
EXHIBIT B
DISCOVER SERVICE ▇▇▇▇
B-1
98
EXHIBIT C
FORM OF REASSIGNMENT OF RECEIVABLES
Reassignment No. _____ of Receivables, dated as of __________ __, _____,
by and between [NAME OF SELLER] (the "Seller"), and CONTINENTAL BANK, NATIONAL
ASSOCIATION (the "Trustee"), pursuant to the Pooling and Servicing Agreement
referred to below.
W I T N E S E T H:
WHEREAS, the Seller and the Trustee are parties to the Pooling and
Servicing Agreement, dated as of October 1, 1993 (hereinafter as such agreement
may have been, or may from time to time be, amended, supplemented or otherwise
modified, the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the Seller
wishes to remove all Receivables from certain designated Accounts of the Seller
(the "Removed Accounts") and to cause the Trustee to reconvey the Receivables
of such Removed Accounts, whether now existing or hereafter created, from the
Trust to the Holder of the Seller Certificate (as each such term is defined in
the Pooling and Servicing Agreement); 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 Seller and the Trustee hereby agree as follows:
1. Defined Terms. All terms defined in the Pooling and Servicing
Agreement and used herein shall have such defined meaning when used herein,
unless otherwise defined herein.
"Removal Date" shall mean, with respect to the Removed Accounts designated
hereby, _______________, _____.
"Removal Notice Date" shall mean, with respect to the Removed Accounts
designated hereby, ___________________, (which shall be a date on or prior to
the fifth Business Day prior to the Removal Date).
2. Designation of Removed Accounts. The Seller shall deliver to the
Trustee, not later than five Business Days after the Removal Date, a computer
file, hard copy or microfiche list containing a true and complete list of each
Account which as of the Removal Date shall be deemed to be a Removed Account,
such Accounts being identified by account number and containing the amount of
Principal Receivables in such Removed Accounts as of the Removal Date. Such
list shall be marked as Schedule 1 to this Reassignment as of the Removal Date
and shall be incorporated into and made a part of this Reassignment and shall
amend Schedule 1 attached to the Pooling and Servicing Agreement.
C-1
99
3. Conveyance of Receivables.
(a) The Trustee does hereby transfer, assign, set-over and otherwise
convey to the Holder of the Seller Certificate, without recourse on and after
the Removal Date, all right, title and interest of the Trust in and to the
Receivables now existing and hereafter created in the Removed Accounts
designated hereby, all monies due or to become due with respect thereto
(including all Finance Charge Receivables), all proceeds (as defined in Section
9-306 of the UCC as in effect in the Applicable State) of such Receivables and
Insurance Proceeds relating thereto.
(b) In connection with such transfer, the Trustee agrees to execute and
deliver to the Holder of the Seller Certificate on or prior to the date of this
Reassignment, all documents necessary to effect the transfer of the Receivables
now and hereafter existing in the Removed Accounts, including but not limited
to a termination statement with respect to such Receivables (which may be a
single termination statement with respect to all such Receivables) evidencing
the release by the Trust of its lien on the Receivables in the Removed
Accounts, and meeting the requirements of applicable state law, in such manner
and such jurisdictions as are necessary to remove such lien.
4. Acceptance by Trustee. The Trustee hereby acknowledges that, prior to
or simultaneously with the execution and delivery of this Reassignment, the
Seller delivered to the Trustee the computer file, hard copy or microfiche list
described in Section 2 of this Reassignment.
5. Representations and Warranties of the Seller. This Reassignment
constitutes a legal, valid and binding obligation of the Seller enforceable
against the Seller in accordance with its terms, except as the foregoing 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 or the rights of creditors of national banking
associations, state banking corporations or similar financial institutions and
except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
6. Representations and Warranties of the Trustee. Since the date of
transfer by the Seller under the Pooling and Servicing Agreement, the Trustee
has not sold, transferred or encumbered any Receivable in any Removed Account
or any interest therein.
7. Conditions Precedent. The amendment of the Pooling and Servicing
Agreement set forth in Section 8 hereof is subject to the satisfaction, on or
prior to the Removal Date, of the following conditions precedent:
(a) the Seller shall have delivered to the Trustee an Officers'
Certificate certifying that (i) as of the Removal Date, all requirements set
forth in Section 2.11 of the Pooling and Servicing Agreement for designating
Removed Accounts and reconveying the Receivables of such Removed Accounts,
whether now existing or hereafter created, have been satisfied, and (ii) the
representations and warranties made by the Seller in Section 5 hereof are true
and correct as of the Removal Date; and
(b) the Seller shall have delivered to the Trustee a computer file, hard
copy or microfiche list containing a true and complete list of all Removed
Accounts identified by account number and containing the amount of Principal
Receivables in such Removed Accounts as of the Removal Date.
