SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D) OF THE
SECURITIES EXCHANGE ACT OF 1934
July 19, 1996
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(Date of earliest event reported)
BANK OF AMERICA NATIONAL ASSOCIATION
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(Exact name of registrant as specified in its charter)
U.S.A. 333-4152 86-0645265
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(State or Other Jurisdiction (Commission (I.R.S. Employer
of Incorporation) File Number) Identification Number)
1825 East Buckeye Road
Phoenix, Arizona 85034
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(Address of Principal Executive Offices) (Zip Code)
(602) 497-3738
(Registrant's telephone number, including area code)
N/A
(Former Name or Former Address, if Changed Since Last Report)
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INFORMATION TO BE INCLUDED IN THE REPORT
Items 1-4. Not Applicable
Item 5. On July 19, 1996 the BA Master Credit Card Trust issued its Class A
Series 1996-A Floating Rate Asset Backed Certificates and its Class
B Series 1996-A Floating Rate Asset Backed Certificates.
Item 6. Not Applicable.
Item 7. Exhibits.
The following are filed as Exhibits to this Report under Exhibits
1.1, 4.1 and 4.2.
Exhibit 1.1 Standard Terms Underwriting Agreement, dated as of
July 12, 1996.
Exhibit 4.1 Pooling and Servicing Agreement, dated as of
July 19, 1996.
Exhibit 4.2 Series 1996-A Supplement to the Pooling and Servicing
Agreement dated as of July 19, 1996.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
as amended, the registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
BANK OF AMERICA NATIONAL ASSOCIATION
Date: July 19, 1996
By: /s/ MARGARET A. SPRUDE
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Name: Margaret A. Sprude
Title: Senior Vice President
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INDEX TO EXHIBITS
Exhibit
Number Exhibit Description
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1.1 Standard Terms Underwriting Agreement, dated as of July 12, 1996.
4.1 Pooling and Servicing Agreement, dated as of July 19, 1996.
4.2 Series 1996-A Supplement, dated as of July 19, 1996.
EXHIBIT A
BA MASTER CREDIT CARD TRUST
BANK OF AMERICA NATIONAL ASSOCIATION
(Transferor and Servicer)
UNDERWRITING AGREEMENT
(Standard Terms)
July 12, 1996
This Underwriting Agreement (Standard Terms) (this "Agreement") is
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attached to and incorporated by reference into a certain Terms Agreement (the
"Terms Agreement") between Bank of America National Association (the "Bank")
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and the "Representative" referred to therein. This Agreement together with
the Terms Agreement provide for, among other things, the terms of the initial
issuance and sale of the "Certificates" (as defined below). References
herein to this Agreement shall include the Terms Agreement unless the context
clearly indicates otherwise.
The Bank proposes to cause the BA Master Credit Card Trust (the
"Trust") to issue the asset backed certificates designated in the Terms
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Agreement (the "Certificates"). The Certificates will be issued pursuant to
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a Pooling and Servicing Agreement dated as of July 19, 1996 between the Bank,
as Transferor and Servicer, and First Bank National Association, as trustee
(the "Trustee") (as amended from time to time, the "Pooling and Servicing
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Agreement"), as supplemented by the Series Supplement described in the Terms
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Agreement between the Bank, as Transferor and Servicer, and the Trustee (as
amended from time to time, the "Supplement"). As specified in the Terms
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Agreement, the Certificates may be sold in a public offering by the Trust
through an underwriter designated in the Terms Agreement, as sole
underwriter, or through certain underwriters listed on Schedule I to the
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Terms Agreement, one or more of which may act as representative of such
underwriters (any underwriter through which Certificates are sold shall be
referred to herein as an "Underwriter"; all such Underwriters shall be
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referred to herein collectively as the "Underwriters"; and any Underwriter
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acting as sole Underwriter of the Certificates or any representatives of a
group of Underwriters shall be referred to herein as a "Representative").
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Any Series of asset backed certificates issued pursuant to the Pooling and
Servicing Agreement may include the benefits of a letter of credit,
subordination arrangement, surety bond, insurance policy, cash collateral
account, cash collateral guaranty, collateral interest, guaranteed rate
agreement, maturity liquidity facility, interest rate cap agreement, interest
rate swap agreement, spread account, reserve account or other contract or
agreement for the benefit of the certificate holders of such Series ("Credit
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Enhancement"). Any Credit Enhancement applicable to the Certificates is
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specified in the Terms Agreement and, if applicable, an agreement or
contract (the "Credit Enhancement Agreement") may be entered into by the
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provider of such Credit Enhancement (the "Credit Enhancement Provider") and
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the other parties thereto, as specified in the Terms Agreement. Each
Certificate will represent an undivided ownership interest in the assets of
the Trust. The assets of the Trust include, among other things, certain amounts
due on a pool of MasterCard(R) and VISA(R) revolving credit card accounts
owned by the Bank (the "Receivables"), proceeds of credit insurance policies
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relating to the Receivables and, with respect to any Series or Class of asset
backed certificates, the benefit of the Credit Enhancement, if any, for such
Series or Class. To the extent not defined herein, capitalized terms used
herein have the meanings assigned to such terms in the Pooling and Servicing
Agreement, as supplemented by the Supplement. Unless otherwise stated
herein, as the context otherwise requires or if such term is otherwise
defined in the Pooling and Servicing Agreement, each capitalized term used
or defined herein or in the Terms Agreement shall relate only to the
Certificates and to no other Series of asset backed certificates issued by
the Trust.
The Bank has prepared and filed with the Securities and Exchange
Commission (the "Commission") in accordance with the provisions of the
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Securities Act of 1933, as amended, and the rules and regulations of the
Commission thereunder (collectively, the "Act"), a shelf registration
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statement on Form S-3 (having the registration number stated in the Terms
Agreement), including a form of prospectus, relating to the Certificates.
The registration statement as amended has been declared effective by the
Commission. If any post-effective amendment has been filed with respect
thereto, prior to the execution and delivery of the Terms Agreement, the most
recent such amendment has been declared effective by the Commission. Such
registration statement, as most recently amended at the time of
effectiveness, including all material incorporated by reference therein and
including all information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A under the Act,
is referred to in this Agreement as the "Registration Statement". The Bank
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proposes to file with the Commission pursuant to Rule 424(b) ("Rule 424(b)")
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under the Act a supplement (the "Prospectus Supplement") to the prospectus
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included in the Registration Statement (such prospectus, in the form it
appears in the Registration Statement or in the form most recently revised
and filed with the Commission pursuant to Rule 424(b) is hereunder referred
to as the "Base Prospectus") relating to the Certificates and the method of
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distribution thereof. The Base Prospectus and the Prospectus Supplement,
together with any amendment thereof or supplement thereto, is hereinafter
referred to as the "Prospectus".
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Upon the execution of the Terms Agreement, the Bank agrees with the
Underwriters as follows:
1. Subject to the terms and conditions herein set forth and
in the Terms Agreement, the Bank agrees to cause the Trust to sell and
deliver the Certificates to the several Underwriters as hereinafter provided,
and each Underwriter, upon the basis of the representations and warranties
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herein contained, but subject to the conditions hereinafter stated, agrees to
purchase, severally and not jointly, from the Trust the respective principal
amount of Certificates set forth opposite such Underwriter's name in the
Terms Agreement. The Certificates are to be purchased by the Underwriters at
the purchase price set forth in the Terms Agreement.
2. The Bank understands that the Underwriters intend (i) to
make a public offering of their respective portions of the Certificates as
soon after this Agreement has become effective as in the judgment of the
Representative is advisable and (ii) initially to offer the Certificates upon
the terms set forth in the Prospectus.
3. Unless otherwise provided in the Terms Agreement, payment
for the Certificates shall be made to the Bank or to its order by wire
transfer of same day funds, at 7:30 a.m., West Coast time, on the Closing
Date (as hereinafter defined), or at such other time on the same or such
other date, not later than the fifth Business Day thereafter, as the
Representative and the Bank may agree upon in writing. The time and date of
such payment for the Certificates are referred to herein as the "Closing Date";
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and delivery of the Certificates against such payment on the Closing
Date shall take place at the office of Orrick, Herrington & Sutcliffe in San
Francisco, California, at 7:30 a.m., West Coast time. As used herein, the
term "Business Day" means any day other than a day on which banks are
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permitted or required to be closed in New York, New York or San Francisco,
California.
Unless otherwise provided in the Terms Agreement, payment for the
Certificates shall be made against delivery to the Representative for the
respective accounts of the several Underwriters of the Certificates
registered in the name of Cede & Co. as nominee of The Depository Trust
Company and in such denominations as the Representative shall request in
writing not later than two full Business Days prior to the Closing Date, with
any transfer taxes payable in connection with the transfer to the
Underwriters of the Certificates duly paid by the Bank. Unless otherwise
provided in the Terms Agreement, the global certificates representing the
Certificates will be made available for inspection by the Representative at
the above office of Orrick, Herrington & Sutcliffe not later than 1:00 P.M.,
West Coast time, on the Business Day prior to the Closing Date.
4. Upon the execution of the Terms Agreement, the Bank
represents and warrants to each Underwriter that:
(a) The Registration Statement on Form S-3 (having the
registration number set forth in the Terms Agreement), including the
Prospectus and such amendments thereto as may have been made on or
prior to the date of the Terms Agreement, relating to the Certificates,
has been filed with the Commission and such Registration Statement as
amended has become effective. The conditions to the use of a shelf
registration statement on Form S-3 under the Act, as set forth in the
General Instructions to Form S-3, have been satisfied with respect to
the Bank and the Registration Statement.
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(b) No stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that
purpose has been instituted or, to the knowledge of the Bank,
threatened by the Commission, and on the effective date of the
Registration Statement, the Registration Statement and the Prospectus
conformed in all respects to the requirements of the Act and the rules
and regulations of the Commission under the Act (the "Rules and
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Regulations"), and did not include any untrue statement of a material
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fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein not misleading,
and on the date of the Terms Agreement, the Registration Statement and
the Prospectus conform, and at the time of filing of the Prospectus
pursuant to Rule 424(b) such documents will conform in all respects to
the requirements of the Act and the Rules and Regulations, and on the
Closing Date the Registration Statement and the Prospectus will conform
in all respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents will include on the date of
the Terms Agreement and on the Closing Date any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
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apply to any statements or omissions made in reliance upon and in
conformity with information relating to any Underwriter furnished to
the Bank in writing by such Underwriter through the Representative
expressly for use therein.
(c) As of the Closing Date, the representations and
warranties of the Bank, as Transferor and Servicer, in the Pooling and
Servicing Agreement, as supplemented by the Supplement, will be true
and correct.
(d) The Bank has been duly organized and is validly
existing as a national banking association in good standing under the
laws of the United States, with power and authority (corporate and
other) to own its properties and conduct its business as described in
the Registration Statement and the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of business and
is in good standing under the laws of each other jurisdiction in which
it owns or leases properties, or conducts any business, so as to
require such qualification, other than where the failure to be so
qualified or in good standing would not have a material adverse effect
on the Bank and its subsidiaries taken as a whole.
(e) The Certificates have been duly authorized, and,
when issued and delivered pursuant to the Pooling and Servicing
Agreement and the Supplement, duly authenticated by the Trustee and
paid for by the Underwriters in accordance with the terms of this
Agreement, will be duly and validly executed, authenticated, issued and
delivered and entitled to the benefits provided by the Pooling and
Servicing Agreement and the Supplement; each of the Pooling and
Servicing Agreement, the Supplement and this Agreement have been duly
authorized by the Bank and, when executed and delivered by the Bank, as
Transferor and Servicer, and the Trustee (in the case of the Pooling
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and Servicing Agreement and the Supplement), each of the Pooling and
Servicing Agreement, the Supplement and this Agreement will constitute
a valid and binding agreement of the Bank; the Certificates, the
Pooling and Servicing Agreement and the Supplement conform to the
descriptions thereof in the Prospectus in all material respects; and,
if applicable, the Credit Enhancement Agreement has been duly
authorized by the Bank, and, when executed by the Credit Enhancement
Provider and the other parties thereto, the Credit Enhancement
Agreement will constitute a valid and binding agreement of the Bank,
and the Credit Enhancement and the Credit Enhancement Agreement conform
to the descriptions thereof in the Prospectus in all material respects.
(f) No consent, approval, authorization or order of, or
filing with, any court or governmental agency or body is required to be
obtained or made by the Bank for the consummation of the transactions
contemplated by this Agreement, the Pooling and Servicing Agreement,
the Supplement and any Credit Enhancement Agreement except such as have
been obtained and made under the Act, such as may be required under
state securities laws and the filing of any financing statements
required to perfect the Trust's interest in the Receivables.
(g) The Bank is not in violation of its Articles of
Association or By-laws or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any
agreement or instrument to which it is a party or by which it or its
properties is bound which would have a material adverse effect on the
transactions contemplated herein, in the Terms Agreement or in the
Pooling and Servicing Agreement and the Supplement. The execution,
delivery and performance of this Agreement, the Pooling and Servicing
Agreement, the Supplement and any Credit Enhancement Agreement, and the
issuance and sale of the Certificates and compliance with the terms and
provisions hereof and thereof will not result in a breach or violation
of any of the terms and provisions of, or constitute a default under,
or (other than the Lien of the Pooling and Servicing Agreement) result
in the creation or imposition of any Lien under, any statute, rule,
regulation or order of any governmental agency or body or any court
having jurisdiction over the Bank or any of its properties or any
agreement or instrument to which the Bank is a party or by which the
Bank is bound or to which any of the properties of the Bank is subject,
or the Articles of Association or By-laws of the Bank; and the Bank has
full power and authority to authorize, issue and sell the Certificates
as contemplated by this Agreement and to enter into this Agreement, the
Pooling and Servicing Agreement, the Supplement and any Credit
Enhancement Agreement.
(h) Other than as set forth or contemplated in the
Prospectus as in effect on the date of execution of the Terms
Agreement, there are no legal or governmental proceedings or
investigations pending or, to the knowledge of the Bank, threatened to
which the Bank is or may be a party or to which any property of the
Bank is or may be the subject (A) asserting the invalidity of the
Pooling and Servicing Agreement, the Supplement, this Agreement, the
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Certificates, or any Credit Enhancement Agreement or Credit
Enhancement, (B) seeking to prevent the issuance of the Certificates or
the consummation of any of the transactions contemplated by the Pooling
and Servicing Agreement, the Supplement, this Agreement or any Credit
Enhancement Agreement, (C) seeking any determination or ruling that, in
the reasonable judgment of the Bank, would materially and adversely
affect the performance by the Bank of its obligations under the Pooling
and Servicing Agreement, the Supplement, this Agreement or any Credit
Enhancement Agreement, (D) seeking any determination or ruling that
would materially and adversely affect validity or enforceability of the
Pooling and Servicing Agreement, the Supplement, this Agreement, the
Certificates or any Credit Enhancement Agreement or Credit Enhancement,
or (E) seeking to affect adversely the income tax attributes of the
Trust, as described in the Prospectus under the heading "Federal Income
Tax Considerations"; and there are no contracts or other documents of a
character required to be filed as an exhibit to the Registration
Statement or required to be described in the Registration Statement or
the Base Prospectus which are not filed or described as required.
(i) This Agreement has been duly authorized, executed
and delivered by the Bank.
5. Upon the execution of the Terms Agreement, the Bank covenants
and agrees with the several Underwriters that:
(a) Immediately following the execution of the Terms
Agreement, the Bank will prepare a Prospectus Supplement setting forth
the amount of Certificates covered thereby and the terms thereof not
otherwise specified in the Base Prospectus, the price at which such
Certificates are to be purchased by the Underwriters, the initial
public offering price (if applicable), the selling concessions and
allowances and such other information as the Bank deems appropriate.
The Bank will transmit the Prospectus including such Prospectus
Supplement to the Commission pursuant to Rule 424(b) within the time
period prescribed by Rule 424(b) and by a means reasonably calculated
to result in filing with the Commission pursuant to Rule 424(b).
(b) The Bank will deliver, at the expense of the Bank,
to the Representative, two signed copies of the Registration Statement
and each amendment thereto, in each case including exhibits, and to
each other Underwriter a conformed copy of the Registration Statement
and each amendment thereto, in each case without exhibits and, during
the period mentioned in paragraph (e) below, to each of the
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Underwriters as many copies of the Prospectus (including all amendments
and supplements thereto) as the Representative may reasonably request.
(c) Before filing any amendment or supplement to the
Registration Statement or the Prospectus relating to the Certificates,
the Bank will furnish to the Representative a copy of the proposed
amendment or supplement for review and will not file any such proposed
amendment or supplement to which the Representative reasonably objects.
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(d) The Bank will advise the Representative promptly,
and will confirm such advice in writing, (i) when any amendment to the
Registration Statement shall have become effective, (ii) of any request
by the Commission for any amendment to the Registration Statement or
any amendment or supplement to the Prospectus or for any additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation or threatening of any proceeding for that purpose, and (iv)
of the receipt by the Bank of any notification with respect to any
suspension of the qualification of the Certificates for offer and sale
in any jurisdiction or the initiation or threatening of any proceeding
for such purpose, and to use its best efforts to prevent the issuance
of any such stop order or notification and, if issued, to obtain as
soon as possible the withdrawal thereof.
(e) The Bank will, if during such period of time after
the first date of the public offering of the Certificates as in the
opinion of counsel for the Underwriters a Prospectus relating to the
Certificates is required by law to be delivered in connection with
sales by an Underwriter or dealer, (i) any event shall occur as a
result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or (ii) it is necessary to amend or supplement the
Prospectus to comply with the law, forthwith prepare and furnish, at
the expense of the Bank, to the Underwriters and to the dealers (whose
names and addresses the Representative will furnish to the Bank) to
which Certificates may have been sold by the Representative on behalf
of the Underwriters and to any other dealers upon request, such
amendments or supplements to the Prospectus as may be necessary so that
the statements in the Prospectus as so amended or supplemented will
not, in the light of the circumstances when the Prospectus is delivered
to a purchaser, be misleading or so that the Prospectus will comply
with the law. The Bank will furnish or cause to be furnished to the
Representative copies of all reports on Form SR required by Rule 463
under the Act, as filed with the Commission.
(f) The Bank will arrange for the qualification of the
Certificates for offer and sale under the securities or "blue sky" laws
of such jurisdictions as the Representative shall reasonably request
and will continue such qualification in effect so long as reasonably
required for distribution of the Certificates and will pay all fees and
expenses (including fees and disbursements of counsel to the
Underwriters) reasonably incurred in connection with such qualification
and in connection with the determination of the eligibility of the
Certificates for investment under the laws of such jurisdictions as the
Representative may designate; provided, however, that the Bank shall
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not be obligated to qualify to do business in any jurisdiction in which
it is not currently so qualified; and provided, further, that the Bank
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shall not be required to file a general consent to service of process
in any jurisdiction.
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(g) As soon as practicable, but not later than the
Availability Date (as hereinafter defined), the Bank will cause the
Trust to make generally available to Certificateholders and to the
Representative as soon as practicable an earnings statement with
respect to the Trust covering a period of at least twelve months
beginning after the effective date of the Registration Statement, which
shall satisfy the provisions of Section 11(a) of the Act and Rule 158
of the Commission promulgated thereunder. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the
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end of the fourth fiscal quarter following the fiscal quarter that
includes the effective date of the Registration Statement, except that,
if such fourth fiscal quarter is the last quarter of the Bank's fiscal
year, "Availability Date" means the 90th day after the end of such
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fourth fiscal quarter.
(h) So long as any of the Certificates are outstanding,
the Bank will furnish to the Representative copies of all reports or
other communications (financial or other) furnished to holders of the
Certificates and copies of any reports and financial statements
furnished to or filed with the Commission or any national securities
exchange.
(i) For a period from the date of this Agreement until
the retirement of the Certificates the Bank, as Servicer, will furnish
to the Representative copies of each certificate and report delivered
to the Trustee or the holders of the Certificates (including the annual
Servicer's certificate and the annual independent certified public
accountant's servicing reports furnished to the Trustee pursuant to
Article III of the Pooling and Servicing Agreement), by first class
mail as soon as practicable after such statements and reports are
furnished to the Trustee or the holders of the Certificates.
(j) During the period beginning on the date hereof and
continuing to and including the Business Day following the Closing
Date, the Bank will not offer, sell, contract to sell or otherwise
dispose of any debt securities of or guaranteed by the Bank which are
substantially similar to the Certificates without the prior written
consent of the Representative.
(k) The Bank will cause the Certificates to be
registered in a timely manner pursuant to the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), to the extent required by the
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Exchange Act or in order to permit the Certificates (or any Class
thereof) to be eligible for purchase by employee benefit plan investors.
(l) To the extent, if any, that the rating provided with
respect to the Certificates by the rating agency or rating agencies
rating the Certificates (the "Rating Agency") is conditional upon the
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furnishing of documents or the taking of any other action by the Bank
agreed upon on or prior to the Closing Date, the Bank shall furnish
such documents and take any such other action.
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(m) So long as any Certificates are outstanding, the
Bank will cause to be delivered to the Representative copies of each
Opinion of Counsel delivered to the Trustee or any Rating Agency by
counsel to the Bank pursuant to the Pooling and Servicing Agreement or
the Supplement at the time such opinion is delivered.
6. The Bank will pay all costs and expenses incident to the
performance of its obligations under this Agreement, including, without
limiting the generality of the foregoing, all costs and expenses (i) incident
to the preparation, issuance, execution, authentication and delivery of the
Certificates, (ii) incident to the preparation, printing (including word
processing and duplication costs) and filing under the Act of the
Registration Statement, the Prospectus and any preliminary prospectus
(including in each case all exhibits, amendments and supplements thereto),
(iii) related to any filing with the National Association of Securities
Dealers, Inc. required to be made by the Underwriters in connection with the
offering of the Certificates, (iv) in connection with the printing (including
word processing and duplication costs) and delivery of this Agreement, the
Pooling and Servicing Agreement, the Supplement, any Credit Enhancement
Agreement and the furnishing to the Underwriters and dealers of copies of the
Registration Statement and the Prospectus as herein provided, (v)
constituting the fees and disbursements of the Bank's counsel and
accountants, (vi) constituting the fees of The Depository Trust Company in
connection with the book-entry registration of the Certificates, (vii)
constituting the fees and disbursements of the Trustee and its counsel, and
(viii) payable to the Rating Agency in connection with the rating of the
Certificates, except that the Underwriters agree to reimburse the Bank for an
amount specified in the applicable Terms Agreement on the Closing Date for
application toward such expenses.
7. The several obligations of the Underwriters hereunder are
subject to the performance by the Bank of its obligations hereunder and under
the Terms Agreement and to the following additional conditions:
(a) On or prior to the date of this Agreement, the
Representative shall have received a letter, dated the date of the
Terms Agreement, of Ernst & Young (or such other independent
accountants as shall be named in the Terms Agreement) confirming that
they are independent public accountants within the meaning of the Act
and the applicable Rules and Regulations thereunder and substantially
in the form heretofore agreed and otherwise in form and in substance
satisfactory to the Underwriters and Underwriters' counsel.
(b) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time period
prescribed for such filing by the Rules and Regulations and in
accordance with Section 5(a) of this Agreement; and, as of the Closing
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Date, no stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall
be pending before or threatened by the Commission, and all requests for
additional information from the Commission with respect to the
Registration Statement shall have been complied with to the
satisfaction of the Representative.
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(c) The representations and warranties of the Bank
contained herein are true and correct as of the Closing Date and the
Bank shall have complied with all agreements and all conditions on its
part to be performed or satisfied hereunder and under the Terms
Agreement at or prior to the Closing Date.
(d) The Representative shall have received an opinion of
Andrea B. Sudmann, counsel for the Bank (provided that the Terms
Agreement may set forth the name of other counsel who shall deliver
such opinion), dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel, to the effect that:
(i) the Bank is a national banking association
formed under the laws of the United States of America and is
authorized to transact the business of banking, including to own
its assets and to transact its business as described in the
Prospectus, and had at all relevant times and now has the power,
authority and legal right to acquire, own and service the
Accounts and the Receivables;
(ii) the Bank has the power and authority to
execute and deliver this Agreement, the applicable Credit
Enhancement Agreement, if any, the Pooling and Servicing
Agreement and the Supplement and to consummate the transactions
contemplated herein and therein;
(iii) the Certificates have been duly authorized,
executed and, when authenticated in accordance with the terms of
the Pooling and Servicing Agreement and the Supplement and
delivered and paid for pursuant to this Agreement, will be duly
and validly issued and outstanding;
(iv) no consent, approval, authorization or order
of, or filing with, any governmental agency or body or any court
is required for the consummation by the Bank of the transactions
contemplated herein, the Terms Agreement, the Pooling and
Servicing Agreement, the Supplement or the applicable Credit
Enhancement Agreement, except for such consents, approvals,
orders or filings as may be required under federal or state
securities laws and except for such filings as may be required to
perfect interests in the Receivables pursuant to the Pooling and
Servicing Agreement, the Supplement and the applicable Credit
Enhancement Agreement;
(v) none of the execution, delivery and
performance by the Bank of its obligations under this Agreement,
the Pooling and Servicing Agreement, the Supplement or the
applicable Credit Enhancement Agreement, the transfer of the
Receivables to the Trust, the issuance and sale of the
Certificates, or the consummation of any other of the
transactions contemplated herein, in the Supplement, the Pooling
and Servicing Agreement or the applicable Credit Enhancement
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Agreement, will conflict with, result in a breach of or violation
of any of the terms of, or constitute a default under, the
Articles of Association or Bylaws of the Bank, or any rule,
order, statute or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction
over the Bank or the terms of any material indenture or other
material agreement or instrument known to such counsel to which
the Bank is a party or by which it or its properties are bound;
(vi) to the best of such counsel's knowledge, there
are no actions, proceedings or investigations pending or
threatened before any court, administrative agency or other
tribunal (x) asserting the invalidity of this Agreement, the
Terms Agreement, the Supplement, the Pooling and Servicing
Agreement, the applicable Credit Enhancement Agreement, the
Credit Enhancement or the Certificates, (y) seeking to prevent
the issuance of the Certificates or the consummation of any of
the transactions contemplated by this Agreement, the Supplement,
the Pooling and Servicing Agreement, the applicable Credit
Enhancement Agreement, the Credit Enhancement or the
Certificates, which might materially and adversely affect the
performance by the Bank of its obligations under, or the validity
or enforceability of, this Agreement, the Supplement, the Pooling
and Servicing Agreement, the applicable Credit Enhancement
Agreement, the Credit Enhancement or the Certificates or (z)
seeking adversely to affect the federal income tax attributes of
the Certificates as described in the Base Prospectus under the
headings "Prospectus Summary -- Tax Status" and "Federal Income
Tax Consequences" and in the Prospectus Supplement under the
heading "Summary of Terms -- Tax Status"; and
(vii) each of this Agreement, the Pooling and
Servicing Agreement, the Supplement, the Certificates and the
applicable Credit Enhancement Agreement has been duly authorized,
executed and delivered by the Bank.
(e) The Representative shall have received an opinion of
Orrick, Herrington & Sutcliffe, special counsel for the Bank (provided
that the Terms Agreement may set forth the name of other counsel who
shall deliver such opinion), dated the Closing Date, in form and
substance satisfactory to the Representative and its counsel, to the
effect that:
(i) each of this Agreement, the Pooling and
Servicing Agreement, the Supplement and the applicable Credit
Enhancement Agreement constitutes, the legal, valid and binding
agreement of the Bank, enforceable against the Bank in accordance
with its terms, qualified as to (x) limitations imposed by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, arrangement or other laws relating to or affecting
-11-
<PAGE>
the rights of creditors generally or the rights of creditors of
national banking associations, (y) general principles of equity,
including without limitation the availability of specific
performance, regardless of whether such enforceability is
considered in a proceeding in equity or at law and (z) rights to
indemnification and contribution which may be limited by
applicable law or equitable principles or otherwise unenforceable
as against public policy;
(ii) the Certificates, when executed and
authenticated in accordance with the terms of the Pooling and
Servicing Agreement and the Supplement and delivered to and paid
for by the Underwriters pursuant to this Agreement, will be duly
and validly issued and outstanding and will be entitled to the
benefits of the Pooling and Servicing Agreement and the
Supplement;
(iii) the Registration Statement has become
effective under the Act and the Prospectus has been filed with
the Commission, pursuant to Rule 424(b) promulgated under the
Act; to the best of such counsel's knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act; and the
Registration Statement and the Prospectus (other than the
financial and statistical information therein as to which such
counsel express no opinion), as of their respective effective
date or date of issuance, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations;
(iv) this Agreement, the Pooling and Servicing
Agreement, the Supplement, and the Certificates and, if provided
in the Terms Agreement, the applicable Credit Enhancement
Agreement and Credit Enhancement, if any, conform in all material
respects to the descriptions thereof contained in the Prospectus;
(v) each of the Pooling and Servicing Agreement and
the Supplement is not required to be qualified under the Trust
Indenture Act of 1939, as amended, and the Trust is not now, and
immediately following the sale of the Certificates pursuant to
this Agreement will not be, required to be registered under the
Investment Company Act of 1940, as amended;
(vi) for federal income tax purposes (i) the
Certificates will not constitute an ownership interest in the
Receivables but will properly be characterized as debt, (ii) any
entity constituted by the Trust will not be an association
taxable as a corporation or publicly traded partnership treated
as a corporation, and (iii) the issuance of the Certificates (x)
will not adversely affect the federal income tax characterization
-12-
<PAGE>
as debt of any issued and outstanding Series of certificates
issued by the Trust, (y) will not cause the Trust to be deemed to
be an association taxable as a corporation or publicly traded
partnership treated as a corporation and (z) will not cause or
constitute an event in which gain or loss would be recognized by
any holder of a Certificate of any outstanding Series or Class
that were characterized as debt at the time of their issuance;
(vii) the statements in the Base Prospectus under the
headings "Certain Legal Aspects of the Receivables", "Federal
Income Tax Consequences" and "ERISA Considerations", to the
extent they constitute matters of law or legal conclusions with
respect thereto, have been reviewed by such counsel and are
correct in all material respects.
Such counsel also shall state that they have participated in
conferences with representatives of the Bank and their accountants, the
Underwriters and counsel to the Underwriters concerning the Registration
Statement and the Prospectus and have considered the matters required to be
stated therein and the matters stated therein, although they are not
independently verifying the accuracy, completeness or fairness of such
statements (except as stated in paragraph (vii) above) and based upon and
---------------
subject to the foregoing, nothing has come to such counsel's attention to
cause such counsel to believe that the Registration Statement, at the time it
became effective, contained an untrue statement of a material fact or omitted
to state any material fact required to be stated therein or necessary in
order to make the statements therein not misleading, or that the Prospectus,
as of the Closing Date, contains any untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances under
which they were made, not misleading (it being understood that such counsel
has not been requested to and does not make any comment in such opinion with
respect to the financial statements, supporting schedules and other financial
or statistical information contained in the Registration Statement or the
Prospectus).
(f) The Representative shall have received an opinion or
opinions of Orrick, Herrington & Sutcliffe, special counsel for the
Bank (provided that the Terms Agreement may set forth the name of other
counsel who shall deliver such opinion), dated the Closing Date, in
form and substance satisfactory to the Representative and its counsel,
with respect to certain matters relating to the transfer of the
Receivables to the Trust and the applicability of certain provisions of
the Federal Deposit Insurance Act, as amended by the Financial
Institutions, Reform, Recovery and Enforcement Act of 1989 with respect
to the effect of receivership of the Bank on such interest in the
Receivables and with respect to other related matters. In addition,
the Representative shall have received a reliance letter with respect
to any opinion that the Bank is required to deliver to the Rating
Agency.
-13-
<PAGE>
(g) The Representative shall have received an opinion of
Snell & Wilmer, L.L.P. (provided that the Terms Agreement may set forth
the name of other counsel who shall deliver such opinion), special
counsel to the Bank, in form and substance satisfactory to the
Representative and its counsel, which opinion shall include matters
relating to the transfer of the Receivables to the Trust and the
perfection of the Trust's interest in the Receivables and shall provide
that the characterization of the Trust for federal income tax purposes
will be determinative of the character of the Trust under the laws of
the State of Arizona concerning any tax imposed on or measured by
income.
(h) The Representative shall have received from Mayer,
Brown & Platt (provided that the Terms Agreement may set forth the name
of other counsel who shall deliver such opinion), special counsel for
the Underwriters, such opinion or opinions, dated the Closing Date, in
form and substance satisfactory to the Representative, with respect to
the validity of the Certificates, the Registration Statement, the
Prospectus and other related matters as the Representative may require,
and the Bank shall have furnished to such counsel such documents as
such counsel may request for the purpose of enabling them to pass upon
such matters.
(i) The Representative shall have received a
certificate, dated the Closing Date, of a Vice President or more senior
officer of the Bank in which such officer, to the best of his or her
knowledge after reasonable investigation, shall state that the
representations and warranties of the Bank in this Agreement are true
and correct in all material respects on and as of the Closing Date,
that the Bank has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder and under
the Terms Agreement at or prior to the Closing Date, that the
representations and warranties of the Bank, as Transferor and as
Servicer, in the Supplement and in the Pooling and Servicing Agreement
are true and correct as of the dates specified in the Supplement and in
the Pooling and Servicing Agreement, that the Registration Statement
has become effective, that no stop order suspending the effectiveness
of the Registration Statement has been issued and no proceedings for
that purpose have been instituted or are threatened by the Commission
and that, subsequent to the date of the Prospectus, there has been no
material adverse change in the financial position or results of
operation of the Bank's credit card business except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(j) The Representative shall have received an opinion of
Dorsey & Whitney, counsel to the Trustee (provided that the Terms
Agreement may set forth the name of other counsel who shall deliver
such opinion), dated the Closing Date, in form and substance
satisfactory to the Representative and its counsel, to the effect that:
(i) the Trustee is a national banking association
formed under the laws of the United States of America and is
authorized and qualified to accept the trusts imposed by the
Pooling and Servicing Agreement, the Supplement and the
applicable Credit Enhancement Agreement and to act as Trustee
under the Pooling and Servicing Agreement, the Supplement and the
applicable Credit Enhancement Agreement;
-14-
<PAGE>
(ii) each of the Pooling and Servicing Agreement,
the Supplement and the applicable Credit Enhancement Agreement
has been duly authorized, executed and delivered by the Trustee
and constitutes a legal, valid and binding obligation of the
Trustee, enforceable against the Trustee in accordance with its
terms, except as such enforcement thereof may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to the enforcement of creditors rights
generally and by general principles of equity (regardless of
whether such enforceability is considered in a proceeding in
equity or at law);
(iii) the Trustee has duly executed and
authenticated the Certificates on the Closing Date;
(iv) the execution and delivery of the Supplement,
the Pooling and Servicing Agreement and the applicable Credit
Enhancement Agreement by the Trustee and the performance by the
Trustee of their respective terms do not conflict with or result
in a violation of (x) any law or regulation of the United States
of America governing the banking or trust powers of the Trustee,
or (y) the charter or by-laws of the Trustee; and
(v) no approval, authorization or other action by,
or filing with, any governmental authority of the United States
of America having jurisdiction over the banking or trust powers
of the Trustee is required in connection with the execution and
delivery by the Trustee of the Pooling and Servicing Agreement,
the Supplement and the applicable Credit Enhancement Agreement or
the performance by the Trustee thereunder.
(k) The Representative shall have received reliance
letters, if applicable, with respect to any opinions delivered to the
Bank by foreign counsel of the Credit Enhancement Provider, if any,
which opinions shall include matters relating to (i) the due
organization of the Credit Enhancement Provider, (ii) the
authorization, execution, delivery and performance by the Credit
Enhancement Provider of the Credit Enhancement Agreement and the
binding effect of the Credit Enhancement Agreement, and (iii) the
enforceability in the foreign jurisdiction in which such Credit
Enhancement Provider is located of a judgment obtained under the Credit
Enhancement Agreement in a United States federal court or in a court of
the State of New York. Such reliance letters shall include all matters
that are contained in the opinions of foreign counsel.
-15-
<PAGE>
(l) The Representative shall have received an opinion or
opinions of counsel to the Credit Enhancement Provider, if any, dated
the Closing Date and satisfactory in form and substance to the
Representative and its counsel, to the effect that:
(i) the Credit Enhancement Provider is duly
organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, is duly qualified to do
business in all jurisdictions where the nature of its operations
as contemplated in the applicable Credit Enhancement requires
such qualification, and has the power and authority (corporate
and other) to issue the applicable Credit Enhancement and to
perform its obligations under the applicable Credit Enhancement
and the applicable Credit Enhancement Agreement;
(ii) each of the applicable Credit Enhancement and
the applicable Credit Enhancement Agreement have been duly
authorized, executed and delivered by the Credit Enhancement
Provider, and constitutes the legal, valid and binding obligation
of the Credit Enhancement Provider, enforceable in accordance
with its terms, except to the extent that the enforceability
thereof may be subject to bankruptcy, insolvency, reorganization,
conservatorship, moratorium or other similar laws now or
hereafter in effect relating to creditors' rights as such laws
would apply in the event of the insolvency, liquidation or
reorganization or other similar occurrence with respect to the
Credit Enhancement Provider or in the event of any moratorium or
similar occurrence effecting the Credit Enhancement Provider;
(iii) the execution, delivery and performance by the
Credit Enhancement Provider of the applicable Credit Enhancement
Agreement and the applicable Credit Enhancement have been duly
authorized by all necessary corporate action on the part of the
Credit Enhancement Provider, and under present law does not and
will not contravene any law or governmental regulation or order
presently binding on the Credit Enhancement Provider or the
charter or the by-laws of the Credit Enhancement Provider or
contravene any provision of or constitute a default under any
indenture, contract or other instrument to which the Credit
Enhancement Provider is a party or by which the Credit
Enhancement Provider is bound;
(iv) the execution, delivery and performance by the
Credit Enhancement Provider of the applicable Credit Enhancement
Agreement and the applicable Credit Enhancement does not require
the consent or approval of, the giving of notice to, the
registration with, or the taking of any other action in respect
of any Federal, state or other governmental agency or authority
which has not previously been effected;
-16-
<PAGE>
(v) the applicable Credit Enhancement is not
required to be registered with the Commission under the Act; and
(vi) if provided in the Terms Agreement, the applicable
Credit Enhancement Agreement and Credit Enhancement conform in
all material respects to the descriptions thereof contained in
the Prospectus.
(m) If requested by a Representative, each
Representative shall have received a letter, dated the Closing Date, of
Ernst & Young or such other independent accountants as shall be named
in the Terms Agreement which meets the requirements of subsection (a)
of this Section 7.
(n) The Representative shall have received evidence
satisfactory to it that the Certificates shall be rated in accordance
with the Terms Agreement by each Rating Agency.
The Bank will furnish the Representative, or cause the Representative
to be furnished with, such number of conformed copies of such opinions,
certificates, letters and documents as the Representative reasonably requests.
8. (a) The Bank agrees to indemnify and hold harmless
each Underwriter and each person, if any, who controls such Underwriter
within the meaning of Section 15 of the Act as follows: (i) against any
and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement
(or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary
in order to make the statements therein not misleading or arising out
of any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided, that the foregoing indemnity with respect to
--------
any preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such
Underwriter) from whom the person asserting any such losses, claims,
damages or liabilities purchased Certificates if such untrue statement
or omission or alleged untrue statement or omission made in such
preliminary prospectus is eliminated or remedied in the Prospectus (as
amended or supplemented if the Bank shall have furnished any amendments
or supplements thereto) and, if required by law, a copy of the
Prospectus (as so amended or supplemented) shall not have been
furnished to such person at or prior to the written confirmation of the
sale of such Certificates to such person; (ii) against any and all
loss, liability, claim, damage and expense whatsoever, as incurred, to
the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental
-17-
<PAGE>
agency or body, commenced or threatened, or of any claim whatsoever
based upon any such untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is effected with the
written consent of the Bank; and (iii) against any and all expenses
whatsoever (including, subject to Section 8(c), the fees and
------------
disbursements of counsel chosen by the Underwriters) as reasonably
incurred in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental
agency or body, commenced or threatened, or any claim whatsoever based
upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid
under (i) or (ii) above; provided, however, that the Bank will not be
-------- -------
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement in or omission or alleged omission from any
such documents in reliance upon and in conformity with written
information furnished to the Bank by such Underwriter specifically for
use therein.
(a) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Bank, its directors, each of its
officers and employees who signed the Registration Statement, and each
person, if any, who controls the Bank within the meaning of Section 15
of the Act against any and all loss, liability, claim, damage and
expense described in the indemnity contained in subsection (a) of this
--------------
Section, as incurred, but only with respect to untrue statements or
omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto) or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto)
in reliance upon and in conformity with written information furnished
to the Bank by such Underwriters through the Representative expressly
for use in the Registration Statement (or any amendment thereto) or
such preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(b) Each indemnified party shall give prompt notice to
each indemnifying party of any action commenced against it in respect
of which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve such indemnifying party from any
liability which it may have otherwise than on account of this indemnity
agreement. An indemnifying party may participate at its own expense in
the defense of any such action. In no event shall the indemnifying
parties be liable for fees and expenses of more than one counsel
separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general
allegations or circumstances.
9. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in Section 8(a)
------------
is for any reason held to be unavailable other than in accordance with its
terms, the Bank and the Underwriters shall contribute to the aggregate
losses, liabilities, claims, damages and expenses of the nature contemplated
-18-
<PAGE>
by said indemnity agreement incurred by the Bank and the Underwriters, as
incurred, in such proportions that the Underwriters are responsible for that
portion represented by the percentage that the underwriting discount and
commissions bear to the initial public offering price of the Certificates
(or, if so specified in the Terms Agreement, the proceeds paid to the Bank
from the initial public offering of the Certificates) and the Bank is
responsible for the balance; provided, however, that no person guilty of
-------- -------
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if
any, who controls an Underwriter within the meaning of Section 15 of the Act
shall have the same rights to contribution as such Underwriter, and each
director of the Bank, each officer of the Bank who signed the Registration
Statement, and each person, if any, who controls the Bank within the meaning
of Section 15 of the Act shall have the same rights to contribution as the
Bank.
10. Notwithstanding anything herein contained, this Agreement
may be terminated in the absolute discretion of the Representative, by notice
given to the Bank, if after the execution and delivery of this Agreement and
prior to the Closing Date (i) there has occurred any material adverse change
in the condition (financial or otherwise), earnings, business or properties
of the Bank or BankAmerica Corporation, and their respective subsidiaries,
taken as a whole, the effect of which in the reasonable judgement of the
Representative materially impairs the investment quality of the Certificates;
(ii) trading generally shall have been suspended or materially limited on or
by, as the case may be, the New York Stock Exchange; (iii) a general
moratorium on commercial banking activities in New York shall have been
declared by either Federal or New York State authorities; or (iv) there shall
have occurred any outbreak or material escalation of hostilities in which the
United States is involved, and declaration of war by Congress or any other
substantial national or international calamity or emergency if, in the
reasonable judgment of the Representative, the effect of any such outbreak,
escalation, declaration, calamity or emergency makes it impracticable to
proceed with completion of the sale and payment for the Certificates on the
terms specified in this Agreement, the Supplement and the Prospectus.
11. If any Underwriter defaults in its obligations to purchase
Certificates hereunder and the aggregate principal amount of the Certificates
that such defaulting Underwriter agreed but failed to purchase does not
exceed 10% of the total principal amount of the Certificates, the
non-defaulting Underwriters may make arrangements satisfactory to the Bank
for the purchase of the Certificates by other persons, including the
non-defaulting Underwriters, but if no such arrangements are made by the
Closing Date, the non-defaulting Underwriters shall be obligated, in
proportion to their commitments hereunder, to purchase the Certificates that
such defaulting Underwriter agreed but failed to purchase. If any Underwriter
so defaults and the aggregate principal amount of the Certificates with
respect to which such default or defaults occur exceeds 10% of the total
principal amount of such Certificates and arrangements satisfactory to the
non-defaulting Underwriters and the Bank for the purchase of such
Certificates by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Bank, except as provided in Section 6.
---------
Nothing herein will relieve a defaulting Underwriter from liability for its
default.
-19-
<PAGE>
12. If for any reason other than as set forth in Section 11
----------
the purchase of the Certificates by the Underwriters is not consummated, the
Bank shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Sections 5(f) and 6 and the respective obligations of the Bank
------------- -
and the Underwriters pursuant to Section 8 shall remain in effect. If the
---------
purchase of the Certificates by the Underwriters is not consummated for any
reason other than solely because of the occurrence of any event specified in
clauses (ii), (iii), or (iv) of Section 10, the Bank will reimburse the
- ------------ ----- ---- ----------
Underwriters for all out-of-pocket expenses (including fees and disbursements
of counsel) reasonably incurred by them in connection with the offering of
the Certificates.
13. Any action by the Underwriters hereunder may be taken by
the Representative on behalf of the Underwriters, and any such action taken
by the Representative shall be binding upon the Underwriters. All notices
and other communications hereunder shall be in writing and shall be deemed to
have been duly given if mailed or transmitted by any standard form of
telecommunication. Notices to the Underwriters shall be given to the
Representative at the address set forth in the Terms Agreement. Notices to
the Bank shall be given to it at 1825 E. Buckeye Road, Financial Management
3719, Phoenix, Arizona 85034, Attention: Chief Financial Officer, with a
copy to the Assistant General Counsel, Corporate Advisory Group, Office of
the General Counsel, 555 California Street, 8th Floor, San Francisco,
California 94104.
14. (a) Each Underwriter, severally, represents and
warrants to the Bank that it has not and will not use any information
that constitutes "Computational Materials", as defined in the
Commission's No-Action Letter, dated May 20, 1994, addressed to Kidder,
Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated
and Kidder Structured Asset Corporation (as made generally applicable
to registrants, issuers and underwriters by the Commission's response
to the request of the Public Securities Association dated May 27,
1994), with respect to the offering of the Certificates.
(a) Each Underwriter, severally, represents and warrants
to the Bank that it has not and will not use any information that
constitutes "ABS Term Sheets", as defined in the commission's No-Action
Letter, dated February 17, 1995, addressed to the Public Securities
Association, with respect to the offering of the Certificates.
15. Each Underwriter, severally, represents that, without the
prior written consent of the Bank (which consent shall not be unreasonably
withheld or delayed), it will not, at any time that such Underwriter is
acting as an "underwriter" (as defined in Section 2(11) of the Act) with
-------------
respect to the initial offering of the Certificates, transfer, deposit or
otherwise convey any Certificates into a trust or other type of special
purpose vehicle that issues securities or other instruments backed in whole
or in part by, or that represents interest in, such Certificates.
-20-
<PAGE>
16. This Agreement shall become effective upon execution and
delivery of the Terms Agreement.
17. This Agreement shall inure to the benefit of and be
binding upon the Bank, the Underwriters, any controlling persons referred to
herein and their respective successors and assigns. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
other person, firm or corporation any legal or equitable right, remedy or
claim under or in respect of this Agreement or any provision herein
contained. No purchaser of Certificates from any Underwriter shall be deemed
to be a successor by reason merely of such purchase.
18. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to
the conflicts of laws provisions thereof.
- -21-
<PAGE>
BA MASTER CREDIT CARD TRUST
BANK OF AMERICA NATIONAL ASSOCIATION
(Transferor and Servicer)
SERIES [ %] [Floating Rate]
------- ----
ASSET BACKED CERTIFICATES
TERMS AGREEMENT
---------------
Dated:
------------
To: Bank of America National Association
Re: Underwriting Agreement (Standard Terms) dated July 12, 1996 in the form
of Exhibit A attached hereto (the "Underwriting Agreement")
---------- ----------------------
Series Designation: Series 199 -
- -
Incorporation by Reference: The terms and provisions of the Underwriting
- --------------------------
Agreement are hereby incorporated by reference in this Terms Agreement as if
set forth in full herein.
Underwriters:
- ------------
[The Underwriters named on Schedule I attached hereto are the
"Underwriters" for the purpose of this Terms Agreement and for the purposes
of the Underwriting Agreement. ______________ acts as representative of the
Underwriters and is the "Representative" for purposes of the Underwriting
Agreement.] [_____________ is the sole "Underwriter" for the purpose of this
Terms Agreement and, as such, is the "Underwriter" and "Representative" for
purposes of the Underwriting Agreement.]
Terms of the Certificates:
- -------------------------
Initial Invested Interest Price to
Amount Rate or Formula Public (1)
- ---------------- --------------- ----------
[Class ] [Class ] [Class ]
[Class ] [Class ] [Class ]
(1) Plus accrued interest at the applicable rate from , 199 .
--------------- -
-1-
<PAGE>
Distribution Dates: , , and , commencing
- ------------------ -------- -------- --------- --------
, 199 .
- ------------
Certificate Rating[s]: by
- --------------------- ------ -------------
[ by
--------- -------------
Credit Enhancement:
- ------------------
Credit Enhancement Provider:
- ---------------------------
Trustee: First Bank National Association
- -------
Pooling and Servicing Agreement:
- -------------------------------
The Pooling and Servicing Agreement dated as of July __, 1996, as
amended, between Bank of America National Association (the "Bank"), as
----
Transferor and Servicer, and the Trustee.
Supplement:
- ----------
Purchase Price:
- --------------
The purchase price payable by the Underwriters for the Certificates
covered by this Agreement will be the following percentage[s] of the
principal amounts to be issued:
Per [Class ] Certificate %
---------
Per [Class ] Certificate %
---------
Registration Statement: 333-4152
- ----------------------
Underwriting Commissions, Concessions and Discounts:
- ---------------------------------------------------
The Underwriters' discounts and commissions, the concessions that the
Underwriters may allow to certain dealers, and the discounts that such
-2-
<PAGE>
dealers may reallow to certain other dealers, each expressed as a percentage
of the principal amount of the [Class ____] Certificates, shall be as follows:
Underwriting
Discounts and Selling
Concessions Concessions Reallowance
------------- ----------- -----------
[Class ] % % %
--- -- --
[Class ] % % %]
--- -- --
[Reimbursement of Expenses:
-------------------------
The Underwriters shall reimburse the Bank for an amount not to exceed
$ for application towards expenses.]
-------
Payment for the Certificates:
- ----------------------------
The Underwriters agree, severally and not jointly, subject to the terms
and provisions of the above referenced Underwriting Agreement which is
incorporated herein in its entirety and made a part hereof, to purchase the
respective principal amounts of the above referenced Series of Certificates
set forth opposite their names on Schedule I hereto.
----------
Representations of the Underwriters:
- -----------------------------------
Each Underwriter represents and agrees that; (w) it has complied and
will comply with all applicable provisions of the Financial Services Act 1986
with respect to anything done by it in relation to the Certificates in, from
or otherwise involving the United Kingdom; (x) it has only issued or passed
on and will only issue or pass on in the United Kingdom any document received
by it in connection with the issue of the Certificates to a person who is of
a kind described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1995 or is a person to whom
such document may otherwise lawfully be issued or passed on; (y) if it is an
authorized person under Chapter III of Part 1 of the Financial Services Act
1986, it has only promoted and will only promote (as that term is defined in
Regulation 1.02(2) of the Financial Services (Promotion of Unregulated
Schemes) Regulations 1991) to any person in the United Kingdom the scheme
described in the Prospectus if that person is a kind described either in
Section 76(2) of the Financial Services Act 1986 or in Regulation 1.04 of the
- -------------
Financial Services (Promotion of Unregulated Schemes) Regulations 1991; and
(z) it is a person of a kind described in Article 11(3) of the Financial
Services Act 1986 (Investment Advertisements) (Exemptions) Order 1995.
-3-
<PAGE>
Miscellaneous: [The opinion required pursuant to [Section 7(e)(iv)] [Section
---------------- -------
7(l)(vi)] of the Underwriting Agreement shall include an opinion that the
- --------
Credit Enhancement Agreement and Credit Enhancement for the Certificates
conform in all material respects to the descriptions thereof contained in the
Prospectus.]
-4-
<PAGE>
This Terms Agreement may be signed in counterparts, each of which shall
be an original and all of which together shall constitute one and the same
agreement. If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return to us the enclosed duplicate hereof,
whereupon it will become a binding agreement between the Bank and the
Underwriters in accordance with its terms.
Very truly yours,
BANK OF AMERICA NATIONAL ASSOCIATION
By:______________________________________
Name:_____________________________________
Title:______________________________________
The foregoing Terms Agreement (including the Underwriting Agreement
incorporated by reference therein) is hereby confirmed and accepted as of the
date first written.
[ ]
-------------------
As Representative of the
Underwriters named in
Schedule I hereto.
----------
By:
-------------------------
Name:
Title:
[Address]
-5-
<PAGE>
SCHEDULE I
UNDERWRITERS
$ Principal Amount of Series [ %] [Floating Rate] Asset
--------- ----- ----
Backed certificates, [Class ]
[$ Principal Amount of Series [ %] [Floating Rate]
-------- ----- ----
Asset Backed Certificates, [Class ]]
Underwriter Principal Amount
- ----------- ----------------
[Names of Underwriters] $
$
----------------
$
================
-6-
EXECUTION COPY
================================================================================
BANK OF AMERICA NATIONAL ASSOCIATION
Transferor and Servicer
and
FIRST BANK NATIONAL ASSOCIATION
Trustee
on behalf of the Certificateholders of the
BA MASTER CREDIT CARD TRUST
----------------------------------
POOLING AND SERVICING AGREEMENT
Dated as of July 19, 1996
================================================================================
<PAGE>
TABLE OF CONTENTS
Page
----
ARTICLE I
DEFINITIONS
Section 1.01 Definitions 1
Section 1.02 Other Definitional Provisions 22
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Receivables 24
Section 2.02 Acceptance by Trustee 25
Section 2.03 Representations and Warranties of the Transferors 26
Section 2.04 Representations and Warranties of the Transferor Relating
to this Agreement and the Receivables 28
Section 2.05 Covenants of the Transferor 35
Section 2.06 Addition of Accounts 37
Section 2.07 Removal of Accounts 43
Section 2.08 Discount Option 45
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.01 Acceptance of Appointment and Other Matters Relating to
the Servicer 46
Section 3.02 Servicing Compensation 48
Section 3.03 Representations and Warranties of the Servicer 49
Section 3.04 Reports and Records for the Trustee 50
Section 3.05 Annual Servicer's Certificate 51
Section 3.06 Annual Independent Accountants' Servicing Report 51
Section 3.07 Tax Treatment 52
Section 3.08 Notices to the Transferors 53
Section 3.09 Reports to the Commission 53
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.01 Rights of Certificateholders 54
Section 4.02 Establishment of Accounts 54
Section 4.03 Collections and Allocations 56
i
<PAGE>
Page
----
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL
BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates 60
Section 6.02 Authentication of Certificates 60
Section 6.03 Registration of Transfer and Exchange of Certificates 61
Section 6.04 Mutilated, Destroyed, Lost or Stolen Certificates 64
Section 6.05 Persons Deemed Owners 65
Section 6.06 Appointment of Paying Agent 66
Section 6.07 Access to List of Certificateholders' Names and Addresses 67
Section 6.08 Authenticating Agent 67
Section 6.09 New Issuances 68
Section 6.10 Book-Entry Certificates 71
Section 6.11 Notices to Clearing Agency 72
Section 6.12 Definitive Certificates 72
Section 6.13 Global Certificate; Euro-Certificate Exchange Date 73
Section 6.14 Meetings of Certificateholders 73
Section 6.15 Uncertificated Classes 74
ARTICLE VII
OTHER MATTERS RELATING
TO EACH TRANSFEROR
Section 7.01 Liability of each Transferor 75
Section 7.02 Merger or Consolidation of, or Assumption of the
Obligations of, a Transferor 75
Section 7.03 Limitation on Liability 76
Section 7.04 Liabilities 76
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
Section 8.01 Liability of the Servicer 78
Section 8.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer 78
Section 8.03 Limitation on Liability of the Servicer and Others 78
ii
<PAGE>
Page
----
Section 8.04 Servicer Indemnification of the Trust and the Trustee 79
Section 8.05 The Servicer Not to Resign 80
Section 8.06 Access to Certain Documentation and Information Regarding
the Receivables 80
Section 8.07 Delegation of Duties 80
Section 8.08 Examination of Records 81
ARTICLE IX
PAY OUT EVENTS
Section 9.01 Pay Out Events 82
Section 9.02 Additional Rights upon the Occurrence of Certain Events 82
ARTICLE X
SERVICER DEFAULTS
Section 10.01 Servicer Defaults 85
Section 10.02 Trustee to Act; Appointment of Successor 87
Section 10.03 Notification to Certificateholders 89
Section 10.04 Waiver of Past Defaults 89
ARTICLE XI
THE TRUSTEE
Section 11.01 Duties of Trustee 91
Section 11.02 Certain Matters Affecting the Trustee 93
Section 11.03 Trustee Not Liable for Recitals in Certificates 94
Section 11.04 Trustee May Own Certificates 94
Section 11.05 The Servicer to Pay Trustee's Fees and Expenses 94
Section 11.06 Eligibility Requirements for Trustee 95
Section 11.07 Resignation or Removal of Trustee 95
Section 11.08 Successor Trustee 96
Section 11.09 Merger or Consolidation of Trustee 96
Section 11.10 Appointment of Co-Trustee or Separate Trustee 97
Section 11.11 Tax Returns 98
Section 11.12 Trustee May Enforce Claims Without Possession of
Certificates 98
Section 11.13 Suits for Enforcement 99
Section 11.14 Rights of Certificateholders to Direct Trustee 99
Section 11.15 Representations and Warranties of Trustee 99
iii
<PAGE>
Page
----
Section 11.16 Maintenance of Office or Agency 100
ARTICLE XII
TERMINATION
Section 12.01 Termination of Trust 101
Section 12.02 Optional Purchase 102
Section 12.03 Final Payment with Respect to any Series 102
Section 12.04 Termination Rights of Holder of Transferor Certificate 104
Section 12.05 Defeasance 104
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment 106
Section 13.02 Protection of Right, Title and Interest to Trust 109
Section 13.03 Limitation on Rights of Certificateholders 110
Section 13.04 Governing Law 111
Section 13.05 Notices 111
Section 13.06 Severability of Provisions 111
Section 13.07 Assignment 112
Section 13.08 Certificates Non-Assessable and Fully Paid 112
Section 13.09 Further Assurances 112
Section 13.10 No Waiver; Cumulative Remedies 112
Section 13.11 Counterparts 112
Section 13.12 Third-Party Beneficiaries 112
Section 13.13 Actions by Certificateholders 113
Section 13.14 Rule 144A Information 113
Section 13.15 Merger and Integration 113
Section 13.16 Headings 113
iv
<PAGE>
Page
----
EXHIBITS
Exhibit A Form of Transferor Certificate
Exhibit B Form of Assignment of Receivables in
Additional Accounts
Exhibit C Form of Monthly Servicer's Certificate
Exhibit D Form of Annual Servicer's Certificate
Exhibit E Form of Opinion of Counsel Regarding
Additional Accounts
Exhibit F Form of Annual Opinion of Counsel
Exhibit G Form of Reassignment of Receivables
Exhibit H Form of Reconveyance of Receivables
SCHEDULES
Schedule 1 List of Accounts [Deemed Incorporated]
v
<PAGE>
POOLING AND SERVICING AGREEMENT, dated as of July 19, 1996 by and
between BANK OF AMERICA NATIONAL ASSOCIATION, a national banking association, as
Transferor and Servicer, and FIRST BANK NATIONAL ASSOCIATION, a national banking
association, as Trustee.
In consideration of the mutual agreements herein contained, each
party agrees as follows for the benefit of the other parties and the
Certificateholders:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions . Whenever used in this Agreement, the
-----------
following words and phrases shall have the following meanings:
"Account" shall mean each VISA(R) and MasterCard(R)* credit card
-------
account of each Transferor, established pursuant to a Credit Card Agreement
between such Transferor and any Person identified by account number and by the
Receivable balance as of the Cut-Off Date and as of each Addition Cut-Off Date
in each computer file or microfiche list delivered to the Trustee by such
Transferor pursuant to Section 2.01 or 2.06 and, without duplication, all
Automatic Additional Accounts. The definition of Account shall include each
Transferred Account. The term "Account" shall refer to an Additional Account
only from and after the Addition Date with respect thereto, and the term
"Account" shall be deemed to refer to any Removed Account only prior to the
Removal Date with respect thereto.
"Account Information" shall have the meaning specified in
-------------------
subsection 2.02(b).
"Accumulation Period" shall mean, with respect to any Series, or any
-------------------
Class within a Series, a period following the Revolving Period, which shall be
the accumulation or other period in which Collections of Principal Receivables
are accumulated in an account for the benefit of the Investor Certificateholders
of such Series, or a Class within such Series, in each case as defined with
respect to such Series in the related Supplement.
"Addition Cut-Off Date" shall mean, with respect to any Additional
----------------------
Accounts or Participation Interests to be included in the Trust pursuant to
subsections 2.06(a) or (b), the date specified in the related Assignment;
provided, however, that such date shall be no more than five days (or such
- -------- -------
longer period as the Trustee may approve) prior to the related Addition Date.
____________________
* VISA(R) and MasterCard(R) are federally registered servicemarks of VISA
U.S.A. Inc. and of MasterCard International Inc., respectively.
<PAGE>
"Addition Date" shall mean, as to Additional Accounts, each date as
-------------
of which Additional Accounts will be included as Accounts and, as to
Participations, each date as of which Participations will be included as
property of the Trust, in either case pursuant to Section 2.06.
"Additional Accounts" shall have the meaning specified in
-------------------
subsection 2.06(a).
"Additional Transferor" shall have the meaning specified in
---------------------
subsection 2.06(e).
"Affiliate" of any Person shall mean any other Person controlling,
---------
controlled by or under common control with such Person.
"Adjusted Investor Interest" shall have, with respect to any Series
---------------------------
of Certificates, the meaning stated in the related Supplement.
"Aggregate Investor Default Amount" shall have, with respect to any
----------------------------------
Series of Certificates, the meaning stated in the related Supplement.
"Aggregate Investor Interest" shall mean, as of any date of
-----------------------------
determination, the sum of the Investor Interests of all Series of Certificates
issued and outstanding on such date of determination.
"Aggregate Investor Percentage" with respect to Principal
---------------------------------
Receivables, Finance Charge Receivables and Receivables in Defaulted Accounts,
as the case may be, shall mean, as of any date of determination, the sum of such
Investor Percentages of all Series of Certificates issued and outstanding on
such date of determination; provided, however, that the Aggregate Investor
-------- -------
Percentage shall not exceed 100%.
"Agreement" shall mean this Pooling and Servicing Agreement and all
---------
amendments hereof and supplements hereto, including any Supplement.
"Amortization Period" shall mean, with respect to any Series, or any
-------------------
Class within a Series, a period following the Revolving Period during which
principal is distributed to Investor Certificateholders, which shall be the
controlled amortization period, the principal amortization period, the rapid
amortization period, or other amortization period, in each case as defined with
respect to such Series in the related Supplement.
"Annual Membership Fee" shall have the meaning specified in the
-----------------------
Credit Card Agreement applicable to each Account for annual membership fees or
similar terms.
"Applicants" shall have the meaning specified in Section 6.07.
----------
2
<PAGE>
"Appointment Date" shall have the meaning specified in subsection
----------------
9.02(a).
"Assignment" shall have the meaning specified in
----------
subsection 2.06(d)(ii).
"Authorized Newspaper" shall mean a newspaper of general circulation
--------------------
in the Borough of Manhattan, The City of New York printed in the English
language (and, with respect to any Series or Class, if and so long as the
Investor Certificates of such Series or Class are listed on the Luxembourg Stock
Exchange and such exchange shall so require, in Luxembourg, printed in any
language satisfying the requirements of such exchange) and customarily published
on each Business Day, whether or not published on Saturdays, Sundays and
holidays.
"Automatic Additional Account" shall mean each revolving credit card
----------------------------
account established pursuant to a Credit Card Agreement, which account is
designated pursuant to Section 2.06(c) to be included as an Additional Account.
"Average Principal Receivables" shall mean, for any period, an
-------------------------------
amount equal to (a) the sum of the aggregate amount of Principal Receivables at
the end of each day during such period divided by (b) the number of days in such
period.
"Bank of America" shall mean Bank of America National Association.
---------------
"Bearer Certificates" shall have the meaning specified in Section
-------------------
6.01.
"Bearer Rules" shall mean the provisions of the Internal Revenue
-------------
Code, in effect from time to time, governing the treatment of bearer
obligations, including sections 163(f), 871, 881, 1441, 1442 and 4701, and any
regulations thereunder including, to the extent applicable to any Series,
Proposed or Temporary Regulations.
"Book-Entry Certificates" shall mean certificates evidencing a
------------------------
beneficial interest in the Investor Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency as described in
Section 6.10; provided, that after the occurrence of a condition whereupon
--------
book-entry registration and transfer are no longer authorized and Definitive
Certificates are to be issued to the Certificate Owners, 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 St. Paul, Minnesota or Phoenix, Arizona
(or, with respect to any Series, any additional city specified in the related
Supplement) or any other city and state in which the principal executive offices
of Bank of America or any Additional Transferor are located, are authorized or
obligated by law or executive order to be closed.
3
<PAGE>
"Cash Advance Fees" shall have the meaning specified in the Credit
------------------
Card Agreement applicable to each Account for cash advance fees or similar
terms.
"CEDEL" shall mean Cedel Bank, societe anonyme.
-----
"Certificate" shall mean any one of the Investor Certificates of
-----------
any Series or the Transferor Certificate.
"Certificateholder" or "Holder" shall mean the Person in whose name
----------------- ------
a Certificate is registered in the Certificate Register and, if applicable, the
holder of any Bearer Certificate or Coupon, as the case may be or such other
Person deemed to be a "Certificateholder" or "Holder" in any related Supplement.
"Certificate Interest" shall mean interest payable in respect of the
--------------------
Investor Certificates of any Series pursuant to Article IV of this Agreement as
such Article relates to such Series.
"Certificate Owner" shall mean, with respect to a Book-Entry
------------------
Certificate, the Person who is the beneficial owner of such Book-Entry
Certificate, as may be 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) as such Article relates to such Series.
"Certificate Principal" shall mean principal payable in respect of
----------------------
the Investor Certificates of any Series pursuant to Article IV of this
Agreement.
"Certificate Rate" shall mean, with respect to any Series of
-----------------
Certificates (or, for any Series with more than one Class, for each Class of
such Series), the percentage (or formula on the basis of which such rate shall
be determined) stated in the related Supplement.
"Certificate Register" shall mean the register maintained pursuant
---------------------
to Section 6.03, providing for the registration of the Certificates and
transfers and exchanges thereof.
"Class" shall mean, with respect to any Series, any one of the
-----
classes of Certificates of that Series as specified in the related 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.
4
<PAGE>
"Clearing Agency Participant" shall mean a broker, dealer, bank,
----------------------------
other financial institution or other Person for whom from time to time a
Clearing Agency or Foreign Clearing Agency effects book-entry transfers and
pledges of securities deposited with the Clearing Agency or Foreign Clearing
Agency.
"Closing Date" shall mean, with respect to any Series, the date of
------------
issuance of such Series of Certificates, as specified in the related Supplement.
"Collateral Interest" shall have the meaning, with respect to any
--------------------
Series, specified in the related Supplement.
"Collection Account" shall have the meaning specified in
------------------
subsection 4.02(a).
"Collections" shall mean all payments (including Insurance Proceeds)
-----------
received by the Servicer in respect of the Receivables, in the form of cash,
checks, wire transfers, ATM transfers or other form of payment in accordance
with the Credit Card Agreement in effect from time to time on any Receivables. A
Collection processed on an Account in excess of the aggregate amount of
Receivables in such Account as of the Date of Processing of such Collection
shall be deemed to be a payment in respect of Principal Receivables to the
extent of such excess. Collections with respect to any Monthly Period shall
include the amount of Interchange (if any) allocable to any Series of
Certificates pursuant to any Supplement with respect to such Monthly Period (to
the extent received by the Trust and deposited into the Finance Charge Account
or any Series Account as the case may be, on the Transfer Date following such
Monthly Period), to be applied as if such amount were Collections of Finance
Charge Receivables for all purposes.
"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 180 East Fifth Street, St. Paul, Minnesota 55101.
"Corporation" shall mean BankAmerica Corporation.
-----------
"Coupon" shall have the meaning specified in Section 6.01.
------
"Credit Adjustment" shall have the meaning specified in
-----------------
subsection 4.03(c).
"Credit Card Agreement" shall mean the agreement and Federal Truth
----------------------
in Lending Statement for MasterCard and VISA credit card accounts between any
Obligor and Bank of America National Association or any Additional Transferor,
as the case may be, as such agreements may be amended, modified or otherwise
changed from time to time.
5
<PAGE>
"Credit Card Guidelines" shall mean the Transferor's policies and
----------------------
procedures or any Additional Transferor's policies and procedures, as the case
may be, relating to the operation of its credit card business, including,
without limitation, the policies and procedures for determining the
creditworthiness of credit card customers, the extension of credit to credit
card customers, and relating to the maintenance of credit card accounts and
collection of credit card receivables, as such policies and procedures may, in
accordance with this Agreement, be amended from time to time.
"Credit Enhancement" shall mean, with respect to any Series, the
-------------------
subordination, the cash collateral guaranty or account, collateral interest,
letter of credit, surety bond, insurance policy, spread account, reserve
account, cross-support feature or any other contract or agreement for the
benefit of the Certificateholders of such Series (or Certificateholders of a
Class within such Series) as designated in the applicable Supplement.
"Credit Enhancement Provider" shall mean, with respect to any
-----------------------------
Series, the Person, if any, designated as such in the related Supplement.
"Cut-Off Date" shall mean May 18, 1996.
------------
"Date of Processing" shall mean, with respect to any transaction,
------------------
the date on which such transaction is first recorded on the Servicer's computer
master file of VISA and MasterCard accounts (without regard to the effective
date of such recordation).
"Default Amount" shall mean, with respect to any Defaulted Account,
--------------
the amount of Principal Receivables (other than Ineligible Receivables) in such
Defaulted Account on the day such Account became a Defaulted Account.
"Defaulted Account" shall mean each Account with respect to which,
------------------
in accordance with the applicable Credit Card Guidelines or the Servicer's
customary and usual servicing procedures for servicing credit card receivables
comparable to the Receivables, the Servicer has charged-off the Receivables in
such Account as uncollectible; an Account shall become a Defaulted Account on
the day on which such Receivables are recorded as charged off as uncollectible
on the Servicer's computer master file of VISA and MasterCard accounts.
Notwithstanding any other provision hereof, any Receivables in a Defaulted
Account that are Ineligible Receivables shall be treated as Ineligible
Receivables rather than Receivables in Defaulted Accounts.
"Defeasance" shall have the meaning specified in Section 12.05(a).
----------
6
<PAGE>
"Definitive Certificate" shall have the meaning specified in
----------------------
Section 6.10.
"Depository" shall have the meaning specified in Section 6.10.
----------
"Depository Agreement" shall mean, with respect to each Series, the
---------------------
agreement among the Transferors, the Trustee and the Clearing Agency, or as
otherwise provided in the related Supplement.
"Determination Date" shall mean, unless otherwise specified in the
-------------------
related Series Supplement, the second Business Day prior to each Transfer Date.
"Discounted Percentage" shall have the meaning specified in
---------------------
Section 2.08.
"Discount Option Receivables" shall mean, with respect to any
-----------------------------
Series, Principal Receivables designated by the Transferors that are transferred
to the Trust at a specified discount, which discount is applied such that the
discounted portion of Collections of such Principal Receivables are treated as
Collections of Finance Charge Receivables, as specified with respect to such
Series in the related Supplement.
"Discount Option Receivable Collections" shall have the meaning
-----------------------------------------
specified in Section 2.08.
"Distribution Account" shall have the meaning specified in
--------------------
subsection 4.02(c).
"Distribution Date" shall mean, with respect to each Series, the
------------------
dates specified in the related Supplement.
"Dollars", "$" or "U.S. $" shall mean United States dollars.
------- - ------
"Draft Fees" shall have the meaning specified in the Credit Card
-----------
Agreement applicable to each Account for any draft fees or similar terms.
"Eligible Account" shall mean, as of the Cut-Off Date (or, with
-----------------
respect to Additional Accounts as of the relevant Addition Cut-Off Date), each
Account owned by the Transferor:
(a) which is in existence and maintained with the Bank of America
with respect to Accounts designated as of the Cut-Off Date, or with Bank
of America or any Additional Transferor in the case of Additional Accounts
as of the applicable Addition Cut-Off Date;
(b) which is payable in Dollars;
7
<PAGE>
(c) the Obligor on which has provided, as its most recent billing
address, an address which is located in the United States or its
territories or possessions;
(d) which Bank of America or the applicable Additional Transferor,
as the case may be, has not classified on its electronic records as
counterfeit, cancelled, bankrupt, fraudulent, stolen or lost; and
(e) which Bank of America or the applicable Additional Transferor,
as the case may be, has not charged off in its customary and usual manner
for charging off such Accounts as of the Cut-Off Date (or, with respect to
Additional Accounts, as of the relevant Addition Cut-Off Date).
"Eligible Receivable" shall mean each Receivable:
-------------------
(a) which has arisen under an Eligible Account (in the case of
Accounts conveyed to the Trust on the Initial Closing Date and in the case
of Additional Accounts);
(b) which was created in compliance, in all material respects, with
all Requirements of Law applicable to the Transferor that transferred such
Receivable to the Trust and pursuant to a Credit Card Agreement which
complies, in all material respects, with all Requirements of Law
applicable to such Transferor;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by the Transferor
that transferred such Receivable to the Trust in connection with the
creation of such Receivable or the execution, delivery and performance by
such Transferor of the Credit Card Agreement pursuant to which such
Receivable was created, have been duly obtained, effected or given and are
in full force and effect as of such date of creation;
(d) as to which, at the time of and at all times after the creation
of such Receivable, the Transferor that transferred such Receivable to the
Trust or the Trust had good and marketable title thereto, free and clear
of all Liens arising under or through such Transferor or any of its
Affiliates (other than Liens permitted pursuant to subsection 2.05(b));
(e) which is the legal, valid and binding payment obligation of the
Obligor thereon, enforceable against such Obligor in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws,
now or hereafter in effect, affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity);
and
8
<PAGE>
(f) which constitutes an "account" or a "general intangible" under
and as defined in Article 9 of the UCC as then in effect in the applicable
jurisdiction.
"Eligible Servicer" shall mean the Trustee, a wholly-owned
-------------------
subsidiary of the Trustee, or an entity which, at the time of its appointment as
Servicer, (a) is servicing a portfolio of consumer revolving credit card
accounts or other consumer revolving credit accounts, (b) is legally qualified
and has the capacity to service the Accounts, (c) is qualified (or licensed) to
use the software that the Servicer is then currently using to service the
Accounts or obtains the right to use, or has its own, software which is adequate
to perform its duties under this Agreement, (d) has, in the reasonable judgment
of the Trustee, demonstrated the ability to professionally and competently
service a portfolio of similar accounts in accordance with customary standards
of skill and care and (e) has a net worth of at least $50,000,000 as of the end
of its most recent fiscal quarter.
"Enhancement Invested Amount" shall have the meaning, with respect
----------------------------
to any Series, specified in the related Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as amended from time to time.
"Euroclear Operator" shall mean Morgan Guaranty Trust Company of New
------------------
York, Brussels, Belgium office, as operator of the Euroclear System.
"Extended Trust Termination Date" shall have the meaning specified
---------------------------------
in subsection 12.01(a).
"FDIC" shall mean the Federal Deposit Insurance Corporation.
----
"Fees for Documents" shall have the meaning specified in the Credit
------------------
Card Agreement applicable to each Account for fees for documents or similar
terms.
"Finance Charge Account" shall have the meaning specified in
----------------------
subsection 4.02(b).
"Finance Charge Receivables" shall mean Receivables created in
----------------------------
respect of the Periodic Finance Charges, Annual Membership Fees, Cash Advance
Fees, Overlimit Fees, Returned Check Charges and Late Fees and similar fees and
charges, and Special Fees to the extent such Special Fees are categorized as
Finance Charge Receivables. Finance Charge Receivables with respect to any
Monthly Period shall include the amount of Interchange (if any), Recoveries (if
any) and Discount Option Receivables (if any) and other amounts allocable to any
Series of Certificates pursuant to any Supplement with respect to such Monthly
Period (to the extent received by the Servicer during such Monthly Period and
available to be deposited into the Finance Charge Account or any Series Account,
as the case may be, on the Transfer Date following such Monthly Period).
9
<PAGE>
"Fitch" shall mean Fitch Investors Service, L.P.
-----
"Floating Principal Allocation" shall have the meaning specified
-----------------------------
in the related Supplement.
"Foreign Clearing Agency" shall mean CEDEL and the Euroclear
-----------------------
Operator.
"Global Certificate" shall have the meaning specified in Section
------------------
6.13.
"Governmental Authority" shall mean the United States of America,
-----------------------
any state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Group" shall mean, with respect to any Series, the group of Series
-----
in which the related Supplement specifies that such Series shall be included.
"Identified Pool" shall mean with respect to any Transferor, the
----------------
MasterCard and VISA accounts owned by such Transferor and identified by such
Transferor as the pool of MasterCard and VISA accounts of such Transferor from
which the Accounts will be selected.
"Ineligible Receivable" shall have the meaning specified in
---------------------
subsection 2.04(d)(iii).
"Initial Closing Date" shall mean July 19, 1996.
--------------------
"Initial Investor Interest" shall mean, with respect to any Series
---------------------------
of Certificates, the amount stated in the related Supplement.
"Initial Transferor" shall mean Bank of America.
------------------
"Insolvency Event" shall have the meaning specified in subsection
----------------
9.01(a).
"Insurance Proceeds" shall mean any amounts recovered by the
-------------------
Servicer pursuant to any credit insurance policies covering any Obligor with
respect to Receivables under such Obligor's Account.
"Interchange" shall mean interchange fees payable to any
-----------
Transferor, in its capacity as credit card issuer, through VISA U.S.A. Inc.
and MasterCard International Inc.
10
<PAGE>
"Internal Revenue Code" shall mean the Internal Revenue Code of
-----------------------
1986, as amended from time to time.
"Investment Company Act" shall mean the Investment Company Act of
-----------------------
1940, as amended from time to time.
"Investor Account" shall mean each of the Finance Charge Account,
----------------
the Principal Account and the Distribution Account.
"Investor Certificate" shall mean any one of the certificates
---------------------
(including, without limitation, the Bearer Certificates, the Registered
Certificates or the Global Certificates) issued by the Trust, executed by Bank
of America and authenticated by the Trustee substantially in the form (or forms
in the case of a Series with multiple classes) of the investor certificate
attached to the related Supplement or such other interest in the Trust deemed to
be an "Investor Certificate" in any related Supplement.
"Investor Certificateholder" shall mean the holder of record of
--------------------------
an Investor Certificate.
"Investor Charge-Off" shall have, with respect to each Series, the
--------------------
meaning specified in the applicable Supplement.
"Investor Default Amount" shall have, with respect to any Series of
------------------------
Certificates, the meaning stated in the related Supplement.
"Investor Interest" shall have, with respect to any Series of
------------------
Certificates, the meaning stated in the related Supplement.
"Investor Percentage" shall have, with respect to Principal
---------------------
Receivables, Finance Charge Receivables and Receivables in Defaulted Accounts,
and any Series of Certificates, the meaning stated in the related
Supplement.
"Late Fees" shall have the meaning specified in the Credit Card
----------
Agreement applicable to each Account for late fees or similar terms.
"Lien" shall mean any mortgage, deed of trust, pledge,
----
hypothecation, assignment, participation or equity interest, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority or
other security agreement or preferential arrangement of any kind or nature
whatsoever, including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing and the filing of any financing statement under
the UCC (other than any such financing statement filed for informational
purposes only) or comparable law of any jurisdiction to evidence any of the
foregoing; provided, however, that any assignment pursuant to Section 7.02 shall
-------- -------
not be deemed to constitute a Lien.
11
<PAGE>
"Maximum Addition Amount" shall mean, unless otherwise provided in a
-----------------------
Supplement, with respect to any Addition Date, the number of accounts originated
by the Transferors after the Cut-Off Date designated as Additional Accounts
pursuant to Section 2.06(a), (b) or (c) without prior Rating Agency confirmation
of its then existing rating of any Series of Investor Certificates then issued
and outstanding described under subsection 2.06(d)(vii) which would either (a)
with respect to any three consecutive Monthly Periods exceeds the product of (i)
15% and (ii) the number of Accounts as at the end of the ninth Monthly Period
preceding the commencement of such three Monthly Periods (or the Cut-Off Date,
in the case of 1996) or (b) with respect to any twelve Monthly Periods exceeds
the product of (i) 20% and (ii) the number of Accounts as of the first day of
such twelve Monthly Periods (or the Cut-Off Date, whichever is later); provided,
--------
however, that if the aggregate principal balance in the Additional Accounts
- -------
specified in clause (a) or clause (b) above, as the case may be, shall exceed
either (y) the product of (i) 15% and (ii) the aggregate amount of Principal
Receivables determined as of the first day of the third preceding Monthly Period
(or in the case of any Addition Date occurring on or before October 31, 1996,
the aggregate amount of Principal Receivables on the Initial Closing Date) minus
-----
the aggregate amount of Principal Receivables as of the date each such
Additional Account was added to the Trust in all of the Accounts owned by any
Transferor that have been designated as Additional Accounts since the first day
of the third preceding Monthly Period or the Initial Closing Date, as the case
may be, or (z) the product of (i) 20% and (ii) the aggregate amount of Principal
Receivables determined as of the first day of the calendar year in which such
Addition Date occurs (or in the case of an Addition Date occurring on or before
December 31, 1996, the aggregate amount of Principal Receivables on the Initial
Closing Date) minus the aggregate amount of Principal Receivables as of the date
-----
each such Additional Account was added to the Trust in all of the Accounts owned
by any Transferor after the Cut-Off Date that have been designated as Additional
Accounts since the first day of such calendar year or the Initial Closing Date,
as the case may be, the Maximum Addition Amount shall be an amount equal to the
lesser of the aggregate amount of Principal Receivables specified in either
clause (y) or clause (z) of this proviso.
"Minimum Aggregate Principal Receivables" shall mean, unless
--------------------------------------------
otherwise provided in a Supplement, as of the date of determination, an amount
equal to the sum of the numerators used to calculate the Investor Percentages
with respect to the allocation of Collections of Principal Receivables for each
Series then outstanding; provided, that with respect to any Series in its Rapid
--------
Accumulation Period or such other period as designated in the related Supplement
with an Investor Interest as of such date of determination equal to the
Principal Funding Account Balance relating to such Series taking into account
any deposit to be made to the Principal Funding Account on the Transfer Date
following such date of determination, the numerator used in the calculation of
the Investor Percentage with respect to Principal Receivables relating to such
Series shall, solely for the purpose of the definition of Minimum Aggregate
Principal Receivables, be deemed to equal zero.
12
<PAGE>
"Minimum Transferor Interest" shall mean 7% (or such other
-------------------------------
percentage as specified in the related Supplement) of the Average Principal
Receivables; provided, however, that the Transferors may reduce the Minimum
-------- -------
Transferor Interest upon (w) delivery to the Trustee of a Tax Opinion with
respect to such reduction, (x) 30 day's prior notice to the Trustee, each Rating
Agency and any Credit Enhancement Provider entitled to receive such notice
pursuant to the relevant Supplement, (y) written confirmation from each Rating
Agency that such reduction will not result in the reduction or withdrawal of the
respective ratings of such Rating Agency for any Series outstanding and (z)
delivery to the Trustee and each such Credit Enhancement Provider of an
Officer's Certificate from each Transferor stating that such Transferor
reasonably believes that such reduction will not, based on the facts known to
such officer at the time of such certification, then or thereafter cause a Pay
Out Event to occur with respect to any Series; provided further that the Minimum
-------- -------
Transferor Interest shall not at any time be less than 2% of the Average
Principal Receivables.
"Monthly Period" shall mean, unless otherwise defined in any
---------------
Supplement, the period from and including the first day of a calendar month to
and including the last day of a calendar month.
"Monthly Servicer Report" shall mean, a report substantially in the
-----------------------
form attached as Exhibit C to this Agreement, with such changes as the Servicer
may determine to be necessary or desirable; provided, however, that no such
-------- -------
change shall serve to exclude information required by this Agreement or any
Supplement.
"Moody's" shall mean Moody's Investors Service, Inc.
-------
"New Issuance" shall have the meaning specified in subsection
------------
6.09(b).
"New Issuance Date" shall have the meaning specified in
-----------------
subsection 6.09(b).
"New Issuance Notice" shall have the meaning specified in
-------------------
subsection 6.09(b).
"Notice Date" shall have the meaning specified in subsection
-----------
2.06(d)(i).
13
<PAGE>
"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 any Vice
----------------------
President or more senior officer of a Transferor or Servicer and delivered to
the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who
------------------
may be counsel for or an employee of the Person providing the opinion, and who
shall be reasonably acceptable to the Trustee; provided, however, that any Tax
-------- -------
Opinion or other opinion relating to federal income tax matters shall be an
opinion of nationally recognized tax counsel.
"Overlimit Fees" shall have the meaning specified in the Credit Card
--------------
Agreement applicable to each Account for overlimit fees or similar terms.
"Paired Series" shall mean (i) each Series which has been paired
--------------
with another Series (which Series may be prefunded or partially prefunded), such
that the reduction of the Investor Interest or Adjusted Investor Interest of
such Series results in the increase of the Investor Interest of such other
Series, as described in the related Supplements, and (ii) such other Series.
"Participating Transferor" shall have the meaning specified in
------------------------
subsection 2.06(d)(i).
"Participations" shall have the meaning specified in subsection
--------------
2.06(a)(ii).
"Pay Out Commencement Date" shall mean, (a) with respect to each
---------------------------
Series, the date on which a Trust Pay Out Event is deemed to occur pursuant to
Section 9.01 and (b) with respect to any Series, the date on which a Series Pay
Out Event is deemed to occur pursuant to the Supplement for such Series.
"Pay Out Event" shall mean, with respect to each Series, a Trust Pay
-------------
Out Event or a Series Pay Out Event.
"Paying Agent" shall mean any paying agent appointed pursuant to
-------------
Section 6.06 and shall initially be the Trustee.
"Periodic Finance Charges" shall have the meaning specified in the
-------------------------
Credit Card Agreement applicable to each Account for finance charges (due to
periodic rate) or any similar term.
"Permitted Investments" shall mean, unless otherwise provided in the
---------------------
Supplement with respect to any Series, (a) book-entry securities or negotiable
instruments or securities represented by instruments in bearer or registered
form which evidence (i) obligations of or fully guaranteed by the United States
of America; (ii) demand deposits, time deposits or certificates of deposit of
any depositary institution or trust company incorporated under the laws of the
14
<PAGE>
United States of America or any state thereof (or domestic branches of foreign
depository institutions or trust companies) and subject to supervision and
examination by federal or state banking or depositary institution authorities;
provided, however, that at the time of the Trust's investment or contractual
- -------- -------
commitment to invest therein, the certificates of deposit or short-term deposits
of such depositary institution or trust company shall have a credit rating from
Fitch (if then rated by Fitch), Moody's and Standard & Poor's of F-1, P-1 and
A-1+, respectively; (iii) commercial paper, bank notes or any other debt
obligation having, at the time of the Trust's investment or contractual
commitment to invest therein, a rating from Fitch (if then rated by Fitch),
Moody's and Standard & Poor's of F-1, P-1 and A-1+, respectively; (iv) bankers'
acceptances issued by any depository institution or trust company described in
clause (a)(ii) above; and (v) repurchase agreements transacted with either (A)
an entity subject to the United States Bankruptcy Code or (B) a financial
institution insured by the FDIC or a broker-dealer with retail customers that is
under the jurisdiction of the Securities Investors Protection Corp., in each
case having a rating from Fitch (if then rated by Fitch), Moody's and Standard &
Poor's of F-1, P-1 and A-1+, respectively; (b) demand deposits in the name of
the Trust or the Trustee in any depositary institution or trust company referred
to in clause (a)(ii) above; (c) any other investment if each Rating Agency
confirms in writing that such investment will not adversely affect its then
current rating of the Investor Certificates, provided that such investment will
not cause the Trust to be treated as an "investment company" within the meaning
of the Investment Company Act of 1940, as amended.
"Person" shall mean any legal person, including any individual,
------
corporation, limited liability company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, governmental entity or
other entity of similar nature.
"Pool Index File" shall mean the file on each Transferor's computer
---------------
system that identifies MasterCard and VISA accounts of such Transferor, which
file is designated by such Transferor as its "Pool Index File."
"Principal Account" shall have the meaning specified in
-----------------
subsection 4.02(b).
"Principal Funding Account" shall have the meaning specified in
-------------------------
the related Supplement.
"Principal Funding Account Balance" shall have the meaning specified
---------------------------------
in the related Supplement.
"Principal Receivable" shall mean each Receivable other than (i)
---------------------
Finance Charge Receivables, and (ii) Receivables in Defaulted Accounts. A
Receivable shall be deemed to have been created at the end of the day on the
Date of Processing of such Receivable. In calculating the aggregate amount of
Principal Receivables on any day, the amount of Principal Receivables shall be
reduced by the aggregate amount of credit balances in the Accounts on such day.
Any Receivables which the related Transferor is unable to transfer as provided
in subsection 2.05(d) shall not be included in calculating the aggregate amount
of Principal Receivables.
15
<PAGE>
"Principal Shortfalls" shall mean, with respect to a Transfer Date,
---------------------
the aggregate amount for all outstanding Series that the related Supplements
specify are "Principal Shortfalls" for such Transfer Date.
"Principal Terms" shall have the meaning, with respect to any Series
---------------
issued pursuant to a New Issuance, specified in subsection 6.09(c).
"Private Holder" shall mean each holder of a right to receive
---------------
interest or principal in respect of any direct or indirect interest in the Trust
including any financial instrument or contract the value of which is determined
in whole or in part by reference to the Trust (including the Trust's assets,
income or the Trust or distributions made by the Trust), excluding any interest
in the Trust represented by any Series or Class of Investor Certificates or any
other interest as to which the Transferor has provided to the Trustee an Opinion
of Counsel to the effect that such Series, Class or other interest will be
treated as debt or otherwise not as an equity interest in either the Trust or
the Receivables for federal income tax purposes, in each case, provided such
interest is not convertible or exchangeable into an interest in the Trust or the
Trust's income or equivalent value. Notwithstanding the immediately preceding
sentence, "Private Holder" shall also include any other Person that the
Transferor determines is (or may be) a "partner" within the meaning of Treasury
Regulation section 1.7704-1(h)(1)(ii) (including by reason of section
1.7704-1(h)(3)). Initially, the Private Holders include the holders of the
Transferor Certificate or any interest therein, of any Collateral Interest, of
any Enhancement Invested Amount, and of any similar interests in the Trust
represented by any other Class of any Series of Certificates, and the Servicer.
Any Person holding more than one interest in the Trust each of which separately
would cause such Person to be a Private Holder shall be treated as a single
Private Holder. Each holder of an interest in a Private Holder which is a
partnership, S corporation or grantor trust under the Internal Revenue Code
shall be treated as a Private Holder unless excepted with the consent of the
Transferor (which consent shall be based on an Opinion of Counsel generally to
the effect that the action taken pursuant to the consent will not cause the
Trust to become a publicly traded partnership treated as a corporation for
federal income tax purposes).
"Qualified Institution" shall mean (i) a depositary institution,
----------------------
which may include the Trustee, organized under the laws of the United States or
any one of the States thereof including the District of Columbia, the deposits
in which are insured by the FDIC and which at all times has a short-term
unsecured debt rating of at least A-1+ by Standard & Poor's and P-1 by Moody's
or (ii) a depositary institution acceptable to each Rating Agency, such
acceptance to be evidenced in writing; provided, however, that an institution
-------- -------
16
<PAGE>
which shall have corporate trust powers and which maintains the Collection
Account, the Principal Account, the Finance Charge Account, any Series Account
or any other account maintained for the benefit of Certificateholders as a fully
segregated trust account with the trust department of such institution shall not
be required to meet the foregoing rating requirements, and need only at all
times have a long-term unsecured debt rating of at least Baa3 by Moody's so long
as Moody's is a Rating Agency.
"Rapid Accumulation Period" shall have the meaning, with respect to
-------------------------
any Series, specified in the Supplement relating to such Series.
"Rating Agency" shall mean, with respect to each Series, the rating
-------------
agency or agencies, if any, selected by the Transferors to rate the
Certificates, as specified in the related Supplement.
"Reassignment" shall have the meaning specified in subsection
------------
2.07(b)(ii).
"Reassignment Date" shall have the meaning specified in
-----------------
subsection 2.04(e).
"Receivable" shall mean any amount owing by an Obligor under an
----------
Account including, without limitation, amounts owing for the payment of goods
and services, cash advances, access checks, Annual Membership Fees, Cash Advance
Fees, Periodic Finance Charges, Late Payment Fees and credit insurance premiums
and Special Fees, if any.
"Record Date" shall mean, with respect to any Distribution Date, the
-----------
last Business Day of the preceding Monthly Period.
"Recoveries" shall mean all amounts received (net of out-of-pocket
----------
costs of collections) including Insurance Proceeds, with respect to Receivables
in Defaulted Accounts and the proceeds of the transfer of any credit card
account that was removed as a Zero Balance Account pursuant to subsection
2.07(a), provided that for so long as such amounts cannot be traced to specific
receivables, including the Receivables, Recoveries shall mean such amount
allocated to the Receivables as the Servicer shall reasonably estimate, on or
prior to each Determination Date.