C-2
100
The Trustee may conclusively rely on such Officers' Certificate, shall have no
duty to make inquiries with regard to the matters set forth therein and shall
incur no liability in so relying.
8. Amendment of the Pooling and Servicing Agreement. The Pooling and
Servicing Agreement is hereby amended to provide that all references therein to
the "Pooling and Servicing Agreement," "this Agreement" and "herein" shall be
deemed from and after the Removal Date to be a dual reference to the Pooling
and Servicing Agreement as supplemented by this Reassignment. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Pooling and Servicing 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 a consent
to non-compliance with any term or provision of the Pooling and Servicing
Agreement.
9. 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 together shall constitute one and the
same instrument.
C-3
101
IN WITNESS WHEREOF, the undersigned have caused this Reassignment of
Receivables to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
[NAME OF SELLER],
as Seller
By:________________________________
Title:
CONTINENTAL BANK, NATIONAL ASSOCIATION,
as Trustee
By:________________________________
Title:
Acknowledged:
GREENWOOD TRUST COMPANY,
as Master Servicer
By: ____________________________
Title:
[NAME OF SERVICER],
as Servicer with respect to
the Removed Accounts
By: ____________________________
Title:
C-4
102
EXHIBIT D
FORM OF SELLER CERTIFICATE
NO. 1
DISCOVER CARD MASTER TRUST I
PASS-THROUGH CERTIFICATE
(NOT AN INTEREST IN OR OBLIGATION OF GREENWOOD TRUST COMPANY AND NOT INSURED OR
GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.)
THE SECURITIES REPRESENTED BY THIS SELLER CERTIFICATE HAVE NOT BEEN
REGISTERED PURSUANT TO THE SECURITIES ACT OF 1933 AND MAY NOT BE TRANSFERRED OR
SOLD UNLESS PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR AN OPINION OF
COUNSEL THAT SUCH REGISTRATION IS NOT REQUIRED AND THE SATISFACTION OF CERTAIN
OTHER REQUIREMENTS SPECIFIED IN THE AGREEMENT.
This certifies that Greenwood Trust Company, a Delaware banking
corporation ("Greenwood"), which in its capacity as the registered holder of
this Seller Certificate is hereinafter referred to as the "Holder", is the
registered owner of a Fractional Undivided Interest in Discover Card Master
Trust I (the "Trust"), the corpus of which consists of a portfolio of
receivables (the "Receivables") existing as of the Initial Cut-Off Date or
thereafter created under certain open end credit card accounts for specified
Persons (the "Accounts") originated by Greenwood or an affiliate of Greenwood
and transferred to the Trust by Greenwood or one or more Additional Sellers,
all monies due or to become due with respect thereto, all proceeds (as defined
in Section 9-306 of the Uniform Commercial Code as in effect in the Applicable
State) of such Receivables pursuant to a Pooling and Servicing Agreement, dated
as of October 1, 1993 (the "Pooling and Servicing Agreement") by and between
Continental Bank, National Association, a national banking association
organized and existing under the laws of the United States of America, as
trustee (the "Trustee") and Greenwood as Master Servicer, Servicer and Seller,
a summary of certain of the pertinent provisions of which is set forth herein
below, benefits under any Credit Enhancement with respect to any series of
Investor Certificates issued from time to time pursuant to the Pooling and
Servicing Agreement, to the extent applicable, and all other assets and
interests constituting the Trust.
To the extent not defined herein, the capitalized terms used herein have
the meanings assigned in the Pooling and Servicing Agreement. This Certificate
is issued under and is subject to the terms, provisions and conditions of the
Pooling and Servicing Agreement, to which Pooling and Servicing Agreement, as
amended from time to time, the Holder by virtue of the acceptance hereof
assents and by which the Holder is bound.
This Certificate is not permitted to be transferred, assigned, exchanged
or otherwise conveyed except as expressly permitted in the Pooling and
Servicing Agreement.