"Registered Certificates" shall have the meaning specified in
-----------------------
Section 6.01.
17
<PAGE>
"Removal Date" shall mean the date on which Receivables in certain
-------------
designated Removed Accounts will be reassigned by the Trustee to the related
Transferor.
"Removal Notice Date" shall have the meaning specified in Section
-------------------
2.07(a).
"Removed Accounts" shall have the meaning specified in subsection
----------------
2.07(a).
"Requirements of Law" for any Person shall mean the certificate of
--------------------
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or to which such Person is subject,
whether federal, state or local (including, without limitation, usury laws, the
Federal Truth in Lending Act and Regulation Z and Regulation B of the Board of
Governors of the Federal Reserve System).
"Responsible Officer" shall mean any officer within the Corporate
--------------------
Trust Office (or any successor group of the Trustee), including any Vice
President, any Assistant Secretary or any other officer of the Trustee
customarily performing functions similar to those performed by any person who at
the time shall be an above-designated officer and also, with respect to a
particular officer to whom any corporate trust matter is referred because of
such officer's knowledge of and familiarity with the particular subject.
"Returned Check Charges" shall have the meaning specified in the
------------------------
Credit Card Agreement applicable to each Account for returned payment check fees
or similar terms.
"Revolving Period" shall have, with respect to each Series, the
-----------------
meaning specified in the related Supplement.
"Securities Act" shall mean the Securities Act of 1933, as
--------------
amended.
"Series" shall mean any series of Investor Certificates, which may
------
include within any such Series a Class or Classes of Investor Certificates
subordinate to another such Class or Classes of Investor Certificates.
"Series Account" shall mean any account or accounts established
---------------
pursuant to a Supplement for the benefit of such Series.
"Series Pay Out Event" shall have, with respect to any Series, the
--------------------
meaning specified pursuant to the Supplement for the related Series.
18
<PAGE>
"Series Servicing Fee Percentage" shall mean, with respect to any
---------------------------------
Series, the amount specified in the related Supplement.
"Series Termination Date" shall mean, with respect to any Series of
------------------------
Certificates, the date stated in the related Supplement.
"Service Transaction Fees" shall have the meaning specified in the
--------------------------
Credit Card Agreement applicable to each Account for any service transaction
fees or similar terms.
"Servicer" shall mean initially Bank of America National
--------
Association, and its permitted successors and assigns and thereafter any Person
appointed as successor as herein provided to service the Receivables.
"Servicer Default" shall have the meaning specified in Section
----------------
10.01.
"Servicing Fee" shall have the meaning specified in Section 3.02.
-------------
"Servicing Officer" shall mean any officer of the Servicer involved
------------------
in, or responsible for, the administration and servicing of the Receivables
whose name appears on a list of servicing officers furnished to the Trustee by
the Servicer, as such list may from time to time be amended.
"Shared Excess Finance Charge Collections" shall mean, with respect
-----------------------------------------
to any Transfer Date, the aggregate amount for all outstanding Series that the
related Supplements specify are to be treated as "Shared Excess Finance Charge
Collections" for such Transfer Date.
"Shared Principal Collections" shall mean, with respect to any
------------------------------
Transfer Date, the aggregate amount for all outstanding Series that the related
Supplements specify are to be treated as "Shared Excess Principal Collections"
for such Transfer Date.
"Special Fees" shall mean Receivables which are Draft Fees, Service
------------
Transaction Fees and any other fees which are not now but from time to time may
be assessed on the Accounts. On or after the date on which any of such Special
Fees begin to be assessed on the Accounts, each Transferor may designate in an
Officer's Certificate whether such Special Fees charged by such Transferor shall
be treated as Principal Receivables or Finance Charge Receivables.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services.
-----------------
"Successor Servicer" shall have the meaning specified in
------------------
subsection 10.02(a).
19
<PAGE>
"Supplement" or "Series Supplement" shall mean, with respect to any
---------- ------------------
Series, a supplement to this Agreement complying with the terms of Section 6.09
of this Agreement, executed in conjunction with any issuance of any Series of
Certificates (or, in the case of the issuance of Certificates on the Initial
Closing Date, the supplement executed in connection with the issuance of such
Certificates).
"Supplemental Certificate" shall have the meaning specified in
------------------------
subsection 6.09(d).
"Tax Opinion" shall mean with respect to any action, an Opinion of
-----------
Counsel to the effect that, for federal income tax purposes, (a) such action
will not adversely affect the tax characterization as debt of Investor
Certificates of any outstanding Series or Class that were debt for federal
income tax purposes at the time of their issuance, (b) following such action the
Trust will not be deemed to be an association (or publicly traded partnership)
taxable as a corporation and (c) such action will not cause or constitute an
event in which gain or loss would be recognized by any holder of Investor
Certificates of any outstanding Series or Class that were debt for federal
income tax purposes at the time of their issuance.
"Termination Notice" shall have, with respect to any Series, the
-------------------
meaning specified in subsection 10.01(d).
"Transfer Agent and Registrar" shall have the meaning specified in
----------------------------
Section 6.03 and shall initially be the Trustee's Corporate Trust Office.
"Transfer Date" shall mean, unless otherwise specified in the
--------------
related Supplement, with respect to any Series, the Business Day immediately
prior to each Distribution Date.
"Transferors" shall mean, as of any date of determination, Bank of
-----------
America National Association, a national banking association and its successors
in interest and permitted assigns and each Additional Transferor, if any, as of
such date.
"Transferor Certificate" shall mean collectively, the certificate
-----------------------
executed by Bank of America and authenticated by the Trustee, substantially in
the form of Exhibit A.
"Transferor Interest" shall mean, on any date of determination, the
-------------------
aggregate amount of Principal Receivables and the principal amount on deposit in
any Principal Funding Account (as defined in any Supplement) at the end of the
day immediately prior to such date of determination, minus the Aggregate
-----
Investor Interest at the end of such day, minus the aggregate Enhancement
-----
Invested Amounts, if any, for each Series outstanding at the end of such day,
minus the aggregate Collateral Interests not included in the Aggregate Investor
- -----
Interests, if any, for each Series outstanding at the end of such day.
20
<PAGE>
"Transferor Percentage" shall mean, on any date of determination,
----------------------
when used with respect to Principal Receivables, Finance Charge Receivables and
Receivables in Defaulted Accounts, a percentage equal to 100% minus the
-----
Aggregate Investor Percentage with respect to such categories of Receivables.
"Transferor Servicing Fee" shall have the meaning specified in
------------------------
Section 3.02.
"Transferred Account" shall mean (a) an Account with respect to
--------------------
which a new credit card account number has been issued by the Servicer or a
Transferor under circumstances resulting from a lost or stolen credit card or
from the transfer from one program to another program and not requiring standard
application and credit evaluation procedures under the Credit Card Guidelines or
(b) an Eligible Account resulting from the conversion of an Account that was a
standard account to a premium account or from a premium account to a standard
account, and which in either case can be traced or identified in the Pool Index
File with the designation of either "I", "WG", or such other designation as the
Transferor shall have given the Trustee notice as provided in Section 2.01, as a
Transferred Account into which an Account has been transferred by reference to
or by way of the computer files or microfiche lists delivered to the Trustee
pursuant to Section 2.01 or 2.06; provided, however, that the new account
-------- -------
resulting from the issuance of such new credit card account number or such
conversion, as the case may be, shall be a Transferred Account only to the
extent that on the date such new credit card account number was issued or such
conversion was completed, the computer system on which such new account is
serviced is compatible, as determined by the Servicer, with the reporting
requirements of the Trust.
"Trust" shall mean the trust created by this Agreement, the corpus
-----
of which shall consist of the Receivables now existing or hereafter created and
arising in connection with the Accounts, the Participations, if any, all monies
due or to become due with respect to the Receivables and the Participations, all
proceeds (as defined in Section 9-306 of the UCC as in effect in the applicable
jurisdiction) of the Receivables, Recoveries and Insurance Proceeds relating to
the Receivables, the right to receive certain amounts paid or payable as
Interchange (if provided for in any Supplement), such funds as from time to time
are deposited in the Collection Account, the Finance Charge Account, the
Principal Account, the Distribution Account and any Series Account and the
rights to any Credit Enhancement with respect to any Series.
"Trust Extension" shall have the meaning specified in subsection
---------------
12.01(a).
"Trust Pay Out Event" shall have, with respect to each Series, the
-------------------
meaning specified in Section 9.01.
21
<PAGE>
"Trust Termination Date" shall mean the earliest to occur of (i)
------------------------
unless a Trust Extension shall have occurred, the first Business Day after the
Distribution Date on which the Investor Interest, the Collateral Interest, the
Enhancement Invested Amount and any other interest issued by the Trust, as
applicable, for each Series is zero, (ii) if a Trust Extension shall have
occurred, the Extended Trust Termination Date, (iii) June 30, 2026 and (iv) the
date of any termination pursuant to Section 9.02.
"Trustee" shall mean First Bank National Association, a national
-------
banking association, and its successors and any corporation resulting from or
surviving any consolidation or merger to which it or its successors may be a
party and any successor trustee appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from time
---
to time, as in effect in any specified jurisdiction.
"Undivided Interest" shall mean the undivided interest in the Trust
-------------------
evidenced by an Investor Certificate.
"Zero Balance Account" shall mean an Account with a Receivable
----------------------
balance of zero which the Servicer may remove from its computer master file of
VISA and MasterCard accounts.
Section 1.02 Other Definitional Provisions .
-----------------------------
(a) All terms defined in any Supplement or 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 partially defined in Section 1.01 to the extent not
defined, shall have the respective meanings given to them under generally
accepted accounting principles or regulatory accounting principles, as
applicable. To the extent that the definitions of accounting terms herein are
inconsistent with the meanings of such terms under generally accepted accounting
principles or regulatory accounting principles, the definitions contained herein
shall control.
(c) The agreements, representations and warranties of Bank of
America and any Additional Transferor in this Agreement and in any Supplement in
each of its capacities as Transferor and, in the case of Bank of America, as
Servicer shall be deemed to be the agreements, representations and warranties of
Bank of America and such Additional Transferor solely in each such capacity for
so long as Bank of America and such Additional Transferor, as the case may be,
acts in each such capacity under this Agreement.
22
<PAGE>
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to any Supplement or this
Agreement as a whole and not to any particular provision of this Agreement or
any Supplement; and Section, subsection, Schedule and Exhibit references
contained in this Agreement or any Supplement are references to Sections,
subsections, Schedules and Exhibits in or to this Agreement or any Supplement
unless otherwise specified. The Servicer shall, upon making such determination,
deliver to the Trustee and each Rating Agency an Officer's Certificate to which
shall be annexed the form of the related Exhibit, as so changed. Upon the
delivery of such Officer's Certificate to the Trustee, the related Exhibit, as
so changed, shall for all purposes of this Agreement constitute such Exhibit.
The Trustee may conclusively rely upon such Officer's Certificate in determining
whether the related Exhibit, as changed, conforms to the requirements of this
Agreement.
[End of Article I]
23
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ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Receivables . Each Transferor does hereby
-------------------------
irrevocably (subject to the terms hereof) transfer, assign, set-over, and
otherwise convey to the Trust for the benefit of the Certificateholders, without
recourse, all of its right, title and interest in and to all amounts, contract
rights, accounts, general intangibles, money and other property consisting of,
arising from or related to the Receivables existing as of the beginning of the
day on the Cut-Off Date, in the case of Receivables arising in the initial
Accounts, and as of the beginning of the day on each Addition Cut-Off Date, in
the case of Receivables arising in the Additional Accounts relating to such
Addition Cut-Off Date, and in each case thereafter created from time to time
until the termination of the Trust, all monies due or to become due with respect
to such Receivables (including all Finance Charge Receivables), all amounts
received with respect thereto, proceeds of such Receivables, Insurance Proceeds
relating to such Receivables and all proceeds of any of the foregoing.
In connection with such transfer, assignment, set-over and
conveyance, each of the Transferors agrees to record and file, at its own
expense, financing statements (including any continuation statements with
respect to such financing statements when applicable) meeting the requirements
of applicable state law in such manner and in such jurisdictions as are
necessary to perfect the assignment of the Receivables and the proceeds thereof
to the Trust, and to deliver a file-stamped copy of such financing statements or
continuation statements or other evidence of such filing (which may, for
purposes of this Section 2.01, consist of telephone confirmation of such filing)
to the Trustee on or prior to the date of issuance of the Certificates, and in
the case of any continuation statements filed pursuant to this Section 2.01, as
soon as practicable after receipt thereof by any Transferor. The foregoing
transfer, assignment, set-over and conveyance to the Trust shall be made to the
Trustee, on behalf of the Trust, and each reference in this Agreement to such
transfer, assignment, set-over and conveyance shall be construed accordingly.
In connection with such transfer, each of the Transferors agrees, at
its own expense, on or prior to the Initial Closing Date (i) to indicate in the
Pool Index File maintained in its computer files that Receivables created in
connection with the Accounts have been transferred to the Trust pursuant to this
Agreement for the benefit of the Certificateholders by identifying such Accounts
in the Pool Index File with the designation of either "I" or "WG" and (ii) to
deliver to the Trustee a computer file or microfiche list containing a true and
complete list of all such Accounts, identified by account number and setting
forth the Receivable balance as of the Cut-Off Date. Such file or list shall be
marked as Schedule 1 to this Agreement, delivered to the Trustee as confidential
and proprietary, and is hereby incorporated into and made a part of this
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Agreement. The Transferor further agrees not to alter the file designation
referenced in clause (i) of this paragraph in a way that would cause such
Account not to have the designation of either "I" or "WG" with respect to any
Account during the term of this Agreement unless and until such Account becomes
a Removed Account or a Zero Balance Account or unless and until (y) the
Transferor shall give written notice of any such alteration to the Trustee, such
written notice to be as of the date of its receipt by the Trustee incorporated
into and made part of this Agreement, and (z) the Trustee and the Transferors
shall execute and file any UCC financing statement or amendment thereof
necessitated by such alteration. The Transferors shall hold such information
with respect to the Accounts and Transferred Accounts, prior to delivery thereof
to the Trustee, in trust for the benefit of the Trustee, on behalf of the Trust.
If, and to the extent that, such transfer is not deemed to be a sale
or if for any reason any Receivable is held to be property of a Transferor, then
each Transferor shall be deemed to have hereby granted to the Trustee a first
priority perfected security interest in all of such Transferor's right, title
and interest whether now owned or hereafter acquired in, to and under the
Receivables existing as of the beginning of the day on the Cut-Off Date, in the
case of the Receivables arising in the initial Accounts, and as of the beginning
of the day on each Addition Cut-Off Date, in the case of the Receivables arising
in the Additional Accounts relating to such Addition Cut-Off Date, and in each
case thereafter created from time to time until the termination of the Trust,
all monies due or to become due with respect to such Receivables (including all
Finance Charge Receivables), all proceeds of such Receivables and all Insurance
Proceeds relating to such Receivables and all proceeds thereof, and that this
Agreement shall constitute a security agreement under applicable law.
Pursuant to the request of the Transferor, the Trustee shall cause
Certificates in authorized denominations evidencing the entire interest in the
Trust to be duly authenticated and delivered to or upon the order of the
Transferor pursuant to Section 6.02.
Section 2.02 Acceptance by Trustee .
---------------------
(a) The Trustee hereby acknowledges its acceptance, on behalf of the
Trust, of all right, title and interest to the property now existing and
hereafter created, conveyed to the Trust pursuant to Section 2.01, and declares
that it shall maintain such right, title and interest, upon the Trust herein set
forth, for the benefit of all Certificateholders. The Trustee further
acknowledges that, prior to or simultaneously with the execution and delivery of
this Agreement, the Transferors delivered to the Trustee the computer file or
microfiche list described in the third paragraph of Section 2.01.
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<PAGE>
(b) The Trustee hereby agrees not to disclose to any Person any of
the account numbers or other information contained in the computer files or
microfiche lists delivered to the Trustee by any Transferor pursuant to Sections
2.01, 2.06 and 2.07 ("Account Information") except as is required in connection
with the performance of its duties hereunder or in enforcing the rights of the
Certificateholders or to a Successor Servicer appointed pursuant to Section
10.02, as mandated pursuant to any Requirement of Law applicable to the Trustee
or as requested by any Person, free of charge, in connection with financing
statements filed with respect to the Trust. The Trustee agrees to take such
measures as shall be reasonably requested by any Transferor to protect and
maintain the security and confidentiality of such information, and, in
connection therewith, shall allow each Transferor to inspect the Trustee's
security and confidentiality arrangements from time to time during normal
business hours. In the event that the Trustee is required by law to disclose any
Account Information, the Trustee shall provide the related Transferor and the
Servicer with prompt written notice, unless such notice is prohibited by law, of
any such request or requirement so that such Transferor may request a protective
order or other appropriate remedy. The Trustee shall provide each related
Transferor with written notice no later than five days prior to any disclosure
pursuant to this subsection 2.02(b).
(r) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
Section 2.03 Representations and Warranties of the Transferors .
----------------------------------------------------
Bank of America, as a Transferor hereby represents and warrants to the Trust as
of the Initial Closing Date and each Additional Transferor hereby represents and
warrants to the Trust as of the date such Additional Transferor becomes a
Transferor:
(a) Organization and Good Standing. Such Transferor is a national
-------------------------------
banking association duly organized and validly existing in good standing under
the laws of the United States and has full corporate power, authority and legal
right to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement and to execute and
deliver to the Trustee the Certificates pursuant hereto.
(b) Due Qualification. Such Transferor is duly qualified to do
------------------
business and is in good standing (or is exempt from such requirement) in any
state required in order to conduct its business, and has obtained all necessary
licenses and approvals with respect to such Transferor required under federal
and applicable state law; provided, however, that no representation or warranty
-------- -------
26
<PAGE>
is made with respect to any qualifications, licenses or approvals which the
Trustee would have to obtain to do business in any state in which the Trustee
seeks to enforce any Receivable.
(c) Due Authorization. The execution and delivery of this Agreement
-----------------
by such Transferor and, in the case of Bank of America, the execution and
delivery to the Trustee of the Certificates and the consummation by such
Transferor of the transactions provided for in this Agreement have been duly
authorized by such Transferor by all necessary corporate action on its part and
this Agreement will remain, from the time of its execution, an official record
of such Transferor.
(d) No Conflict. The execution and delivery of this Agreement and,
-----------
in the case of Bank of America, the Certificates, the performance of the
transactions contemplated by this Agreement and the fulfillment of the terms
hereof will not conflict with, result in any breach of any of the material terms
and provisions of, or constitute (with or without notice or lapse of time or
both) a material default under, any indenture, contract, agreement, mortgage,
deed of trust, or other instrument to which such Transferor is a party or by
which it or any of its properties are bound.
(e) No Violation. The execution and delivery of this Agreement and,
------------
in the case of the Bank of America, the Certificates, the performance of the
transactions contemplated by this Agreement and the fulfillment of the terms
hereof will not conflict with or violate any Requirements of Law applicable to
such Transferor.
(f) No Proceedings. There are no proceedings or investigations
---------------
pending or, to the best knowledge of such Transferor, threatened against such
Transferor before any court, regulatory body, administrative agency, or other
tribunal or governmental instrumentality (i) asserting the invalidity of this
Agreement or the Certificates, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated by this
Agreement or the Certificates, (iii) seeking any determination or ruling that,
in the reasonable judgment of such Transferor, would materially and adversely
affect the performance by such Transferor of its obligations under this
Agreement, (iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement or the
Certificates or (v) seeking to affect adversely the income tax attributes of the
Trust.
(g) Eligibility of Accounts. As of the Cut-Off Date, each Account
-----------------------
was an Eligible Account and no selection procedures adverse to the Investor
Certificateholders have been employed by the Transferors in selecting the
Accounts from among the Eligible Accounts in the Identified Pool.
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<PAGE>
(h) Transferor's Deposit Accounts. Deposits in such
-----------------------------
Transferor's deposit accounts were insured by the FDIC to the limits provided
by law.
(i) All Consents Required. All approvals, authorizations, consents,
---------------------
orders or other actions of any Person or of any governmental body or official
required in connection with the execution and delivery of this Agreement and, in
the case of Bank of America the Certificates, the performance of the
transactions contemplated by this Agreement and the fulfillment of the terms
hereof, have been obtained.
For the purposes of the representations and warranties contained in
this Section 2.03 and made by Bank of America on the Initial Closing Date,
"Certificates" shall mean the Certificates issued on the Initial Closing Date.
The representations and warranties set forth in this Section 2.03 shall survive
the transfer and assignment of the respective Receivables to the Trust, and
termination of the rights and obligations of the Servicer pursuant to Section
10.01. Each Transferor hereby represents and warrants to the Trust, with respect
to any Series of Certificates, as of its Closing Date, unless otherwise stated
in the related Supplement, that the representations and warranties of the
Transferor set forth in Section 2.03 are true and correct as of such date (for
the purposes of such representations and warranties, "Certificates" shall mean
the Certificates issued on the related Closing Date). Upon discovery by the
Transferor, the Servicer or the Trustee of a breach of any of the foregoing
representations and warranties, the party discovering such breach shall give
prompt written notice to each of the other parties hereto.
Section 2.04 Representations and Warranties of the Transferor
-----------------------------------------------------
Relating to this Agreement and the Receivables .
- ----------------------------------------------
(a) Binding Obligation; Valid Transfer and Assignment. Bank of
------------------------------------------------------
America hereby represents and warrants to the Trust as of the Initial Closing
Date and each Additional Transferor hereby represents and warrants to the Trust
as of the date such Additional Transferor becomes a Transferor:
(i) This Agreement constitutes a legal, valid and binding obligation
of such Transferor, enforceable against such Transferor in accordance with
its terms, except (A) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect affecting the enforcement of creditors' rights
in general and the rights of creditors of national banking associations,
and (B) as such enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity).
(ii) This Agreement constitutes either (A) a valid transfer,
assignment, set-over and conveyance to the Trust of all right, title and
interest of such Transferor in and to the Receivables existing as of the
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<PAGE>
beginning of the day on the Cut-Off Date, in the case of the Receivables
arising in the initial Accounts, and as of the beginning of the day on
each Addition Cut-Off Date, in the case of the Receivables arising in the
Additional Accounts relating to such Addition Cut-Off Date, and in each
case thereafter created from time to time until the termination of the
Trust, all monies due or to become due with respect to such Receivables
(including all Finance Charge Receivables), all amounts received with
respect thereto, all proceeds of such Receivables, Insurance Proceeds
relating thereto and the proceeds thereof and all of such property will be
held by the Trust free and clear of any Lien of any Person claiming
through or under such Transferor or any of its Affiliates except for (x)
Liens permitted under subsection 2.05(b), (y) the interest of the
Transferors as Holder of the Transferor Certificate or any Holder of a
Supplemental Certificate and (z) such Transferor's right, if any, to
interest accruing on, and investment earnings, if any, in respect of the
Finance Charge Account, the Principal Account or any Series Account, as
provided in this Agreement or the related Supplement, or (B) a grant of a
security interest (as defined in the UCC as in effect in the applicable
jurisdiction) in such property to the Trust, which is enforceable with
respect to the existing Receivables, the proceeds thereof and Insurance
Proceeds relating thereto upon execution and delivery of this Agreement,
and which will be enforceable with respect to such Receivables hereafter
created, the proceeds thereof and Insurance Proceeds relating thereto,
upon such creation. If this Agreement constitutes the grant of a security
interest to the Trust in such property, upon the filing of the financing
statements described in Section 2.01 and in the case of the Receivables
hereafter created and proceeds thereof and Insurance Proceeds relating
thereto, upon such creation, the Trust shall have a first priority
perfected security interest in such property (subject to Section 9-306 of
the UCC as in effect in the applicable jurisdiction), except for Liens
permitted under subsection 2.05(b). Neither the Transferor nor any Person
claiming through or under the Transferor shall have any claim to or
interest in the Principal Account, the Finance Charge Account, the
Distribution Account or any Series Account, except for the Transferor's
rights to receive interest accruing on, and investment earnings in respect
of, the Finance Charge Account and Principal Account as provided in this
Agreement (or, if applicable, any Series Account as provided in any
Supplement) and, if this Agreement constitutes the grant of a security
interest in such property, except for the interest of such Transferor in
such property as a debtor for purposes of the UCC as in effect in the
applicable jurisdiction.
29
<PAGE>
(b) Eligibility of Receivables. Bank of America hereby represents
--------------------------
and warrants to the Trust as of the Initial Closing Date and as of each Addition
Date on which Bank of America is a Participating Transferor, as the case may be,
and each Additional Transferor hereby represents and warrants to the Trust as of
the date such Additional Transferor becomes a Transferor and as of each Addition
Date on which such Additional Transferor is a Participating Transferor, that:
(i) Each Receivable conveyed to the Trust by such Transferor is an
Eligible Receivable as of the Cut-Off Date or the Addition Cut-Off Date,
as applicable.
(ii) Each Receivable conveyed to the Trust by such Transferor then
existing has been conveyed to the Trust by such Transferor free and clear
of any Lien of any Person claiming through or under such Transferor or any
of its Affiliates (other than Liens permitted under subsection 2.05(b))
and in compliance, in all material respects, with all Requirements of Law
applicable to such Transferor.
(iii) With respect to each Receivable conveyed to the Trust by such
Transferor then existing, all consents, licenses, approvals or
authorizations of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by such Transferor in
connection with the conveyance of such Receivable to the Trust have been
duly obtained, effected or given and are in full force and effect.
(iv) On each day on which any new Receivable conveyed to the Trust
by such Transferor is created, such Transferor shall be deemed to
represent and warrant to the Trust that (A) each such Receivable created
on such day is an Eligible Receivable, (B) each Receivable created on such
day has been conveyed to the Trust in compliance, in all material
respects, with all Requirements of Law applicable to the Transferor, (C)
with respect to each such Receivable, all consents, licenses, approvals or
authorizations of or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by such Transferor in
connection with the conveyance of such Receivable to the Trust have been
duly obtained, effected or given and are in full force and effect and (D)
the representations and warranties set forth in subsection 2.04(a) are
true and correct with respect to each Receivable created on such day as if
made on such day.
(v) As of the Initial Closing Date, Schedule 1 to this Agreement,
and as of the applicable Addition Date with respect to Additional Accounts
(other than Automatic Additional Accounts), and as of the last day of each
calendar quarter during which Automatic Additional Accounts have been
designated pursuant to Section 2.06(c), the related computer file or
microfiche list referred to in Section 2.06, is an accurate and complete
30
<PAGE>
listing in all material respects of all the Accounts as of the Cut-Off
Date, or with respect to Additional Accounts, as of the applicable
Addition Cut-Off Date (or calendar quarter end, as applicable), and the
information contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is true and correct in
all material respects as of the Cut-Off Date or such applicable Addition
Cut-Off Date. As of the Cut-Off Date, the aggregate amount of Receivables
in all the Accounts was $4,019,715,009, of which $3,969,685,619 were
Principal Receivables.
(c) Notice of Breach. The representations and warranties set forth
----------------
in this Section 2.04 shall survive the transfer and assignment of the respective
Receivables to the Trust. Upon discovery by a Transferor, the Servicer or the
Trustee of a breach of any of the representations and warranties set forth in
this Section 2.04, the party discovering such breach shall give prompt written
notice to the other parties mentioned above. Each Transferor agrees to cooperate
with the Servicer and the Trustee in attempting to cure any such breach.
(d) Transfer of Ineligible Receivables.
----------------------------------
(i) Automatic Removal. In the event of a breach with respect to a
------------------
Receivable of any representations and warranties set forth in subsection
2.04(b)(ii), or in the event that a Receivable is not an Eligible
Receivable as a result of the failure to satisfy the conditions set forth
in clause (d) of the definition of Eligible Receivable, and any of the
following three conditions is met: (A) as a result of such breach or event
such Receivable is charged off as uncollectible or the Trust's rights in,
to or under such Receivable or its proceeds are impaired or the proceeds
of such Receivable are not available for any reason to the Trust free and
clear of any Lien; (B) the Lien upon the subject Receivable (1) arises in
favor of the United States of America or any State or any agency or
instrumentality thereof and involves taxes or liens arising under Title IV
of ERISA or (2) has been consented to by the Transferor which transferred
such Receivable to the Trust; or (C) the unsecured short-term debt rating
of the Transferor which transferred such Receivable to the Trust is not at
least P-1 by Moody's and the Lien upon the subject Receivable ranks prior
to the Lien created pursuant to this Agreement; then, upon the earlier to
occur of the discovery of such breach or event by the Transferor or the
Servicer or receipt by the Transferor which transferred such Receivable to
the Trust of written notice of such breach or event given by the Trustee,
each such Receivable shall be automatically removed from the Trust on the
terms and conditions set forth in subsection 2.04(d)(iii).
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<PAGE>
(ii) Removal After Cure Period. In the event of a breach of any of
--------------------------
the representations and warranties set forth in subsection 2.04(b) other
than a breach or event as set forth in clause (d)(i) above, and as a
result of such breach the related Account becomes a Defaulted Account or
the Trust's rights in, to or under the Receivable or its proceeds are
impaired or the proceeds of such Receivable are not available for any
reason to the Trust free and clear of any Lien, then, upon the expiration
of 60 days (or such longer period as may be agreed to by the Trustee in
its sole discretion, but in no event later than 120 days) from the earlier
to occur of the discovery of any such event by either the Transferor which
transferred such Receivable to the Trust or the Servicer, or receipt by
the Transferor which transferred such Receivable to the Trust of written
notice of any such event given by the Trustee, each such Receivable shall
be removed from the Trust on the terms and conditions set forth in
subsection 2.04(d)(iii); provided, however, that no such removal shall be
-------- -------
required to be made if, on any day within such applicable period, such
representations and warranties with respect to such Receivable shall then
be true and correct in all material respects as if such Receivable had
been created on such day.
(iii) Procedures for Removal. When the provisions of subsection
-----------------------
2.04(d)(i) or (ii) above require removal of a Receivable, the Transferor
which transferred such Receivable to the Trust shall accept reassignment
of such Receivable (an "Ineligible Receivable") by directing the Servicer
to deduct the principal balance of each such Ineligible Receivable from
the Principal Receivables in the Trust and to decrease the Transferor
Interest by such amount. On and after the date of such removal, each
Ineligible Receivable shall be deducted from the aggregate amount of
Principal Receivables used in the calculation of any Investor Percentage,
the Transferor Percentage or the Transferor Interest. In the event that
the exclusion of an Ineligible Receivable from the calculation of the
Transferor Interest would cause the Transferor Interest to be reduced
below zero or would otherwise not be permitted by law, the Transferor
which transferred such Receivable to the Trust shall concurrently make a
deposit in the Collection Account (for allocation as a Principal
Receivable) in immediately available funds prior to the Transfer Date
related to such Monthly Period in which such event occurred in an amount
equal to the amount by which the Transferor Interest would be reduced
below zero. The portion of such deposit allocated to the Investor
Certificates of each Series shall be distributed to the Investor
Certificateholders of each Series in the manner specified in Article IV,
if applicable, on the Distribution Date immediately following such
Transfer Date. Upon the reassignment to the applicable Transferor of an
Ineligible Receivable, the Trust shall automatically and without further
action be deemed to transfer, assign, set-over and otherwise convey to the
applicable Transferor, without recourse, representation or warranty, all
32
<PAGE>
the right, title and interest of the Trust in and to such Ineligible
Receivable, all monies due or to become due with respect to such
Ineligible Receivable (including all Finance Charge Receivables) and all
proceeds of such Ineligible Receivable and Insurance Proceeds relating to
such Ineligible Receivable and Interchange (if any) allocated to such
Ineligible Receivable pursuant to any Supplement. Such reassigned
Ineligible Receivable shall be treated by the Trust as collected in full
as of the date on which it was transferred. The Trustee shall execute such
documents and instruments of transfer or assignment and take other actions
as shall reasonably be requested by the applicable Transferor to evidence
the conveyance of such Ineligible Receivable pursuant to this subsection
2.04(d)(iii). The obligation of the applicable Transferor set forth in
this subsection 2.04(d)(iii), or the automatic removal of such Receivable
from the Trust, as the case may be, shall constitute the sole remedy
respecting any breach of the representations and warranties set forth in
the above-referenced subsections with respect to such Receivable available
to Certificateholders or the Trustee on behalf of Certificateholders.
(iv) Proceeds Held by Servicer. For the purposes of subsections
--------------------------
2.04(d)(i) and (ii) above, proceeds of a Receivable shall not be deemed to
be impaired hereunder solely because such proceeds are held by the
Servicer (if the Servicer is a Transferor) for more than the applicable
period under Section 9-306(3) of the UCC as in effect in the applicable
jurisdiction.
(e) Reassignment of Trust Portfolio. In the event of a breach of
-------------------------------
any of the representations and warranties of a Transferor set forth in
subsection 2.04(a), either the Trustee or the Holders of Investor Certificates
evidencing Undivided Interests aggregating more than 50% of the Aggregate
Investor Interest, by notice then given in writing to such Transferor (and to
the Trustee and the Servicer, if given by the Investor Certificateholders), may
direct such Transferor to accept reassignment of an amount of Principal
Receivables and Discount Option Receivables (as specified below) within 60 days
of such notice (or within such longer period as may be specified in such
notice), and such Transferor shall be obligated to accept reassignment of such
Principal Receivables and Discount Option Receivables on a Distribution Date
specified by such Transferor (such Distribution Date, the "Reassignment Date")
occurring within such applicable period on the terms and conditions set forth
below; provided, however, that no such reassignment shall be required to be made
-------- -------
if, at any time during such applicable period, the representations and
warranties contained in subsection 2.04(a) shall then be true and correct in all
material respects. The Transferor to which the above breach of representations
and warranties relates shall deposit on the Transfer Date (in next day funds)
preceding the Reassignment Date an amount equal to the reassignment deposit
33
<PAGE>
amount for such Receivables in the Distribution Account or Series Account, as
provided in the related Supplement, for distribution to the Investor
Certificateholders pursuant to Article XII. The reassignment deposit amount with
respect to each Series for such reassignment, unless otherwise stated in the
related Supplement, shall be equal to (i) the Investor Interest of such Series
at the end of the day on the last day of the Monthly Period preceding the
Reassignment Date, less the amount, if any, previously allocated for payment of
principal to such Certificateholders on the related Distribution Date in the
Monthly Period in which the Reassignment Date occurs, plus (ii) an amount equal
to all interest accrued but unpaid on the Investor Certificates of such Series
at the applicable Certificate Rate through such last day, less the amount, if
any, previously allocated for payment of interest to the Certificateholders of
such Series on the related Distribution Date in the Monthly Period in which the
Reassignment Date occurs. Payment of the reassignment deposit amount with
respect to each Series, and all other amounts in the Distribution Account or the
applicable Series Account in respect of the preceding Monthly Period, shall be
considered a prepayment in full of the Receivables represented by the Investor
Certificates. On the Distribution Date following the Transfer Date on which such
amount has been deposited in full into the Distribution Account or the
applicable Series Account, the Receivables and all monies due or to become due
with respect to such Receivables (including all Finance Charge Receivables), and
all proceeds of the Receivables and Insurance Proceeds relating to such
Receivables and Interchange (if any) allocated to the Receivables pursuant to
any Supplement shall be released to the Transferor making such reassignment
deposit after payment of all amounts otherwise due hereunder on or prior to such
dates and the Trustee shall execute and deliver such instruments of transfer or
assignment, in each case without recourse, representation or warranty, as shall
be prepared by and as are reasonably requested by such Transferor to vest in
such Transferor, or its designee or assignee, all right, title and interest of
the Trust in and to the Receivables, all monies due or to become due with
respect to such Receivables (including all Finance Charge Receivables), and all
proceeds of the Receivables and Insurance Proceeds relating to such Receivables
and Interchange (if any) allocated to the Receivables pursuant to any
Supplement. If the Trustee or the Investor Certificateholders give notice
directing such Transferor to accept reassignment as provided above, the
obligation of such Transferor to accept reassignment of the Receivables and pay
the reassignment deposit amount pursuant to this subsection 2.04(e) shall
constitute the sole remedy respecting a breach of the representations and
warranties contained in subsection 2.04(a) available to the Investor
Certificateholders or the Trustee on behalf of the Investor Certificateholders.
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<PAGE>
Section 2.05 Covenants of the Transferor . Each Transferor hereby
---------------------------
covenants that:
(a) Receivables to be Accounts. Each Transferor will take no
--------------------------
action to cause any Receivable transferred to the Trust by such Transferor to be
evidenced by any instrument or chattel paper (as such terms are defined in the
UCC as in effect in the applicable jurisdiction). Each Receivable transferred to
the Trust by such Transferor shall be payable pursuant to a contract which does
not create a Lien on any goods purchased thereunder. Each Transferor will take
no action to cause any Receivable transferred to the Trust by such Transferor to
be anything other than an "account" or a "general intangible" (as defined in the
UCC as in effect in the applicable jurisdiction).
(b) Security Interests. Except for the conveyances hereunder, each
------------------
Transferor will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on any Receivable
transferred to the Trust by such Transferor, whether now existing or hereafter
created, or any interest therein; each Transferor will immediately notify the
Trustee of the existence of any Lien on any Receivable transferred to the Trust
by such Transferor; and each Transferor shall defend the right, title and
interest of the Trust in, to and under the Receivables transferred to the Trust
by such Transferor, whether now existing or hereafter created, against all
claims of third parties claiming through or under such Transferor; provided,
--------
however, that nothing in this subsection 2.05(b) shall prevent or be deemed to
- -------
prohibit any Transferor from suffering to exist upon any of the Receivables
transferred to the Trust by such Transferor any Liens for municipal or other
local taxes if such taxes shall not at the time be due and payable or if such
Transferor shall currently be contesting the validity thereof in good faith by
appropriate proceedings and shall have set aside on its books adequate reserves
with respect thereto.
(c) Credit Card Agreements and Account Guidelines. Each Transferor
----------------------------------------------
shall comply with and perform its obligations under the Credit Card Agreements
relating to the Accounts and the Credit Card Guidelines and all applicable rules
and regulations of VISA U.S.A., Inc. and MasterCard International Inc. except
insofar as any failure to comply or perform would not materially and adversely
affect the rights of the Trust or the Certificateholders hereunder or under the
Certificates. Each Transferor may change the terms and provisions of the Credit
Card Agreements or the Credit Card Guidelines in any respect (including, without
limitation, the reduction of the required minimum monthly payment, the
calculation of the amount, or the timing, of charge offs and the Periodic
Finance Charges and other fees to be assessed thereon) only if such change (i)
would not, in the reasonable belief of the applicable Transferor, cause a Pay
Out Event to occur, and (ii) is made applicable to the comparable segment of the
revolving credit card accounts owned and serviced by the such Transferor which
have characteristics the same as, or substantially similar to, the Accounts that
are the subject of such change, except as otherwise restricted by an
endorsement, sponsorship, or other agreement between such Transferor and an
unrelated third party or by the terms of the Credit Card Agreements.
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(d) Account Allocations.
-------------------
(i) In the event that any Transferor is unable for any reason to
transfer Receivables to the Trust in accordance with the provisions of
this Agreement (including, without limitation, by reason of the
application of the provisions of Section 9.02 or an order by any federal
governmental agency having regulatory authority over such Transferor or
any court of competent jurisdiction that such Transferor not transfer any
additional Principal Receivables to the Trust) then, in any such event,
(A) such Transferor agrees to allocate and pay to the Trust, after the
date of such inability, all Collections with respect to Principal
Receivables and Discount Option Receivables, and all amounts which would
have constituted Collections with respect to Principal Receivables and
Discount Option Receivables but for such Transferor's inability to
transfer such Receivables (up to an aggregate amount equal to the amount
of Principal Receivables or Discount Option Receivables, as the case may
be, in the Trust on such date); (B) such Transferor agrees to have such
amounts applied as Collections in accordance with Article IV; and (C) for
only so long as all Collections and all amounts which would have
constituted Collections are allocated and applied in accordance with
clauses (A) and (B) above, Principal Receivables (and all amounts which
would have constituted Principal Receivables or Discount Option
Receivables, as the case may be, but for such Transferor's inability to
transfer Receivables to the Trust) that are written off as uncollectible
in accordance with this Agreement shall continue to be allocated in
accordance with Article IV, and all amounts that would have constituted
Principal Receivables or Discount Option Receivables, as the case may be,
but for such Transferor's inability to transfer Receivables to the Trust
shall be deemed to be Principal Receivables or Discount Option
Receivables, as the case may be, for the purpose of calculating (i) the
applicable Investor Percentage with respect to any Series and (ii) the
Aggregate Investor Percentage thereunder. If any Transferor is unable
pursuant to any Requirement of Law to allocate Collections as described
above, such Transferor agrees that it shall in any such event allocate,
after the occurrence of such event, 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 Article IV. The parties hereto agree that Finance
Charge Receivables, whenever created, accrued in respect of Principal
Receivables that have been conveyed to the Trust, or that would have been
36
<PAGE>
conveyed to the Trust but for the above described inability to transfer
such Receivables, shall continue to be a part of the Trust notwithstanding
any cessation of the transfer of additional Principal Receivables and
Discount Option Receivables to the Trust and Collections with respect
thereto shall continue to be allocated and paid in accordance with Article
IV.
(ii) In the event that, pursuant to subsection 2.04(d), any
Transferor accepts reassignment of an Ineligible Receivable as a result of
a breach of the representations and warranties in subsection 2.04(b)
relating to such Receivable, then, in any such event, such Transferor
agrees to account for payments received with respect to such Ineligible
Receivable separately from its accounting for Collections on Principal
Receivables retained by the Trust. If payments received from or on behalf
of an Obligor are not specifically applicable either to an Ineligible
Receivable of such Obligor reassigned to a Transferor or to the
Receivables of such Obligor retained in the Trust, then the applicable
Transferor agrees to allocate payments proportionately based on the total
amount of Principal Receivables of such Obligor retained in the Trust and
the total amount owing by such Obligor on any Ineligible Receivables
reassigned to such Transferor, and the portion allocable to any Principal
Receivables retained in the Trust shall be treated as Collections and
deposited in accordance with the provisions of Article IV.
(e) Conveyance of Accounts. Each Transferor covenants and agrees
----------------------
that it will not convey, assign, exchange or otherwise transfer the Accounts to
any Person prior to the termination of this Agreement pursuant to Article XII;
provided, however, that each Transferor shall not be prohibited hereby from
- -------- -------
conveying, assigning, exchanging or otherwise transferring the Accounts in
connection with a transaction complying with the provisions of Section 7.02.
Section 2.06 Addition of Accounts .
--------------------
(a)(i) If, (A) during any period of 30 consecutive days, the
Transferor Interest averaged over that period is less than the Minimum
Transferor Interest for that period the Transferors shall designate
additional eligible MasterCard or VISA accounts from the Identified Pool
(together with all other Accounts transferred to the Trust pursuant to
this Section 2.06, "Additional Accounts") to be included as Accounts in a
sufficient amount such that the average of the Transferor Interest as a
percentage of the Average Principal Receivables for such 30 day period,
computed by assuming that the amount of the Principal Receivables of such
Additional Accounts shall be deemed to be outstanding in the Trust during
each day of such 30 day period, is at least equal to the Minimum
Transferor Interest, or (B) on any Record Date the aggregate amount of
Principal Receivables is less than the Minimum Aggregate Principal
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Receivables (as adjusted for any Series having a Paired Series as
described in the Supplement for such Series), the Transferors shall
designate Additional Accounts to be included as Accounts in a sufficient
amount such that, after giving effect to such addition and the addition of
each other Transferor, the aggregate amount of Principal Receivables will
be equal to or greater than the Minimum Aggregate Principal Receivables.
Receivables from such Additional Accounts shall be transferred to the
Trust on or before the tenth Business Day following such thirty-day period
or Record Date, as the case may be.
(ii) In lieu of, or in addition to, designating Additional Accounts
pursuant to clause (i) above, the Transferors may, subject to any
applicable conditions specified in paragraph (d) below, convey to the
Trust participations representing undivided interests in a pool of assets
primarily consisting of receivables arising under revolving credit card
accounts owned by a Transferor or any Affiliate of any Transferor and
collections thereon ("Participations"). The addition of Participations in
the Trust pursuant to this paragraph (a) or paragraph (b) below shall be
effected by an amendment hereto, dated as of the applicable Addition Date,
pursuant to Section 13.01(a). Notwithstanding anything in this subsection
2.06(a)(ii) to the contrary, to the extent that such participations
encompass previously issued credit-card or other asset-backed securities
such securities (i) either will have been previously registered under the
Securities Act or will have been held for the "holding period" prescribed
by Rule 144(k) under the Securities Act and (ii) will have been acquired
in a bona fide secondary market transaction, rather than from any
Transferor or any Affiliate of any Transferor, or such securities will
have otherwise been acquired in compliance with the Securities Act.
(b) In addition to its obligation under subsection 2.06(a), each
Transferor may, but shall not be obligated to, designate from time to time
Additional Accounts of such Transferor to be included as Accounts or
Participations to be included as property of the Trust, in either case as of the
applicable Addition Date.
(c)(i) Each Transferor may, from time to time, at its sole
discretion, subject to and in compliance with the limitations
specified in clause (ii) below and the applicable conditions
specified in subsection (d) below, designate that all Eligible
Accounts arising in the Identified Pool on or after the date of such
designation be included as Accounts (the "Automatic Additional
Accounts"). The Addition Date for any Automatic Additional Account
is the date of creation of such account. For purposes of this
paragraph, Eligible Accounts shall be deemed to include only
revolving credit card accounts in the Identified Pool (A) originated
after July 19, 1996 by a Transferor or any Affiliate of a Transferor
and (B) of a type previously included as Accounts.
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<PAGE>
(ii) The Transferors shall not be permitted to designate
Automatic Additional Accounts pursuant to clause (i) above with
respect to any of the three consecutive Monthly Periods commencing
in January, April, July and October of each calendar year,
commencing in July 1996, unless on or before the first Business Day
of any of such three consecutive Monthly Periods, the Transferors
shall have requested each Rating Agency to notify, and each Rating
Agency shall have notified, the Transferors, the Servicer and the
Trustee of the limitations (other than the limitations described in
this Agreement), if any, on the right of the Transferors to
designate Automatic Additional Accounts during such three
consecutive Monthly Periods. Following the addition of any such
Automatic Additional Accounts the Servicer shall provide information
to Fitch and Moody's with respect to such Additional Accounts not
later than the last Business Day of the month following the
quarterly period in which such addition occurs in the form approved
from time to time by Fitch and Moody's, respectively, and in any
event, the Servicer. Unless Standard & Poor's otherwise consents, no
Additional Accounts may be designated pursuant to subsection 2.06(b)
or (c) if the number of Automatic Additional Accounts plus the
number of Accounts added pursuant to Section 2.06(a) and (b),
without the prior notice of Standard & Poor's as described under
Section 2.06(d)(vii), shall exceed the Maximum Addition Amount;
provided, however, if the Maximum Addition Amount is exceeded as a
-------- -------
result of additions pursuant to Section 2.06(a), the Transferors
shall have delivered written notice to Moody's of any such addition.
Unless Moody's otherwise consents, the number of Automatic
Additional Accounts added pursuant to this Section 2.06(c), together
with Additional Accounts added pursuant to subsections 2.06(a) and
(b), without prior notice of Moody's as described under
2.06(d)(vii), shall not at any time exceed the Maximum Addition
Amount.
(iii) On or before March 31, June 30, September 30 or December
31 of each year commencing on the first such date to follow any
addition relating to Automatic Additional Accounts (or, if the
long-term debt rating of any Transferor shall not be at least BBB+
from Standard & Poor's, then with respect to such Transferor, on or
before the last day of each calendar month), the Transferors shall
have delivered to the Trustee and each Rating Agency an Opinion of
Counsel in accordance with Section 13.02(d), with respect to the
Automatic Additional Accounts included as Accounts during the
39
<PAGE>
preceding three Monthly Periods confirming the validity and
perfection of each transfer of such Automatic Additional Accounts.
If such Opinion of Counsel with respect to any Automatic Additional
Accounts is not so received, the right of the Transferors to
designate Automatic Additional Accounts will be suspended until such
time as each Rating Agency otherwise consents in writing. If the
Transferors are unable to deliver an Opinion of Counsel with respect
to any Automatic Additional Account, such inability shall be deemed
to be a breach of the representation in subsection 2.04(b)(ii) with
respect to the Receivables in such Additional Account for purposes
of Section 2.04(d)(i).
(d) Each Transferor agrees that any such transfer of Receivables
from Additional Accounts or Participations under subsections 2.06(a), (b) or (c)
shall satisfy the following conditions (to the extent provided below; provided,
--------
however, that the conditions set forth below (other than the conditions to
- -------
deliver a written assignment as set forth in clause (ii) and to represent and
warrant as to the matters set forth in clauses (iii) and (iv) below) shall not
apply to the transferor of Automatic Additional Accounts):
(i) on or before the fifth Business Day prior to the Addition Date
with respect to additions pursuant to subsection 2.06(a) and on or before
the tenth Business Day prior to the Addition Date with respect to
additions pursuant to subsection 2.06(b) (the "Notice Date"), each
Transferor which is transferring any such Participation to the Trust or
owns any such Additional Account (each a "Participating Transferor") shall
give the Trustee, each Rating Agency and the Servicer written notice that
such Additional Accounts or Participations will be included, which notice
shall specify the approximate aggregate amount of the Receivables to be
transferred;
(ii) on or before the Addition Date (or the date of initial
designation in the case of Automatic Additional Accounts) each
Participating Transferor 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 Investor Certificateholders) in substantially the
form of Exhibit B (the "Assignment") and on or before the related Addition
Cut-Off Date with respect to Additional Accounts to be transferred to the
Trust pursuant to subsections 2.06(a) or (b) (or, with respect to
Automatic Additional Accounts, on the date on which an Automatic
Additional Account is created) each Participating Transferor shall have
indicated in its computer files, using the appropriate designation as set
forth pursuant to Section 2.01 for such purpose, that the Receivables
created in connection with the Additional Accounts have been transferred
to the Trust and, on the Addition Date with respect to Additional Accounts
designated pursuant to subsection 2.06(a) and (b), and on the last day of
40
<PAGE>
each calendar quarter with respect to Automatic Additional Accounts, each
Participating Transferor shall have delivered to the Trustee a computer
file or microfiche list containing a true and complete list of all
Additional Accounts relating to such Participating Transferor and
identifying each Account relating to such Participating Transferor by
account number and the aggregate amount of the Receivables in such
Additional Accounts relating to such Participating Transferor, as of the
related Addition Cut-Off Date, which computer file or microfiche list
shall be, as of the date of such Assignment, incorporated into and made a
part of such Assignment and such Assignment shall be, as of such date,
incorporated and made a part of this Agreement;
(iii) Each Participating Transferor shall represent and warrant that
(x) with respect to Additional Accounts, each Additional Account is, as of
the related Addition Cut-Off Date, an Eligible Account, and each
Receivable in such Additional Account is, as of the related Addition
Cut-Off Date, an Eligible Receivable, (y) no selection procedures believed
by such Participating Transferor to be materially adverse to the interests
of the Investor Certificateholders were utilized in selecting the
Additional Accounts from the available Eligible Accounts from the
Identified Pool, and (z) as of each of the Addition Date and Addition
Cut-Off Date, such Participating Transferor is not insolvent;
(iv) Each Participating Transferor shall represent and warrant that,
as of the Addition Date, the Assignment constitutes either (x) a valid
transfer and assignment to the Trust of all right, title and interest of
such Participating Transferor in and to the Receivables existing as of the
beginning of the day on the related Addition Cut-Off Date and thereafter
created from time to time arising in connection with the Additional
Accounts, relating to such Participating Transferor, all monies due or to
become due with respect to such Receivables (including all Finance Charge
Receivables), all amounts received with respect thereto and Insurance
Proceeds relating to such Receivables and all proceeds (as defined in the
UCC as in effect in the applicable jurisdiction) of any of the foregoing
and Insurance Proceeds relating thereto will be held by the Trust free and
clear of any Lien of any Person claiming through or under such
Participating Transferor or any of its Affiliates, except for (i) Liens
permitted under subsection 2.05(b), (ii) the interest of such
Participating Transferor as Holder of the Transferor Certificate and (iii)
such Participating Transferor's right to receive interest accruing on, and
investment earnings in respect of, the Finance Charge Account and the
Principal Account, or any Series Account as provided in this Agreement and
any related Supplement or (y) a grant of a security interest (as defined
in the UCC as in effect in the applicable jurisdiction), in such property
41
<PAGE>
to the Trust, which is enforceable with respect to then existing
Receivables of the Additional Accounts, all monies due or to become due
with respect to such Receivables (including all Finance Charge
Receivables), all amounts received with respect thereto and Insurance
Proceeds relating to such Receivables and all proceeds (as defined in the
UCC as in effect in the applicable jurisdiction) of any of the foregoing
upon the conveyance of such Receivables to the Trust, and which will be
enforceable with respect to the Receivables thereafter created in respect
of Additional Accounts relating to such Participating Transferor conveyed
on such Addition Date, and Insurance Proceeds relating to such Receivables
and all proceeds (as defined in the UCC as in effect in the applicable
jurisdiction) of any of the foregoing upon such creation; and (z) if the
Assignment constitutes the grant of a security interest to the Trust in
such property, upon the filing of the financing statements as described in
Section 2.01 with respect to such Additional Accounts and in the case of
the Receivables thereafter created in such Additional Accounts all monies
due or to become due with respect to such Receivables (including all
Finance Charge Receivables), all amounts received with respect thereto,
and Insurance Proceeds relating to such Receivables and all proceeds (as
defined in the UCC as in effect in the applicable jurisdiction) of any of
the foregoing, upon such creation, the Trust shall have a first priority
perfected security interest in such property (subject to Section 9-306 of
the UCC as in effect in the applicable jurisdiction), except for Liens
permitted under subsection 2.05(b);
(v) Each Participating Transferor shall deliver an Officer's
Certificate substantially in the form of Schedule 2 to Exhibit B to the
Trustee confirming the items set forth in paragraphs (ii), (iii) and (iv)
above;
(vi) Each Participating Transferor shall deliver an Opinion of
Counsel with respect to the Receivables in the Additional Accounts
relating to such Participating Transferor to the Trustee (with a copy to
Moody's and Standard & Poor's) substantially in the form of Exhibit E;
(vii) with respect to accounts designated pursuant to subsection
2.06(b) or 2.06(c) in excess of the Maximum Addition Amount and with
respect to Participations, each Participating Transferor shall have
received notice from Standard & Poor's and Moody's that the inclusion of
such accounts as Additional Accounts or the inclusion of such
Participations to be included as property of the Trust, as the case may
be, will not result in the reduction or withdrawal of its then existing
rating of any Series of Investor Certificates then issued and outstanding;
and
(e) The Initial Transferor may designate Affiliates of the Initial
Transferor to be included as Transferors ("Additional Transferors") under this
42
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Agreement in an amendment hereto pursuant to subsection 13.01(a) and, in
connection with such designation, the Initial Transferor shall surrender the
Transferor Certificate to the Trustee in exchange for a newly issued Transferor
Certificate modified to reflect such Additional Transferor's interest in the
Transferor's Interest; provided, however, that prior to any such designation and
exchange the conditions set forth in subsection 6.03(b) shall have been
satisfied with respect thereto.
Section 2.07 Removal of Accounts .
-------------------
(a) Subject to the conditions set forth below, each Transferor may,
but shall not be obligated to, designate Receivables from Accounts relating to
such Transferor for deletion and removal ("Removed Accounts") from the Trust. On
or before the fifth Business Day (the "Removal Notice Date") prior to the date
on which the designated Removed Accounts will be reassigned by the Trustee to
such Transferor designating such Accounts for deletion and removal from the
Trust (the "Removal Date"), such Transferor shall give the Trustee and the
Servicer written notice that the Receivables from such Removed Accounts are to
be reassigned to such Transferor.
(b) Each Transferor shall be permitted to designate and require
reassignment to it of the Receivables from Removed Accounts only upon
satisfaction of the following conditions:
(i) the removal of any Receivables of any Removed Accounts on any
Removal Date shall not, in the reasonable belief of such Transferor, (a)
cause a Pay Out Event to occur; provided, however, that for the purposes
-------- -------
of this subsection 2.07(b)(i), the Receivables of each Removed Account
shall be considered to have been removed as of the Removal Date, (b) cause
the Transferor Interest as a percentage of the aggregate amount of
Principal Receivables to be less than the Minimum Transferor Interest on
such Removal Date, (c) cause the aggregate amount of Principal Receivables
to be less than the Minimum Aggregate Principal Receivables, or (d) result
in the failure to make any payment specified in the related Supplement
with respect to any Series;
(ii) on or prior to the Removal Date, such Transferor shall have
delivered to the Trustee for execution a written assignment in
substantially the form of Exhibit G (the "Reassignment") and, within five
Business Days (or as otherwise agreed upon between such Transferor and the
Trustee) thereafter, such Transferor shall have delivered to the Trustee a
computer file or microfiche list containing a true and complete list of
all Removed Accounts identified by account number and the aggregate amount
of the 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 and be made a part of this Agreement;
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<PAGE>
(iii) such Transferor shall represent and warrant that no selection
procedures believed by such Transferor to be materially adverse to the
interests of the Certificateholders were utilized in selecting the Removed
Accounts to be removed from the Trust;
(iv) as of the Removal Notice Date, either (a) the Receivables are
not more than 15% delinquent by estimated principal amount and the
weighted averaged delinquency of such Receivables is not more than 60
days, or (b) the Receivables are not more than 7% delinquent by estimated
principal amount and the weighted average delinquency of such Receivables
is not more than 90 days;
(v) on or before the tenth Business Day prior to the Removal Date,
each Rating Agency shall have received notice of such proposed removal of
the Receivables of such Accounts and such Transferor shall have received
written notice prior to the Removal Date from such Rating Agency that such
proposed removal will not result in a downgrade or withdrawal of its then
current rating of any outstanding Series of the Investor Certificates;
(vi) on any Removal Notice Date, the amount of the Principal
Receivables of the Removed Accounts to be reassigned to such Transferor on
the related Removal Date shall not equal or exceed 5% of the aggregate
amount of the Principal Receivables on such Removal Date; provided, that
--------
if any Series has been paid in full, the Principal Receivables in such
Removed Accounts may approximate the Investor Interest of such Series as
of the last day of the Revolving Period with respect to such Series; and
(vii) such Transferor shall have delivered to the Trustee an
Officer's Certificate confirming the items set forth in clauses (i)
through (vi) 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 such Transferor, and the Receivables from the
Removed Accounts shall no longer constitute a part of the Trust.
(c) The Transferor may, but shall not be obligated to, designate at
any time Zero Balance Accounts, any future receivables of which will no longer
be part of the Trust, and to remove the designation described in subsection 2.01
from the Pool Index File for such Accounts; provided, that prior to such
--------
designation and removal, the Transferor shall have delivered to Moody's an
Officer's Certificate to the effect that to the best knowledge of the
Transferor, such designation and removal shall not cause a Pay Out Event to
occur.
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<PAGE>
Section 2.08 Discount Option . The Transferors may at any time, upon
---------------
at least 30 days' prior written notice to the Servicer, the Trustee, each Credit
Enhancement Provider and each Rating Agency, designate a percentage, which may
be a fixed percentage or a variable percentage based on a formula (the
"Discounted Percentage"), of the amount of Principal Receivables arising in all
of the Additional Accounts designated to be treated on and after such
designation, or for the period specified, as Discount Option Receivables;
provided, however, that no such designation shall become effective on the date
- -------- -------
specified in the written notice unless the following conditions have been
satisfied:
(i) the designation of Discount Option Receivables shall not, in
the reasonable belief of the Transferors, cause a Pay Out Event to occur
or cause an event which with notice or the lapse of time or both would
constitute a Pay Out Event;
(ii) on or before the date specified in the written notice, the
Transferors shall have received written confirmation from each Rating
Agency that such designation will not result in a downgrade or withdrawal
of its then current rating of any outstanding Series of Investor
Certificates;
(iii) the Transferors shall have delivered to the Trustee an Officer's
Certificate confirming the items set forth in clauses (i) and (ii) 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.
On and after the date of satisfaction of the above conditions, in
processing Collections of Principal Receivables of the Accounts the Servicer
shall deem the product of the Discounted Percentage and Collections of such
Principal Receivables as "Discount Option Receivable Collections" and shall
treat such Discount Option Receivable Collections for all purposes hereunder
as Collections of Finance Charge Receivables.
[End of Article II]
45
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.01 Acceptance of Appointment and Other Matters
-------------------------------------------
Relating to the Servicer .
- ------------------------
(a) Bank of America agrees to act as the Servicer under this
Agreement. The Investor Certificateholders of each Series by their acceptance of
the related Certificates consent to Bank of America acting as Servicer.
(b) The Servicer shall service and administer the Receivables
and shall collect payments due under the Receivables in accordance with its
customary and usual servicing procedures for servicing credit card receivables
comparable to the Receivables and in accordance with the Credit Card Guidelines
and shall have full power and authority, acting alone or through any party
properly designated by it hereunder, to do any and all things in connection with
such servicing and administration which it may deem necessary or desirable.
Without limiting the generality of the foregoing and subject to Section 10.01,
the Servicer is hereby authorized and empowered (i) to make withdrawals from the
Collection Account as set forth in this Agreement, (ii) unless such power and
authority is revoked by the Trustee on account of the occurrence of a Servicer
Default pursuant to Section 10.01, to instruct the Trustee to make withdrawals
and payments, from the Finance Charge Account, the Principal Account and any
Series Account, in accordance with such instructions as set forth in this
Agreement, (iii) unless such power and authority is revoked by the Trustee on
account of the occurrence of a Servicer Default pursuant to Section 10.01, to
instruct the Trustee in writing, as set forth in this Agreement, (iv) to execute
and deliver, on behalf of the Trust for the benefit of the Certificateholders,
any and all instruments of satisfaction or cancellation, or of partial or full
release or discharge, and all other comparable instruments, with respect to the
Receivables and, after the delinquency of any Receivable and to the extent
permitted under and in compliance with applicable law and regulations, to
commence enforcement proceedings with respect to such Receivables and (v) to
make any filings, reports, notices, applications, registrations with, and to
seek any consents or authorizations from the Securities and Exchange Commission
and any state securities authority on behalf of the Trust as may be necessary or
advisable to comply with any federal or state securities or reporting
requirements. The Trustee agrees that it shall promptly follow the instructions
of the Servicer to withdraw funds from the Principal Account, the Finance Charge
Account or any Series Account and to take any action required under any Credit
Enhancement at such time as required under this Agreement. The Trustee shall
execute at the Servicer's written request such documents prepared by any
Transferor and acceptable to the Servicer as may be necessary or appropriate to
enable the Servicer to carry out its servicing and administrative duties
hereunder.
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(c) In the event that any Transferor is unable for any reason to
transfer Receivables to the Trust in accordance with the provisions of this
Agreement (including, without limitation, by reason of the application of the
provisions of Section 9.02 or the order of any federal governmental agency
having regulatory authority over such Transferor or any court of competent
jurisdiction that such Transferor not transfer any additional Principal
Receivables to the Trust) then, in any such event, (A) the Servicer agrees to
allocate, after such date, all Collections with respect to Principal Receivables
and Discount Option Receivables, and all amounts which would have constituted
Collections with respect to Principal Receivables and Discount Option
Receivables but for such Transferor's inability to transfer such Receivables (up
to an aggregate amount equal to the aggregate amount of Principal Receivables
and the amount of Discount Option Receivables in the Trust as of such date) in
accordance with subsection 2.05(d); (B) the Servicer agrees to apply such
amounts as Collections in accordance with Article IV, and (C) for only so long
as all Collections and all amounts which would have constituted Collections are
allocated and applied in accordance with clauses (A) and (B) above, Principal
Receivables and Discount Option Receivables and all amounts which would have
constituted Principal Receivables or Discount Option Receivables, as the case
may be, but for such Transferor's inability to transfer Receivables to the Trust
that are written off as uncollectible in accordance with this Agreement shall
continue to be allocated in accordance with Article IV and all amounts which
would have constituted Principal Receivables but for such Transferor's inability
to transfer Receivables to the Trust shall be deemed to be Principal Receivables
for the purpose of calculating the applicable Investor Percentage thereunder. If
the Servicer is unable pursuant to any Requirement of Law to allocate payments
on the Accounts as described above, the Servicer agrees that it shall in any
such event allocate, after the occurrence of such event, 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 Article IV. The parties hereto agree that Finance
Charge Receivables, whenever created, accrued in respect of Principal
Receivables which have been conveyed to the Trust, or which would have been
conveyed to the Trust but for the above described inability to transfer such
Receivables, shall continue to be a part of the Trust notwithstanding any
cessation of the transfer of additional Principal Receivables and Discount
Option Receivables to the Trust and Collections with respect thereto shall
continue to be allocated and paid in accordance with Article IV.
(d) In the event that pursuant to subsection 2.04(d), any
Transferor accepts reassignment of an Ineligible Receivable as a result of a
breach of the representations and warranties in subsection 2.04(b) relating to
such Receivable, then, in any such event, the Servicer agrees to account for
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payments received with respect to such Ineligible Receivable separately from its
accounting for Collections on Principal Receivables retained by the Trust. If
payments received from or on behalf of an Obligor are not specifically
applicable either to an Ineligible Receivable of such Obligor reassigned to such
Transferor or to Receivables of such Obligor retained in the Trust, then the
Servicer agrees to allocate payments proportionately based on the total amount
of Principal Receivables of such Obligor retained in the Trust and the total
amount owing by such Obligor on any Ineligible Receivables reassigned to such
Transferor, and the portion allocable to any Principal Receivables retained in
the Trust shall be treated as Collections and deposited in accordance with the
provisions of Article IV.
(e) The Servicer shall not be obligated to use separate
servicing procedures, offices, employees or accounts for servicing the
Receivables from the procedures, offices, employees and accounts used by the
Servicer in connection with servicing other credit card receivables.
(f) The Servicer shall maintain fidelity bond coverage insuring
against losses through wrongdoing of its officers and employees who are involved
in the servicing of credit card receivables covering such actions and in such
amounts as the Servicer believes to be commercially reasonable from time to
time.
Section 3.02 Servicing Compensation . As full compensation for its
-----------------------
servicing activities hereunder and as reimbursement for its expenses as set
forth in the immediately following paragraph, the Servicer shall be entitled to
receive a servicing fee (the "Servicing Fee") with respect to each Monthly
Period prior to the Termination of the Trust pursuant to Section 12.01, payable
monthly on the related Transfer Date, in an amount equal to one-twelfth of the
product of (a) the weighted average of the Series Servicing Fee Percentages with
respect to each outstanding Series (based upon the Series Servicing Fee
Percentage for each Series and the Investor Interest (or such other amount as
specified in the related Supplement) of such Series, in each case as of the last
day of the prior Monthly Period) and (b) the average amount of Principal
Receivables during the prior Monthly Period. The share of the Servicing Fee
allocable to Investor Certificates of a particular Series with respect to any
Monthly Period will each be determined in accordance with the relevant
Supplement. The portion of the Servicing Fee with respect to any Monthly Period
not so allocated to the Investor Certificates of a particular Series shall be
paid by the Holder of the Transferor Certificate on the related Transfer Date
and in no event shall the Trust, the Trustee or the Investor Certificateholders
of any Series be liable for the share of the Servicing Fee with respect to any
Monthly Period to be paid by the Holders of the Transferor Certificates (the
"Transferor Servicing Fee").
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The Servicer's expenses include the amounts due to the Trustee
pursuant to Section 11.05 and the reasonable fees and disbursements of
independent public accountants and all other expenses incurred by the Servicer
in connection with its activities hereunder; provided, that the Servicer shall
--------
not be liable for any liabilities, costs or expenses of the Trust, the Investor
Certificateholders or the Certificate Owners arising under any tax law,
including without limitation any federal, state or local income or franchise
taxes or any other tax imposed on or measured by income (or any interest or
penalties with respect thereto or arising from a failure to comply therewith).
The Servicer shall be required to pay such expenses for its own account and
shall not be entitled to any payment therefor other than the Servicing Fee.
Section 3.03 Representations and Warranties of the Servicer . Bank
-----------------------------------------------
of America, as initial Servicer, hereby makes, and any Successor Servicer by its
appointment hereunder shall make (with appropriate modifications to Section
3.03(a) to reflect the Successor Servicer's organization) the following
representations and warranties on which the Trustee has relied in accepting the
Receivables in trust and in authenticating the Certificates issued on the
Initial Closing Date:
(a) Organization and Good Standing. The Servicer is a national
--------------------------------
banking association duly organized, validly existing and in good standing under
the laws of the United States and has full corporate power, authority and legal
right to own its properties and conduct its credit card business as such
properties are presently owned and as such business is presently conducted, and
to execute, deliver and perform its obligations under this Agreement.
(b) Due Qualification. The Servicer is not required to qualify nor
------------------
register as a foreign corporation in any state in order to service the
Receivables as required by this Agreement and has obtained all licenses and
approvals necessary in order to so service the Receivables as required under
federal and Arizona law. If the Servicer shall be required by any Requirement of
Law to so qualify or register or obtain such license or approval, then it shall
do so.
(c) Due Authorization. The execution, delivery, and performance of
-----------------
this Agreement have been duly authorized by the Servicer by all necessary
corporate action on the part of the Servicer and this Agreement will remain,
from the time of its execution, an official record of the Servicer.
(d) Binding Obligation. This Agreement constitutes a legal, valid
-------------------
and binding obligation of the Servicer, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereinafter
in effect, affecting the enforcement of creditors' rights in general and the
rights of creditors of national banking associations.
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(e) No Violation. The execution and delivery of this Agreement by
------------
the Servicer, and the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof applicable to the Servicer,
will not conflict with, violate, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of time
or both) a default under, any Requirement of Law applicable to the Servicer or
any indenture, contract, agreement, mortgage, deed of trust or other instrument
to which the Servicer is a party or by which it is bound.
(f) No Proceedings. There are no proceedings or investigations
---------------
pending or, to the best knowledge of the Servicer, threatened against the
Servicer before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated by this
Agreement, seeking any determination or ruling that, in the reasonable judgment
of the Servicer, would materially and adversely affect the performance by the
Servicer of its obligations under this Agreement, or seeking any determination
or ruling that would materially and adversely affect the validity or
enforceability of this Agreement.
(g) Compliance with Requirements of Law. The Servicer shall duly
--------------------------------------
satisfy all obligations on its part to be fulfilled under or in connection with
each Receivable and the related Account, will maintain in effect all
qualifications required under Requirements of Law in order to service properly
each Receivable and the related Account and will comply in all material respects
with all other Requirements of Law in connection with servicing each Receivable
and the related Account the failure to comply with which would have a material
adverse effect on the Certificateholders or any Credit Enhancement Provider.
Section 3.04 Reports and Records for the Trustee .
-----------------------------------
(a) Daily Reports. On each Business Day, the Servicer, with prior
-------------
notice, shall prepare and make available at the office of the Servicer for
inspection by the Trustee a record setting forth (i) the aggregate amount of
Collections processed by the Servicer on the preceding Business Day and (ii) the
aggregate amount of Receivables as of the close of business on the preceding
Business Day.
(b) Monthly Servicer's Certificate. Unless otherwise stated in the
-------------------------------
related Supplement with respect to any Series, on each Determination Date the
Servicer shall forward, as provided in Section 13.05, to the Trustee, the Paying
Agent, any Credit Enhancement Provider and each Rating Agency, a certificate of
a Servicing Officer in the form of Exhibit C (which includes the Schedule
thereto specified as such in each Supplement) setting forth (i) the aggregate
amount of Collections processed during the preceding Monthly Period, (ii) the
aggregate amount of the applicable Investor Percentage of Collections of
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Principal Receivables processed by the Servicer pursuant to Article IV during
the preceding Monthly Period with respect to each Series then outstanding, (iii)
the aggregate amount of the applicable Investor Percentage of Collections of
Finance Charge Receivables processed by the Servicer pursuant to Article IV
during the preceding Monthly Period with respect to each Series then
outstanding, (iv) the aggregate amount of Receivables processed as of the end of
the last day of the preceding Monthly Period, (v) the balance on deposit in the
Finance Charge Account, the Principal Account or any Series Account applicable
to any Series then outstanding on such Determination Date with respect to
Collections processed by the Servicer during the preceding Monthly Period, (vi)
the aggregate amount, if any, of withdrawals, drawings or payments under any
Credit Enhancement, if any, for each Series then outstanding required to be made
with respect to the previous Monthly Period in the manner provided in the
related Supplement, (vii) the sum of all amounts payable to the Investor
Certificateholders of each Series (or for a Series of more than one Class, each
such Class) on the succeeding Distribution Date in respect of Certificate
Principal and Certificate Interest with respect to such preceding Monthly Period
and (viii) such other matters as are set forth in Exhibit C.
Section 3.05 Annual Servicer's Certificate . On or before March 31
-------------------------------
of each calendar year, beginning with March 31, 1997, the Servicer will deliver,
as provided in Section 13.05, to the Trustee, any Credit Enhancement Provider
and the Rating Agency, an Officer's Certificate substantially in the form of
Exhibit D stating that (a) a review of the activities of the Servicer during the
twelve-month period ending on December 31 of such year, or for the initial
period, from the Closing Date until December 31, 1996, and of its performance
under this Agreement was made under the supervision of the officer signing such
certificate and (b) to the best of such officer's knowledge, based on such
review, the Servicer has fully performed all its obligations under this
Agreement throughout such period, or, if there has been a default in the
performance of any such obligation, specifying each such default known to such
officer and the nature and status 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.
Section 3.06 Annual Independent Accountants' Servicing Report .
------------------------------------------------
(a) On or before March 31 of each calendar year, beginning with
March 31, 1997, the Servicer shall cause a firm or firms of nationally
recognized independent certified public accountants (who may also render other
services to the Servicer or any Transferor) to furnish, as provided in Section
13.05, a report to the Trustee, any Credit Enhancement Provider and the Rating
Agencies, to the effect that such firm has made a study and evaluation, in
accordance with generally accepted auditing standards, of the Servicer's
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internal accounting controls relative to the servicing of Accounts under this
Agreement, and that, on the basis of such study and evaluation, such firm is of
the opinion (assuming the accuracy of any reports generated by the Servicer's
third party agents) that the system of internal accounting controls in effect on
the date set forth in such report, relating to servicing procedures performed by
the Servicer, taken as a whole, was sufficient for the prevention and detection
of errors and irregularities in amounts that would be material to the financial
statements of the Servicer and that such servicing was conducted in compliance
with the sections of this Agreement during the period covered by such report
(which shall be the period from January 1 of the preceding calendar year to and
including December 31 of such calendar year, or for the initial period, from the
Closing Date until December 31, 1996), except for such exceptions, errors or
irregularities as such firm shall believe to be immaterial to the financial
statements of the Servicer and such other exceptions, errors or irregularities
as shall be set forth in such report. Unless otherwise provided with respect to
any Series in the related Supplement, 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 before March 31, of each calendar year, beginning with
March 31, 1997, the Servicer shall cause a firm or firms of nationally
recognized independent certified public accountants (who may also render other
services to the Servicer or any Transferor) to furnish, as provided in Section
13.05, a report, prepared using generally accepted auditing standards, to the
Trustee and the Rating Agency to the effect that they have compared the
mathematical calculations of each amount set forth in the monthly certificates
forwarded by the Servicer pursuant to subsection 3.04(b) during the period
covered by such report (which shall be the period from January 1 of the
preceding calendar year to and including December 31 of such calendar year, or
for the initial period, from the Closing Date until December 31, 1996) with the
Servicer's computer reports which were the source of such amounts and that on
the basis of such comparison, such firm is of the opinion that such amounts are
in agreement, except for such exceptions as it believes to be immaterial to the
financial statements of the Servicer 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 3.07 Tax Treatment . Except as otherwise specified in a
--------------
Supplement with respect to a particular Series, each Transferor has entered into
this Agreement, and the Certificates will be issued, with the intention that (i)
the Investor Certificates will qualify under applicable federal, state and local
income and franchise tax law as indebtedness secured by the Receivables, and
(ii) the Trust shall not be treated as an association or publicly traded
partnership taxable as a corporation for purposes of federal income tax law.
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Each Transferor, the Servicer, each Holder of the Transferor Certificate, each
Investor Certificateholder, and each Certificate Owner agree to treat and to
take no action inconsistent with the treatment of the Investor Certificates (or
beneficial interest therein) as such indebtedness for purposes of federal, state
and local income and franchise taxes, and each Transferor and each Holder of the
Transferor Certificate agree to take no action with respect to the Trust or any
interest therein which would cause the Trust to be treated as an association or
publicly traded partnership taxable as a corporation for purposes of federal
income tax law. Each Investor Certificateholder and the Holder of the Transferor
Certificate, by acceptance of its Certificate, and each Certificate Owner, by
acquisition of a beneficial interest in a Certificate, agree to be bound by the
provisions of this Section 3.07. Each Certificateholder agrees that it will
cause any Certificate Owner acquiring an interest in a Certificate through it to
comply with this Agreement as to treatment as indebtedness under applicable tax
law, as described in this Section 3.07. Subject to Section 11.11, the Trustee
shall treat the Trust as a security device only, and shall not file tax returns
or obtain an employer identification number on behalf of the Trust. The
provisions of this Agreement shall be construed in light of the foregoing
intended tax treatment.
Section 3.08 Notices to the Transferors . At all times that Bank of
---------------------------
America is acting as Servicer, Bank of America shall deliver or make available
to each other Transferor each certificate and report required to be prepared,
forwarded or delivered thereafter pursuant to Sections 3.04, 3.05 and 3.06. In
the event that Bank of America is no longer acting as Servicer, any Successor
Servicer appointed pursuant to Section 10.02 shall deliver or make available to
each Transferor each certificate and report required to be prepared, forwarded
or delivered thereafter pursuant to Sections 3.04, 3.05 and 3.06.
Section 3.09 Reports to the Commission . The Servicer shall, on
--------------------------
behalf of the Trust, cause to be filed with the Securities and Exchange
Commission any periodic reports required to be filed under the provisions of the
Securities Exchange Act of 1934 and the rules and regulations of the Securities
and Exchange Commission thereunder. Each Transferor shall, at the expense of the
Servicer, cooperate in any reasonable request of the Servicer in connection with
such filings.
[End of Article III]
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ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.01 Rights of Certificateholders . Each Series of Investor
-----------------------------
Certificates shall represent Undivided Interests in the Trust, including the
benefits of any Credit Enhancement issued with respect to such Series and the
right to receive the Collections and other amounts at the times and in the
amounts specified in this Article IV to be deposited in the Investor Accounts
and any other Series Account (if so specified in the related Supplement) or to
be paid to the Investor Certificateholders of such Series; provided, however,
-------- -------
that the aggregate interest represented by such Certificates at any time in the
Principal Receivables shall not exceed an amount equal to the Investor Interest
for such Series at such time. The Transferor Certificate shall represent the
remaining undivided interest in the Trust not allocated to the Investor
Certificates and the other interests issued by the Trust, including the right to
receive the Collections and other amounts at the times and in the amounts
specified in this Article IV to be paid to the Holder of the Transferor
Certificate; provided, however, that the aggregate interest represented by such
-------- -------
Transferor Certificate at any time in the Principal Receivables shall not exceed
the Transferor Interest at such time and such Certificate shall not represent
any interest in the Investor Accounts, except as provided in this Agreement, or
the benefits of any Credit Enhancement issued with respect to any Series. The
Certificates do not represent obligations of, or any interests in, the
Transferor, the Servicer or any Affiliate thereof, and neither the Certificates
nor the Accounts or Receivables are insured or guaranteed by the Federal Deposit
Insurance Corporation or any other governmental agency. The Certificates are
limited in right of payment to certain Collections respecting the Receivables,
and the other assets of the Trust allocable to such Certificates as provided
herein and in the applicable Series Supplement.
Section 4.02 Establishment of Accounts .
-------------------------
(a) The Collection Account. The Servicer, for the benefit of the
----------------------
Certificateholders, shall establish and maintain in the name of the Trustee, on
behalf of the Trust, a non-interest bearing segregated account (the "Collection
Account") bearing a designation clearly indicating that the funds deposited
therein are held in trust for the benefit of the Certificateholders, or shall
cause such Collection Account to be established and maintained, with an office
or branch located in the states of Minnesota or Arizona of (i) the Servicer, or
(ii) a Qualified Institution; provided, however, that upon the insolvency of the
-------- -------
Servicer, the Collection Account shall not be permitted to be maintained with
the Servicer. Pursuant to authority granted to it pursuant to subsection
3.01(b), the Servicer shall have the revocable power to withdraw funds from the
Collection Account for the purposes of carrying out its duties hereunder.
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<PAGE>
(b) The Finance Charge and Principal Accounts. The Trustee, for
-----------------------------------------
the benefit of the Investor Certificateholders, shall establish and maintain in
the State of Minnesota with the Trustee, or cause to be established and
maintained in the State of Minnesota with a Qualified Institution, in the name
of the Trust two segregated trust accounts (the "Finance Charge Account" and the
"Principal Account," respectively), bearing a designation clearly indicating
that the funds therein are held for the benefit of the Investor
Certificateholders. The Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Finance Charge Account and the
Principal Account and in all proceeds thereof. The Finance Charge Account and
the Principal Account shall be under the sole dominion and control of the
Trustee for the benefit of the Investor Certificateholders. If, at any time, the
institution holding the Principal Account or the Finance Charge Account ceases
to be a Qualified Institution, the Trustee shall notify the Rating Agency and
within 10 Business Days establish a new Principal Account or Finance Charge
Account, as the case may be, meeting the conditions specified above with a
Qualified Institution, and shall transfer any cash or any investments to such
new Principal Account or Finance Charge Account, as the case may be. From the
date such new Principal Account or Finance Charge Account, as the case may be,
is established, it shall be the "Principal Account" or "Finance Charge Account."
Pursuant to authority granted to it hereunder, the Servicer shall have the
revocable power to instruct the Trustee to withdraw funds from the Finance
Charge Account and Principal Account for the purpose of carrying out the
Servicer's duties hereunder. The Trustee at all times shall maintain accurate
records reflecting each transaction in the Principal Account and the Finance
Charge Account and that funds held therein shall at all times be held in trust
for the benefit of the Investor Certificateholders.
(c) The Distribution Account. The Trustee, for the benefit of the
-------------------------
Investor Certificateholders, shall cause to be established and maintained in the
name of the Trust, with an office or branch of a Qualified Institution (other
than a Transferor), a non-interest bearing segregated demand deposit account
(the "Distribution Account") bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the Investor
Certificateholders. The Trustee shall possess all right, title and interest in
all funds on deposit from time to time in the Distribution Account and in all
proceeds thereof. The Distribution Account shall be under the sole dominion and
control of the Trustee for the benefit of the Investor Certificateholders.
(d) Series Accounts. If so provided in the related Supplement, the
---------------
Trustee, for the benefit of the Investor Certificateholders, shall cause to be
established and maintained in the name of the Trust, one or more Series
Accounts. Each such Series Account shall bear a designation clearly indicating
55
<PAGE>
that the funds deposited therein are held for the benefit of the Investor
Certificateholders of such Series. Each such Series Account will be a trust
account, if so provided in the related Supplement and will have the other
features and be applied as set forth in the related Supplement.
(e) Administration of the Finance Charge and Principal Accounts.
--------------------------------------------------------------
Funds on deposit in the Principal Account and the Finance Charge Account shall
at all times be invested in Permitted Investments. Any such investment shall
mature and such funds shall be available for withdrawal on or prior to the
Transfer Date related to the Monthly Period in which such funds were processed
for collection, or if so specified in the related Supplement, immediately
preceding a Distribution Date. The Trustee shall maintain for the benefit of the
Investor 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; provided, however, that no such investment shall be disposed of prior
to its maturity date. At the end of each month, all interest and earnings (net
of losses and investment expenses) on funds on deposit in the Principal Account
and the Finance Charge Account shall be deposited by the Trustee in a separate
deposit account with a Qualified Institution in the name of the Servicer, or a
Person designated in writing by the Servicer, which shall not constitute a part
of the Trust, or shall otherwise be turned over by the Trustee to the Servicer
not less frequently than monthly. Subject to the restrictions set forth above,
the Servicer, or a Person designated in writing by the Servicer, of which the
Trustee shall have received written notification thereof, shall have the
authority to instruct the Trustee with respect to the investment of funds on
deposit in the Principal Account and the Finance Charge Account. For purposes of
determining the availability of funds or the balances in the Finance Charge
Account and the Principal Account for any reason under this Agreement, all
investment earnings on such funds shall be deemed not to be available or on
deposit.
Section 4.03 Collections and Allocations .
---------------------------
(a) Collections. Except as provided below, the Servicer shall
-----------
deposit all Collections in the Collection Account as promptly as possible after
the Date of Processing of such Collections, but in no event later than the
second Business Day following such Date of Processing. In the event of the
insolvency of the Servicer, then, immediately upon the occurrence of such event
and thereafter, the Servicer shall deposit all Collections into the Collection
Account which shall be established and maintained with a Qualified Institution
other than the Servicer in accordance with subsection 4.02(a), and in no such
event shall the Servicer deposit any Collections thereafter into any account
established, held or maintained with the Servicer.
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The Servicer shall allocate such amounts to each Series of Investor
Certificates and to the Holder of the Transferor Certificate in accordance with
this Article IV and shall withdraw the required amounts from the Collection
Account or pay such amounts to the Holder of the Transferor Certificate in
accordance with this Article IV, in both cases as modified by any Supplement.
The Servicer shall make such deposits or payments on the date indicated therein
by wire transfer or as otherwise provided in the Supplement for any Series of
Certificates with respect to such Series.
Notwithstanding anything in this Agreement to the contrary, for so
long as, and only so long as, Bank of America shall remain the Servicer
hereunder, and (a)(i) the Servicer provides to the Trustee a letter of credit
covering collection risk of the Servicer, and (ii) Bank of America shall have
received a notice from each Rating Agency that such a letter of credit would not
result in the lowering of such Rating Agency's then-existing rating of the
Investor Certificates, or (b) the Servicer shall have and maintain a certificate
of deposit or short-term deposit rating of P-1 by Moody's and of A-1 by Standard
& Poor's and deposit insurance provided by the FDIC, the Servicer need not
deposit Collections from the Collection Account into the Principal Account, the
Finance Charge Account or any Series Account, as provided in any Supplement, or
make payments to the Holder of the Transferor Certificate, prior to the close of
business on the day any Collections are deposited in the Collection Account as
provided in Article IV, but may make such deposits, payments and withdrawals on
each Transfer Date in an amount equal to the net amount of such deposits,
payments and withdrawals which would have been made but for the provisions of
this paragraph. If at any time the Servicer shall qualify to make deposits on
the Transfer Date as provided in this paragraph (or shall cease to be so
qualified) the Servicer shall deliver an Officer's Certificate to the Trustee
stating that the criteria set forth in (a)(i) and (ii) or (b) of this paragraph
have been satisfied (or have ceased to be satisfied). The Trustee may rely on
such Officer's Certificate without investigation or inquiry.
Notwithstanding anything else in this Agreement to the contrary,
with respect to any Monthly Period, whether the Servicer is required to make
monthly or daily deposits from the Collection Account into the Finance Charge
Account, the Principal Account or any Series Account, as provided in any
Supplement, (i) the Servicer will only be required to deposit Collections from
the Collection Account into the Finance Charge Account, the Principal Account or
any Series Account up to the required amount to be deposited into any such
deposit account or, without duplication, distributed on or prior to the related
Distribution Date to Investor Certificateholders or to any Credit Enhancement
Provider pursuant to the terms of any Supplement or agreement relating to such
Credit Enhancement and (ii) if at any time prior to such Distribution Date the
amount of Collections deposited in the Collection Account exceeds the amount
required to be deposited pursuant to clause (i) above, the Servicer will be
permitted to withdraw the excess from the Collection Account.
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(b) Allocations for the Transferor Certificate. Throughout the
------------------------------------------
existence of the Trust, unless otherwise stated in any Supplement, the Servicer
shall allocate to the Holder of the Transferor Certificate an amount equal to
the product of (A) the Transferor Percentage and (B) the aggregate amount of
such Collections allocated to Principal Receivables and Finance Charge
Receivables, respectively, in respect of each Monthly Period. Notwithstanding
anything in this Agreement to the contrary, unless otherwise stated in any
Supplement, the Servicer need not deposit this amount or any other amounts so
allocated to the Transferor Certificate pursuant to any Supplement into the
Collection Account and shall pay, or be deemed to pay, such amounts as collected
to the Holder of the Transferor Certificate.
(c) Adjustments for Miscellaneous Credits and Fraudulent Charges.
---------------------------------------------------------------
The Servicer shall be obligated to reduce on a net basis each Monthly Period the
aggregate amount of Principal Receivables used to calculate the Transferor
Interest as provided in this subsection 4.03(c) (a "Credit Adjustment") with
respect to any Principal Receivable (i) which was created in respect of
merchandise refused or returned by the Obligor thereunder or as to which the
Obligor thereunder has asserted a counterclaim or defense, (ii) which is reduced
by the Servicer by any rebate, refund, charge-back or adjustment (including
Servicer errors), (iii) which was created as a result of a fraudulent or
counterfeit charge or (iv) which is transferred to a credit card account that
would qualify, but for the application of the proviso in the definition of the
term "Transferred Account" in Section 1.01, as a Transferred Account.
In the event that the inclusion of the amount of a Credit Adjustment
in the calculation of the Transferor Interest would cause the Transferor
Interest to be an amount less than zero, the Transferor which owns the Account
to which such Credit Adjustment is made shall make a deposit, no later than the
Business Day following the Date of Processing of such Credit Adjustment, in the
Principal Account (for allocation as Collections of Principal Receivables
pursuant to Article IV) in immediately available funds in an amount equal to the
amount by which such Credit Adjustment exceeds the Transferor Interest on such
Date of Processing.
[THE REMAINDER OF ARTICLE IV IS RESERVED AND SHALL BE
SPECIFIED IN ANY SUPPLEMENT WITH RESPECT TO ANY
SERIES]
[End of Article IV]
58
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ARTICLE V
[ARTICLE V IS RESERVED AND SHALL
BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]
[End of Article V]
59
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ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates . Subject to Sections 6.10 and 6.13,
-----------------
the Investor Certificates of each Series and any Class thereof may be issued in
bearer form (the "Bearer Certificates") with attached interest coupons and a
special coupon (collectively, the "Coupons") or in fully registered form (the
"Registered Certificates"), and shall be substantially in the form of the
exhibits with respect thereto attached to the related Supplement. The Transferor
Certificate shall be substantially in the form of Exhibit A. The Investor
Certificates and the Transferor Certificate shall, upon issue pursuant hereto or
to Section 6.09 or Section 6.10, be executed and delivered by the Transferors to
the Trustee for authentication and redelivery as provided in Sections 2.01 and
6.02. Any Investor Certificate shall be issuable in a minimum denomination of
$1,000 Undivided Interest and integral multiples thereof, unless otherwise
specified in any Supplement. The Transferor Certificate shall also be initially
issued as a single certificate. Each Certificate shall be executed by manual or
facsimile signature on behalf of the Transferor by its President or any Vice
President. Certificates bearing the manual or facsimile signature of the
individual who was, at the time when such signature was affixed, authorized to
sign on behalf of the Transferors or the Trustee shall not be rendered invalid,
notwithstanding that such individual has ceased to be so authorized prior to the
authentication and delivery of such Certificates or does not hold such office at
the date of such Certificates. Unless otherwise provided in the related
Supplement, no Certificate shall be entitled to any benefit under this
Agreement, or be valid for any purpose, unless there appears on such Certificate
a certificate of authentication substantially in the form provided for herein,
executed by or on behalf of the Trustee by the manual signature of a duly
authorized signatory, and such certificate upon any Certificate shall be
conclusive evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the date
of their authentication except Bearer Certificates which shall be dated the
applicable Issuance Date as provided in the related Supplement.
Section 6.02 Authentication of Certificates . Contemporaneously with
------------------------------
the initial assignment and transfer of the Receivables, whether now existing or
hereafter created and the other components to the Trust, the Trustee shall
authenticate and deliver the initial Series of Investor Certificates, upon the
written order of the Transferors, to the underwriters for the sale of the
Book-Entry Certificates evidenced by such Investor Certificates, and against
payment to the Transferors of the Initial Investor Interest (net of any purchase
or underwriting discount). Upon the receipt of such payment and the issuance of
the Investor Certificates, such Investor Certificates shall be fully paid and
non-assessable. The Trustee shall authenticate and deliver the Transferor
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Certificate to Bank of America or its designee simultaneously with its delivery
to the Transferors of the initial Series of Investor Certificates. Upon a New
Issuance as provided in Section 6.09 and the satisfaction of certain other
conditions specified therein, the Trustee shall authenticate and deliver the
Investor Certificates of additional Series (with the designation provided in the
related Supplement), upon the order of the Transferors, to the Persons
designated in such Supplement. Upon the order of the Transferors, the
Certificates of any Series shall be duly authenticated by or on behalf of the
Trustee, in authorized denominations. If specified in the related Supplement for
any Series, the Trustee shall authenticate and deliver outside the United States
the Global Certificate that is issued upon original issuance thereof, upon the
written order of the Transferors, to the Depository against payment of the
purchase price therefor. If specified in the related Supplement for any Series,
the Trustee shall authenticate Book-Entry Certificates that are issued upon
original issuance thereof, upon the written order of the Transferors, to a
Clearing Agency or its nominee as provided in Section 6.10 against payment of
the purchase price thereof.
Section 6.03 Registration of Transfer and Exchange of Certificates .