D-1
103
This Certificate is the Seller Certificate (the "Seller Certificate"),
which represents a Fractional Undivided Interest in the Trust including the
right to receive the Collections and other amounts at the times and in the
amounts specified in the Pooling and Servicing Agreement, including any series
supplements thereto which may be in effect from time to time, to be paid to the
Holder of the Seller Certificate. In addition to this Seller Certificate,
Investor Certificates, each of which will represent a Fractional Undivided
Interest in the Trust, will be issued to investors from time to time pursuant
to the Pooling and Servicing Agreement and one or more series supplements
thereto. The Seller Interest on any date of determination will be an amount
equal to the aggregate amount of Principal Receivables at the end of the day
immediately prior to such day of determination minus the Aggregate Investor
Interest with respect to such Receivables at the end of such day.
This Certificate does not represent an obligation of, or an interest in,
Greenwood, any Additional Seller or any Servicer. This Certificate is limited
in right of payment to certain collections respecting the Receivables, all as
more specifically set forth hereinabove and in the Pooling and Servicing
Agreement, including any series supplements thereto.
Subject to certain conditions in the Pooling and Servicing Agreement, if
the principal of all Investor Certificates then outstanding has not been paid
in full prior to the Final Trust Termination Date, the obligations created by
the Pooling and Servicing Agreement and the Trust created thereby shall
terminate on the Final Trust Termination Date.
Upon the termination of the Trust pursuant to Section 12.01 of the Pooling
and Servicing Agreement and the surrender of this Seller Certificate, the
Trustee shall sell, assign and convey to the Holder (without recourse,
representation or warranty except for the warranty that since the date of
transfer by the Seller under the Pooling and Servicing Agreement the Trustee
has not sold, transferred or encumbered any such Receivable or interest
therein) all right, title and interest of the Trust in the Receivables, whether
then existing or thereafter created, and all proceeds thereof. The Trustee
shall execute and deliver such instruments of transfer and assignment, in each
case without recourse, as shall be reasonably requested by the Holder to vest
in the Holder all right, title and interest which the Trustee had in the
Receivables.
Unless the certificate of authentication hereon has been executed by or on
behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Pooling and Servicing Agreement, or be valid
for any purpose.
D-2
104
IN WITNESS WHEREOF, Greenwood has caused this Certificate to be duly
executed.
GREENWOOD TRUST COMPANY
By:____________________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is the Seller Certificate referred to in the within mentioned Pooling
and Servicing Agreement.
CONTINENTAL BANK, NATIONAL ASSOCIATION
as Trustee
By:_____________________________________
Authorized Officer
D-3
105
EXHIBIT E
FORM OF INITIAL REPORT
DISCOVER CARD MASTER TRUST I
__________________
CREDIT CARD
PASS-THROUGH CERTIFICATES
__________________
The undersigned, a duly authorized representative of Greenwood Trust
Company ("Greenwood"), as Master Servicer pursuant to the Pooling and Servicing
Agreement dated as of October 1, 1993 (the "Pooling and Servicing Agreement")
by and between Greenwood as Master Servicer, Servicer and Seller and
Continental Bank, National Association, as Trustee, hereby certifies as
follows:
1. Capitalized terms used in this Certificate have their
respective meanings set forth in the Pooling and Servicing
Agreement.
2. The undersigned is duly authorized pursuant to the Pooling and
Servicing Agreement to execute and to deliver this Officer's
Certificate to the Trustee and the Sellers.
3. Greenwood is Master Servicer under the Pooling and Servicing
Agreement.
4. The aggregate amount of Principal Receivables as of the Cut-Off
Date was $__________.
5. The aggregate amount of Finance Charge Receivables billed
during the month prior to the month in which the Cut-Off Date
occurred was $__________.
IN WITNESS WHEREOF, the undersigned has duly executed this certificate
this ____ day of ____________, 1993.
GREENWOOD TRUST COMPANY,
as Master Servicer
By:________________________________
Title:
E-1
106
EXHIBIT F
FORM OF MASTER SERVICER'S ANNUAL CERTIFICATE
DISCOVER CARD MASTER TRUST I
____________________
CREDIT CARD
PASS-THROUGH CERTIFICATES
____________________
The undersigned, a duly authorized representative of Greenwood Trust
Company ("Greenwood") as Master Servicer pursuant to the Pooling and Servicing
Agreement dated as of October 1, 1993 by and between Greenwood and Continental
Bank, National Association, as Trustee hereby certifies that:
1. Greenwood is Master Servicer under the Pooling and Servicing Agreement.
2. The undersigned is duly authorized pursuant to the Pooling and
Servicing Agreement to execute and deliver this Certificate to the Trustee.
3. During the calendar year ended December 31, ____ in the course of my
duties as an officer of the Master Servicer, I would normally obtain knowledge
of any Master Servicer Termination Event.
4. To the best of my knowledge, no Master Servicer Termination Event has
occurred.