-----------------------------------------------------
(a) The Trustee shall cause to be kept at the office or agency to
be maintained by a transfer agent and registrar (the "Transfer Agent and
Registrar"), in accordance with the provisions of Section 11.16, a register (the
"Certificate Register") in which, subject to such reasonable regulations as it
may prescribe, the Transfer Agent and Registrar shall provide for the
registration of the Investor Certificates of each Series (unless otherwise
provided in the related Supplement) and of transfers and exchanges of the
Investor Certificates as herein provided. The Trustee is hereby initially
appointed Transfer Agent and Registrar for the purposes of registering the
Investor Certificates and transfers and exchanges of the Investor Certificates
as herein provided. If any form of Investor Certificate is issued as a Global
Certificate, the Trustee may, or if and so long as any Series of Investor
Certificates are listed on the Luxembourg Stock Exchange and such exchange shall
so require, the Trustee shall appoint a co-transfer agent and co-registrar in
Luxembourg or another European city. Any reference in this Agreement to the
Transfer Agent and Registrar shall include any co-transfer agent and
co-registrar unless the context otherwise requires. The Trustee shall be
permitted to resign as Transfer Agent and Registrar upon 30 days' written notice
to the Servicer. In the event that the Trustee shall no longer be the Transfer
Agent and Registrar, the Trustee shall appoint a successor Transfer Agent and
Registrar.
Upon surrender for registration of transfer of any Certificate at
any office or agency of the Transfer Agent and Registrar, the Transferors shall
execute, subject to the provisions of subsection 6.03(c), and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Certificates in authorized denominations of like
aggregate Undivided Interests; provided, that the provisions of this paragraph
--------
shall not apply to Bearer Certificates.
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At the option of an Investor Certificateholder, Investor
Certificates may be exchanged for other Investor Certificates of the same Series
in authorized denominations of like aggregate Undivided Interests, upon
surrender of the Investor Certificates to be exchanged at any such office or
agency. At the option of any Holder of Registered Certificates, Registered
Certificates may be exchanged for other Registered Certificates of the same
Series in authorized denominations of like aggregate Undivided Interests in the
Trust, upon surrender of the Registered Certificates to be exchanged at any
office or agency of the Transfer Agent and Registrar maintained for such
purpose. At the option of a Bearer Certificateholder, subject to applicable laws
and regulations (including without limitation, the Bearer Rules), Bearer
Certificates may be exchanged for other Bearer Certificates or Registered
Certificates of the same Series in authorized denominations of like aggregate
Undivided Interests in the Trust, in the manner specified in the Supplement for
such Series, upon surrender of the Bearer Certificates to be exchanged at an
office or agency of the Transfer Agent and Registrar located outside the United
States. Each Bearer Certificate surrendered pursuant to this Section 6.03 shall
have attached thereto (or be accompanied by) all unmatured Coupons, provided
that any Bearer Certificate so surrendered after the close of business on the
Record Date preceding the relevant Distribution Date after the related Series
Termination Date need not have attached the Coupons relating to such
Distribution Date.
Whenever any Investor Certificates of any Series are so surrendered
for exchange, the Transferors shall execute, and the Trustee shall authenticate
and (unless the Transfer Agent and Registrar is different than the Trustee, in
which case the Transfer Agent and Registrar shall) deliver, the Investor
Certificates of such Series which the Certificateholder making the exchange is
entitled to receive. Every Investor Certificate presented or surrendered for
registration of transfer or exchange shall be accompanied by a written
instrument of transfer in a form satisfactory to the Trustee and the Transfer
Agent and Registrar duly executed by the Certificateholder thereof or his
attorney-in-fact duly authorized in writing.
The preceding provisions of this Section 6.03 notwithstanding, the
Trustee or the Transfer Agent and Registrar, as the case may be, shall not be
required to register the transfer of or exchange any Investor Certificate of any
Series for a period of 15 days preceding the due date for any payment with
respect to the Investor Certificates of such Series.
Unless otherwise provided in the related Supplement, no service
charge shall be made for any registration of transfer or exchange of
Certificates, but the Transfer Agent and Registrar may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer or exchange of Certificates.
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All Investor Certificates (together with any Coupons attached to
Bearer Certificates) surrendered for registration of transfer and exchange shall
be canceled by the Transfer Agent and Registrar and disposed of in a manner
satisfactory to the Trustee. The Trustee shall cancel and destroy the Global
Certificates upon its exchange in full for Definitive Certificates and shall
deliver a certificate of destruction to the Transferors. Such certificate shall
also state that a certificate or certificates of each Foreign Clearing Agency to
the effect referred to in Section 6.13 was received with respect to each portion
of the Global Certificate exchanged for Definitive Certificates.
The Transferors shall execute and deliver to the Trustee or the
Transfer Agent and Registrar, as applicable, 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 and the
Certificates.
(b) Except as provided in Section 6.09 or 7.02, in no event shall
the Transferor Certificate or any interest therein be transferred hereunder, in
whole or in part, unless the Transferors shall have consented in writing to such
transfer and unless the Trustee shall have received (1) confirmation in writing
from each Rating Agency that such transfer will not result in a lowering or
withdrawal of its then-current rating of any Series of Investor Certificates,
and (2) an Opinion of Counsel that such transfer does not adversely affect the
conclusions reached in any of the federal income tax opinions dated the
applicable Closing Date issued in connection with the original issuance of any
Series of Investor Certificates; provided further, that no interest in the
-------- -------
Transferor Certificate may be transferred unless its initial offering price
would be at least $20,000 and it cannot be subdivided for resale into units
smaller than a unit the initial offering price of which would have been at least
$20,000, absent an Opinion of Counsel to the effect that such transfer would not
cause the Trust to be treated as a publicly traded partnership under the Code.
In connection with any transfer of an interest in the Transferor Certificate,
the holder (including the Transferor or any subsequent transferee) thereof shall
not sell, trade or transfer any interest therein or cause any interest therein
to be marketed on or through either (i) an "established securities market"
within the meaning of Section 7704(b)(1) of the Internal Revenue Code, including
without limitation an interdealer quotation system that regularly disseminates
firm buy or sell quotations by identified brokers or dealers by electronic means
or otherwise or (ii) a "secondary market" within the meaning of Internal Revenue
Code section 7704(b)(2), including a market wherein interests in the Transferor
Certificate are regularly quoted by any person making a market in such interests
and a market wherein any person regularly makes available bid or offer quotes
with respect to interests in the Transferor Certificate and stands ready to
effect buy or sell transactions at the quoted prices for itself or on behalf of
others.
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(c) Unless otherwise provided in the related Supplement,
registration of transfer of Registered Certificates containing a legend relating
to the restrictions on transfer of such Registered Certificates (which legend
shall be set forth in the Supplement relating to such Investor Certificates)
shall be effected only if the conditions set forth in such related Supplement
are satisfied.
Whenever a Registered Certificate containing the legend set forth in
the related Supplement is presented to the Transfer Agent and Registrar for
registration of transfer, the Transfer Agent and Registrar shall promptly seek
instructions from the Servicer regarding such transfer. The Transfer Agent and
Registrar and the Trustee shall be entitled to receive written instructions
signed by a Servicing Officer prior to registering any such transfer or
authenticating new Registered Certificates, as the case may be. The Servicer
hereby agrees to indemnify the Transfer Agent and Registrar and the Trustee and
to hold each of them harmless against any loss, liability or expense incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or omitted by them in reliance on any such written
instructions furnished pursuant to this subsection 6.03(c).
(d) The Transfer Agent and Registrar will maintain at its
expense in the Borough of Manhattan, the City of New York (and subject to this
Section 6.03, if specified in the related Supplement for any Series, any other
city designated in such Supplement) an office or offices or an agency or
agencies where Investor Certificates of such Series may be surrendered for
registration of transfer or exchange.
Section 6.04 Mutilated, Destroyed, Lost or Stolen Certificates . If
--------------------------------------------------
(a) any mutilated Certificate (together, in the case of Bearer Certificates,
with all unmatured Coupons, if any, appertaining thereto) is surrendered to the
Transfer Agent and Registrar, or the Transfer Agent and Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Transfer Agent and Registrar and
the Trustee such security or indemnity as may be required by them to save each
of them harmless, then, in the absence of notice to the Trustee that such
Certificate has been acquired by a bona fide purchaser, the Transferors shall
execute and the Trustee shall authenticate and (unless the Transfer Agent and
Registrar is different from the Trustee, in which case the Transfer Agent and
Registrar shall) deliver (in compliance with applicable law), in exchange for or
in lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
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<PAGE>
Certificate of like tenor and aggregate Undivided Interest. In connection with
the issuance of any new Certificate under this Section 6.04, the Trustee or the
Transfer Agent and Registrar 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 the fees and expenses of the Trustee
and the Transfer Agent and Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section 6.04 shall constitute complete and
indefeasible evidence of ownership in the Trust, as if originally issued,
whether or not the lost, stolen or destroyed Certificate shall be found at any
time.
Section 6.05 Persons Deemed Owners . Prior to due presentation of a
---------------------
Certificate for registration of transfer, the Trustee, the Paying Agent, the
Transfer Agent and Registrar and any agent of any of them may treat a
Certificateholder as the owner of the related Certificate for the purpose of
receiving distributions pursuant to Article V (as described in any Supplement)
and for all other purposes whatsoever, and neither the Trustee, the Paying
Agent, the Transfer Agent and Registrar nor any agent of any of them shall be
affected by any notice to the contrary; provided, however, that in determining
-------- -------
whether the holders of Investor Certificates evidencing the requisite Undivided
Interests have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Investor Certificates owned by the Transferors, the
Servicer or any Affiliate thereof shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Investor Certificates which a Responsible Officer in the
Corporate Trust Office of the Trustee knows to be so owned shall be so
disregarded. Investor Certificates so owned that have been pledged in good faith
shall not be disregarded as outstanding, if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Investor Certificates and that the pledgee is not a Transferor, the Servicer or
an Affiliate thereof.
In the case of a Bearer Certificate, the Trustee, the Paying Agent,
the Transfer Agent and Registrar and any agent of any of them may treat the
holder of a Bearer Certificate or Coupon as the owner of such Bearer Certificate
or Coupon for the purpose of receiving distributions pursuant to Article IV and
Article XII and for all other purposes whatsoever, and neither the Trustee, the
Paying Agent, the Transfer Agent and Registrar nor any agent of any of them
shall be affected by any notice to the contrary. Certificates so owned which
have been pledged in good faith shall not be disregarded and may be regarded as
outstanding, if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Investor Certificates and that
the pledgee is not a Transferor, the Servicer or an Affiliate thereof.
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Section 6.06 Appointment of Paying Agent .
---------------------------
((C)) The Paying Agent shall make distributions to Investor
Certificateholders from the appropriate account or accounts maintained for the
benefit of Certificateholders as specified in this Agreement or the related
Supplement for any Series pursuant to Articles IV and V hereof. Any Paying Agent
shall have the revocable power to withdraw funds from such appropriate account
or accounts for the purpose of making distributions referred to above. The
Trustee (or the Servicer if the Trustee is the Paying Agent) may revoke such
power and remove the Paying Agent, if the Trustee (or the Servicer if the
Trustee is the Paying Agent) determines in its sole discretion that the Paying
Agent shall have failed to perform its obligations under this Agreement in any
material respect or for other good cause. The Trustee (or the Servicer if the
Trustee is the Paying Agent) shall notify Moody's and Standard & Poor's of the
removal of any Paying Agent. The Paying Agent, unless the Supplement with
respect to any Series states otherwise, shall initially be the Trustee. If any
form of Investor Certificate is issued as a Global Certificate, or if and so
long as any Series of Investor Certificates are listed on the Luxembourg Stock
Exchange and such exchange shall so require, the Trustee shall appoint a
co-paying agent in Luxembourg or another European city. The Trustee shall be
permitted to resign as Paying Agent upon 30 days' written notice to the
Servicer. In the event that the Trustee shall no longer be the Paying Agent, the
Trustee shall appoint a successor to act as Paying Agent (which shall be a bank
or trust company). The provisions of Sections 11.01, 11.02 and 11.03 shall apply
to the Trustee also in its role as Paying Agent, for so long as the Trustee
shall act as Paying Agent. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
If specified in the related Supplement for any Series, so long as
the Investor Certificates of such Series are outstanding, the Transferors shall
maintain a co-paying agent in New York City (for Registered Certificates only)
or any other city designated in such Supplement which, if and so long as any
Series of Investor Certificates is listed on the Luxembourg Stock Exchange or
other stock exchange and such exchange so requires, shall be in Luxembourg or
the location required by such other stock exchange.
((a)) The Trustee shall cause the Paying Agent (other than itself)
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, if any,
held by it for payment to the Certificateholders in trust for the benefit of the
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders and shall agree, and if the Trustee is the Paying Agent it
hereby agrees, that it shall comply with all requirements of the Internal
Revenue Code regarding the withholding by the Trustee of payments in respect of
federal income taxes due from Certificate Owners.
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Section 6.07 Access to List of Certificateholders' Names and
-----------------------------------------------------
Addresses . The Trustee will furnish or cause to be furnished by the Transfer
- ---------
Agent and Registrar to the Servicer or the Paying Agent, within five Business
Days after receipt by the Trustee of a request therefor from the Servicer or the
Paying Agent, respectively, in writing, a list in such form as the Servicer or
the Paying Agent may reasonably require, of the names and addresses of the
Investor Certificateholders as of the most recent Record Date for payment of
distributions to Investor Certificateholders. Unless otherwise provided in the
related Supplement, holders of Investor Certificates evidencing Undivided
Interests aggregating not less than 10% of the Investor Interest of the Investor
Certificates of any Series (the "Applicants") may apply in writing to the
Trustee, and if such application states that the Applicants desire to
communicate with other Investor Certificateholders of any Series with respect to
their rights under this Agreement or under the Investor Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee, after having been adequately indemnified by such
Applicants for its costs and expenses, shall afford or shall cause the Transfer
Agent and Registrar to afford such Applicants access during normal business
hours to the most recent list of Certificateholders held by the Trustee and
shall give the Servicer notice that such request has been made, 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 Certificateholder, by receiving and holding a Certificate, agrees
with the Trustee that neither the Trustee, the Transfer Agent and Registrar, nor
any of their respective agents shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the
Certificateholders hereunder, regardless of the source from which such
information was obtained.
Section 6.08 Authenticating Agent .
--------------------
(a) The Trustee may appoint one or more authenticating agents with
respect to the Certificates which shall be authorized to act on behalf of the
Trustee in authenticating the Certificates in connection with the issuance,
delivery, registration of transfer, exchange or repayment of the Certificates.
Whenever reference is made in this Agreement to the authentication of
Certificates by the Trustee or the Trustee's certificate of authentication, such
reference shall be deemed to include authentication on behalf of the Trustee by
an authenticating agent and a certificate of authentication executed on behalf
of the Trustee by an authenticating agent. Each authenticating agent must be
acceptable to the Transferors.
(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.
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(c) An authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Transferors. The Trustee may at
any time terminate the agency of an authenticating agent by giving notice of
termination to such authenticating agent and to the Transferors. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
an authenticating agent shall cease to be acceptable to the Trustee or the
Transferors, the Trustee promptly may appoint a successor authenticating agent.
Any successor authenticating agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an authenticating agent.
No successor authenticating agent shall be appointed unless acceptable to the
Trustee and the Transferors.
(d) The Trustee agrees to pay each authenticating agent from time
to time reasonable compensation for its services under this Section 6.08, and
the Trustee shall be entitled to be reimbursed and the Servicer shall reimburse
the Trustee for such reasonable payments actually made, 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.
(f) Pursuant to an appointment made under this Section 6.08,
the Certificates may have endorsed thereon, in lieu of the Trustee's certificate
of authentication, an alternate certificate of authentication in substantially
the following form:
This is one of the certificates described in the Pooling and
Servicing Agreement.
---------------------------------
as Authenticating Agent
for the Trustee,
By:_______________________________
Authorized Officer
Section 6.09 New Issuances .
-------------
(a) Upon the issuance of a new Series of Investor Certificates,
the Trustee shall issue to or upon the order of the Holder of the Transferor
Certificate under Section 6.01, for execution and redelivery to the Trustee for
authentication under Section 6.02, one or more new Series of Investor
Certificates. Any such Series of Investor Certificates shall be substantially in
the form specified in the related Supplement and shall bear, upon its face, the
designation for such Series to which it belongs, as selected by the Transferors.
Except as specified in any Supplement for a related Series, all Investor
Certificates of any Series shall rank pari passu and be equally and ratably
---- -----
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entitled as provided herein to the benefits hereof (except that the Credit
Enhancement provided for any Series shall not be available for any other Series)
without preference, priority or distinction on account of the actual time or
times of authentication and delivery, all in accordance with the terms and
provisions of this Agreement and the related Supplement.
(b) The Holder of the Transferor Certificate may permit a new
Series of Investor Certificates to be issued (a "New Issuance") by notifying the
Trustee, in writing at least three (3) days in advance (an "New Issuance
Notice") of the date upon which the New Issuance is to occur (a "New Issuance
Date"). Any New Issuance Notice shall state the designation of any Series (and
Class thereof, if applicable) to be issued on the New Issuance Date and, with
respect to each such Series: (a) its Initial Investor Interest (or the method
for calculating such Initial Investor Interest) (b) its Certificate Rate (or the
method for allocating interest payments or other cash flows to such Series), if
any, and (c) the Credit Enhancement Provider, if any, with respect to such
Series. On the New Issuance Date, the Trustee shall authenticate and deliver any
such Series of Investor Certificates only upon delivery to it of the following:
(a) a Supplement satisfying the criteria set forth in subsection 6.09(c)
executed by the Transferors and specifying the Principal Terms of such Series,
(b) the applicable Credit Enhancement, if any, (c) the agreement, if any,
pursuant to which the Credit Enhancement Provider agrees to provide the Credit
Enhancement, if any, (d) a Tax Opinion with respect to the issuance of such
Series, (e) written confirmation from each Rating Agency that the New Issuance
will not result in such Rating Agency's reducing or withdrawing its rating on
any then outstanding Series as to which it is a Rating Agency and (f) an
Officer's Certificate signed by a Vice President (or any more senior officer) of
the Transferors, that on the New Issuance Date (i) the Transferors, after giving
effect to the New Issuance, would not be required to add Additional Accounts
pursuant to subsection 2.06(a) and (ii) after giving effect to such New
Issuance, the Transferor Interest would be at least equal to the Minimum
Transferor Interest. Upon satisfaction of such conditions, the Trustee shall
cancel the existing Transferor Certificate or applicable Investor Certificates,
as the case may be, and issue, as provided above, such Series of Investor
Certificates and a new Transferor Certificate, dated the New Issuance Date.
There is no limit to the number of New Issuances that may be performed under
this Agreement.
(c) In conjunction with a New Issuance, the parties hereto shall
execute a Supplement, which shall specify the relevant terms with respect to any
newly issued Series of Investor Certificates, which may include without
limitation: (i) its name or designation, (ii) an Initial Investor Interest or
the method of calculating the Initial Investor Interest, (iii) the method of
determining any Adjusted Investor Interest, if applicable, (iv) the Certificate
Rate (or formula for the determination thereof), (v) the Closing Date, (vi)
each rating agency rating such Series, (vii) the name of the Clearing Agency,
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if any, (ix) the rights of the Holder of the Transferor Certificate that have
been transferred to the Holders of such Series pursuant to such New Issuance
(including any rights to allocations of Collections of Finance Charge
Receivables and Principal Receivables), (x) the interest payment date or dates
and the date or dates from which interest shall accrue, (xi) the periods during
which or dates on which principal will be paid or accrued, (xii) the method of
allocating Collections with respect to Principal Receivables for such Series
and, if applicable, with respect to other Series and the method by which the
principal amount of Investor Certificates of such
and the method for allocating Collections with respect to Finance Charge
Receivables and Receivables in Defaulted Accounts, (xiii) any other Collections
with respect to Receivables or other amounts available to be paid with respect
to such Series, (xiv) the names of any accounts to be used by such Series and
the terms governing the operation of any such account and use of moneys therein,
(xv) the Series Servicing Fee and the Series Servicing Fee Percentage, (xvi) the
Minimum Transferor Interest and, the Series Termination Date, (xvii) the terms
of any Credit Enhancement with respect to such Series, and the Credit
Enhancement Provider, if applicable, (xviii) the base rate applicable to such
Series, (xix) the terms on which the Certificates of such Series may be
repurchased or remarketed to other investors, (xx) any deposit into any account
provided for such Series, (xxi) the number of Classes of such Series, and if
more than one Class, the rights and priorities of each such Class, (xxii)
whether Interchange or other fees will be included in the funds available to be
paid for such Series, (xxiii) the priority of any Series with respect to any
other Series, (xxiv) the Minimum Aggregate up, (xxvi) whether such Series will
or may be a Paired Series and the Series with which it will be paired, if
applicable, and (xxvii) any other relevant terms of such Series (including
whether or not such Series will be pledged as collateral for an issuance of any
other securities, including commercial paper) (all such terms, the "Principal
Terms" of such Series). The terms of such Supplement may modify or amend the
terms of this Agreement solely as applied to such new Series. If on the date of
the issuance of such Series there is issued and outstanding one or more Series
of Investor Certificates and no Series of Investor Certificates is currently
rated by a Rating Agency, then as a condition to such New Issuance a nationally
recognized investment banking firm or commercial bank shall also deliver to the
Trustee an officer's certificate stating, in substance, that the New Issuance
will not have an adverse effect on the timing or distribution of payments to
such other Series of Investor Certificates then issued and outstanding.
(d) The Transferors may instruct the Trustee and upon receipt of
such instruction, the Trustee shall alter the Transferor Certificate to provide
for one or more additional certificates (each a "Supplemental Certificate"), the
terms of which shall be defined in a supplement to this Agreement (which
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supplement shall be subject to subsection 13.01(a) only to the extent that it
amends any of the terms of this Agreement), to be delivered to or upon the order
of the Transferors (or the Holder of a Supplemental Certificate, in the case of
the transfer or exchange thereof, as provided below), upon satisfaction of the
following conditions:
(i) The Transferors shall have given written notice to each Rating
Agency of such Supplemental Certificate issuance;
(ii) the Transferor Interest (excluding the interest represented by
any Supplemental Certificate) shall not be less than 2% of the total
amount of Principal Receivables as of the date of, and after giving effect
to, such issuance; and
(iii) if any Series of Investor Certificates are outstanding that
were characterized as debt at the time of their issuance, the Transferors
shall have delivered to the Trustee and each Rating Agency an opinion of
counsel, dated the date of such issuance, to the effect that such issuance
does not adversely affect the conclusions reached in any of the Tax
Opinions delivered in connection with the issuance of any applicable
Series of Certificates.
Any Supplemental Certificate may be transferred only upon satisfaction of the
conditions set forth in clause (ii) above.
(e) The Transferor Certificate (or any interest therein) may be
transferred to a Person which is a member of the "affiliated group" of which the
Corporation is the "common parent" (as such terms are defined in Section 1504(a)
of the Code); provided that (i) if any Series of Investor Certificates are
outstanding that were characterized as debt at the time of their issuance, the
Transferors shall have delivered to the Trustee and each Rating Agency a Tax
Opinion, dated the date of such transfer, with respect thereto, and (ii) any
such transferee shall be deemed to be a "Transferor" for purposes of Sections
7.04 and 9.02.
Section 6.10 Book-Entry Certificates . Unless otherwise provided in
------------------------
any related Supplement, the Investor Certificates, upon original issuance, shall
be issued in the form of typewritten Certificates representing the Book-Entry
Certificates, to be delivered to the depository specified in such Supplement
(the "Depository") which shall be the Clearing Agency or Foreign Clearing
Agency, by or on behalf of such Series. The Investor Certificates of each Series
shall, unless otherwise provided in the related Supplement, initially be
registered on the Certificate Register in the name of the nominee of the
Clearing Agency or Foreign Clearing Agency. No Certificate Owner will receive a
definitive certificate representing such Certificate Owner's interest in the
related Series of Investor Certificates, except as provided in Section 6.12.
Unless and until definitive, fully registered Investor Certificates of any
Series ("Definitive Certificates") have been issued to Certificate Owners
pursuant to Section 6.12:
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(i) the provisions of this Section 6.10 shall be in full force
and effect with respect to each such Series;
(ii) the Transferors, the Servicer, the Paying Agent, the Transfer
Agent and Registrar 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 of each such Series) as the
authorized representatives of the Certificate Owners;
(iii) to the extent that the provisions of this Section 6.10
conflict with any other provisions of this Agreement, the provisions of
this Section 6.10 shall control with respect to each such Series; and
(iv) the rights of Certificate Owners of each such Series shall be
exercised only through the Clearing Agency or Foreign Clearing Agency and
the applicable Clearing Agency Participants and shall be limited to those
established by law and agreements between such Certificate Owners and the
Clearing Agency or Foreign Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Depository Agreement applicable to a Series,
unless and until Definitive Certificates of such Series are issued
pursuant to Section 6.12, 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.
Section 6.11 Notices to Clearing Agency . Whenever notice or other
---------------------------
communication to the Certificateholders is required under this Agreement, unless
and until Definitive Certificates shall have been issued to Certificate Owners
pursuant to Section 6.12, the Trustee shall give all such notices and
communications specified herein to be given to Holders of the Investor
Certificates to the Clearing Agency or Foreign Clearing Agency for distribution
to Holders of Investor Certificates.
Section 6.12 Definitive Certificates . If (i) (A) the Transferors
------------------------
advise the Trustee in writing that the Clearing Agency or Foreign Clearing
Agency is no longer willing or able to discharge properly its responsibilities
under the applicable Depository Agreement, and (B) the Trustee is or the
Transferors are unable to locate a qualified successor, (ii) the Transferors, at
their option, advises the Trustee in writing that it elects to terminate the
book-entry system through the Clearing Agency or Foreign Clearing Agency with
respect to any Series of Certificates or (iii) after the occurrence of a
Servicer Default, Certificate Owners of a Series representing beneficial
interests aggregating not less than 50% of the Investor Interest of such Series
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advise the Trustee and the applicable Clearing Agency or Foreign Clearing Agency
through the applicable Clearing Agency Participants in writing that the
continuation of a book-entry system through the applicable Clearing Agency or
Foreign Clearing Agency is no longer in the best interests of the Certificate
Owners, the Trustee shall notify all Certificate Owners of such Series, through
the applicable Clearing Agency Participants, of the occurrence of any such event
and of the availability of Definitive Certificates to Certificate Owners of such
Series requesting the same. Upon surrender to the Trustee of the Investor
Certificates of such Series by the applicable Clearing Agency or Foreign
Clearing Agency, accompanied by registration instructions from the applicable
Clearing Agency or Foreign Clearing Agency for registration, the Trustee shall
issue the Definitive Certificates of such Series. Neither the Transferors nor
the Trustee shall be liable for any delay in delivery of such instructions and
may conclusively rely on, and shall be protected in relying on, such
instructions. Upon the issuance of Definitive Certificates of such Series all
references herein to obligations imposed upon or to be performed by the
applicable Clearing Agency or Foreign Clearing Agency shall be deemed to be
imposed upon and performed by the Trustee, to the extent applicable with respect
to such Definitive Certificates, and the Trustee shall recognize the Holders of
the Definitive Certificates of such Series as Certificateholders of such Series
hereunder.
Section 6.13 Global Certificate; Euro-Certificate Exchange Date . If
--------------------------------------------------
specified in the related Supplement for any Series, the Investor Certificates
may be initially issued in the form of a single temporary Global Certificate
(the "Global Certificate") in bearer form, without interest coupons, in the
denomination of the Initial Investor Interest and substantially in the form
attached to the related Supplement. Unless otherwise specified in the related
Supplement, the provisions of this Section 6.13 shall apply to such Global
Certificate. 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 in the
manner described in the related Supplement for Registered or Bearer Certificates
in definitive form.
Section 6.14 Meetings of Certificateholders .
------------------------------
To the extent provided by the Supplement for any Series issued in
whole or in part in Bearer Certificates, the Servicer or the Trustee may at any
time call a meeting of the Certificateholders of such Series, to be held at such
time and at such place as the 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
with respect to such Series or in the Certificates of such Series, subject to
Section 13.01 of this Agreement.
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Section 6.15 Uncertificated Classes . Notwithstanding anything to
-----------------------
the contrary contained in this Article VI or in Article XII, unless otherwise
specified in any Supplement, any provisions contained in this Article VI and in
Article XII relating to the registration, form, execution, authentication,
delivery, presentation, cancellation and surrender of Certificates shall not be
applicable to any uncertificated Certificates.
[End of Article VI]
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ARTICLE VII
OTHER MATTERS RELATING
TO EACH TRANSFEROR
Section 7.01 Liability of each Transferor . Each Transferor shall be
----------------------------
liable in accordance herewith to the extent of the obligations specifically
undertaken by the Transferor.
Section 7.02 Merger or Consolidation of, or Assumption of the
-----------------------------------------------------
Obligations of, a Transferor .
- ----------------------------
(a) A Transferor shall not consolidate with or merge into any other
Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(i) the Person formed by such consolidation or into which such
Transferor is merged or the Person which acquires by conveyance or
transfer the properties and assets of such Transferor substantially as an
entirety shall be, if such Transferor is not the surviving entity,
organized and existing under the laws of the United States of America or
any State or the District of Columbia, and shall be a national banking
association, state banking corporation or other entity which is not
subject to the bankruptcy laws of the United States of America and shall
expressly assume, by an agreement supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the
performance of every covenant and obligation of such Transferor, as
applicable hereunder, and shall benefit from all the rights granted to
such Transferor, as applicable hereunder. To the extent that any right,
covenant or obligation of a Transferor, as applicable hereunder, is
inapplicable to the successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit from such right, as
would apply, to the extent practicable, to such successor entity. In
furtherance hereof, in applying this Section 7.02 to a successor entity,
Section 9.02 hereof shall be applied by reference to events of involuntary
liquidation, receivership or conservatorship applicable to such successor
entity as shall be set forth in the officer's certificate described in
subsection 7.02(a) (ii);
(ii) such Transferor shall have delivered to the Trustee an
Officer's Certificate signed by a Vice President (or any more senior
officer) of such Transferor stating that such consolidation, merger,
conveyance or transfer and such supplemental agreement comply with this
Section 7.02 and that all conditions precedent herein provided for
relating to such transaction have been complied with and an Opinion of
Counsel that such supplemental agreement is legal, valid and binding; and
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(iii) such Transferor shall have delivered notice to each Rating
Agency of such consolidation, merger, conveyance or transfer.
(b) The obligations of a Transferor hereunder shall not be
assignable nor shall any Person succeed to the obligations of a Transferor
hereunder except for mergers, consolidations, assumptions or transfers in
accordance with the provisions of the foregoing paragraph.
Section 7.03 Limitation on Liability . The directors, officers,
------------------------
employees or agents of any Transferor shall not be under any liability to the
Trust, the Trustee, the Certificateholders, any Credit Enhancement Provider or
any other Person hereunder or pursuant to any document delivered hereunder, it
being expressly understood that all such liability is expressly waived and
released as a condition of, and as consideration for, the execution of this
Agreement and any Supplement and the issuance of the Certificates; provided,
--------
however, that this provision shall not protect the officers, directors,
- -------
employees, or agents of any Transferor against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard of
obligations and duties hereunder. Except as provided in Section 7.04, the
Transferor shall not be under any liability to the Trust, the Trustee, the
Certificateholders, any Credit Enhancement Provider or any other Person for any
action taken or for refraining from the taking of any action in its capacity as
a Transferor pursuant to this Agreement or any Supplement whether arising from
express or implied duties under this Agreement or any Supplement; provided,
--------
however, that this provision shall not protect any Transferor against any
- -------
liability which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. Each Transferor and any director,
officer, employee or agent of each Transferor 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 Liabilities . Notwithstanding any provision of this
-----------
Agreement (including without limitation Sections 3.02, 7.03, 8.03, 8.04 and
11.11), by entering into this Agreement, each Transferor agrees, without
duplication, to be liable, directly to the injured party, for the entire amount
of any losses, claims, damages or liabilities (other than those incurred by an
Investor Certificateholder in the capacity of an investor in the Investor
Certificates) arising out of or based on each of the arrangements created by
this Agreement and the actions of the Servicer taken pursuant hereto (to the
extent any property of the Trust is remaining after the Investor
Certificateholders and Credit Enhancement providers have been paid in full are
insufficient to pay such losses, claims, damages or liabilities) as though this
Agreement created a partnership under the New York Uniform Partnership Act in
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which each Transferor was a general partner. The rights to the injured party
provided by this Section 7.04 shall run directly to and be enforceable by such
party subject to the limitations hereof. In the event of the appointment of a
Successor Servicer, the Successor Servicer will (from its own assets and not
from the assets of the Trust) indemnify and hold harmless each Transferor
against and from any losses, claims, damages and liabilities of such Transferor
as described in this Section arising from the actions or omissions of such
Successor Servicer.
[End Of Article VII]
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ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
Section 8.01 Liability of the Servicer . The Servicer shall be
---------------------------
liable in accordance herewith only to the extent of the obligations specifically
undertaken by the Servicer in such capacity herein.
Section 8.02 Merger or Consolidation of, or Assumption of the
-----------------------------------------------------
Obligations of, the Servicer . The Servicer shall not consolidate with or merge
- ----------------------------
into any other Person or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) the Person formed by such consolidation or into which the
Servicer is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Servicer substantially as an entirety
shall be a corporation organized and existing under the laws of the United
States of America or any State or the District of Columbia, and shall be a
state or national banking association or other entity which is not subject
to the bankruptcy laws of the United States of America and, if the
Servicer is not the surviving entity, shall expressly assume, by an
agreement supplemental hereto, executed and delivered to the Trustee in
form satisfactory to the Trustee, the performance of every covenant and
obligation of the Servicer hereunder (to the extent that any right,
covenant or obligation of the Servicer, as applicable hereunder, is
inapplicable to the successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit from such right, as
would apply, to the extent practicable, to such successor entity);
(ii) the Servicer shall have delivered to the Trustee an Officer's
Certificate that such consolidation, merger, conveyance or transfer and
such supplemental agreement comply with this Section 8.02 and that all
conditions precedent herein provided for relating to such transaction have
been complied with and an Opinion of Counsel that such supplemental
agreement is legal, valid and binding with respect to the Servicer; and
(iii) the Servicer shall have delivered notice to the Rating Agency
of such consolidation, merger, conveyance or transfer.
Section 8.03 Limitation on Liability of the Servicer and Others .
---------------------------------------------------
The directors, officers, employees or agents of the Servicer shall not be under
any liability to the Trust, the Trustee, the Certificateholders, any Credit
Enhancement Provider or any other Person hereunder or pursuant to any document
delivered hereunder, it being expressly understood that all such liability is
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expressly waived and released as a condition of, and as consideration for, the
execution of this Agreement and any Supplement and the issuance of the
Certificates; provided, however, that this provision shall not protect the
-------- -------
directors, officers, employees and agents of the Servicer against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. Except as provided in Section 8.04 with
respect to the Trust and the Trustee, its officers, directors, employees and
agents, the Servicer shall not be under any liability to the Trust, the Trustee,
its officers, directors, employees and agents, the Certificateholders or any
other Person for any action taken or for refraining from the taking of any
action in its capacity as Servicer pursuant to this Agreement or any Supplement;
provided, however, that this provision shall not protect the Servicer against
- -------- -------
any liability which would otherwise be imposed by reason of willful misfeasance,
bad faith or gross negligence in the performance of duties or by reason of its
reckless disregard of its obligations and duties hereunder or under any
Supplement. The 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. The Servicer shall not 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 which in its
reasonable opinion may involve it in any expense or liability.
Section 8.04 Servicer Indemnification of the Trust and the Trustee .
-----------------------------------------------------
The Servicer shall indemnify and hold harmless the Trust and the Trustee, its
officers, directors, employees and agents, from and against any reasonable loss,
liability, expense, damage or injury suffered or sustained by reason of any acts
or omissions or alleged acts or omissions of the Servicer with respect to
activities of the Trust or the Trustee pursuant to this Agreement or any
Supplement, including, but not limited to any judgment, award, settlement,
reasonable attorneys' fees and other costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
provided, however, that the Servicer shall not indemnify the Trustee if such
- -------- -------
acts, omissions or alleged acts or omissions constitute or are caused by fraud,
negligence, or willful misconduct by the Trustee; provided further, that the
Servicer shall not indemnify the Trust, the Investor Certificateholders or the
Certificate Owners 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; provided further, that the Servicer shall not indemnify the
-------- -------
Trust, the Investor Certificateholders or the Certificate Owners as to any
losses, claims or damages incurred by any of them in their capacities as
investors, including without limitation losses incurred as a result of Defaulted
Accounts or Receivables which are written off as uncollectible; and provided
--------
further, that the Servicer shall not indemnify the Trust, the Investor
- -------
Certificateholders or the Certificate Owners for any liabilities, costs or
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expenses of the Trust, the Investor Certificateholders or the Certificate Owners
arising under any tax law, including without limitation, any federal, state,
local or foreign income or franchise taxes or any other tax imposed on or
measured by income (or any interest or penalties with respect thereto or arising
from a failure to comply therewith) required to be paid by the Trust, the
Investor Certificateholders or the Certificate Owners in connection herewith to
any taxing authority. Any such indemnification shall not be payable from the
assets of the Trust. The provisions of this indemnity shall run directly to and
be enforceable by an injured party subject to the limitations hereof and shall
survive the termination of this Trust and the resignation or removal of the
Trustee.
Section 8.05 The Servicer Not to Resign . The Servicer shall not
----------------------------
resign from the obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action which
the Servicer could take to make the performance of its duties hereunder
permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced as to clause (i) above by an
Opinion of Counsel and as to clause (ii) by an Officer's Certificate, each to
such effect delivered to the Trustee. No such resignation shall become effective
until the Trustee or a Successor Servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section
10.02 hereof. If the Trustee is unable within 120 days of the date of such
determination to appoint a Successor Servicer, the Trustee shall serve as
Successor Servicer hereunder.
Section 8.06 Access to Certain Documentation and Information
-----------------------------------------------------
Regarding the Receivables . The Servicer shall provide to the Trustee access to
- --------------------------
the documentation regarding the Accounts and the Receivables in such cases where
the Trustee is required in connection with the enforcement of the rights of 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
Servicer's normal security and confidentiality procedures and (iv) at offices
designated by the Servicer. Nothing in this Section 8.06 shall derogate from the
obligation of any Transferor, the Trustee or the Servicer to observe any
applicable law prohibiting disclosure of information regarding the Obligors and
the failure of the Servicer to provide access as provided in this Section 8.06
as a result of such obligations shall not constitute a breach of this Section
8.06.
Section 8.07 Delegation of Duties . In the ordinary course of
----------------------
business, the Servicer may at any time delegate any duties hereunder to any
Person who agrees to conduct such duties in accordance with the Credit Card
Guidelines. Any such delegations shall not relieve the Servicer of its liability
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and responsibility with respect to such duties, and shall not constitute a
resignation within the meaning of Section 8.05 hereof. Notification of any such
delegation shall be given to each Rating Agency.
Section 8.08 Examination of Records . The Servicer shall clearly and
----------------------
unambiguously identify each Account (including any Additional Account designated
pursuant to Section 2.06) in its computer or other records to reflect that the
Receivables arising in such Account have been conveyed to the Trust pursuant to
this Agreement. The Servicer shall, prior to the sale or transfer to a third
party of any receivable held in its custody, examine its computer and other
records to determine that such receivable is not a Receivable.
[End of Article VIII]
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ARTICLE IX
PAY OUT EVENTS
Section 9.01 Pay Out Events . If any one of the following events
---------------
(each, a "Trust Pay Out Event") shall occur:
(a) any Transferor or other Holder of the Transferor Certificate
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 Transferor or other Holder of the
Transferor Certificate or 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 any Transferor or other Holder of the Transferor
Certificate; or any Transferor or other Holder of the Transferor Certificate
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 (any such event, an "Insolvency
Event");
(b) any Transferor shall become unable for any reason to
transfer Receivables to the Trust in accordance with the provisions of this
Agreement; or
(c) the Trust shall become subject to regulation by the Securities
and Exchange Commission as an "investment company" within the meaning of the
Investment Company Act;
then a Pay Out Event with respect to all Series of Certificates shall occur
without any notice or other action on the part of the Trustee or the Investor
Certificateholders immediately upon the occurrence of such event.
Section 9.02 Additional Rights upon the Occurrence of Certain
------------------------------------------------
Events. (a) If an Insolvency Event occurs with respect to any Transferor or
- ------
other Holder of the Transferor Certificate, each Transferor shall on the day any
such Insolvency Event occurs (the "Appointment Date"), immediately cease to
----------------
transfer Principal Receivables and Discount Option Receivables to the Trust and
shall promptly give notice to the Trustee thereof. Notwithstanding any cessation
of the transfer to the Trust of additional Principal Receivables and Discount
Option Receivables, Principal Receivables and Discount Option Receivables
transferred to the Trust prior to the occurrence of such Insolvency Event,
Collections in respect of such Principal Receivables, Discount Option
Receivables and Finance Charge Receivables (whenever created) accrued in respect
of such Principal Receivables and Discount Option Receivables shall continue to
be a part of the Trust. Upon the Appointment Date, this Agreement and the Trust
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shall terminate, subject to the liquidation, winding-up and dissolution
procedures described below. Within 15 days of the Appointment Date, the Trustee
shall (i) publish a notice in an Authorized Newspaper that an Insolvency Event
has occurred, that the Trust has terminated and that the Trustee intends to
sell, dispose of or otherwise liquidate the Receivables on commercially
reasonable terms and in a commercially reasonable manner and (ii) give notice to
Certificateholders and other interested persons described below describing the
provisions of this Section and requesting instructions from such Holders. Unless
the Trustee shall have received instructions within 60 days from the date notice
pursuant to clause (i) above is first published from (x) Holders of Investor
Certificates evidencing more than 50% of the aggregate unpaid principal amount
of each Series or, with respect to any Series with two or more Classes, of each
Class, and (y) any Transferor (other than the Transferor that is the subject of
such Insolvency Event), and each holder of an interest in the Transferor
Interest (including any Holder of a Supplemental Certificate) not subject to the
Insolvency Event (including any permitted successor or assignee under Section
7.02) and (z) each Person designated by any Transferor to the Trustee in an
Officer's Certificate or Series Supplement prior to the occurrence of the
Insolvency Event, to the effect that such Persons disapprove of the liquidation
of the Receivables and wish to reconstitute the Trust pursuant to the terms of
this Agreement (as amended in connection with such reconstitution), the Trustee
shall promptly sell, dispose of or otherwise liquidate the Receivables in a
commercially reasonable manner and on commercially reasonable terms, which shall
include the solicitation of competitive bids. The Trustee may obtain a prior
determination from any such conservator, receiver or liquidator of a Transferor
or other Holder of the Transferor Certificate that the terms and manner of any
proposed sale, disposition or liquidation are commercially reasonable. The
provisions of Sections 9.01 and 9.02 shall not be deemed to be mutually
exclusive.
(b) The proceeds from the sale, disposition or liquidation of the
Receivables and any Participation Interests pursuant to paragraph (a)
("Insolvency Proceeds") shall be immediately deposited in the Collection
--------------------
Account. The Trustee shall determine conclusively the amount of the Insolvency
Proceeds which are deemed to be Finance Charge Receivables and Principal
Receivables, allocating Insolvency Proceeds to Finance Charge Receivables and
Principal Receivables in the same proportion as the amount of Finance Charge
Receivables and Principal Receivables bear to one another on the prior
Determination Date. The Insolvency Proceeds shall be allocated in accordance
with the terms of Article IV of each Supplement and distributed to Investor
Certificateholders in accordance with the terms of each Supplement.
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(c) The Trustee may appoint an agent or agents to assist with its
responsibilities pursuant to this Article IX with respect to competitive bids.
[End of Article IX]
84
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ARTICLE X
SERVICER DEFAULTS
Section 10.01 Servicer Defaults . If any one of the following
-----------------
events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer or
deposit or to give instructions or notice to the Trustee pursuant to Article IV
or to instruct the Trustee to make any required drawing, withdrawal, or payment
under any Credit Enhancement on or before the date occurring 10 Business Days
after the date such payment, transfer, deposit withdrawal or drawing or such
instruction or notice is required to be made or given, as the case may be, under
the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or perform
in any respect any other covenants or agreements of the Servicer set forth in
this Agreement, which has a material adverse effect on the Investor
Certificateholders of any Series and which continues unremedied for a period of
60 days after the date on which written notice of such failure, requiring the
same to be remedied, shall have been given to the Servicer by the Trustee, or to
the Servicer and the Trustee by the Holders of Investor Certificates evidencing
Undivided Interests aggregating not less than 50% of the Investor Interest of
any Series adversely affected thereby and continues to materially adversely
affect such Investor Certificateholders for such period; or the Servicer shall
delegate its duties under this Agreement, except as permitted by Section 8.07;
(c) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has a material
adverse effect on the Investor Certificateholders 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 Servicer by the Trustee, or to the
Servicer and the Trustee by the Holders of Investor Certificates evidencing
Undivided Interests aggregating not less than 50% of the Investor Interest of
any Series adversely affected thereby and continues to materially adversely
affect such Investor Certificateholders for such period; or
(d) the 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 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
85
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similar proceedings, or for the winding-up or liquidation of its affairs, shall
have been entered against the Servicer, and such decree or order shall have
remained in force undischarged or unstayed for a period of 60 days; or the
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make any assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations;
then, so long as such Servicer Default shall not have been remedied, either the
Trustee, or the Holders of Investor Certificates evidencing Undivided Interests
aggregating more than 50% of the Aggregate Investor Interest, by notice then
given in writing to the Servicer (and to the Trustee if given by the Investor
Certificateholders) (a "Termination Notice"), may terminate all of the rights
and obligations of the Servicer as Servicer under this Agreement. After receipt
by the Servicer of such Termination Notice, and on the date that a Successor
Servicer shall have been appointed by the Trustee pursuant to Section 10.02, all
authority and power of the Servicer under this Agreement shall pass to and be
vested in a Successor Servicer; and, without limitation, the Trustee is hereby
authorized and empowered (upon the failure of the Servicer to cooperate) to
execute and deliver, on behalf of the Servicer, as attorney-in-fact or
otherwise, all documents and other instruments upon the failure of the Servicer
to execute or deliver such documents or instruments, and to do and accomplish
all other acts or things necessary or appropriate to effect the purposes of such
transfer of servicing rights and obligations. The Servicer agrees to cooperate
with the Trustee and such Successor Servicer in effecting the termination of the
responsibilities and rights of the Servicer to conduct servicing hereunder
including, without limitation, the transfer to such Successor Servicer of all
authority of the Servicer to service the Receivables provided for under this
Agreement, including, without limitation, all authority over all Collections
which shall on the date of transfer be held by the Servicer for deposit, or
which have been deposited by the Servicer, in the Collection Account, the
Finance Charge Account, the Principal Account, and any Series Account, or which
shall thereafter be received with respect to the Receivables, and in assisting
the Successor Servicer and in enforcing all rights to Insurance Proceeds and
Interchange (if any) applicable to the Trust. The Servicer shall promptly
transfer its electronic records or electronic copies thereof relating to the
Receivables to the Successor Servicer in such electronic form as the Successor
Servicer may reasonably request and shall promptly transfer to the Successor
Servicer all other records, correspondence and documents necessary for the
continued servicing of the Receivables in the manner and at such times as the
Successor Servicer shall reasonably request. To the extent that compliance with
this Section 10.01 shall require the Servicer to disclose to the Successor
Servicer information of any kind which the Servicer reasonably deems to be
confidential, the Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as the Servicer shall deem
necessary to protect its interests. The Servicer shall, on the date of any
servicing transfer, transfer all of its rights and obligations under the Credit
Enhancement with respect to any Series to the Successor Servicer.
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Notwithstanding the foregoing, a delay in or failure of performance
referred to in subsection 10.01(a) for a period of 10 Business Days or under
subsection 10.01(b) or (c) for a period of 60 Business Days, shall not
constitute a Servicer Default if such delay or failure could not be prevented by
the exercise of reasonable diligence by the Servicer and such delay or failure
was caused by an act of God or the public enemy, acts of declared or undeclared
war, public disorder, rebellion, riot or sabotage, epidemics, landslides,
lightning, fire, hurricanes, tornadoes, earthquakes, nuclear disasters or
meltdowns, floods, power outages or similar causes. The preceding sentence shall
not relieve the Servicer from using its best efforts to perform its obligations
in a timely manner in accordance with the terms of this Agreement and the
Servicer shall provide the Trustee, any Credit Enhancement Provider, each
Transferor and the Holders of Investor Certificates with an Officer's
Certificate giving prompt notice of such failure or delay by it, together with a
description of the cause of such failure or delay and its efforts so to perform
its obligations.
Section 10.02 Trustee to Act; Appointment of Successor .
----------------------------------------
(a) On and after the receipt by the Servicer of a Termination Notice
pursuant to Section 10.01, the Servicer shall continue to perform all servicing
functions under this Agreement until the date specified in the Termination
Notice or otherwise specified by the Trustee 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 the Servicer and Trustee. The Trustee shall
notify each Rating Agency of such removal of the Servicer. The Trustee shall, as
promptly as possible after the giving of a Termination Notice appoint a
successor servicer (the "Successor Servicer"), and such Successor Servicer shall
accept its appointment by a written assumption in a form acceptable to the
Trustee. The Trustee may obtain bids from any potential successor servicer. If
the Trustee is unable to obtain any bids from any potential successor servicer
and the Servicer delivers an Officer's Certificate to the effect that it cannot
in good faith cure the Servicer Default which gave rise to a Termination Notice,
and if the Trustee is legally unable to act as Successor Servicer, then the
Trustee shall notify each Credit Enhancement Provider of the proposed sale of
the Receivables and shall provide each such Credit Enhancement Provider an
opportunity to bid on the Receivables and shall offer each Transferor the right
of first refusal to acquire the Receivables transferred by such Transferor on
terms equivalent to the best purchase offer as determined by the Trustee, but in
no event less than an amount equal to the Aggregate Investor Interest on the
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date of such acquisition plus all interest accrued but unpaid on all of the
----
outstanding Investor Certificates at the applicable Certificate Rate through the
date of such acquisition; provided, however, that if the short-term deposits or
-------- -------
long-term unsecured debt obligations of such Transferor (or if neither such
deposits nor such obligations of such Transferor are rated by Moody's, if
Moody's is a Rating Agency with respect to any Series of Certificates
outstanding, then of the holding company of such Transferor so long as such
holding company shall be BankAmerica Corporation) are not rated at the time of
such acquisition at least P-3 or Baa3, respectively, by Moody's, if Moody's is a
Rating Agency with respect to any Series of Certificates outstanding, no such
acquisition by such Transferor shall occur unless such Transferor shall deliver
an Opinion of Counsel reasonably acceptable to the Trustee that such acquisition
would not constitute a fraudulent conveyance by such Transferor. The proceeds of
such purchase or acquisition shall be deposited in the Distribution Account or
any Series Account, as provided in the related Supplement, for distribution to
the Investor Certificateholders of each outstanding Series pursuant to Section
12.03 of this Agreement. In the event that a Successor Servicer has not been
appointed and has not accepted its appointment at the time when the Servicer
ceases to act as Servicer, the Trustee without further action shall
automatically be appointed the Successor Servicer. Notwithstanding the above,
the Trustee shall, if it is legally unable so to act, petition a court of
competent jurisdiction to appoint any established financial institution having,
in the case of an entity that is subject to risk-based capital adequacy
requirements, risk-based capital of at least $50,000,000 or, in the case of an
entity that is not subject to risk-based capital requirements, having a net
worth of not less than $50,000,000 and whose regular business includes the
servicing of VISA or MasterCard credit card receivables as the Successor
Servicer hereunder.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof, and all references in this Agreement to the Servicer shall be
deemed to refer to the Successor Servicer. Any Successor Servicer, by its
acceptance of its appointment, will automatically agree to be bound by the terms
and provisions of each Credit Enhancement.
(c) In connection with such appointment and assumption, the Trustee
shall be entitled to such compensation, or may make such arrangements for the
compensation of the Successor Servicer out of Collections, as it and such
Successor Servicer shall agree; provided, however, that no such compensation
-------- -------
shall be in excess of the Servicing Fee permitted to the Servicer pursuant to
Section 3.02. Each Transferor agrees that if the Servicer is terminated
hereunder, it will agree to deposit with the Trustee a portion of the
Collections in respect of Finance Charge Receivables that it is entitled to
receive pursuant to Article IV to pay its share of the compensation of the
Successor Servicer.
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(d) All authority and power granted to the Successor Servicer under
this Agreement shall automatically cease and terminate upon termination of the
Trust pursuant to Section 12.01 and shall pass to and be vested in the
Transferors and, without limitation, the Transferors are hereby authorized and
empowered to execute and deliver, on behalf of the 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. The Successor Servicer agrees to
cooperate with the Transferors in effecting the termination of the
responsibilities and rights of the Successor Servicer to conduct servicing on
the Receivables. The Successor Servicer shall transfer its electronic records
relating to the Receivables to the Transferors in such electronic form as the
Transferors may reasonably request and shall transfer all other records,
correspondence and documents to the Transferors in the manner and at such times
as the Transferors shall reasonably request. To the extent that compliance with
this Section 10.02 shall require the Successor Servicer to disclose to the
Transferors information of any kind which the Successor Servicer deems to be
confidential, the Transferors shall be required to enter into such customary
licensing and confidentiality agreements as the Successor Servicer shall deem
necessary to protect its interests.
Section 10.03 Notification to Certificateholders . Within two
------------------------------------
Business Days after the Servicer becomes aware of any Servicer Default, the
Servicer shall give prompt written notice thereof to the Trustee, Standard &
Poor's, Moody's and any Credit Enhancement Provider and the Trustee shall give
notice to the Investor Certificateholders at their respective addresses
appearing in the Certificate Register. Upon any termination or appointment of a
Successor Servicer pursuant to this Article X, the Trustee shall give prompt
written notice thereof to Investor Certificateholders at their respective
addresses appearing in the Certificate Register.
Section 10.04 Waiver of Past Defaults . The Holders of Investor
------------------------
Certificates evidencing Undivided Interests aggregating not less than 66 % of
the Investor Interest of each Series adversely affected by any default by the
Servicer or Transferor may, on behalf of all Certificateholders of such Series,
waive any default by the Servicer or Transferor in the performance of its
obligations hereunder and its consequences, except a default in the failure to
make any required deposits or payments of interest or principal relating to such
Series pursuant to Article IV which default does not result from the failure of
the Paying Agent to perform its obligations to make any required deposits or
payments of interest and principal in accordance with Article IV. Upon any such
waiver of a past default, such default shall cease to exist, and any default
arising therefrom shall be deemed to have been remedied for every purpose of
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this Agreement. No such waiver shall extend to any subsequent or other default
or impair any right consequent thereon except to the extent expressly so waived.
[End of Article X]
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ARTICLE XI
THE TRUSTEE
Section 11.01 Duties of Trustee .
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(a) The Trustee, prior to the occurrence of any Servicer Default and
after the curing of all Servicer Defaults which may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Agreement. If a Responsible Officer has received written notice that a Servicer
Default has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Agreement, and use
the same degree of care and skill in its exercise, as a prudent 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 which are specifically required to be furnished pursuant to any
provision of this Agreement, shall examine them to determine whether they
substantially conform to the requirements of this Agreement.
(c) Subject to subsection 11.01(a), no provision of this Agreement
shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own misconduct; provided,
--------
however, that:
- -------
(i) the Trustee shall not be personally liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be personally liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Investor Certificates
evidencing Undivided Interests aggregating more than 50% of the Investor
Interest of any Series relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee in relation to
such Series, under this Agreement; and
(iii) the Trustee shall not be charged with knowledge of any failure
by the Servicer referred to in clauses (a) and (b) of Section 10.01 unless
a Responsible Officer of the Trustee obtains actual knowledge of such
failure or the Trustee receives written notice of such failure from the
Servicer or any Holders of Investor Certificates evidencing Undivided
Interests aggregating not less than 10% of the Investor Interest of any
Series adversely affected thereby.
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(d) The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if there is
reasonable ground for believing that the repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it, and
none of the provisions contained in this Agreement shall in any event require
the Trustee to perform, or be responsible for the manner of performance of, any
of the obligations of the Servicer under this Agreement except during such time,
if any, as the Trustee shall be the successor to, and be vested with the rights,
duties, powers and privileges of, the Servicer in accordance with the terms of
this Agreement.
(e) Except for actions expressly authorized by this Agreement, the
Trustee shall take no action reasonably likely to impair the interests of the
Trust in any Receivable now existing or hereafter created or to impair the value
of any Receivable now existing or hereafter created.
(f) Except as provided in this subsection 11.01(f), 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 2.06 hereof, (ii) add any
other investment, obligation or security to the Trust, except for an addition
permitted under Section 2.06 or (iii) withdraw from the Trust any Receivables,
except for a withdrawal permitted under Sections 2.07, 9.02, 10.02, 12.01 or
12.02 or subsections 2.04(d), 2.04(e) or Article IV.
(g) Subject to subsection 11.01(d) above, in the event that the
Paying Agent or the Transfer Agent and Registrar (if other than the Trustee)
shall fail to perform any obligation, duty or agreement in the manner or on the
day required to be performed by the Paying Agent or the Transfer Agent and
Registrar, as the case may be, under this Agreement, the Trustee shall be
obligated promptly to perform such obligation, duty or agreement in the manner
so required.
(h) If any Transferor has agreed to transfer any of its credit card
receivables (other than the Receivables) to another Person, upon the written
request of such Transferor, the Trustee will enter into such intercreditor
agreements with the transferee of such receivables as are customary and
necessary to identify separately the rights, if any, of the Trust and such other
Person in such Transferor's credit card receivables; provided, that the Trust
--------
shall not be required to enter into any intercreditor agreement which could
adversely affect the interests of such Certificateholders and, upon the request
of the Trustee, the Transferor will deliver an Opinion of Counsel on any matters
relating to such intercreditor agreement, reasonably requested by the Trustee.
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Section 11.02 Certain Matters Affecting the Trustee . Except as
-------------------------------------
otherwise provided in Section 11.01:
(a) the Trustee may rely on and shall be protected in acting on, or
in refraining from acting in accord with, any assignment of Receivables in
Additional Accounts, the initial report, the monthly Servicer's certificate, the
annual Servicer's certificate, the monthly payment instructions and notification
to the Trustee, the monthly Certificateholder's statement, any resolution,
Officer's Certificate, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document believed by it to be genuine and to
have been signed or presented to it pursuant to this Agreement by the proper
party or parties;
(b) the Trustee may consult with counsel, and any 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 Credit Enhancement, or to
institute, conduct or defend any litigation hereunder or in relation hereto, at
the request, order or direction of any of the Certificateholders or any Credit
Enhancement Provider, pursuant to the provisions of this Agreement, unless such
Certificateholders or Credit Enhancement Provider shall have offered to the
Trustee reasonable security or indemnity against the costs, expenses and
liabilities which may be incurred therein or thereby; nothing contained herein
shall, however, relieve the Trustee of the obligations, upon the occurrence of
any Servicer Default (which has not been cured), to exercise such of the rights
and powers vested in it by this Agreement and any Credit Enhancement, and to use
the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs;
(d) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Agreement;
(e) the Trustee shall not be bound to make any investigation into
the facts of matters stated in any assignment of Receivables in Additional
Accounts, the initial report, the monthly Servicer's certificate, the annual
Servicer's certificate, the monthly payment instructions and notification to the
Trustee, the monthly Certificateholder's statement, any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing so to do
by Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Investor Interest of any Series;
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(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 subsection 11.01(a), 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 each
Transferor with its 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
in this Agreement and in the Certificates (other than the certificate of
authentication on the Certificates). Except as set forth in Section 11.15, the
Trustee makes no representations as to the validity or sufficiency of this
Agreement or 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 any Transferor of any of the
Certificates or of the proceeds of such Certificates, or for the use or
application of any funds paid to any Transferor or to the holder of the
Transferor Certificate in respect of the Receivables or deposited in or
withdrawn from the Collection Account, the Principal Account or the Finance
Charge Account, or any Series Account by the Servicer.
Section 11.04 Trustee May Own Certificates . The Trustee in its
------------------------------
individual or any other capacity may become the owner or pledgee of Investor
Certificates or Supplemental Certificates with the same rights as it would have
if it were not the Trustee.
Section 11.05 The Servicer to Pay Trustee's Fees and Expenses . The
------------------------------------------------
Servicer covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to receive, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) for all services rendered by it in the execution of the Trust
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and, subject to Section 8.04, the Servicer will
pay or reimburse the Trustee (without reimbursement from any Investor Account,
any Series 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 except any such expense, disbursement or
advance as may arise from its own negligence or bad faith and except as provided
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in the following sentence. If the Trustee is appointed Successor Servicer
pursuant to Section 10.02, the provisions of this Section 11.05 shall not apply
to expenses, disbursements and advances made or incurred by the Trustee in its
capacity as Successor Servicer.
The obligations of the Servicer under this Section 11.05 shall
survive the termination of the Trust and the resignation or removal of the
Trustee.
Section 11.06 Eligibility Requirements for Trustee . The Trustee
--------------------------------------
hereunder shall at all times be a corporation 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 long-term unsecured debt
rating of at least Baa3 by Moody's and BBB- by Standard & Poor's having, in the
case of an entity that is subject to risk-based capital adequacy requirements,
risk-based capital of at least $50,000,000 or, in the case of an entity that is
not subject to risk-based capital adequacy requirements, having a combined
capital and surplus of at least $50,000,000 and subject to supervision or
examination by federal or state 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 11.06, 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 11.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
11.07.
Section 11.07 Resignation or Removal of Trustee .
---------------------------------
(a) The Trustee may at any time resign and be discharged from the
Trust hereby created by giving written notice thereof to the Servicer. Upon
receiving such notice of resignation, the Servicer shall promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the resigning Trustee and one copy to the
successor trustee. If no successor trustee shall have been so appointed and have
accepted within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.06 hereof and shall fail to resign
after written request therefor by the Transferors, or if at any time the Trustee
shall be legally unable to act, or shall be adjudged a bankrupt or insolvent, or
a receiver 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
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Transferors may, but shall not be required to, remove the Trustee and promptly
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Trustee so removed and one copy to
the successor trustee.
(c) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 11.07 shall
not become effective until acceptance of appointment by the successor trustee as
provided in Section 11.08 hereof and any liability of the Trustee arising
hereunder shall survive such appointment of a successor trustee.
Section 11.08 Successor Trustee .
-----------------
(a) Any successor trustee appointed as provided in Section 11.07
hereof shall execute, acknowledge and deliver to the Transferors and to its
predecessor Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder, with the like effect as if originally
named as Trustee herein. The predecessor Trustee shall deliver to the successor
trustee all documents and statements held by it hereunder, and the Transferors
and the predecessor Trustee shall execute and deliver such instruments and do
such other things as may reasonably be required for fully and certainly vesting
and confirming in the successor trustee all such rights, powers, duties and
obligations.
(b) No successor trustee shall accept appointment as provided in
this Section 11.08 unless at the time of such acceptance such successor trustee
shall be eligible under the provisions of Section 11.06 hereof and shall be an
Eligible Servicer, and, if Standard & Poor's is then a Rating Agency, unless
Standard & Poor's shall have consented to such appointment.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 11.08, such successor trustee shall mail notice of such
succession hereunder to all Certificateholders at their addresses as shown in
the Certificate Register.
Section 11.09 Merger or Consolidation of Trustee . Any Person into
------------------------------------
which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such Person shall be eligible under the provisions
of Section 11.06 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.
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Section 11.10 Appointment of Co-Trustee or Separate Trustee .
---------------------------------------------
(a) Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Trust may at the time be located, the Trustee shall have
the power and may execute and deliver all instruments to appoint one or more
Persons to act as a co-trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such Person or
Persons, in such capacity and for the benefit of the Certificateholders, such
title to the trust, or any part thereof, and, subject to the other provisions of
this Section 11.10, such powers, duties, obligations, rights and trusts as the
Trustee may consider necessary or desirable. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 11.06 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 11.08 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 laws of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee hereunder
or as successor to the 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 personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee shall
be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
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appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article XI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement, specifically including every provision of this Agreement
relating to the conduct of, affecting the liability of, or affording protection
to, the Trustee. Every such instrument shall be filed with the Trustee and a
copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time constitute
the Trustee as its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by law, to do any lawful act under or in respect to
this Agreement on its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be removed, all of
its estates, properties, rights, remedies and trusts shall vest in and be
exercised by the Trustee, to the extent permitted by law, without the
appointment of a new or successor trustee.
Section 11.11 Tax Returns . In the event the Trust shall be required
-----------
to file tax returns, the Trustee, as soon as practicable after it is made aware
of such requirement, shall prepare or cause to be prepared any tax returns
required to be filed by the Trust and, to the extent possible, shall file such
returns at least five days before such returns are due to be filed. The Trustee
is hereby authorized to sign any such return on behalf of the Trust. The
Servicer shall prepare or shall cause to be prepared all tax information
required by law to be distributed to Certificateholders and shall deliver such
information to the Trustee at least five days prior to the date it is required
by law to be distributed to Certificateholders. The Servicer, upon request, will
furnish the Trustee with all such information known to the Servicer as may be
reasonably required in connection with the preparation of all tax returns of the
Trust. In no event shall the Trustee or the Servicer be liable for any
liabilities, costs or expenses of the Trust, the Investor Certificateholders or
the Certificate Owners arising under any tax law, including without limitation
federal, state, local or foreign income or excise taxes or any other tax imposed
on or measured by income (or any interest or penalty with respect thereto or
arising from a failure to comply therewith).
Section 11.12 Trustee May Enforce Claims Without Possession of
----------------------------------------------------
Certificates . All rights of action and claims under this Agreement or any
- ------------
Series of Certificates may be prosecuted and enforced by the Trustee without the
possession of any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee. Any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of any Series of Certificateholders in respect of which such
judgment has been obtained.
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Section 11.13 Suits for Enforcement . If a Servicer Default shall
----------------------
occur and be continuing, the Trustee, in its discretion may, subject to the
provisions of Section 10.01 and 11.14, proceed to protect and enforce its rights
and the rights of any Series of Certificateholders under this Agreement 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
in aid of the execution of any power granted in this Agreement or for the
enforcement of any other legal, equitable or other remedy as the Trustee, being
advised by counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee or any Series of Certificateholders.
Section 11.14 Rights of Certificateholders to Direct Trustee.
--------------------------------------------------
Holders of Investor Certificates evidencing Undivided Interests aggregating more
than 50% of the Aggregate Investor Interest (or, with respect to any remedy,
trust or power that does not relate to all Series, 50% of the Aggregate Investor
Interest of the Investor Certificates of all Series to which such remedy, trust
or power relates) shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the Trustee, or exercising
any trust or power conferred on the Trustee; provided, however, that, subject to
-------- -------
Section 11.01, the Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that the action so
directed may not lawfully be taken, or if the Trustee in good faith shall, by a
Responsible Officer or Responsible Officers of the Trustee, determine that the
proceedings so directed would be illegal or involve it in personal liability or
be unduly prejudicial to the rights of Certificateholders not parties to such
direction; and provided further that nothing in this Agreement shall impair the
-------- -------
right of the Trustee to take any action deemed proper by the Trustee and which
is not inconsistent with such direction of such Holders of Investor
Certificates.
Section 11.15 Representations and Warranties of Trustee . The
---------------------------------------------
Trustee represents and warrants that:
(i) the Trustee is a national banking association organized,
existing and authorized to engage in the business of banking under the
laws of the United States of America;
(ii) 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
(iii) this Agreement has been duly executed and delivered by the
Trustee.
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Section 11.16 Maintenance of Office or Agency . The Trustee will
--------------------------------
maintain at its expense in the Borough of Manhattan, the City of New York an
office or offices, or agency or agencies, where notices and demands to or upon
the Trustee in respect of the Certificates and this Agreement may be served. The
Trustee initially appoints First Trust of New York, National Association, 100
Wall Street, Suite 1600, New York, New York 10005 as its office for such
purposes in the Borough of Manhattan, the city of New York. The Trustee will
give prompt written notice to the Servicer and to Certificateholders (or in the
case of Holders of Bearer Certificates, in the manner provided for in the
related Supplement) of any change in the location of the Certificate Register or
any such office or agency.
[End of Article XI]
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ARTICLE XII
TERMINATION
Section 12.01 Termination of Trust.
--------------------
(a) The respective obligations and responsibilities of each
Transferor, the Servicer and the Trustee created hereby (other than the
obligation of the Trustee to make payments to Certificateholders as hereafter
set forth) shall terminate, except with respect to the duties described in
Section 11.05 and subsections 2.04(c) and 12.03(b), on the Trust Termination
Date; provided, however, that the Trust shall not terminate on the date
-------- -------
specified in clause (i) of the definition of "Trust Termination Date" if each of
the Servicer and the Holder of the Transferor Certificate notify the Trustee in
writing, not later than five Business Days preceding such date, that they desire
that the Trust not terminate on such date, which notice (such notice, a "Trust
Extension") shall specify the date on which the Trust shall terminate (such
date, the "Extended Trust Termination Date"); provided, however, that the
-------- -------
Extended Trust Termination Date shall be not later than June 30, 2036. The
Servicer and the Holder of the Transferor Certificate may, on any date following
the Trust Extension, so long as no Series of Certificates is outstanding,
deliver a notice in writing to the Trustee changing the Extended Trust
Termination Date.
(b) All principal or interest with respect to any Series of
Investor Certificates shall be due and payable no later than the Series
Termination Date with respect to such Series. Unless otherwise provided in a
Supplement, in the event that the Investor Interest of any Series of
Certificates is greater than zero on its Series Termination Date (after giving
effect to all transfers, withdrawals, deposits and drawings to occur on such
date and the payment of principal to be made on such Series on such date), the
Trustee will sell or cause to be sold, and pay the proceeds first, to all
-----
Certificateholders of such Series pro rata and in accordance with the priority
for each Class within such Series as provided in the related Supplement, in
final payment of all principal of and accrued interest on such Series of
Certificates, and second, as provided in the related Supplement, an amount of
------
Principal Receivables and the related Finance Charge Receivables (or interests
therein) up to 110% of the sum of the Investor Interest of such Series plus the
Enhancement Invested Amount or the Collateral Interest (if not included in the
Investor Interest) of such Series, if any, at the close of business on such date
(but not more than the applicable Investor Percentage of Principal Receivables
and the related Finance Charge Receivables on such date for such Series). The
Trustee shall notify each Credit Enhancement Provider of the proposed sale of
such Receivables and shall provide each Credit Enhancement Provider an
opportunity to bid on such Receivables. Each Transferor shall be permitted to
acquire such Receivables, to the extent arising in Accounts owned by such
Transferor and shall have a right of first refusal with respect thereto. Any
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proceeds of such sale in excess of such principal and interest paid and such
other amounts paid pursuant to the related Supplement shall be paid to the
Holder of the Transferor Certificate. Upon such Series Termination Date with
respect to the applicable Series of Certificates, final payment of all amounts
allocable to any Investor Certificates of such Series shall be made in the
manner provided in Section 12.03.
Section 12.02 Optional Purchase . (a) If so provided in any
------------------
Supplement, the Transferors may, but shall not be obligated to, cause a final
distribution to be made in respect of the related Series of Certificates on a
Distribution Date specified in such Supplement by depositing into the
Distribution Account or the applicable Series Account, not later than the
Transfer Date preceding such Distribution Date, for application in accordance
with Section 12.03, the amount specified in such Supplement; provided, however
-------- -------
that if the short-term deposits or long-term unsecured debt obligations of each
Transferor (or, if neither such deposits nor such obligations of each Transferor
are rated by Moody's, then the short-term deposits or long-term unsecured debt
obligations of the holding company of each Transferor so long as such holding
company is BankAmerica Corporation) are not rated at the time of such purchase
of Certificates at least P-3 or Baa3, respectively, by Moody's, no such event
shall occur unless each Transferor not satisfying the rating criteria described
above in this subsection 12.02(a) shall deliver an Opinion of Counsel reasonably
acceptable to the Trustee that such deposit into the Distribution Account or any
Series Account as provided in the related Supplement would not constitute a
fraudulent conveyance of such Transferor.
(b) The amount deposited pursuant to subsection 12.02(a) shall be
paid to the Investor Certificateholders of the related Series pursuant to
Section 12.03 on the related Distribution Date following the date of such
deposit. All Certificates of a Series which are purchased by the Transferors
pursuant to subsection 12.02(a) shall be delivered by the Transferors upon such
purchase to, and be canceled by, the Transfer Agent and Registrar and be
disposed of in a manner satisfactory to the Trustee and the Transferors. The
Investor Interest of each Series which is purchased by the Transferors pursuant
to subsection 12.02(a) shall, for the purposes of the definition of "Transferor
Interest," be deemed to be equal to zero on the Distribution Date following the
making of the deposit, and the Transferor Interest shall thereupon be deemed to
have been increased by the Investor Interest of such Series.
Section 12.03 Final Payment with Respect to any Series .
----------------------------------------
(a) Written notice of any termination, specifying the Distribution
Date upon which the Investor Certificateholders of any Series may surrender
their Certificates for payment of the final distribution with respect to such
Series and cancellation, shall be given (subject to at least two Business Days'
prior notice from the Servicer to the Trustee) by the Trustee to Investor
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Certificateholders of such Series mailed not later than the fifth day of the
month of such final distribution (or in the manner provided by the Supplement
relating to such Series) specifying (i) the Distribution Date (which shall be
the Distribution Date in the month (x) in which the deposit is made pursuant to
Section 9.02 or subsection 2.04(e), 10.02(a), or subsection 12.02(a) of this
Agreement or such other section as may be specified in the related Supplement,
or (y) in which the related Series Termination Date occurs) upon which final
payment of 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 Servicer's notice
to the Trustee in accordance with the preceding sentence shall be accompanied by
an Officers' Certificate setting forth the information specified in Article V of
this Agreement covering the period during the then current calendar year through
the date of such notice and setting forth the date of such final distribution.
The Trustee shall give such notice to the Transfer Agent and Registrar and the
Paying Agent at the time such notice is given to such Investor
Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to
subsection 12.01(a) or the occurrence of the Series Termination Date with
respect to any Series, all funds then on deposit in the Finance Charge Account,
the Principal Account, the Distribution Account or any Series Account applicable
to the related Series shall continue to be held in trust for the benefit of the
Certificateholders of the related Series and the Paying Agent or the Trustee
shall pay such funds to the Certificateholders of the related Series upon
surrender of their Certificates (which surrenders and payments, in the case of
Bearer Certificates, shall be made only outside the United States). In the event
that all of the Investor Certificateholders of any 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 (or, in the case of Bearer Certificates, publication notice) to the
remaining Investor Certificateholders of such Series upon receipt of the
appropriate records from the Transfer Agent and Registrar to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one and one-half years after the second notice with respect
to a Series, 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 Distribution Account
or any Series Account held for the benefit of such Investor Certificateholders.
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The Trustee and the Paying Agent shall pay to the Transferors upon request any
monies held by them for the payment of principal or interest which remains
unclaimed for two years. After payment to the Transferors, Investor
Certificateholders entitled to the money must look to the Transferors for
payment as general creditors unless an applicable abandoned property law
designates another Person.
(c) All Certificates surrendered for payment of the final
distribution with respect to such Certificates and cancellation shall be
canceled by the Transfer Agent and Registrar and be disposed of in a manner
satisfactory to the Trustee and the Transferors.
Section 12.04 Termination Rights of Holder of Transferor Certificate.
------------------------------------------------------
Upon the termination of the Trust pursuant to Section 12.01, and after payment
of all amounts due hereunder on or prior to such termination and the surrender
of the Transferor Certificate, the Trustee shall execute a written reconveyance
substantially in the form of Exhibit H pursuant to which it shall reconvey to
the Holder of the Transferor Certificate (without recourse, representation or
warranty) all right, title and interest of the Trust in the Receivables, whether
then existing or thereafter created, all moneys due or to become due with
respect to such Receivables (including all accrued interest theretofore posted
as Finance Charge Receivables and all other Finance Charge Receivables) and all
proceeds of such Receivables and Insurance Proceeds relating to such Receivables
and Interchange (if any) allocable to the Trust pursuant to any Supplement,
except for amounts held by the Trustee pursuant to subsection 12.03(b). The
Trustee shall execute and deliver such instruments of transfer and assignment,
in each case without recourse, as shall be reasonably requested by the Holder of
the Transferor Certificate to vest in such Holder all right, title and interest
which the Trust had in the Receivables.
Section 12.05 Defeasance.
----------
Notwithstanding anything to the contrary in this Agreement or any
Supplement:
(a) The Transferors may at their option be discharged from their
obligations with respect to all of the Investor Certificates issued by the Trust
or any specified Series thereof on the date the applicable conditions set forth
in Section 12.05(c) are satisfied ("Defeasance"); provided, however, that the
---------- -------- -------
following rights, obligations, powers, duties and immunities shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
Investor Certificates of the Trust or any specified Series thereof to receive,
solely from the trust fund provided for in Section 12.05(c), payments in respect
of principal of and interest on such Investor Certificates when such payments
are due; (B) the Transferors' obligations with respect to such Series of
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Certificates under Sections 6.03, 6.04 and 12.03; (C) the rights, powers,
trusts, duties and immunities of the Trustee, the Paying Agent and the Transfer
Agent and Registrar hereunder; and (D) this Section 12.05.
(b) Subject to Section 12.05(c), the Transferors at their option
may use Collections allocated to the Investor Certificates to be defeased to
purchase Permitted Investments rather than additional Receivables for transfer
to the Trust until such time as no Receivables remain in the Trust.
(c) The following shall be the conditions to Defeasance under
Section 12.05(a): (1) the Transferors irrevocably shall have deposited or caused
to be deposited with the Trustee, under the terms of an irrevocable trust
agreement in form and substance satisfactory to the Trustee, as trust funds in
trust for making the payments described below (A) Dollars in an amount, or (B)
Permitted Investments which through the scheduled payment or principal and
interest in respect thereof will provide, not later than the due date of payment
thereon, money in an amount, or (C) a combination thereof, in each case
sufficient to pay and discharge, and, which shall be applied by the Trustee to
pay and discharge, all remaining scheduled interest and principal payments on
all outstanding Investor Certificates of the Trust or any specified Series
thereof on the dates scheduled for such payments in this Agreement and the
applicable Supplements and all amounts owed to the Credit Enhancement Provider
for any Series if so provided in the related Supplements or agreements with such
Provider; (2) prior to its first exercise of its right to substitute money or
Permitted Investments for Receivables, the Transferors shall deliver to the
Trustee (x) an Opinion of Counsel to the effect that such deposit and
termination of obligations will not result in the Trust being required to
register as an "investment company" within the meaning of the Investment Company
Act of 1940, as amended, and (y) an Opinion of Counsel with respect to such
deposit and termination to the effect that it will not cause the Trust or any
portion thereof to be treated as an association or publicly traded partnership
taxable as a corporation; and (3) such deposit and termination of obligations
will not result in a Pay Out Event for any Series.
[End Of Article XII]
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment.
---------
(e) This Agreement or any Supplement may be amended in writing from
time to time by the Servicer, each Transferor and the Trustee, without the
consent of any of the Certificateholders; provided, that such action shall not,
--------
as evidenced by an Officer's Certificate from Transferor addressed and delivered
to the Trustee, adversely affect in any material respect the interests of any
Investor Certificateholder; provided further, that each Rating Agency shall have
-------- -------
notified each Transferor, the Servicer and the Trustee in writing that such
action will not result in a reduction or withdrawal of the rating of any
outstanding Series or Class to which it is a Rating Agency. This Agreement or
any Supplement may be amended in writing by the Servicer, each Transferor and
the Trustee, without the consent of any of the Certificateholders to provide for
additional Credit Enhancement or substitute Credit Enhancement with respect to a
Series (so long as the amount of such substitute Credit Enhancement, unless
otherwise provided in any related Supplement, is equal to the original Credit
Enhancement for such Series), to change the definition of Eligible Account, to
effect the designation of any Additional Transferor or to provide for the
addition to the Trust of a Participation; provided, that such action shall not,
--------
in the reasonable belief of each Transferor, as evidenced by an Officer's
Certificate, adversely affect in any material respect the interests of any
Investor Certificateholders; provided further, that each Rating Agency shall
-------- -------
have notified each Transferor, the Servicer and the Trustee in writing that such
action will not result in a reduction or withdrawal of the rating of any
outstanding Series or Class to which it is a Rating Agency.
(b) This Agreement or any Supplement may also be amended in writing
from time to time by the Servicer, the Transferors and the Trustee with the
consent of the Holders of Investor Certificates evidencing Undivided Interests
aggregating not less than 66 % of the Investor Interest of each outstanding
Series adversely affected by such amendment for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or any Supplement or modifying in any manner the rights of
Investor Certificateholders of any Series then issued and outstanding; provided,
--------
however, that no such amendment shall (i) reduce in any manner the amount of, or
- -------
delay the timing of, distributions which are required to be made on any Investor
Certificates of such Series without the consent of each Investor
Certificateholders of such Series, (ii) change the definition of or the manner
of calculating the Investor Interest, the Investor Percentage or the Investor
Default Amount of such Series without the consent of each Investor
Certificateholder of such Series or (iii) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of each Investor
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Certificateholder of all Series adversely affected. The Trustee may, but shall
not be obligated to, enter into any such amendment which affects the Trustee's
rights, duties or immunities under this Agreement or otherwise.
(c) Notwithstanding anything in this Section 13.01 to the contrary,
the Series Supplement with respect to any Series may be amended on the terms and
in accordance with the procedures provided in such Series Supplement.
(d) Promptly after the execution of any such amendment (other than
an amendment pursuant to paragraph (a) or (h)), the Trustee shall furnish
notification of the substance of such amendment to each Investor
Certificateholder of each Series adversely affected and to each Rating Agency
providing a rating for such Series.
(e) 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.
(f) Any Series Supplement executed and delivered pursuant to Section
6.09 and any amendments regarding the addition to or removal of Receivables from
the Trust as provided in Sections 2.06 and 2.07, executed in accordance with the
provisions hereof, shall not be considered amendments to this Agreement for the
purpose of subsections 13.01(a), (b) or (h).
(g) This Agreement and any Supplement will be amended by the
Servicer and the Trustee at the direction of the Transferors without the consent
of any of the Certificateholders or Credit Enhancement Providers (i) to add,
modify or eliminate such provisions as may be necessary or advisable in order to
enable all or a portion of the Trust to qualify as, and to permit an election to
be made to cause the Trust to be treated as, a "financial asset securitization
investment trust" as described in the provisions of the "Seven Year Balanced
Budget Act of 1995," H.R. 2491, 104th Cong., 1st Sess. (1995), or to enable the
Trust to qualify and an election to be made for similar treatment under such
comparable subsequent federal income tax provisions as may ultimately be enacted
into law, and (ii) in connection with any such election, to modify or eliminate
existing provisions of this Agreement and any Supplement relating to the
intended federal income tax treatment of the Certificates and the Trust in the
absence of the election. Any amendment under this subsection is subject only to
the requirements that (i) each Transferor delivers to the Trustee an Officer's
Certificate to the effect that the proposed amendments meet the requirements set
forth in this subsection and (ii) each Rating Agency will have notified the
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Transferor, the Servicer and the Trustee in writing that the amendment will not
result in a reduction or withdrawal of the rating of any outstanding Series or
Class to which it is a Rating Agency. The amendments which the Transferors may
make without the consent of Certificateholders or Credit Enhancement Providers
in connection with any election described in this subsection may include,
without limitation, the elimination of any sale of Receivables and termination
of the Trust upon the occurrence of an Insolvency Event pursuant to Section 9.02
hereof.
(h) This Agreement and any Supplement will be amended by the
Servicer and the Trustee at the direction of the Transferors without the consent
of any of the Certificateholders or Credit Enhancement Providers (i) to add,
modify or eliminate such provisions as may be necessary or advisable in order to
enable (x) the transfer to the Trust of all or any portion of the Receivables to
be derecognized under generally accepted accounting principals ("GAAP") by the
transferor to the Trust of such Receivables or (y) the Trust to avoid becoming a
member of any Transferor's consolidated group under GAAP, and (ii) in connection
with any such addition, modification or elimination, without limiting the
generality of the foregoing clause (i), to cause the Receivables to be
transferred by a Transferor first to a bankruptcy remote Affiliate and from the
Affiliate to the Trust. Any amendment under this subsection is subject only to
the requirements that (i) each Transferor delivers to the Trustee an Officer's
Certificate to the effect that the proposed amendment meets the requirements set
forth in this subsection and (ii) each Rating Agency will have notified the
Transferor, the Servicer and the Trustee in writing that the amendment will not
result in a reduction or withdrawal of the rating of any outstanding Series or
Class as to which it is a Rating Agency.
(i) This Agreement and any Supplement may be amended by the Servicer
and the Trustee at the direction of the Transferors without the consent of any
of the Certificateholders or Credit Enhancement Providers (i) to add, modify or
eliminate such provisions as may be necessary or advisable in order to enable
all or portion of the Trust to qualify as a partnership for federal income tax
purposes under applicable regulations on the classification of entities as
partnerships or corporations under the Internal Revenue Code adopted as final
regulations after the date hereof, and (ii) to the extent that such regulations
eliminate or modify the need therefor, to modify or eliminate existing
provisions of this Agreement and any Supplement relating to the intended
availability of partnership treatment of the Trust for federal income tax
purposes, including, without limitation, eliminating the provisions of Section
9.02 relating to the sale of the Receivables and termination of the Trust upon
the occurrence of an Insolvency and the provisions of Section 7.04 relating to
the liability of the Transferor as a general partner. Any amendment under this
subsection is subject only to the requirements that (i) each Transferor delivers
to the trustee and Officer's Certificate to the effect that the proposed
amendments meet the requirements set forth in this subsection and (ii) each
Rating Agency will have notified the Transferor, the Servicer and the Trustee in
writing that the amendment will not result in a reduction to which it is a
Rating Agency.
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Section 13.02 Protection of Right, Title and Interest to Trust.
------------------------------------------------
(a) The Servicer shall cause this Agreement, all amendments hereto
and/or all financing statements and continuation statements and any other
necessary documents covering the Certificateholders and the Trustee's right,
title and interest to the Trust to be promptly recorded, registered and filed,
and at all times to be kept recorded, registered and filed, all in such manner
and in such places as may be required by law fully to preserve and protect the
right, title and interest of the Certificateholders or the Trustee, as the case
may be, hereunder to all property comprising the Trust. The 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 Transferors shall
cooperate fully with the Servicer in connection with the obligations set forth
above and will execute any and all documents reasonably required to fulfill the
intent of this subsection 13.02(a).
(b) Within 30 days after any Transferor makes any change in its
name, identity or corporate structure which would make any financing statement
or continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-402(7) of the UCC as in effect in the
applicable jurisdiction, such Transferor 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 Transferor and the 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 as in effect in the applicable jurisdiction would require
the filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall file such financing
statements or amendments as may be necessary to continue the perfection of the
Trust's security interest in the Receivables and the proceeds thereof. Each
Transferor and the Servicer will at all times maintain each office from which it
services Receivables and its principal executive office within the United States
of America.
(d) The Servicer will deliver to the Trustee and with respect to
clause (i) to Standard & Poor's (i) upon each date that any Additional Accounts
(other than Automatic Additional Accounts) are to be included in the Accounts
pursuant to Section 2.06, an Opinion of Counsel substantially in the form of
Exhibit E (ii) on each date specified in subsection 2.06(c) with respect to the
inclusion of Automatic Additional Accounts as Accounts, an Opinion of Counsel
substantially in the form of Exhibit E; and (iii) on or before March 31 of each
year, beginning with March 31, 1997, an Opinion of Counsel, substantially in the
form of Exhibit F.
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Section 13.03 Limitation on Rights of Certificateholders.
------------------------------------------
(a) The death or incapacity of any Certificateholder shall not
operate to terminate this Agreement or the Trust, nor shall such death or
incapacity entitle such 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 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 to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Certificateholder previously shall have given written notice to the Trustee, and
unless the Holders of Certificates evidencing Undivided Interests aggregating
more than 50% of the Investor Interest of any Series which may be adversely
affected but for the institution of such suit, 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 the right in any manner whatever by
virtue or by availing itself or themselves of any provisions of this Agreement
to affect, disturb or prejudice the rights of the Certificateholders of any
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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, 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 . THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 13.05 Notices . All demands, notices and communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at, sent by facsimile to, sent by courier at or mailed by
registered mail, return receipt requested, to (a) in the case of Bank of America
as a Transferor and the Servicer, to Bank of America National Association, 1825
E. Buckeye Road, Financial Management 3719, Phoenix, Arizona 85034, Attention:
Chief Financial Officer, (b) in the case of the Trustee, to the Corporate Trust
Office, (c) in the case of the Credit Enhancement Provider for a particular
Series, the address, if any, specified in the Supplement relating to such
Series, (d) in the case of any Additional Transferor, the address, if any
specified in the amendment to this Agreement pursuant to which such Additional
Transferor became a Transferor and (e) in the case of the Rating Agency for a
particular Series, the address, if any, specified in the Supplement relating to
such Series; 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 provided
with respect to any Series in the related Supplement any notice required or
permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Certificateholder as shown in the
Certificate Register, or with respect to any notice required or permitted to be
made to the Holders of Bearer Certificates, by publication in the manner
provided in the related Supplement. If and so long as any Series or Class is
listed on the Luxembourg Stock Exchange and such Exchange shall so require, any
notice to Investor Certificateholders shall be published in an authorized
newspaper of general circulation in Luxembourg within the time period prescribed
in this Agreement. Any notice so mailed within the time prescribed in this
Agreement shall be conclusively presumed to have been duly given, whether or not
the Certificateholder receives such notice.
Section 13.06 Severability of Provisions . If any one or more of the
--------------------------
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements, provisions
or terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or rights of the Certificateholders thereof.
111
<PAGE>
Section 13.07 Assignment . Notwithstanding anything to the contrary
----------
contained herein, except as provided in Section 8.02, this Agreement may not be
assigned by the Servicer without the prior consent of Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 66 % of
the Investor Interest of each Series on a Series by Series basis.
Section 13.08 Certificates Non-Assessable and Fully Paid . It is the
------------------------------------------
intention of the parties to this Agreement that the Certificateholders shall not
be personally liable for obligations of the Trust, that the Undivided Interests
represented by the Certificates shall be non-assessable 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 2.01 and 6.02 are and
shall be deemed fully paid.
Section 13.09 Further Assurances . Each Transferor and the Servicer
-------------------
agree to do and perform, from time to time, any and all acts and to execute any
and all further instruments required or reasonably requested by the 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 as in effect in any
applicable jurisdiction.
Section 13.10 No Waiver; Cumulative Remedies . No failure to
---------------------------------
exercise and no delay in exercising, on the part of the Trustee, any Credit
Enhancement Provider 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
herein provided are cumulative and not exhaustive of any rights, remedies,
powers and privileges provided by law.
Section 13.11 Counterparts . This Agreement may be executed in two
------------
or more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute one
and the same instrument.
Section 13.12 Third-Party Beneficiaries . This Agreement will inure
--------------------------
to the benefit of and be binding upon the parties hereto, the Certificateholders
and, to the extent provided in the related Supplement, to the Credit Enhancement
Provider named therein, and their respective successors and permitted assigns.
Except as otherwise provided in this Article XIII and Section 7.04 hereof, no
other Person will have any right or obligation hereunder.
112
<PAGE>
Section 13.13 Actions by 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, unless such provision requires a specific
percentage of Investor Certificateholders.
(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 Servicer in reliance
thereon, whether or not notation of such action is made upon such Certificate.
Section 13.14 Rule 144A Information . For so long as any of the
-----------------------
Investor Certificates of any Series or any Class are "restricted securities"
within the meaning of Rule 144(a)(3) under the Securities Act, each Transferor,
the Servicer, the Trustee and the Credit Enhancement Provider for such Series
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.
Section 13.15 Merger and Integration . Except as specifically stated
----------------------
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 13.16 Headings . The headings herein are for purposes of
--------
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
[End of Article XIII]
113
<PAGE>
IN WITNESS WHEREOF, the Transferor, the 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.
BANK OF AMERICA NATIONAL ASSOCIATION,
TRANSFEROR AND SERVICER
By: /s/ MARGARET A. SPRUDE
----------------------------
Name: Margaret A. Sprude
Title: Senior Vice President
FIRST BANK NATIONAL ASSOCIATION, TRUSTEE
By: /s/ LYNN M. STEINER
------------------------------
Name: Lynn M. Steiner
Title: Assistant Vice President
<PAGE>
EXHIBIT A
---------
TRANSFEROR CERTIFICATE
----------------------
One Unit
BA MASTER CREDIT CARD TRUST
ASSET BACKED CERTIFICATE
THIS CERTIFICATE WAS ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE ACT), AND MAY BE SOLD ONLY PURSUANT TO A
REGISTRATION STATEMENT EFFECTIVE UNDER THE ACT OR AN EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE ACT. IN ADDITION, THE TRANSFER OF THIS
CERTIFICATE IS SUBJECT TO RESTRICTIONS SET FORTH IN THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN. A COPY OF THE POOLING AND SERVICING AGREEMENT WILL
BE FURNISHED TO THE HOLDER OF THIS CERTIFICATE BY THE TRUSTEE UPON WRITTEN
REQUEST.