IN WITNESS WHEREOF, the undersigned has duly executed this certificate
this ____ day of _______________, ____.
By: _________________________________
Name: _______________________________
Title: ______________________________
F-1
107
EXHIBIT G
FORM OF SERVICER'S ANNUAL CERTIFICATE
DISCOVER CARD MASTER TRUST I
____________________
CREDIT CARD
PASS-THROUGH CERTIFICATES
____________________
The undersigned, a duly authorized representative of [NAME OF SERVICER]
("[Name]") as a Servicer pursuant to the Pooling and Servicing Agreement dated
as of October 1, 1993 by and among [Name], Greenwood Trust Company and
Continental Bank, National Association, as Trustee hereby certifies that:
1. [Name] is a Servicer under the Pooling and Servicing Agreement.
2. The undersigned is duly authorized pursuant to the Pooling and
Servicing Agreement to execute and deliver this Certificate to the Trustee.
3. During the calendar year ended December 31, ____ in the course of my
duties as an officer of [Name], I would normally obtain knowledge of any
Servicer Termination Event relating to [Name].
4. To the best of my knowledge, no such Servicer Termination Event has
occurred.
IN WITNESS WHEREOF, the undersigned has duly executed this certificate
this ____ day of _______________, ____.
By: ___________________________________
Name: _________________________________
Title: ________________________________
G-1
108
EXHIBIT H-1
FORM OF CEDEL OR EUROCLEAR STATEMENT
U.S. $________________
Discover Card Master Trust I
Series _____ - _____
__% Credit Account Pass-Through Certificates
This is to certify that, with respect to U.S. $___________ aggregate
principal amount of the above-captioned issue (the "Investor Certificates"), we
have received a writing or tested telex or certification or certifications,
dated not earlier than 15 days prior to [the Exchange Date], from each of the
persons appearing on our records as being entitled to a portion of such
aggregate principal amount of the Investor Certificates, substantially in the
form attached hereto. Accordingly, we hereby certify that on this date:
(a) The obligation is owned by a person that is not a U.S. person,
as such term is defined in Rule 902(o) under the United States Securities
Act of 1933, as amended; and
(b) the obligation is owned by (1) a person that is not a United
States person; (2) a United States person as described in U.S. Treas.
Reg. Section 1.163-5(c)(2)(i)(D)(6) (and accordingly the financial
institution described in such regulation provides the certificate
described therein); or (3) a financial institution described in U.S.
Treas. Reg. Section 1.165-12(c)(1)(v) for purposes of resale during the
restricted period, and such financial institution certifies in addition
that it has not acquired the obligation for purposes of resale directly
or indirectly to a United States person or to a person within the United
States or its possessions.
A certificate described in subsection (b)(1) or (b)(2) of the preceding
sentence may not be given with respect to an Investor Certificate that is owned
by a financial institution for purposes of resale during the restricted period.
Terms used in the foregoing subsection (b) have the meanings given to them by
the U.S. Internal Revenue Code of 1986, as amended, and the regulations
thereunder.
We further certify that we have been directed to request U.S. $_______ in
aggregate principal amount in U.S. $________ denominations, U.S. $________ in
aggregate principal amount in U.S. $__________ denominations and U.S.
$__________ in aggregate principal amount in U.S. $__________ denominations
We understand that if we have failed to make the direction in the preceding
sentence, such Definitive Euro-Certificates will be issued in denominations of
U.S. $_________ to the extent possible.
This is further to certify that, with respect to U.S. $_______ aggregate
principal amount of the above-captioned issue, we have received a writing or
tested telex or certificate or certification from [name of Manager], copies of
which are attached hereto.
Accordingly, we direct that U.S. $__________ aggregate principal amount of
the above-captioned Investor Certificates be issued in registered form in
accordance with the directions set forth on the attached certificates from
[name of Manager].
H-1-1
109
We understand that this certificate is required in connection with certain
securities and tax laws of the United States of America. If an administrative
or legal proceeding or official inquiry is 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 proceeding.
The foregoing reflects any telexed advice received subsequent to the date
of any writing, telex, certification or certifications referred to stating that
the statements contained in such certification or certifications are no longer
correct.
*Dated: (▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels Office, as operator of the Euro-clear
System)
(or)
(Centrale de Livraison de Valeurs Mobilieres
S.A.)
By:__________________________________________
____________________
* To be dated as of the date of delivery of the definitive Bearer Investor
Certificates and/or Registered Certificates, as applicable, and, in any event,
no earlier than the Exchange Date.