This Certificate represents an
------------------------------
Undivided Interest in the
-------------------------
BA Master Credit Card Trust
---------------------------
Evidencing an Undivided Interest in a trust, the corpus of which consists of a
portfolio of MasterCard(R) and VISA(R)* credit card receivables generated oR
acquired by Bank of America National Association and other assets and interests
constituting the Trust under the Pooling and Servicing Agreement described
below.
(Not an interest in or an obligation of
Bank of America National Association
or any Affiliate thereof.)
This certifies that BANK OF AMERICA NATIONAL ASSOCIATION (the
"Holder") is the registered owner of an undivided interest in a trust (the
"Trust"), the corpus of which consists of a portfolio of receivables (the
"Receivables") now existing or hereafter created under selected MasterCard(R)
and VISA(R) credit card accounts (the "Accounts") of Bank of America National
Association (the "Transferor") a national banking association organized under
the laws of the United States, all monies due or to become due in payment of the
Receivables (including all Finance Charge Receivables), all proceeds of such
Receivables and Insurance Proceeds relating to the Receivables, the other assets
and interests constituting the Trust and the proceeds thereof pursuant to a
Pooling and Servicing Agreement dated as of July 19, 1996, as supplemented by
any Supplement relating to a Series of Investor Certificates (the "Pooling and
- --------------------
* MasterCard(R) and VISA(R) are federally registered servicemarks of MasterCard
International Inc. and of VISA U.S.A. Inc., respectively.
<PAGE>
Servicing Agreement"), by and between Bank of America National Association, as
Transferor and Servicer, and First Bank National Association, as Trustee (the
"Trustee"), a summary of certain of the pertinent provisions of which is set
forth hereinbelow.
To the extent not defined herein, the capitalized terms used herein
have the meanings assigned to them 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 has not been registered or qualified under the
Securities Act of 1933, as amended, or any state securities law. No sale,
transfer or other disposition of this Certificate shall be permitted other than
in accordance with the provisions of Section 6.03, 6.09 or 7.02 of the Pooling
and Servicing Agreement.
The Receivables consist of Principal Receivables which arise
generally from the purchase of goods and services and of amounts advanced to
cardholders as cash advances, and of Finance Charge Receivables which arise
generally from Periodic Finance Charges and other fees and charges, as more
fully specified in the Pooling and Servicing Agreement.
This Certificate is the Transferor Certificate (the "Certificate"),
which represents an 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 to be paid to the Holder of the
Transferor Certificate. The aggregate interest represented by this Certificate
in the Principal Receivables in the Trust shall not at any time exceed the
Transferor Interest at such time. In addition to this Certificate, Series of
Investor Certificates will be issued to investors pursuant to the Pooling and
Servicing Agreement, each of which will represent an Undivided Interest in the
Trust. This Certificate shall not represent any interest in the Investor
Accounts, any Series Accounts or any Credit Enhancement, except to the extent
provided in the Pooling and Servicing Agreement. The Transferor Interest on any
date of determination will be an amount equal to the aggregate amount of
Principal Receivables and the principal amount on deposit in any Principal
Funding Account (as defined in any Supplement) at the end of the day immediately
prior to such date of determination, minus the Aggregate Investor Interest at
the end of such day, minus the aggregate Enhancement Invested Amounts, if any,
for each Series outstanding at the end of such day, minus the aggregate
Collateral Interests not included in the Aggregate Investor Interests, if any,
for each Series outstanding at the end of such day.
A-2
<PAGE>
The Servicer shall deposit all Collections in the Collection Account
as promptly as possible after the Date of Processing of such Collections, but in
no event later than the second Business Day following such Date of Processing
(except as provided below and except as provided in any Supplement to the
Pooling and Servicing Agreement). Unless otherwise stated in any Supplement,
throughout the existence of the Trust, the Servicer shall allocate to the Holder
of the Certificate an amount equal to the product of (A) the Transferor
Percentage and (B) the aggregate amount of such Collections allocated to
Principal Receivables and Finance Charge Receivables, respectively, in respect
of each Monthly Period. Notwithstanding the first sentence of this paragraph,
the Servicer need not deposit this amount or any other amounts so allocated to
the Certificate pursuant to the Pooling and Servicing Agreement into the
Collection Account and shall pay, or be deemed to pay, such amounts as collected
to the Holder of the Certificate.
Bank of America National Association, as Servicer, is entitled to
receive as servicing compensation a monthly servicing fee. The portion of the
servicing fee which will be allocable to the Holder of the Certificate pursuant
to the Pooling and Servicing Agreement will be payable by the Holder of the
Certificate and neither the Trust nor the Trustee or the Investor
Certificateholders will have any obligations to pay such portion of the
servicing fee.
This Certificate does not represent an obligation of, or any
interest in, the Transferor or the Servicer, and neither the Certificates nor
the Accounts or Receivables are insured or guaranteed by the Federal Deposit
Insurance Corporation or any other governmental agency. 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.
Upon the termination of the Trust pursuant to Section 12.01 of the
Pooling and Servicing Agreement, the Trustee shall assign and convey to the
Holder of the Certificate (without recourse, representation or warranty) all
right, title and interest of the Trust in the Receivables, whether then existing
or thereafter created, all monies due or to become due with respect thereto
(including all accrued interest theretofore posted as Finance Charge
Receivables) and all proceeds thereof and Insurance Proceeds relating thereto
and Interchange allocable to the Trust pursuant to any Supplement, except for
amounts held by the Trustee pursuant to Section 12.03(b) of the Pooling and
Servicing Agreement. 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 of the Certificate to vest in such Holder all right,
title and interest which the Trustee had in the Receivables.
A-3
<PAGE>
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.
A-4
<PAGE>
IN WITNESS WHEREOF Bank of America National Association has caused
this Certificate to be duly executed.
By:_________________________
Authorized Officer
Date:
A-5
<PAGE>
Trustee's Certificate of Authentication
---------------------------------------
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is the Transferor Certificate referred to in the
within-mentioned Pooling and Servicing Agreement.
FIRST BANK NATIONAL ASSOCIATION
as Trustee
By:___________________________
Authorized Officer
A-6
<PAGE>
EXHIBIT B
---------
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
--------------------------------------------------------
ASSIGNMENT No. ____ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, dated as
of __________ ____, ____ by and between [____________________], a
[___________________] organized under the laws of [__________________] ("[Name
of Transferor]"), to [Trustee], a banking corporation organized and existing
under the laws of the State of [Trustee's State of Incorporation] (the
"Trustee") pursuant to the Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, [Name of Transferor] and the Trustee are parties to the
Pooling and Servicing Agreement, dated as of __________ __, 199_ (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, [Name of
Transferor] wishes to designate Additional Accounts of [Name of Transferor] to
be included as Accounts and to convey the Receivables of such Additional
Accounts, whether now existing or hereafter created, to the Trust 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, [Name of Transferor] 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 MEANINGS
WHEN USED HEREIN, UNLESS OTHERWISE DEFINED HEREIN.
"Addition Cut-Off Date" shall mean, with respect to the
-----------------------
Additional Accounts transferred hereby, __________ __, ____.
"Addition Date" shall mean, with respect to the Additional
--------------
Accounts transferred hereby, __________, ____.
"Notice Date" shall mean, with respect to the Additional
------------
Accounts designated hereby, __________, ____ (which shall be a date on or
prior to the fifth Business Day prior to the Addition Date with respect to
additions pursuant to subsection 2.06(a) of the Pooling and Servicing
Agreement and the tenth Business Day prior to the Addition Date with
respect to additions pursuant to subsection 2.06(b) of the Pooling and
Servicing Agreement).
<PAGE>
2. DESIGNATION OF ADDITIONAL ACCOUNTS. [NAME OF TRANSFEROR]
-----------------------------------
DOES HEREBY DELIVER HEREWITH TO THE TRUSTEE A COMPUTER FILE OR MICROFICHE
LIST CONTAINING A TRUE AND COMPLETE LIST OF EACH MASTERCARD AND VISA
ACCOUNT WHICH WERE DESIGNATED ON THE ADDITION CUT-OFF DATE TO BE AN
ADDITIONAL ACCOUNT (THE "ADDITIONAL ACCOUNTS"), SUCH ACCOUNTS BEING
IDENTIFIED BY ACCOUNT NUMBER AND BY THE AMOUNT OF RECEIVABLES IN SUCH
ACCOUNTS AT THE BEGINNING OF THE DAY ON THE ADDITION CUT-OFF DATE. SUCH
LIST SHALL BE MARKED AS SCHEDULE 1 TO THIS ASSIGNMENT AND, AS OF THE
ADDITION DATE, SHALL BE INCORPORATED INTO AND MADE A PART OF THIS
ASSIGNMENT.
3. CONVEYANCE OF RECEIVABLES.
-------------------------
(a) [Name of Transferor] does hereby transfer, assign,
set-over and otherwise convey to the Trust for the benefit of the
Certificateholders, without recourse on and after the Addition Date, all
right, title and interest of [Name of Transferor] in and to the
Receivables now existing and hereafter created in the Additional Accounts
designated hereby, all monies due or to become due with respect thereto
(including all Finance Charge Receivables) and all proceeds of such
Receivables, Insurance Proceeds relating to such Receivables and the
proceeds thereof.
(b) In connection with such transfer, [Name of Transferor]
agrees to record and file, at its own expense, financing statements with
respect to the Receivables now existing and hereafter created in the
Additional Accounts designated hereby (which may be a single financing
statement with respect to each location for filing with respect to all
such Receivables) for the transfer of accounts as defined in Section 9-106
of the UCC as in effect in the applicable jurisdiction meeting the
requirements of applicable state law in such manner and such jurisdictions
as are necessary to perfect the assignment of such Receivables to the
Trust, and to deliver a file-stamped copy of such financing statements 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 Agreement.
(c) In connection with such transfer, [Name of Transferor]
further agrees, at its own expense, on or prior to the date of this
Assignment to indicate in its computer files that Receivables created in
connection with the Additional Accounts designated hereby have been
transferred to the Trust pursuant to this Assignment for the benefit of
the Certificateholders.
B-2
<PAGE>
(d) If, and to the extent that, the transfer provided hereby
is not deemed to be a sale or if for any reason any Receivable is held to
be property of a Transferor, then [Name of Transferor] hereby grants to
the Trustee a first priority perfected security interest in all of [Name
of Transferor]'s right, title and interest, whether now owned or hereafter
acquired, in, to and under the Receivables now existing and hereafter
created in the Additional Accounts, all monies due or to become due with
respect to such Receivables (including all Finance Charge Receivables),
all proceeds of such Receivables and all Insurance Proceeds relating to
such Receivables, and all proceeds of any of the foregoing and, in such
case, this Agreement shall constitute a security agreement under
applicable law.
4. ACCEPTANCE BY TRUSTEE. THE TRUSTEE HEREBY ACKNOWLEDGES ITS
---------------------
ACCEPTANCE ON BEHALF OF THE TRUST FOR THE BENEFIT OF THE
CERTIFICATEHOLDERS OF ALL RIGHT, TITLE AND INTEREST PREVIOUSLY HELD BY
[NAME OF TRANSFEROR] IN AND TO THE RECEIVABLES NOW EXISTING AND HEREAFTER
CREATED, AND DECLARES THAT IT SHALL MAINTAIN SUCH RIGHT, TITLE AND
INTEREST, UPON THE TRUST HEREIN SET FORTH, FOR THE BENEFIT OF ALL
CERTIFICATEHOLDERS.
5. REPRESENTATIONS AND WARRANTIES OF [NAME OF TRANSFEROR].
------------------------------------------------------
[NAME OF TRANSFEROR] HEREBY REPRESENTS AND WARRANTS TO THE TRUST AS OF THE
ADDITION DATE:
(a) Legal Valid and Binding Obligation. This Assignment
----------------------------------
constitutes a legal, valid and binding obligation of [Name of
Transferor] enforceable against [Name of Transferor] in accordance
with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general and the rights of
creditors of national banking associations and except as such
enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(b) Eligibility of Accounts and Receivables. Each
-------------------------------------------
Additional Account designated hereby is an Eligible Account as of
the Addition Cut-Off Date, and each Receivable in such Additional
Account is an Eligible Receivable as of the Addition Cut-Off Date.
(c) Selection Procedures. No selection procedures
----------------------
believed by [Name of Transferor] to be materially adverse to the
interests of the Investor Certificateholders were utilized in
selecting the Additional Accounts designated hereby from the
available Eligible Accounts in the Identified Pool.
B-3
<PAGE>
(d) Insolvency. [Name of Transferor] is not
----------
insolvent and, after giving effect to the conveyance set forth in
Section 3 of this Assignment, will not be insolvent.
(e) Security Interest. This Assignment constitutes
------------------
either: (i) a valid transfer and assignment to the Trust of all
right, title and interest of [Name of Transferor] in and to
Receivables existing as of the beginning of the day on the Addition
Cut-Off Date, and hereafter created from time to time arising in
connection with the Additional Accounts designated hereby, all
monies due or to become due with respect to such Receivables
(including all Finance Charge Receivables), all amounts received
with respect thereto and Insurance Proceeds relating to such
Receivables and all proceeds (as defined in the UCC as in effect in
the applicable jurisdiction) of any of the foregoing and Insurance
Proceeds relating thereto will be held by the Trust free and clear
of any Lien of any Person claiming through or under [Name of
Transferor] or any of its Affiliates, except for (i) Liens permitted
under subsection 2.05(b) of the Pooling and Servicing Agreement,
(ii) the interest of [Name of Transferor] as Holder of the
Transferor Certificate and (iii) [Name of Transferor]'s right to
receive interest accruing on, and investment earnings in respect of,
the Finance Charge Account and the Principal Account, or any Series
Account as provided in the Pooling and Servicing Agreement and any
related Supplement or (ii) a grant of a security interest (as
defined in the UCC as in effect in the applicable jurisdiction), in
such property to the Trust, which is enforceable with respect to
then existing Receivables of the Additional Accounts, all monies due
or to become due with respect to such Receivables (including all
Finance Charge Receivables), all amounts received with respect
thereto and Insurance Proceeds relating to such Receivables and all
proceeds (as defined in the UCC as in effect in the applicable
jurisdiction) of any of the foregoing upon the conveyance of such
Receivables to the Trust, and which will be enforceable with respect
to the Receivables thereafter created in respect of Additional
Accounts relating to [Name of Transferor] conveyed designated
hereby, and Insurance Proceeds relating to such Receivables and all
proceeds (as defined in the UCC as in effect in the applicable
jurisdiction) of any of the foregoing upon such creation; and (iii)
if the Assignment constitutes the grant of a security interest to
the Trust in such property, upon the filing of the financing
statements as described in Section 3 of this Assignment with respect
to such Additional Accounts designated hereby and in the case of the
Receivables in such Additional Accounts thereafter created, all
monies due or to become due with respect to such Receivables
B-4
<PAGE>
(including all Finance Charge Receivables), all amounts received
with respect thereto, and Insurance Proceeds relating to such
Receivables and all proceeds (as defined in the UCC as in effect in
the applicable jurisdiction) of any of the foregoing, upon such
creation, the Trust shall have a first priority perfected security
interest in such property (subject to Section 9-306 of the UCC as in
effect in the applicable jurisdiction), except for Liens permitted
under subsection 2.05(b) of the Pooling and Servicing Agreement
6. CONDITIONS PRECEDENT. THE ACCEPTANCE BY THE TRUSTEE
--------------------
SET FORTH IN SECTION 4 AND THE AMENDMENT OF THE POOLING AND SERVICING
AGREEMENT SET FORTH IN SECTION 7 ARE SUBJECT TO THE SATISFACTION, ON OR
PRIOR TO THE ADDITION DATE, OF THE FOLLOWING CONDITIONS PRECEDENT:
(a) Officer's Certificate. [Name of Transferor] shall
----------------------
have delivered to the Trustee a certificate of a Vice President or
more senior officer substantially in the form of Schedule 2 hereto,
certifying that (i) all requirements set forth in Section 2.06 of
the Pooling and Servicing Agreement for designating Additional
Accounts and conveying the Principal Receivables of such Account,
whether now existing or hereafter created, have been satisfied and
(ii) each of the representations and warranties made by [Name of
Transferor] in Section 5 is true and correct as of the Addition
Date. 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.
(b) Opinion of Counsel. [Name of Transferor] shall have
------------------
delivered to the Trustee an Opinion of Counsel with respect to the
Additional Accounts designated hereby substantially in the form of
Exhibit E to the Pooling and Servicing Agreement.
(c) Additional Information. [Name of Transferor]
----------------------
shall have delivered to the Trustee such information as was
reasonably requested by the Trustee to satisfy itself as to the
accuracy of the representation and warranty set forth in
subsection 5(d) to this Agreement.
7. 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," TO "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 TO THE
B-5
<PAGE>
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
NONCOMPLIANCE WITH ANY TERM OR PROVISIONS OF THE POOLING AND SERVICING
AGREEMENT.
8. COUNTERPARTS. THIS ASSIGNMENT MAY BE EXECUTED IN TWO
------------
OR MORE COUNTERPARTS (AND BY DIFFERENT PARTIES ON SEPARATE
COUNTERPARTS), EACH OF WHICH SHALL BE AN ORIGINAL, BUT ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE AND THE SAME INSTRUMENT.
9. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
-------------
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS.
B-6
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Assignment of
Receivables in Additional Accounts to be duly executed and delivered by their
respective duly authorized officers on the day and year first above written.
[Name of Transferor]
Association
By: ________________________
Name:
Title:
[Trustee]
as Trustee
By: ________________________
Name:
Title:
B-7
<PAGE>
Schedule 1
to Assignment of
Receivables in
Additional Accounts
-------------------
ADDITIONAL ACCOUNTS
-------------------
B-8
<PAGE>
Schedule 2
to Assignment of
Receivables in
Additional Accounts
-------------------
[Name of Transferor]
BA Master Credit Card Trust
Officer's Certificate
____________________, a duly authorized officer of [Name of
Transferor], a [____________________] ("[Name of Transferor]"), hereby certifies
and acknowledges on behalf of Bank of America that to the best of his knowledge
the following statements are true on __________, ____, (the "Addition Date"),
and acknowledges on behalf of [Name of Transferor] that this Officer's
Certificate will be relied upon by [Trustee] as Trustee (the "Trustee") of the
BA Master Credit Card Trust in connection with the Trustee entering into
Assignment No. ____ of Receivables in Additional Accounts, dated as of the
Addition Date (the "Assignment"), by and between [Name of Transferor] and the
Trustee, in connection with the Pooling and Servicing Agreement, dated as of
__________ __, 199_, as heretofore supplemented and amended (the "Pooling and
Servicing Agreement") pursuant to which [Name of Transferor], as Transferor and
Servicer, and the Trustee are parties. The undersigned hereby certifies and
acknowledges on behalf of [Name of Transferor] that:
(a) On or prior to the Addition Date, [Name of Transferor] has
delivered to the Trustee the Assignment (including an acceptance by the Trustee
on behalf of the Trust for the benefit of the Investor Certificateholders) and
[Name of Transferor] and a computer file or microfiche list containing a true
and complete list of all Additional Accounts identified by account number and
the aggregate amount of the Receivables in such Additional Accounts as of the
Addition Cut-Off Date, which computer file or microfiche list shall be as of the
date of such Assignment, incorporated into and made a part of such Assignment
and the Pooling and Servicing Agreement and has indicated in its computer files
that the Receivables created in connection with the Additional Accounts have
been transferred to the Trust.
(b) Legal, Valid and Binding Obligation. The Assignment constitutes
-----------------------------------
a legal, valid and binding obligation of [Name of Transferor], enforceable
against [Name of Transferor] in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and the rights of
creditors of national banking associations and except as such enforceability may
be limited by general principles of equity (whether considered in a suit at law
or in equity).
B-9
<PAGE>
(c) Eligibility of Accounts. As of the Addition Cut-Off Date each
-----------------------
Additional Account designated pursuant to the Assignment is an Eligible Account
and each Receivable in such Additional Account is an Eligible Receivable.
(d) Selection Procedures. No selection procedures believed by [Name
--------------------
of Transferor] to be materially adverse to the interests of the Investor
Certificateholders were utilized in selecting the Additional Accounts designated
hereby from the available Eligible Accounts in the Identified Pool.
(e) Insolvency. As of each of the Addition Cut-Off Date and the
----------
Addition Date, [Name of Transferor] was not and is not insolvent and, after
giving effect to the conveyance set forth in Section 3 of the Assignment, will
not be insolvent.
(f) Security Interest. The Assignment constitutes either: (i) a
------------------
valid transfer and assignment to the Trust of all right, title and interest of
[Name of Transferor] in and to Receivables now existing and hereafter created in
the Additional Accounts designated pursuant to the Assignment, and all proceeds
(as defined in the UCC as in effect in the applicable jurisdiction) of such
Receivables and Insurance Proceeds relating thereto, and such Receivables and
any proceeds thereof and Insurance Proceeds relating thereto will be held by the
Trust free and clear of any Lien of any Person claiming through or under the
Transferor or any of its Affiliates except for (x) Liens permitted under
subsection 2.05(b) of the Pooling and Servicing Agreement, (y) the interest of
[Name of Transferor] as holder of the Transferor Certificate and (z) [Name of
Transferor]'s right to receive interest accruing on, and investment earnings in
respect of, the Finance Charge Account and the Principal Account as provided in
the Pooling and Servicing Agreement and any Supplement; or (ii) a grant of a
security interest (as defined in the UCC as in effect in the applicable
jurisdiction) in such property to the Trust, which is enforceable with respect
to the existing Receivables of the Additional Accounts designated pursuant to
the Assignment, the proceeds (as defined in the UCC as in effect in the
applicable jurisdiction) thereof and Insurance Proceeds relating thereto upon
the conveyance of such Receivables to the Trust, and which will be enforceable
with respect to the Receivables thereafter created in respect of Additional
Accounts designated pursuant to the Assignment, the proceeds (as defined in the
UCC as in effect in the applicable jurisdiction) thereof and Insurance Proceeds
relating thereto, upon such creation; and (iii) if the Assignment constitutes
the grant of a security interest to the Trust in such property, upon the filing
of the financing statements described in Section 3 of the Assignment with
respect to the Additional Accounts designated pursuant to the Assignment and in
the case of the Receivables of such Additional Accounts thereafter created and
the proceeds (as defined in the UCC as in effect in the applicable jurisdiction)
thereof, and Insurance Proceeds relating to such Receivables, upon such
creation, the Trust shall have a first priority perfected security interest in
such property (subject to Section 9-306 of the UCC as in effect in the
applicable jurisdiction) except for Liens permitted under subsection 2.05(b) of
the Pooling and Servicing Agreement.
B-10
<PAGE>
(g) Requirements of Pooling and Servicing Agreement. All
-------------------------------------------------------
requirements set forth in Section 2.06 of the Pooling and Servicing Agreement
for designating Additional Accounts and conveying the Principal Receivables of
such Accounts, whether now existing or hereafter created, have been satisfied.
Initially capitalized terms used herein and not otherwise defined
are used as defined in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this ____ day of
- ----------, ----.
[Name of Transferor]
By: ________________________
Name:
Title:
B-11
<PAGE>
EXHIBIT C
---------
FORM OF MONTHLY SERVICER'S CERTIFICATE
--------------------------------------
Bank of America National Association
----------------------------------------
BA MASTER CREDIT CARD TRUST
----------------------------------------
1. CAPITALIZED TERMS USED IN THIS CERTIFICATE HAVE THEIR
RESPECTIVE MEANINGS SET FORTH IN THE POOLING AND SERVICING AGREEMENT;
PROVIDED, THAT THE "PRECEDING MONTHLY PERIOD" SHALL MEAN THE MONTHLY
--------
PERIOD IMMEDIATELY PRECEDING THE CALENDAR MONTH IN WHICH THIS CERTIFICATE
IS DELIVERED. THIS CERTIFICATE IS DELIVERED PURSUANT TO SUBSECTION 3.04(B)
OF THE POOLING AND SERVICING AGREEMENT. REFERENCES HEREIN TO CERTAIN
SECTIONS AND SUBSECTIONS ARE REFERENCES TO THE RESPECTIVE SECTIONS AND
SUBSECTIONS OF THE POOLING AND SERVICING AGREEMENT.
2. BANK OF AMERICA NATIONAL ASSOCIATION IS SERVICER UNDER THE
POOLING AND SERVICING AGREEMENT.
3. THE UNDERSIGNED IS A SERVICING OFFICER.
4. THE DATE OF THIS CERTIFICATE IS A DETERMINATION DATE UNDER
THE POOLING AND SERVICING AGREEMENT.
5. THE AGGREGATE AMOUNT OF COLLECTIONS $__________
PROCESSED DURING THE PRECEDING MONTHLY PERIOD WAS EQUAL
TO (EXCLUDING ANNUAL MEMBERSHIP FEES AND INTERCHANGE).
6. THE AGGREGATE INVESTOR PERCENTAGE OF $__________
RECEIVABLES PROCESSED BY THE SERVICER DURING THE
PRECEDING MONTHLY PERIOD WAS EQUAL TO
7. THE AGGREGATE INVESTOR PERCENTAGE $__________
OF COLLECTIONS OF FINANCE CHARGE RECEIVABLES
PROCESSED BY THE SERVICER DURING THE PRECEDING
MONTHLY PERIOD WAS EQUAL TO (EXCLUDING ANNUAL
MEMBERSHIP FEES AND INTERCHANGE)
8. THE AGGREGATE AMOUNT OF $__________
RECEIVABLES PROCESSED BY THE SERVICER AS OF THE END
OF THE LAST DAY OF THE PRECEDING MONTHLY PERIOD
<PAGE>
9. OF THE BALANCE ON DEPOSIT IN THE $__________
FINANCE CHARGE ACCOUNT, THE AMOUNT ATTRIBUTABLE TO
THE AGGREGATE INVESTOR PERCENTAGE OF COLLECTIONS
PROCESSED BY THE SERVICER DURING THE PRECEDING
MONTHLY PERIOD
10. OF THE BALANCE ON DEPOSIT IN THE $__________
PRINCIPAL ACCOUNT, THE AMOUNT ATTRIBUTABLE TO THE
AGGREGATE INVESTOR PERCENTAGE OF COLLECTIONS
PROCESSED BY THE SERVICER DURING THE PRECEDING
MONTHLY PERIOD
11. THE AGGREGATE AMOUNT, IF ANY, OF $__________
WITHDRAWALS, DRAWINGS OR PAYMENTS UNDER ANY CREDIT
ENHANCEMENT, IF ANY, REQUIRED TO BE MADE WITH
RESPECT TO ANY SERIES OUTSTANDING FOR THE PRECEDING
MONTHLY PERIOD
12. THE AGGREGATE INVESTOR PERCENTAGE $__________
OF COLLECTIONS OF PRINCIPAL RECEIVABLES PROCESSED
BY THE SERVICER DURING THE CURRENT MONTH IS EQUAL
TO
13. THE AMOUNT EQUAL TO THE AGGREGATE $__________
INVESTOR PERCENTAGE OF ANNUAL MEMBERSHIP FEES
DEPOSITED TO THE FINANCE CHARGE ACCOUNT OR ANY SERIES
ACCOUNT ON OR BEFORE THE TRANSFER DATE DURING THE
CURRENT MONTH IS EQUAL TO
14. THE AGGREGATE AMOUNT OF $__________
INTERCHANGE TO BE DEPOSITED IN THE FINANCE CHARGE
ACCOUNT ON THE TRANSFER DATE OF THE CURRENT MONTH
IS EQUAL TO
15. THE AGGREGATE AMOUNT OF ALL SUMS $__________
PAYABLE TO THE INVESTOR CERTIFICATEHOLDER OF EACH
SERIES ON THE SUCCEEDING DISTRIBUTION DATE WITH
RESPECT TO CERTIFICATE PRINCIPAL
16. THE AGGREGATE AMOUNT OF ALL SUMS $__________
PAYABLE TO THE INVESTOR CERTIFICATEHOLDER OF EACH
SERIES ON THE SUCCEEDING DISTRIBUTION DATE WITH
RESPECT TO CERTIFICATE INTEREST
17. TO THE KNOWLEDGE OF THE
UNDERSIGNED, THERE ARE NO LIENS ON ANY RECEIVABLES
IN THE TRUST EXCEPT AS DESCRIBED BELOW:
[If applicable, insert "None."]
C-2
<PAGE>
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this certificate this ____ day of __________, ____.
Bank of America National
Association
By: ________________________
Name:
Title:
C-3
<PAGE>
Schedule to Monthly
Servicer's Certificate*
----------------------
Bank of America National Association
----------------------------------------
BA MASTER CREDIT CARD TRUST
----------------------------------------
* A separate schedule is to be attached for each Series, with
appropriate changes and additions to reflect the specifics of the
related Series Supplement.
C-4
<PAGE>
EXHIBIT D
---------
FORM OF ANNUAL SERVICER'S CERTIFICATE
-------------------------------------
Bank of America National Association
----------------------------------------
BA MASTER CREDIT CARD TRUST
----------------------------------------
The undersigned, a duly authorized representative of Bank of America
National Association ("Bank of America"), as Servicer pursuant to the Pooling
and Servicing Agreement dated as of __________ __, 199_ (the "Pooling and
Servicing Agreement") by and between Bank of America and the [Trustee], as
trustee (the "Trustee") does hereby certify that:
1. BANK OF AMERICA IS 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. THIS CERTIFICATE IS DELIVERED PURSUANT TO SECTION 3.05
OF THE POOLING AND SERVICING AGREEMENT.
4. A REVIEW OF THE ACTIVITIES OF THE SERVICER DURING [THE
PERIOD FROM THE CLOSING DATE UNTIL] [THE TWELVE-MONTH PERIOD ENDED]
__________ ____ WAS CONDUCTED UNDER THE SUPERVISION OF THE UNDERSIGNED.
5. BASED ON SUCH REVIEW, THE SERVICER HAS, TO THE BEST OF THE
KNOWLEDGE OF THE UNDERSIGNED, FULLY PERFORMED ALL ITS OBLIGATIONS UNDER
THE POOLING AND SERVICING AGREEMENT THROUGHOUT SUCH PERIOD AND NO DEFAULT
IN THE PERFORMANCE OF SUCH OBLIGATIONS HAS OCCURRED OR IS CONTINUING
EXCEPT AS SET FORTH IN PARAGRAPH 6 BELOW.
6. THE FOLLOWING IS A DESCRIPTION OF EACH DEFAULT IN THE
PERFORMANCE OF THE SERVICER'S OBLIGATIONS UNDER THE PROVISIONS OF THE
POOLING AND SERVICING AGREEMENT, INCLUDING ANY SUPPLEMENT, KNOWN TO THE
UNDERSIGNED TO HAVE BEEN MADE DURING SUCH PERIOD WHICH SETS FORTH IN
DETAIL (I) THE NATURE OF EACH SUCH DEFAULT, (II) THE ACTION TAKEN BY THE
SERVICER, IF ANY, TO REMEDY EACH SUCH DEFAULT AND (III) THE CURRENT STATUS
OF EACH SUCH DEFAULT:
[If applicable, insert "None."]
<PAGE>
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate this ____ day of __________, ____.
------------------------
Name:
Title:
D-2
<PAGE>
EXHIBIT E
---------
FORM OF OPINION OF COUNSEL REGARDING ADDITIONAL ACCOUNTS
--------------------------------------------------------
FORM OF OPINION OF COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 2.06(d)(vi)
OF THE POOLING AND SERVICING AGREEMENT
--------------------------------------
[To be delivered in a form substantially as attached hereto or as
otherwise acceptable to the Trustee]
<PAGE>
[Appropriate changes to this form of opinion may
be based on the facts and circumstances applicable
at the time the opinion is required]
[Date]
[Addressees]
Re: BA Master Credit Card Trust, Series 1996-A
------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for Bank of America National
Association, a national banking association (the "Bank"), in connection with a
----
Pooling and Servicing Agreement between the Bank, as Transferor and Servicer,
and First Bank National Association, as Trustee of the BA Master Credit Card
Trust (the "Trust"), dated as of July 19, 1996 (the "Pooling and Servicing
----- -----------------------
Agreement") and the Series 1996-A Supplement among the Bank, as Transferor and
- ---------
Servicer, and First Bank National Association, as Trustee, dated as of July 19,
1996 (the "Series 1996-A Supplement," and together with the Pooling and
--------------------------
Servicing Agreement, the "Agreement"). The Bank proposes to cause the Trust to
---------
issue the Class A Floating Rate Asset Backed Certificates, Series 1996-A and
Class B Floating Rate Asset Backed Certificates, Series 1996-A (together, the
"Certificates") pursuant to the Agreement. First Bank National Association as
------------
Trustee pursuant to the Agreement for the benefit of the holders of the
Certificates is referred to herein as the "Trustee." Capitalized terms not
otherwise defined herein have the meanings set forth in the Agreement.
In subsection 2.04(b)(i) of the Pooling and Servicing Agreement each
Transferor represents and warrants with respect to the Receivables transferred
by the Transferor that each such Receivable is an Eligible Receivable. In
addition, in subsection 2.05(a) of the Pooling and Servicing Agreement each
Transferor covenants that, except in connection with the enforcement or
collection of a Receivable, such Transferor will take no action to cause any
Receivable transferred by it to the Trust to be evidenced by any instrument or
chattel paper (as defined in the UCC).
E-2
<PAGE>
[Addressees]
[Date]
Page 3
You have requested our opinion as to the security interest granted
by the Bank to the Trustee pursuant to the Agreement in Receivables (the
"Receivables") arising in Accounts owned by the Bank. This opinion is based
-----------
solely upon our review of the Agreement and our examination of such matters of
law as we have deemed relevant. In rendering this opinion, we have assumed
without investigation that (a) the Agreement has been duly authorized, executed
and delivered by each of the parties thereto, constitutes the legal, valid and
binding obligation of the parties thereto and is enforceable against such
parties in accordance with the terms thereof, and (b) all signatures are
genuine, all natural persons have legal capacity, all documents submitted to us
as originals are authentic, all documents submitted to us as copies conform to
the originals, and the originals of such copies are authentic.
Based upon and subject to the foregoing, as well as the limitations
set forth below, we are of the opinion that:
1. THE AGREEMENT CREATES IN FAVOR OF THE TRUSTEE A SECURITY
INTEREST IN THE RIGHTS OF THE BANK IN SUCH OF THE RECEIVABLES AS CONSTITUTE
ACCOUNTS. TO THE EXTENT THAT SUCH SECURITY INTEREST IS NOT AN INTEREST OF A
BUYER OF ACCOUNTS, THEN THE AGREEMENT CREATES IN FAVOR OF THE TRUSTEE A SECURITY
INTEREST IN THE RIGHTS OF THE BANK IN THE PROCEEDS OF SUCH RECEIVABLES.
2. TO THE EXTENT THAT TRANSACTIONS CONTEMPLATED BY THE AGREEMENT DO
NOT CONSTITUTE A SALE BY THE BANK TO THE TRUSTEE OF SUCH OF THE RECEIVABLES AS
CONSTITUTE GENERAL INTANGIBLES OR THE PROCEEDS THEREOF, THE AGREEMENT CREATES IN
FAVOR OF THE TRUSTEE A SECURITY INTEREST IN THE RIGHTS OF THE BANK IN SUCH OF
THE RECEIVABLES AS CONSTITUTE GENERAL INTANGIBLES AND THE PROCEEDS THEREOF.
3. UNDER SECTION 9-103 OF THE NEW YORK UNIFORM COMMERCIAL CODE (THE
"NYUCC"), IF THE CHIEF EXECUTIVE OFFICE OF THE BANK IS LOCATED IN THE STATE OF
-----
ARIZONA, THEN THE LAW (INCLUDING THE CONFLICT OF LAWS RULES) OF THE STATE OF
ARIZONA GOVERNS THE PERFECTION AND EFFECT OF PERFECTION OR NON-PERFECTION OF THE
SECURITY INTERESTS DESCRIBED IN PARAGRAPHS 1 AND 2 ABOVE.
We note that Article 9 of the NYUCC applies to sales of "accounts"
and "chattel paper," as well as an assignment of "accounts" or "chattel paper"
as security for an obligation. Comment 2 to Section 9-102 explains that "a sale
of [accounts or chattel paper is] covered by subsection (1)(b) whether intended
for security or not. . . . The buyer then is treated as a secured party, and his
interest as a security interest." Accordingly, the term "security interest," as
defined in Section 1-201(37) of the NYUCC, includes "any interest of a buyer of
accounts or chattel paper which is subject to Article 9" of the NYUCC. The term
"debtor," as defined in Section 9-105(d), includes "the seller of accounts or
chattel paper." The term "secured party," as defined in Section 9-105(m),
includes a "person to whom accounts or chattel paper have been sold."
<PAGE>
[Addressees]
[Date]
Page 4
We express no opinion herein as to (a) any Receivable or proceeds
thereof in which the Bank does not have rights, (b) any Receivable or proceeds
thereof that is of a type described in Section 9-401(1)(a) or (b) of the NYUCC,
(c) whether the Agreement reasonably identifies the Receivables and proceeds
thereof for purposes of Sections 9-110 and 9-203 of the NYUCC, (d) any
Receivable in any Additional Account or the proceeds thereof, (e) any proceeds
other than money or instruments that are identifiable cash proceeds and that are
located at all times in the State of Arizona, (f) the perfection or priority of
any security interest, or (g) any matters governed by any law other than Article
9 of the NYUCC, and therefore these opinions do not address (I) laws of
jurisdictions other than New York, and of New York, except for Article 9 of the
NYUCC and (II) collateral of a type not subject to Article 9 of the NYUCC.
This opinion letter addresses the legal consequences of only the
facts existing or assumed as of the date hereof. The opinions expressed herein
are based on an analysis of existing laws and court decisions and cover certain
matters not directly addressed by such authorities. Such opinions may be
affected by actions taken or omitted, events occurring, or changes in the
relevant facts, after the date hereof. We have not undertaken to determine, or
to inform any person of, the occurrence or non-occurrence of any such actions,
events or changes. This opinion is solely for your benefit in connection with
the transaction covered by the first paragraph of this letter and may not be
relied upon or used by, circulated, quoted or referred to, nor may copies hereof
be delivered to, any other person without our prior written approval. We
disclaim any obligation to update this opinion letter for events occurring or
coming to our attention after the date hereof.
Very truly yours,
E-4
<PAGE>
EXHIBIT F
---------
FORM OF ANNUAL OPINION OF COUNSEL
---------------------------------
[To be delivered in a form substantially as attached hereto or as
otherwise acceptable to the Trustee]
<PAGE>
[Appropriate changes to this form of opinion may
be based on the facts and circumstances applicable
at the time the opinion is required]
[Date]
[Addressees]
Re: BA Master Credit Card Trust, Series 1996-A
------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel for Bank of America National
Association, a national banking association (the "Bank"), in connection with a
----
Pooling and Servicing Agreement between the Bank, as Transferor and Servicer,
and First Bank National Association, as Trustee of the BA Master Credit Card
Trust (the "Trust"), dated as of July 19, 1996 (the "Pooling and Servicing
----- -----------------------
Agreement") and the Series 1996-A Supplement among the Bank, as Transferor and
- ---------
Servicer, and First Bank National Association, as Trustee, dated as of July 19,
1996 (the "Series 1996-A Supplement," and together with the Pooling and
--------------------------
Servicing Agreement, the "Agreement"). The Bank proposes to cause the Trust to
---------
issue the Class A Floating Rate Asset Backed Certificates, Series 1996-A and
Class B Floating Rate Asset Backed Certificates, Series 1996-A (together, the
"Certificates") pursuant to the Agreement. First Bank National Association as
------------
Trustee pursuant to the Agreement for the benefit of the holders of the
Certificates is referred to herein as the "Trustee." Capitalized terms not
-------
otherwise defined herein have the meanings set forth in the Agreement.
In subsection 2.04(b)(i) of the Pooling and Servicing Agreement each
Transferor represents and warrants with respect to the Receivables transferred
by the Transferor that each such Receivable is an Eligible Receivable. In
addition, in subsection 2.05(a) of the Pooling and Servicing Agreement each
Transferor covenants that, except in connection with the enforcement or
collection of a Receivable, such Transferor will take no action to cause any
Receivable transferred by it to the Trust to be evidenced by any instrument or
chattel paper (as defined in the UCC).
F-2
<PAGE>
[Addressees]
[Date]
Page 3
You have requested our opinion as to the security interest granted
by the Bank to the Trustee pursuant to the Agreement in Receivables (the
"Receivables") arising in Accounts owned by the Bank. This opinion is based
-----------
solely upon our review of the Agreement and our examination of such matters of
law as we have deemed relevant. In rendering this opinion, we have assumed
without investigation that (a) the Agreement has been duly authorized, executed
and delivered by each of the parties thereto, constitutes the legal, valid and
binding obligation of the parties thereto and is enforceable against such
parties in accordance with the terms thereof, and (b) all signatures are
genuine, all natural persons have legal capacity, all documents submitted to us
as originals are authentic, all documents submitted to us as copies conform to
the originals, and the originals of such copies are authentic.
Based upon and subject to the foregoing, as well as the limitations
set forth below, we are of the opinion that:
1. THE AGREEMENT CREATES IN FAVOR OF THE TRUSTEE A SECURITY
INTEREST IN THE RIGHTS OF THE BANK IN SUCH OF THE RECEIVABLES AS CONSTITUTE
ACCOUNTS. TO THE EXTENT THAT SUCH SECURITY INTEREST IS NOT AN INTEREST OF A
BUYER OF ACCOUNTS, THEN THE AGREEMENT CREATES IN FAVOR OF THE TRUSTEE A SECURITY
INTEREST IN THE RIGHTS OF THE BANK IN THE PROCEEDS OF SUCH RECEIVABLES.
2. TO THE EXTENT THAT TRANSACTIONS CONTEMPLATED BY THE AGREEMENT DO
NOT CONSTITUTE A SALE BY THE BANK TO THE TRUSTEE OF SUCH OF THE RECEIVABLES AS
CONSTITUTE GENERAL INTANGIBLES OR THE PROCEEDS THEREOF, THE AGREEMENT CREATES IN
FAVOR OF THE TRUSTEE A SECURITY INTEREST IN THE RIGHTS OF THE BANK IN SUCH OF
THE RECEIVABLES AS CONSTITUTE GENERAL INTANGIBLES AND THE PROCEEDS THEREOF.
3. UNDER SECTION 9-103 OF THE NEW YORK UNIFORM COMMERCIAL CODE (THE
"NYUCC"), IF THE CHIEF EXECUTIVE OFFICE OF THE BANK IS LOCATED IN THE STATE OF
-----
ARIZONA, THEN THE LAW (INCLUDING THE CONFLICT OF LAWS RULES) OF THE STATE OF
ARIZONA GOVERNS THE PERFECTION AND EFFECT OF PERFECTION OR NON-PERFECTION OF THE
SECURITY INTERESTS DESCRIBED IN PARAGRAPHS 1 AND 2 ABOVE.
We note that Article 9 of the NYUCC applies to sales of "accounts"
and "chattel paper," as well as an assignment of "accounts" or "chattel paper"
as security for an obligation. Comment 2 to Section 9-102 explains that "a sale
of [accounts or chattel paper is] covered by subsection (1)(b) whether intended
for security or not. . . . The buyer then is treated as a secured party, and his
interest as a security interest." Accordingly, the term "security interest," as
defined in Section 1-201(37) of the NYUCC, includes "any interest of a buyer of
accounts or chattel paper which is subject to Article 9" of the NYUCC. The term
"debtor," as defined in Section 9-105(d), includes "the seller of accounts or
chattel paper." The term "secured party," as defined in Section 9-105(m),
includes a "person to whom accounts or chattel paper have been sold."
<PAGE>
[Addressees]
[Date]
Page 4
We express no opinion herein as to (a) any Receivable or proceeds
thereof in which the Bank does not have rights, (b) any Receivable or proceeds
thereof that is of a type described in Section 9-401(1)(a) or (b) of the NYUCC,
(c) whether the Agreement reasonably identifies the Receivables and proceeds
thereof for purposes of Sections 9-110 and 9-203 of the NYUCC, (d) any
Receivable in any Additional Account or the proceeds thereof, (e) any proceeds
other than money or instruments that are identifiable cash proceeds and that are
located at all times in the State of Arizona, (f) the perfection or priority of
any security interest, or (g) any matters governed by any law other than Article
9 of the NYUCC, and therefore these opinions do not address (I) laws of
jurisdictions other than New York, and of New York, except for Article 9 of the
NYUCC and (II) collateral of a type not subject to Article 9 of the NYUCC.
This opinion letter addresses the legal consequences of only the
facts existing or assumed as of the date hereof. The opinions expressed herein
are based on an analysis of existing laws and court decisions and cover certain
matters not directly addressed by such authorities. Such opinions may be
affected by actions taken or omitted, events occurring, or changes in the
relevant facts, after the date hereof. We have not undertaken to determine, or
to inform any person of, the occurrence or non-occurrence of any such actions,
events or changes. This opinion is solely for your benefit in connection with
the transaction covered by the first paragraph of this letter and may not be
relied upon or used by, circulated, quoted or referred to, nor may copies hereof
be delivered to, any other person without our prior written approval. We
disclaim any obligation to update this opinion letter for events occurring or
coming to our attention after the date hereof.
Very truly yours,
F-4
<PAGE>
EXHIBIT G
---------
FORM OF REASSIGNMENT OF RECEIVABLES
-----------------------------------
REASSIGNMENT NO. ____ OF RECEIVABLES, dated as of __________ ____,
____, by and between [______________], a [______________________] organized
under the laws of [__________] (the "Bank"), and [Trustee], a banking
corporation organized under the laws of the State of [Trustee's State of
Incorporation] (the "Trustee") pursuant to the Pooling and Servicing Agreement
referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Bank and the Trustee are parties to the Pooling and
Servicing Agreement, dated as of __________ __, 199_ (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 Bank
wishes remove all Receivables from certain designated Accounts of the Bank (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 Bank (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 Bank 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 MEANINGS
WHEN USED HEREIN, UNLESS OTHERWISE DEFINED HEREIN.
"Removal Date" shall mean, with respect to the Removed
-------------
Accounts designated hereby, __________, ____.
"Removal Notice Date" shall mean, with respect to the Removed
--------------------
Accounts 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 BANK SHALL DELIVER TO
-------------------------------
THE TRUSTEE, NOT LATER THAN __ BUSINESS DAYS AFTER THE REMOVAL DATE, A
COMPUTER FILE OR MICROFICHE LIST CONTAINING A TRUE AND COMPLETE LIST OF
EACH MASTERCARD AND VISA ACCOUNT WHICH AS OF THE REMOVAL DATE SHALL BE
DEEMED TO BE A REMOVED ACCOUNT, SUCH ACCOUNTS BEING IDENTIFIED BY ACCOUNT
NUMBER AND BY THE AGGREGATE AMOUNT OF RECEIVABLES IN SUCH ACCOUNTS AS OF
THE CLOSE OF BUSINESS ON THE REMOVAL DATE. SUCH LIST SHALL BE MARKED AS
SCHEDULE 1 TO THIS REASSIGNMENT AND SHALL BE INCORPORATED INTO AND MADE A
PART OF THIS REASSIGNMENT AS OF THE REMOVAL DATE.