H-1-2
110
EXHIBIT H-2
FORM OF CERTIFICATE WITH RESPECT TO U.S. INSTITUTIONAL INVESTORS
U.S. $________________
Discover Card Master Trust I
Series _____ - _____
__% Credit Account Pass-Through Certificates
In connection with the initial issuance and placement of the
above-captioned Investor Certificates, an institutional investor in the United
States is purchasing U.S. $______________ aggregate principal amount of such
Investor Certificates held in our account at [▇▇▇▇▇▇ Guaranty Trust Company of
New York, Brussels office, as operator of the Euro-clear System] [Centrale de
Livraison de Valeurs Mobilieres S.A.] 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 certain
securities laws of the United States of America. If an administrative or legal
proceeding or official inquiry is 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
proceeding.
On behalf of such institutional investor, we direct that U.S.
$_____________ in aggregate principal amount of the above-captioned Investor
Certificates be issued in registered form to [delivery instructions].
*Dated: __________________________________________
[signature]
____________________
H-2-1
111
* To be dated as of the date of delivery of the Definitive Euro-Certificates in
registered form, and, in any event, no earlier than the Exchange Date.
H-2-2
112
EXHIBIT H-3
FORM OF CERTIFICATE REGARDING BENEFICIAL OWNERSHIP
U.S. $________________
Discover Card Master Trust I
Series _____ - _____
__% Credit Account Pass-Through Certificates
This is to certify that as of the date hereof and except as provided in
the fourth paragraph hereof, none of the above-captioned Investor Certificates
credited to you for our account are beneficially owned by a U.S. person. For
purposes of the foregoing, the undersigned understands that the term "U.S.
person" shall have the meaning set forth in Rule 902(o) under the United States
Securities Act of 1933, as amended.
In addition, we hereby certify that as of the date hereof and except as
provided in the fourth paragraph hereof, the above-captioned Investor
Certificates credited to you for our account are:
(1) owned by a person that is not a United States person;
(2) owned by a United States person as described in U.S. Treas.
Reg. Section 1.163-5(c)(2)(i)(D)(6) (and accordingly the financial
institution described in such regulation provides the certificate
described therein); or
(3) owned by a financial institution described in U.S. Treas. Reg.
Section 1.165-12(c)(1)(v) for purposes of resale during the restricted
period, and such financial institution certifies in addition that it has
not acquired the obligation for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
A certificate described in clause (1) or (2) of the preceding sentence may
not be given with respect to an Investor Certificate that is owned by a
financial institution for purposes of resale during the restricted period.
Terms used in this paragraph have the meanings given to them by the U.S.
Internal Revenue Code of 1986, as amended, and the regulations thereunder.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on or prior to [the Exchange Date] as to
any of the above-captioned Investor Certificates then appearing in your books
as being credited to our account.
This certificate excepts and does not relate to U.S. $____________
principal amount as to which we are not yet able to certify and as to which we
understand exchange and delivery of Definitive Euro-Certificates cannot be made
until we are able so to certify.
We understand that this certificate is required in connection with certain
securities and tax laws of the United States of America. If an administrative
or legal proceeding or official inquiry is commenced or threatened in
connection with which this certificate is or would be relevant, we
H-3-1
113
irrevocably authorize you to produce this certificate or a copy thereof to any
interested party in such proceeding.
We direct that U.S. $________________ in aggregate principal amount of the
above-captioned Investor Certificates be issued in U.S. $_______________
denominations, U.S. $________________ in aggregate principal amount of the
Investor Certificates be issued in U.S. $_______________ denominations and U.S.
$__________ in aggregate principal amount of the Investor Certificates be
issued in U.S. $__________ denominations. We understand that if we have failed
to make the direction in the preceding sentence, such Definitive
Euro-Certificates will be issued in denominations of U.S. $__________ to the
extent possible.
____________________________________________
[signature]
*Dated:
____________________
*To be dated on or after the 15th day before the Exchange Date.
H-3-2
114
EXHIBIT I
PROVISIONS TO BE INCLUDED IN ANNUAL OPINION OF COUNSEL
The opinion set forth below, which is to be delivered pursuant to Section
13.02(d) of the Pooling and Servicing Agreement, may be subject to certain
customary qualifications, assumptions and limitations.
With the filing of financing statements covering the Receivables in the
offices of the Secretaries of State of the State of _________________ and the
State of _______________, the interest of the Trustee in the Receivables has
been duly perfected. No other action is required to continue such perfection
prior to the six month period preceding the fifth anniversary of the filing of
such financing statements.
I-1