<PAGE>
3. CONVEYANCE OF RECEIVABLES.
-------------------------
(a) The Trust does hereby reconvey to the Bank, 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 [name
of applicable jurisdiction(s)]) of such Receivables, Insurance Proceeds
relating to such Receivables and the proceeds thereof.
(b) In connection with such transfer, the Trustee agrees to
execute and deliver to the Bank on or prior to the date of this
Reassignment, a termination statement with respect to the Receivables now
existing and hereafter created in the Removed Accounts designated hereby
(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. REPRESENTATIONS AND WARRANTIES OF THE BANK. THE BANK
------------------------------------------
HEREBY REPRESENTS AND WARRANTS TO THE TRUST AS OF THE REMOVAL DATE:
(a) Legal Valid and Binding Obligation. This
------------------------------------------
Reassignment constitutes a legal, valid and binding obligation of
the Bank enforceable against the Bank in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and the rights of creditors of national
banking associations and except as such enforceability may be
limited by general principles of equity (whether considered in a
suit at law or in equity).
(b) Selection Procedures. No selection procedures
--------------------
believed by the Bank to be materially adverse to the interests of
the Investor Certificateholders were utilized in selecting the
Removed Accounts designated hereby.
5. CONDITIONS PRECEDENT. THE AMENDMENT OF THE POOLING
--------------------
AND SERVICING AGREEMENT SET FORTH IN SECTION 6 HEREOF IS SUBJECT TO THE
SATISFACTION, ON OR PRIOR TO THE REMOVAL DATE, OF THE FOLLOWING
CONDITION PRECEDENT:
G-2
<PAGE>
The Bank shall have delivered to the Trustee an
Officer's Certificate certifying that (i) as of the Removal Date,
all requirements set forth in Section 2.07 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) each of the
representations and warranties made by the Bank in Section 4 hereof
is true and correct as of the Removal Date. 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.
6. 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," TO "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 TO 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.
7. 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.
8. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE
TO ITS CONFLICT OF LAW PROVISIONS.
G-3
<PAGE>
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 Transferor]
By: ________________________
Name:
Title:
[Trustee]
as Trustee
By: ________________________
Name:
Title:
G-4
<PAGE>
Schedule 1
to Reassignment
of Receivables
---------------
REMOVED ACCOUNTS
----------------
G-5
<PAGE>
EXHIBIT H
---------
FORM OF RECONVEYANCE OF RECEIVABLES
-----------------------------------
RECONVEYANCE OF RECEIVABLES, dated as of __________ __, ____, by and
between [Name of Transferor], a [__________________] organized under the laws of
[___________] (the "Transferor"), and [Trustee], a banking corporation organized
and existing under the laws of [Trustee's State of Incorporation] (the
"Trustee") pursuant to the Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Transferor and the Trustee are parties to the Pooling
and Servicing Agreement dated as of __________ __, 199_ (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
Transferor wishes to cause the Trustee to reconvey all of the Receivables and
proceeds thereof, whether now existing or hereafter created, from the Trust to
the Transferor pursuant to the terms of Section 12.04 of the Pooling and
Servicing Agreement upon termination of the Trust pursuant to subsection
12.01(a) of the Pooling and Servicing Agreement (as each such term is defined in
the Pooling and Servicing Agreement);
WHEREAS, the Trustee is willing to reconvey Receivables subject
to the terms and conditions hereof;
NOW, THEREFORE, the Transferor 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 MEANINGS WHEN
USED HEREIN, UNLESS OTHERWISE DEFINED HEREIN.
"Reconveyance Date" shall mean __________, ____.
-----------------
2. RETURN OF LISTS OF ACCOUNTS. THE TRUSTEE SHALL DELIVER TO THE
---------------------------
TRANSFEROR, NOT LATER THAN __ BUSINESS DAYS AFTER THE RECONVEYANCE DATE, EACH
AND EVERY COMPUTER FILE OR MICROFICHE LIST OF ACCOUNTS DELIVERED TO THE TRUSTEE
PURSUANT TO THE TERMS OF THE POOLING AND SERVICING AGREEMENT.
3. CONVEYANCE OF RECEIVABLES. (a) THE TRUSTEE DOES HEREBY RECONVEY
-------------------------
TO THE TRANSFEROR, WITHOUT RECOURSE, ON AND AFTER THE RECONVEYANCE DATE, ALL
RIGHT, TITLE AND INTEREST OF THE TRUST IN AND TO EACH AND EVERY RECEIVABLE NOW
EXISTING AND HEREAFTER CREATED IN THE ACCOUNTS, 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 [NAME OF APPLICABLE
JURISDICTION(S)]) OF SUCH RECEIVABLES AND INSURANCE PROCEEDS RELATING TO SUCH
RECEIVABLES AND ANY INTERCHANGE, EXCEPT FOR AMOUNTS, IF ANY, HELD BY THE TRUSTEE
PURSUANT TO SUBSECTION 12.03(B) OF THE POOLING AND SERVICING AGREEMENT.
<PAGE>
(b) IN CONNECTION WITH SUCH TRANSFER, THE TRUSTEE AGREES TO EXECUTE
AND DELIVER TO THE TRANSFEROR ON OR PRIOR TO THE DATE OF THIS RECONVEYANCE, SUCH
UCC TERMINATION STATEMENTS AS THE TRANSFEROR MAY REASONABLY REQUEST, EVIDENCING
THE RELEASE BY THE TRUST OF ITS LIEN ON THE RECEIVABLES.
4. COUNTERPARTS. THIS RECONVEYANCE 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.
5. GOVERNING LAW. THIS RECONVEYANCE SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS.
H-2
<PAGE>
IN WITNESS WHEREOF, the undersigned have caused this Reconveyance of
Receivables to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
[Name of Transferor]
By: ________________________
Name:
Title:
[Trustee],
as Trustee
By: ________________________
Name:
Title:
H-3
<PAGE>
SCHEDULE 1
----------
LIST OF ACCOUNTS
----------------
Delivered to Trustee only
[Deemed Incorporated]
- --------------------------------------------------------------------------------
BANK OF AMERICA NATIONAL ASSOCIATION
Transferor and Servicer
and
FIRST BANK NATIONAL ASSOCIATION
Trustee
on behalf of the Series 1996-A Certificateholders
------------------------------------------
SERIES 1996-A SUPPLEMENT
Dated as of July 19, 1996
to
POOLING AND SERVICING AGREEMENT
Dated as of July 19, 1996
------------------------------------------
BA MASTER CREDIT CARD TRUST
Series 1996-A
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
Page
----
SECTION 1. Designation 1
SECTION 2. Definitions 1
SECTION 3. Servicing Compensation and Assignment of Interchange 20
SECTION 4. Reassignment and Transfer Terms 22
SECTION 5. Delivery and Payment for the Investor Certificates 22
SECTION 6. Depository; Form of Delivery of Investor Certificates 22
SECTION 7. Article IV of Agreement 23
SECTION 4.04 Rights of Certificateholders and the Collateral
Interest Holder 23
SECTION 4.05 Allocations 23
SECTION 4.06 Determination of Monthly Interest 28
SECTION 4.07 Determination of Monthly Principal 29
SECTION 4.08 Coverage of Required Amount 30
SECTION 4.09 Monthly Payments 31
SECTION 4.10 Investor Charge-Offs 35
SECTION 4.11 Excess Spread; Shared Excess Finance Charge
Collections 37
SECTION 4.12 Reallocated Principal Collections 39
SECTION 4.13 Shared Excess Finance Charge Collections 40
SECTION 4.14 Shared Excess Principal Collections 40
SECTION 4.15 Principal Funding Account 41
SECTION 4.16 Reserve Account 42
SECTION 4.17 Determination of LIBOR 44
SECTION 4.18 Transferor's or Servicer's Failure to Make a
Deposit or Payment 45
SECTION 8. Article V of the Agreement 45
SECTION 5.01 Distributions 45
SECTION 5.02 Monthly Series 1996-A Certificateholders' Statement 46
SECTION 9. Series 1996-A Pay Out Events 48
SECTION 10. Series 1996-A Termination 50
SECTION 11. Counterparts 50
SECTION 12. Periodic Finance Charges and Other Fees 50
SECTION 13. Governing Law 50
i
<PAGE>
Page
----
SECTION 14. No Petition 50
SECTION 15. Tax Representation and Covenant 50
SECTION 16. Certain Tax Related Amendments 51
EXHIBITS
- --------
EXHIBIT A-1 Form of Class A Certificate
EXHIBIT A-2 Form of Class B Certificate
EXHIBIT B Form of Monthly Payment Instructions and Notification
to the Trustee
EXHIBIT C Form of Monthly Series 1996-A Certificateholders'
Statement
ii
<PAGE>
SERIES 1996-A SUPPLEMENT, dated as of July 19, 1996 (this "Series
Supplement"), between BANK OF AMERICA NATIONAL ASSOCIATION, a national banking
association, as Transferor and Servicer, and FIRST BANK NATIONAL ASSOCIATION, as
Trustee under the Pooling and Servicing Agreement, dated as of July 19, 1996,
between Bank of America National Association and the Trustee (as amended, the
"Agreement").
Pursuant to this Series Supplement, the Transferor and the Trust
shall create a Series of Investor Certificates and shall specify the Principal
Terms thereof.
SECTION 1. Designation. (a) THERE IS HEREBY CREATED A SERIES OF
-----------
INVESTOR CERTIFICATES TO BE ISSUED IN TWO CLASSES PURSUANT TO THE AGREEMENT AND
THIS SERIES SUPPLEMENT AND TO BE KNOWN TOGETHER AS THE "SERIES 1996-A
CERTIFICATES." THE TWO CLASSES SHALL BE DESIGNATED THE CLASS A FLOATING-RATE
ASSET BACKED CERTIFICATES, SERIES 1996-A (THE "CLASS A CERTIFICATES") AND THE
CLASS B FLOATING-RATE ASSET BACKED CERTIFICATES, SERIES 1996-A (THE "CLASS B
CERTIFICATES"). THE CLASS A CERTIFICATES AND THE CLASS B CERTIFICATES SHALL BE
SUBSTANTIALLY IN THE FORM OF EXHIBITS A-1 AND A-2 HERETO, RESPECTIVELY. IN
ADDITION, THERE IS HEREBY CREATED A THIRD CLASS OF AN UNCERTIFICATED INTEREST IN
THE TRUST WHICH SHALL BE DEEMED TO BE AN "INVESTOR CERTIFICATE" FOR ALL PURPOSES
UNDER THE AGREEMENT AND THIS SERIES SUPPLEMENT, EXCEPT AS EXPRESSLY PROVIDED
HEREIN, AND WHICH SHALL BE KNOWN AS THE COLLATERAL INTEREST, SERIES 1996-A (THE
"COLLATERAL INTEREST").
(b) SERIES 1996-A SHALL BE INCLUDED IN SHARED EXCESS FINANCE CHARGE
GROUP ONE AND THE SHARED EXCESS PRINCIPAL COLLECTIONS GROUP (AS DEFINED BELOW).
SERIES 1996-A SHALL NOT BE SUBORDINATED TO ANY OTHER SERIES.
(c) THE COLLATERAL INTEREST HOLDER, AS HOLDER OF AN "INVESTOR
CERTIFICATE" UNDER THE AGREEMENT, SHALL BE ENTITLED TO THE BENEFITS OF THE
AGREEMENT AND THIS SERIES SUPPLEMENT UPON PAYMENT BY THE COLLATERAL INTEREST
HOLDER OF AMOUNTS OWING ON THE CLOSING DATE PURSUANT TO THE LOAN AGREEMENT.
NOTWITHSTANDING THE FOREGOING, EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE
PROVISIONS OF ARTICLE VI AND ARTICLE XII OF THE AGREEMENT RELATING TO THE
REGISTRATION, AUTHENTICATION, DELIVERY, PRESENTATION, CANCELLATION AND SURRENDER
OF REGISTERED CERTIFICATES SHALL NOT BE APPLICABLE TO THE COLLATERAL INTEREST.
SECTION 2. Definitions.
-----------
In the event that any term or provision contained herein shall
conflict with or be inconsistent with any provision contained in the Agreement,
the terms and provisions of this Series Supplement shall govern. All Article,
Section or subsection references herein shall mean Articles, Sections or
subsections of the Agreement, except as otherwise provided herein. All
capitalized terms not otherwise defined herein are defined in the Agreement.
Each capitalized term defined herein shall relate only to the Investor
Certificates and no other Series of Certificates issued by the Trust.
<PAGE>
"Acceptable Successor Servicer" shall mean (i) First Bank National
-------------------------------
Association or (ii) any other Successor Servicer which has given written notice
to the Transferor and the Rating Agencies that such Successor Servicer will
accept Servicer Interchange as a partial payment of the Investor Servicing Fee;
provided, however, that prior to any Person becoming an Acceptable Successor
- -------- -------
Servicer pursuant to clause (ii) above, the Transferor shall have received a
written notice from Standard & Poor's that such action will not cause a
reduction or withdrawal of its then current rating of the Class A Certificates
or the Class B Certificates.
"Accumulation Period" shall mean, solely for the purposes of the
--------------------
definition of Shared Excess Principal Collections Group Monthly Principal
Payment as such term is defined in each Supplement relating to the Shared Excess
Principal Collections Group, the Controlled Accumulation Period.
"Accumulation Period Factor" shall mean, for each Monthly Period, a
---------------------------
fraction, the numerator of which is equal to the sum of the initial investor
interests (or such other amounts as are specified in the applicable Supplement)
of all outstanding Series, and the denominator of which is equal to the sum of
(a) the Initial Investor Interest, (b) the initial investor interests (or such
other amounts as are specified in the applicable Supplement) of all outstanding
Series (other than Series 1996-A) which are not expected to be in their
revolving periods, and (c) the initial investor interests (or such other amounts
as are specified in the applicable Supplement) of all other outstanding Series
which are not allocating Shared Excess Principal Collections to other Series and
are in their revolving periods.
"Accumulation Period Length" shall have the meaning assigned such
----------------------------
term in subsection 4.09(i).
"Accumulation Shortfall" shall initially mean zero and shall
------------------------
thereafter mean, with respect to any Transfer Date with respect to the
Controlled Accumulation Period, the excess, if any, of the Controlled Deposit
Amount for such Transfer Date over the amount deposited into the Principal
Funding Account pursuant to subsection 4.09(e)(i) with respect to the Class A
Certificates.
"Adjusted Investor Interest" shall mean, with respect to any date of
--------------------------
determination, an amount equal to the sum of (a) the Class A Adjusted Investor
Interest, (b) the Class B Investor Interest and (c) the Collateral Interest for
such date.
"Aggregate Investor Default Amount" shall mean, with respect to any
----------------------------------
Monthly Period, the sum of the Investor Default Amounts in respect of such
Monthly Period.
2
<PAGE>
"Available Investor Principal Collections" shall mean with respect
------------------------------------------
to any Monthly Period, an amount equal to (a) the Investor Principal Collections
for such Monthly Period, minus (b) the amount of Reallocated Collateral
-----
Principal Collections and Reallocated Class B Principal Collections with respect
to such Monthly Period which pursuant to Section 4.12 are required to fund the
Class A Required Amount and the Class B Required Amount, plus (c) the amount of
Shared Excess Principal Collections with respect to the Shared Excess Principal
Collections Group that are allocated to Series 1996-A in accordance with
subsection 4.14(b).
"Available Reserve Account Amount" shall mean, with respect to any
----------------------------------
Transfer Date, the lesser of (a) the amount on deposit in the Reserve Account on
such date (after taking into account any interest and earnings retained in the
Reserve Account pursuant to subsection 4.16(b) on such date, but before giving
effect to any deposit made or to be made pursuant to subsection 4.11(i) to the
Reserve Account on such date) and (b) the Required Reserve Account Amount.
"Base Rate" shall mean, with respect to any Monthly Period, the
---------
annualized percentage equivalent of a fraction, the numerator of which is equal
to the sum of the Class A Monthly Interest, the Class B Monthly Interest, the
Collateral Monthly Interest, each for the related Interest Period, and the
Certificateholder Servicing Fee and the Servicer Interchange, each with respect
to such Monthly Period and the denominator of which is the Investor Interest as
of the close of business on the last day of such Monthly Period.
"Certificateholder Servicing Fee" shall have the meaning specified
--------------------------------
in subsection 3(a) hereof.
"Class A Additional Interest" shall have the meaning specified in
----------------------------
subsection 4.06(a).
"Class A Adjusted Investor Interest" shall mean, with respect to any
----------------------------------
date of determination, an amount equal to the Class A Investor Interest minus
the Principal Funding Account Balance on such date of determination.
"Class A Available Funds" shall mean, with respect to any Monthly
-----------------------
Period, an amount equal to the sum of (a) the Class A Floating Allocation of the
Collections of Finance Charge Receivables allocated to the Investor Certificates
and deposited in the Finance Charge Account for such Monthly Period (or to be
deposited in the Finance Charge Account on the related Transfer Date with
respect to the preceding Monthly Period pursuant to the third paragraph of
subsection 4.03(a) of the Agreement and subsection 3(b) of this Series
Supplement), excluding the portion of Collections of Finance Charge Receivables
attributable to Servicer Interchange, (b) with respect to any Monthly Period
during the Controlled Accumulation Period prior to the payment in full of the
Class A Investor Interest, the Principal Funding Investment Proceeds arising
pursuant to subsection 4.15(b), if any, with respect to the related Transfer
Date and (c) amounts, if any, to be withdrawn from the Reserve Account which
will be deposited into the Finance Charge Account on the related Transfer Date
pursuant to subsections 4.16(b) and 4.16(d) .
3
<PAGE>
"Class A Certificate Rate" shall mean from the Closing Date through
------------------------
August 14, 1996, from August 15, 1996 through September 15, 1996 and with
respect to each Interest Period thereafter, a per annum rate equal to 0.13% per
annum in excess of LIBOR as determined on the related LIBOR Determination Date.
"Class A Certificateholder" shall mean the Person in whose name a
--------------------------
Class A Certificate is registered in the Certificate Register.
"Class A Certificates" shall mean any of the certificates executed
--------------------
by the Transferor and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-1 hereto.
"Class A Deficiency Amount" shall have the meaning specified in
---------------------------
subsection 4.06(a).
"Class A Fixed Allocation" shall mean, with respect to any Monthly
-------------------------
Period following the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is the
Class A Investor Interest as of the close of business on the last day of the
Revolving Period; provided, however, that if Series 1996-A is paired with a
-------- -------
Paired Series and a Pay Out Event occurs with respect to such Paired Series
during the Controlled Accumulation Period, the Transferor may, by written notice
delivered to the Trustee, the Servicer and Standard & Poor's, designate a
different numerator (provided that such numerator is not less than the Class A
Adjusted Investor Interest (less the balance on deposit in the Principal
Account) as of the last day of the revolving period for such Paired Series), and
the denominator of which is equal to the numerator used to determine the Fixed
Investor Percentage with respect to such Monthly Period.
"Class A Floating Allocation" shall mean, with respect to any
-----------------------------
Monthly Period, the percentage equivalent (which percentage shall never exceed
100%) of a fraction, the numerator of which is the Class A Adjusted Investor
Interest as of the close of business on the last day of the preceding Monthly
Period and the denominator of which is equal to the Adjusted Investor Interest
as of the close of business on such day; provided, however, that, with respect
to the first Monthly Period, the Class A Floating Allocation shall mean the
percentage equivalent of a fraction, the numerator of which is the Class A
Initial Investor Interest and the denominator of which is the Initial Investor
Interest.
4
<PAGE>
"Class A Initial Investor Interest" shall mean the aggregate initial
---------------------------------
principal amount of the Class A Certificates, which is $427,500,000.
"Class A Investor Allocation" shall mean, with respect to any
-----------------------------
Monthly Period, (a) with respect to Default Amounts and Finance Charge
Receivables at any time and Principal Receivables during the Revolving Period,
the Class A Floating Allocation and (b) with respect to Principal Receivables
during the Controlled Accumulation Period or Rapid Amortization
Period, the Class A Fixed Allocation.
"Class A Investor Charge-Offs" shall have the meaning specified in
-----------------------------
subsection 4.10(a).
"Class A Investor Default Amount" shall mean, with respect to each
---------------------------------
Transfer Date, an amount equal to the product of (a) the Aggregate Investor
Default Amount for the related Monthly Period and (b) the Class A Floating
Allocation applicable for the related Monthly Period.
"Class A Investor Interest" shall mean, on any date of
------------------------------
determination, an amount equal to (a) the Class A Initial Investor Interest,
minus (b) the aggregate amount of principal payments made to Class A
- -----
Certificateholders prior to such date and minus (c) the excess, if any, of the
-----
aggregate amount of Class A Investor Charge-Offs pursuant to subsection 4.10(a)
over Class A Investor Charge-Offs reimbursed pursuant to subsection 4.11(b)
prior to such date of determination; provided, however, that the Class A
-------- -------
Investor Interest may not be reduced below zero.
"Class A Monthly Interest" shall mean the monthly interest
----------------------------
distributable in respect of the Class A Certificates as calculated in accordance
with subsection 4.06(a).
"Class A Monthly Principal" shall mean the monthly principal
----------------------------
distributable in respect of the Class A Certificates as calculated in accordance
with subsection 4.07(a).
"Class A Required Amount" shall have the meaning specified in
-------------------------
subsection 4.08(a).
"Class A Scheduled Payment Date" shall mean the July 2001
------------------------------
Distribution Date.
"Class A Servicing Fee" shall have the meaning specified in
------------------------
subsection 3(a) of this Series Supplement.
"Class B Additional Interest" shall have the meaning specified in
----------------------------
subsection 4.06(b).
"Class B Available Funds" shall mean, with respect to any Monthly
------------------------
Period, an amount equal to the Class B Floating Allocation of the Collections of
Finance Charge Receivables allocated to the Investor Certificates and deposited
in the Finance Charge Account for such Monthly Period (or to be deposited in the
5
<PAGE>
Finance Charge Account on the related Transfer Date with respect to the
preceding Monthly Period pursuant to the third paragraph of subsection 4.03(a)
of the Agreement and subsection 3(b) of this Series Supplement), excluding the
portion of Collections of Finance Charge Receivables attributable to Servicer
Interchange.
"Class B Certificate Rate" shall mean from the Closing Date through
-------------------------
August 14, 1996, from August 15, 1996 through September 15, 1996 and with
respect to each Interest Period thereafter, a per annum rate equal to 0.29% per
annum in excess of LIBOR, as determined on the related LIBOR Determination Date.
"Class B Certificateholder" shall mean the Person in whose name a
--------------------------
Class B Certificate is registered in the Certificate Register.
"Class B Certificates" shall mean any of the certificates executed
--------------------
by the Transferor and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-2 hereto.
"Class B Deficiency Amount" shall have the meaning specified in
---------------------------
subsection 4.06(b).
"Class B Fixed Allocation" shall mean, with respect to any Monthly
-------------------------
Period following the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is the
Class B Investor Interest as of the close of business on the last day of the
Revolving Period; provided, however, that if Series 1996-A is paired with a
-------- -------
Paired Series and a Pay Out Event occurs with respect to such Paired Series
during the Controlled Accumulation Period, the Transferor may, by written notice
delivered to the Trustee, the Servicer and Standard & Poor's, designate a
different numerator (provided that such numerator is not less than the Class B
Investor Interest (less, if the Class A Fixed Allocation is zero, the balance on
deposit in the Principal Account to the extent not subtracted in reducing the
Class A Fixed Allocation to zero) as of the last day of the revolving period for
such Paired Series), and the denominator of which is equal to the numerator used
to determine the Fixed Investor Percentage with respect to such Monthly Period.
"Class B Floating Allocation" shall mean, with respect to any
---------------------------
Monthly Period, the percentage equivalent (which percentage shall never exceed
100%) of a fraction, the numerator of which is the Class B Investor Interest as
of the close of business on the last day of the preceding Monthly Period and the
denominator of which is equal to the Adjusted Investor Interest as of the close
of business on such day; provided, however, that, with respect to the first
-------- -------
Monthly Period, the Class B Floating Allocation shall mean the percentage
6
<PAGE>
equivalent of a fraction, the numerator of which is the Class B Initial Investor
Interest and the denominator of which is the Initial Investor Interest.
"Class B Initial Investor Interest" shall mean the aggregate initial
---------------------------------
principal amount of the Class B Certificates, which is $32,500,000.
"Class B Investor Allocation" shall mean, with respect to any
-----------------------------
Monthly Period, (a) with respect to Default Amounts and Finance Charge
Receivables at any time and Principal Receivables during the Revolving Period,
the Class B Floating Allocation and (b) with respect to Principal Receivables
during the Controlled Accumulation Period or Rapid Amortization
Period, the Class B Fixed Allocation.
"Class B Investor Charge-Offs" shall have the meaning specified in
-----------------------------
subsection 4.10(b).
"Class B Investor Default Amount" shall mean, with respect to each
---------------------------------
Transfer Date, an amount equal to the product of (a) the Aggregate Investor
Default Amount for the related Monthly Period and (b) the Class B Floating
Allocation applicable for the related Monthly Period.
"Class B Investor Interest" shall mean, on any date of
------------------------------
determination, an amount equal to (a) the Class B Initial Investor Interest,
minus (b) the aggregate amount of principal payments made to Class B
- -----
Certificateholders prior to such date, minus (c) the aggregate amount of Class B
Investor Charge-Offs for all prior Transfer Dates pursuant to subsection
4.10(b), minus (d) the aggregate amount of the Reallocated Class B Principal
Collections allocated pursuant to subsection 4.12(a) on all prior Transfer Dates
for which the Collateral Interest has not been reduced, minus (e) an amount
-----
equal to the amount by which the Class B Investor Interest has been reduced on
all prior Transfer Dates pursuant to subsection 4.10(a) and plus (f) the
aggregate amount of Excess Spread and Shared Excess Finance Charge Collections
allocated and available on all prior Transfer Dates pursuant to subsection
4.11(d) for the purpose of reimbursing amounts deducted pursuant to the
foregoing clauses (c), (d) and (e); provided, however, that the Class B Investor
-------
Interest may not be reduced below zero.
"Class B Monthly Interest" shall mean the monthly interest
----------------------------
distributable in respect of the Class B Certificates as calculated in accordance
with subsection 4.06(b).
"Class B Monthly Principal" shall mean the monthly principal
----------------------------
distributable in respect of the Class B Certificates as calculated in accordance
with subsection 4.07(b).
"Class B Required Amount" shall have the meaning specified in
-------------------------
subsection 4.08(b).
7
<PAGE>
"Class B Scheduled Payment Date" shall mean the August 2001
------------------------------
Distribution Date.
"Class B Servicing Fee" shall have the meaning specified in
------------------------
subsection 3(a) hereof.
"Closing Date" shall mean July 19, 1996.
------------
"Code" shall mean the Internal Revenue Code of 1986, as amended.
----
"Collateral Allocation" shall mean, with respect to any Monthly
----------------------
Period, (a) with respect to Default Amounts and Finance Charge Receivables at
any time and Principal Receivables during the Revolving Period, the Collateral
Floating Allocation and (b) with respect to Principal Receivables during the
Controlled Accumulation Period or Rapid Amortization Period, the Collateral
Fixed Allocation.
"Collateral Available Funds" shall mean, with respect to any Monthly
--------------------------
Period, an amount equal to the Collateral Floating Allocation of the Collections
of Finance Charge Receivables allocated to the Investor Certificates and
deposited in the Finance Charge Account for such Monthly Period (or to be
deposited in the Finance Charge Account on the related Transfer Date with
respect to the preceding Monthly Period pursuant to the third paragraph of
subsection 4.03 (a) of the Agreement and subsection 3(b) of this Series
Supplement), excluding the portion of Collections of Finance Charge Receivables
attributable to Servicer Interchange.
"Collateral Charge-Offs" shall have the meaning specified in
----------------------
subsection 4.10(c).
"Collateral Default Amount" shall mean, with respect to any Transfer
-------------------------
Date, an amount equal to the product of (a) the Aggregate Investor Default
Amount for the related Monthly Period and (b) the Collateral Floating Allocation
applicable for the related Monthly Period.
"Collateral Fixed Allocation" shall mean, with respect to any
-----------------------------
Monthly Period following the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is the
Collateral Interest as of the close of business on the last day of the Revolving
Period; provided, however, that if Series 1996-A is paired with a Paired Series
-------- -------
and a Pay Out Event occurs with respect to such Paired Series during the
Controlled Accumulation Period, the Transferor may, by written notice delivered
to the Trustee and the Servicer, designate a different numerator (provided that
such numerator is not less than the Collateral Interest (less, if the Class B
Fixed Allocation is zero, the balance on deposit in the Principal Account, to
the extent not subtracted in reducing the Class B Fixed Allocation to zero) as
of the last day of the revolving period for such Paired Series), and the
denominator of which is equal to the numerator used to determine the Fixed
Investor Percentage with respect to such Monthly Period.
8
<PAGE>
"Collateral Floating Allocation" shall mean, with respect to any
--------------------------------
Monthly Period, the percentage equivalent (which percentage shall never exceed
100%) of a fraction, the numerator of which is the Collateral Interest as of the
close of business on the last day of the preceding Monthly Period and the
denominator of which is equal to the Adjusted Investor Interest as of the close
of business on such day; provided, however, that, with respect to the first
-------- -------
Monthly Period, the Collateral Floating Allocation shall mean the percentage
equivalent of a fraction, the numerator of which is the Collateral Initial
Interest and the denominator of which is the Initial Investor Interest.
"Collateral Initial Interest" shall mean the aggregate initial
-----------------------------
principal amount of the Collateral Interest, which is $40,000,000.
"Collateral Interest" shall mean, on any date of determination, a
--------------------
fractional undivided interest in the Trust which shall consist of the right to
receive, to the extent necessary to make the required payments to the Collateral
Interest Holder under this Series Supplement, the portion of Collections
allocable thereto under the Agreement and this Series Supplement, and funds on
deposit in the Collection Account allocable thereto pursuant to the Agreement
and this Series Supplement; provided, however, that, with respect to any date,
-------- -------
the Collateral Interest shall be an amount equal to (a) the Collateral Initial
Interest, minus (b) the aggregate amount of principal payments made to the
-----
Collateral Interest Holder prior to such date, minus (c) the aggregate amount of
-----
Collateral Charge-Offs for all prior Transfer Dates pursuant to subsection
4.10(c), minus (d) the aggregate amount of Reallocated Principal Collections
-----
allocated pursuant to subsections 4.12(a) and (b) on all prior Transfer Dates,
minus (e) an amount equal to the amount by which the Collateral Interest has
- -----
been reduced on all prior Transfer Dates pursuant to subsections 4.10(a) and
(b), and plus (f) the aggregate amount of Excess Spread and Shared Excess
----
Finance Charge Collections allocated and available on all prior Transfer Dates
pursuant to subsection 4.11(h) for the purpose of reimbursing amounts deducted
pursuant to the foregoing clauses (c), (d) and (e); provided further, however,
-------- ------- -------
that the Collateral Interest may not be reduced below zero.
"Collateral Interest Holder" shall mean the entity so designated
--------------------------
in the Loan Agreement.
"Collateral Interest Servicing Fee" shall have the meaning specified
---------------------------------
in subsection 3(a) hereof.
"Collateral Monthly Interest" shall mean the monthly interest
-----------------------------
distributable in respect of the Collateral Interest as calculated in accordance
with subsection 4.06(c).
9
<PAGE>
"Collateral Monthly Principal" shall mean the monthly principal
------------------------------
distributable in respect of the Collateral Interest as calculated in accordance
with subsection 4.07(c).
"Collateral Rate" shall mean, for any Interest Period, the rate
----------------
specified in the Loan Agreement.
"Controlled Accumulation Amount" shall mean (a) for any Transfer
--------------------------------
Date with respect to the Controlled Accumulation Period prior to the payment in
full of the Class A Investor Interest, $35,625,000; provided, however, that if
-------- -------
the Accumulation Period Length is determined to be less than 12 months pursuant
to subsection 4.09(i), the Controlled Accumulation Amount for each Transfer Date
with respect to the Controlled Accumulation Period prior to the payment in full
of the Class A Investor Interest will be equal to (i) the product of (x) the
Class A Initial Investor Interest and (y) the Accumulation Period Factor for
such Monthly Period divided by (ii) the Required Accumulation Factor Number and
(b) for any Transfer Date with respect to the Controlled Accumulation Period
after payment in full of the Class A Investor Interest, an amount equal to the
Class B Investor Interest as of such Transfer Date.
"Controlled Accumulation Period" shall mean, unless a Pay Out Event
-------------------------------
shall have occurred prior thereto, the period commencing at the close of
business on June 30, 2000 or such later date as is determined in accordance with
subsection 4.09(i) and ending on the first to occur of (a) the commencement of
the Rapid Amortization Period and (b) the Series 1996-A Termination Date.
"Controlled Deposit Amount" shall mean, with respect to any Transfer
-------------------------
Date, the sum of (a) the Controlled Accumulation Amount for such Transfer Date
and (b) any Accumulation Shortfall remaining at the close of business on the
immediately preceding Transfer Date.
"Covered Amount" shall mean an amount, determined as of the Transfer
--------------
Date with respect to any Interest Period, equal to the product of (a) (i) a
fraction, the numerator of which is the actual number of days in such Interest
Period and the denominator of which is 360, times (ii) the Class A Certificate
-----
Rate in effect with respect to such Interest Period and (b) the Principal
Funding Account Balance as of the Record Date preceding such Transfer Date.
"Credit Enhancement" shall mean (a) with respect to the Class A
-------------------
Certificates, the subordination of the Class B Certificates and the Collateral
Interest, and (b) with respect to the Class B Certificates, the subordination of
the Collateral Interest.
"Credit Enhancement Provider" shall mean the Collateral Interest
---------------------------
Holder.
10
<PAGE>
"Cumulative Series Finance Charge Shortfall" shall mean the sum of
--------------------------------------------
the Series Finance Charge Shortfalls (as such term is defined in each of the
related Series Supplements) for each Series in Shared Excess Finance Charge
Collections Group One.
"Cumulative Series Principal Shortfall" shall mean the sum of the
----------------------------------------
Series Principal Shortfalls (as such term is defined in each of the related
Series Supplements) for each Series in the Shared Excess Principal Collections
Group.
"Daily Principal Shortfall" shall mean, on any date of
-----------------------------
determination, the excess of the Shared Excess Principal Collections Group
Monthly Principal Payment for the Monthly Period relating to such date over the
month to date amount of Collections processed in respect of Principal
Receivables for such Monthly Period allocable to investor certificates of all
outstanding Series in the Shared Excess Principal Collections Group, not subject
to reallocation, which are on deposit or to be deposited in the Principal
Account on such date.
"Deficiency Amount" shall mean, at any time of determination, the
------------------
sum of the Class A Deficiency Amount and the Class B Deficiency Amount.
"Distribution Date" shall mean September 16, 1996 and the 15th day
------------------
of each calendar month thereafter, or if such 15th day is not a Business Day,
the next succeeding Business Day.
"Excess Spread" shall mean, with respect to any Transfer Date, the
--------------
sum of the amounts with respect to such Transfer Date, if any, specified
pursuant to subsections 4.09(a)(iv), 4.09(b)(iii) and 4.09(c)(ii).
"Fixed Investor Percentage" shall mean, with respect to any Monthly
--------------------------
Period, the percentage equivalent of a fraction, the numerator of which is the
Investor Interest as of the close of business on the last day of the Revolving
Period, and the denominator of which is the greater of (a) the aggregate amount
of Principal Receivables in the Trust determined as of the close of business on
the last day of the prior Monthly Period and (b) the sum of the numerators used
to calculate the Investor Percentages (as such term is defined in the Agreement)
for allocations with respect to Principal Receivables for all outstanding Series
on such date of determination; provided, however, that if Series 1996-A is
-------- -------
paired with a Paired Series and a Pay Out Event occurs with respect to such
Paired Series during the Controlled Accumulation Period, the Transferor may, by
written notice delivered to the Trustee, the Servicer and Standard & Poor's,
designate a different numerator (provided that such numerator is not less than
the Adjusted Investor Interest (less the balance on deposit in the Principal
Account) as of the last day of the revolving period for such Paired Series);
provided, however, that with respect to any Monthly Period in which an Addition
- -------- -------
Date occurs or in which a Removal Date occurs on which, if any Series has been
paid in full, Principal Receivables in an aggregate amount approximately equal
11
<PAGE>
to the initial investor interest of such Series are removed from the Trust, the
denominator determined pursuant to clause (a) hereof shall be (i) the aggregate
amount of Principal Receivables in the Trust as of the close of business on the
last day of the prior Monthly Period for the period from and including the first
day of such Monthly Period to but excluding the related Addition Date or Removal
Date and (ii) the aggregate amount of Principal Receivables in the Trust as of
the beginning of the day on the related Addition Date or Removal Date after
adjusting for the aggregate amount of Principal Receivables added to or removed
from the Trust on the related Addition Date or Removal Date, for the period from
and including the related Addition Date or Removal Date to and including the
last day of such Monthly Period.
"Floating Investor Percentage" shall mean, with respect to any
------------------------------
Monthly Period, the percentage equivalent of a fraction, the numerator of which
is the Adjusted Investor Interest as of the close of business on the last day of
the preceding Monthly Period (or with respect to the first Monthly Period, the
Initial Investor Interest) and the denominator of which is the greater of (a)
the aggregate amount of Principal Receivables as of the close of business on the
last day of the preceding Monthly Period (or with respect to the first calendar
month in the first Monthly Period, the aggregate amount of Principal Receivables
initially transferred to the Trust on the Closing Date, and with respect to the
second calendar month in the first Monthly Period, the aggregate amount of
Principal Receivables as of the close of business on the last day of the first
calendar month in the first Monthly Period) and (b) the sum of the numerators
used to calculate the Investor Percentages (as such term is defined in the
Agreement) for allocations with respect to Finance Charge Receivables, Default
Amounts or Principal Receivables, as applicable, for all outstanding Series on
such date of determination; provided, however, that with respect to any Monthly
-------- -------
Period in which an Addition Date occurs or in which a Removal Date occurs on
which, if any Series has been paid in full, Principal Receivables in an
aggregate amount approximately equal to the initial investor interest of such
Series are removed from the Trust, the denominator determined pursuant to clause
(a) hereof shall be (A) the aggregate amount of Principal Receivables in the
Trust as of the close of business on the last day of the prior Monthly Period
for the period from and including the first day of such Monthly Period to but
excluding the related Addition Date or Removal Date and (B) the aggregate amount
of Principal Receivables in the Trust as of the beginning of the day on the
related Addition Date or Removal Date after adjusting for the aggregate amount
of Principal Receivables added to or removed from the Trust on the related
Addition Date or Removal Date, for the period from and including the related
Addition Date or Removal Date to and including the last day of such Monthly
Period.
"Initial Investor Interest" shall mean $500,000,000.
-------------------------
12
<PAGE>
"Interest Period" shall mean, with respect to any Distribution Date,
---------------
the period from and including the previous Distribution Date through the day
preceding such Distribution Date, except that the initial Interest Period shall
be the period from and including the Closing Date through the day preceding the
initial Distribution Date.
"Investor Certificateholder" shall mean (a) with respect to the
---------------------------
Class A Certificates, the holder of record of a Class A Certificate, (b) with
respect to the Class B Certificates, the holder of record of a Class B
Certificate and (c) with respect to the Collateral Interest, the Collateral
Interest Holder.
"Investor Certificates" shall mean the Class A Certificates, the
----------------------
Class B Certificates and the Collateral Interest.
"Investor Default Amount" shall mean, with respect to any Receivable
-----------------------
in a Defaulted Account, an amount equal to the product of (a) the Default Amount
and (b) the Floating Investor Percentage on the day such Account became a
Defaulted Account.
"Investor Interest" shall mean, on any date of determination, an
------------------
amount equal to the sum of (a) the Class A Investor Interest, (b) the Class B
Investor Interest and (c) the Collateral Interest, each as of such date.
"Investor Percentage" shall mean for any Monthly Period, (a) with
--------------------
respect to Finance Charge Receivables and Default Amounts at any time and
Principal Receivables during the Revolving Period, the Floating Investor
Percentage and (b) with respect to Principal Receivables during the Controlled
Accumulation Period or the Rapid Amortization Period, the Fixed
Investor Percentage.
"Investor Principal Collections" shall mean, with respect to any
--------------------------------
Monthly Period, the sum of (a) the aggregate amount deposited into the Principal
Account for such Monthly Period pursuant to subsections 4.05(a)(ii), (iii) and
(iv), 4.05(b)(ii), (iii) and (iv) or 4.05(c)(ii), in each case, as applicable to
such Monthly Period and (b) the aggregate amount to be treated as Investor
Principal Collections pursuant to subsections 4.09(a)(iii) and 4.11(a) (to the
extent allocable to the Class A Investor Default Amount), (b), (c) (to the
extent allocable to the Class B Investor Default Amount), (d), (g) and (h) for
such Monthly Period (other than such amount paid from Reallocated Principal
Collections), and (c) the aggregate amount of Unallocated Principal Collections
deposited into the Principal Account pursuant to subsection 4.05(d).
"Investor Servicing Fee" shall have the meaning specified in
------------------------
subsection 3(a) hereof.
13
<PAGE>
"LIBOR" shall mean, for any Interest Period, the London interbank
-----
offered rate for one-month United States dollar deposits determined by the
Trustee for each Interest Period in accordance with the provisions of Section
4.17.
"LIBOR Determination Date" shall mean July 17, 1996 for the period
--------------------------
from the Closing Date through August 14, 1996, August 13, 1996 for the period
from August 15, 1996 through September 15, 1996, and the second London Business
Day prior to the commencement of the second and each subsequent Interest Period.
"Loan Agreement" shall mean the agreement among the Transferor, the
--------------
Servicer, the Trustee, and the Collateral Interest Holder, dated as of July 19,
1996, as amended or modified from time to time.
"Monthly Interest" shall mean, with respect to any Transfer Date,
-----------------
the sum of (a) the Class A Monthly Interest, the Class A Additional Interest, if
any, and the unpaid Class A Deficiency Amount, if any; (b) the Class B Monthly
Interest, the Class B Additional Interest, if any, and the unpaid Class B
Deficiency Amount, if any, and (c) the Collateral Monthly Interest, each with
respect to such Transfer Date.
"Monthly Period" shall have the meaning specified in the Agreement,
--------------
except that the first Monthly Period with respect to the Investor Certificates
shall begin on and include the Closing Date and shall end on and include August
31, 1996.
"Net Servicing Fee Rate" shall mean (a) so long as the Transferor,
-----------------------
an Affiliate thereof or an Acceptable Successor Servicer is the Servicer, 1.0%
per annum and (b) if the Transferor, an Affiliate thereof or an Acceptable
Successor Servicer is no longer the Servicer, 2.0% per annum.
"Pay Out Commencement Date" shall mean the date on which a Trust Pay
-------------------------
Out Event is deemed to occur pursuant to Section 9.01 or a Series 1996-A Pay Out
Event is deemed to occur pursuant to Section 9 hereof.
"Portfolio Adjusted Yield" shall mean, with respect to any Transfer
-------------------------
Date, the average of the percentages obtained for each of the three preceding
Monthly Periods by subtracting the Base Rate from the Portfolio Yield for such
Monthly Period and deducting 0.5% from the result for each Monthly Period.
"Portfolio Yield" shall mean, with respect to any Monthly Period,
----------------
the annualized percentage equivalent of a fraction, the numerator of which is an
amount equal to the sum of (a) the amount of Collections of Finance Charge
Receivables deposited into the Finance Charge Account and allocable to the
Investor Certificates for such Monthly Period, (b) the Principal Funding
Investment Proceeds deposited into the Finance Charge Account on the Transfer
Date related to such Monthly Period, (c) the amount of the Reserve Draw Amount
14
<PAGE>
(up to the Available Reserve Account Amount) plus any amounts of interest and
earnings described in Section 4.16, each deposited into the Finance Charge
Account on the Transfer Date relating to such Monthly Period, such sum to be
calculated on a cash basis after subtracting the Aggregate Investor Default
Amount for such Monthly Period and (d) provided that, if after the date hereof,
each Rating Agency has consented in writing to the inclusion thereof in
calculating the Portfolio Yield, any Shared Excess Finance Charge Collections
that are allocated to Series 1996-A with respect to the Distribution Date
relating to such Monthly Period, and the denominator of which is the Investor
Interest as of the close of business on the last day of such Monthly Period.
"Principal Funding Account" shall have the meaning set forth in
-------------------------
subsection 4.15(a).
"Principal Funding Account Balance" shall mean, with respect to any
----------------------------------
date of determination, the principal amount, if any, on deposit in the Principal
Funding Account on such date of determination.
"Principal Funding Investment Proceeds" shall mean, with respect to
--------------------------------------
each Transfer Date, the investment earnings on funds in the Principal Funding
Account (net of investment expenses and losses) for the period from and
including the immediately preceding Transfer Date to but excluding such Transfer
Date.
"Principal Funding Investment Shortfall" shall mean, with respect to
--------------------------------------
each Transfer Date relating to the Controlled Accumulation Period, the amount,
if any, by which the Principal Funding Investment Proceeds for such Transfer
Date are less than the Covered Amount determined as of such Transfer Date.
"Rapid Amortization Period" shall mean the Amortization Period
---------------------------
commencing on the Pay Out Commencement Date and ending on the earlier to occur
of (a) the Series 1996-A Termination Date and (b) the termination of the Trust
pursuant to Section 12.01.
"Rating Agency" shall mean Fitch, Moody's and Standard & Poor's.
-------------
"Rating Agency Condition" shall mean the notification in writing by
------------------------
each Rating Agency to the Transferor, the Servicer and the Trustee that an
action will not result in any Rating Agency reducing or withdrawing its then
existing rating of the investor certificates of any outstanding Series or class
of a Series with respect to which it is a Rating Agency.
"Reallocated Class B Principal Collections" shall mean, with respect
-----------------------------------------
to any Transfer Date, Collections of Principal Receivables applied in accordance
with subsection 4.12(a) in an amount not to exceed the product of (a) the Class
B Investor Allocation with respect to the Monthly Period relating to such
15
<PAGE>
Transfer Date and (b) the Investor Percentage with respect to the Monthly Period
relating to such Transfer Date and (c) the amount of Collections of Principal
Receivables with respect to the Monthly Period relating to such Transfer Date;
provided, however, that such amount shall not exceed the Class B Investor
- -------- -------
Interest after giving effect to any Class B Investor Charge-Offs for such
Transfer Date.
"Reallocated Collateral Principal Collections" shall mean, with
-----------------------------------------------
respect to any Transfer Date, Collections of Principal Receivables applied in
accordance with subsections 4.12 (a) and (b) in an amount not to exceed the
product of (a) the Collateral Allocation with respect to the Monthly Period
relating to such Transfer Date and (b) the Investor Percentage with respect to
the Monthly Period relating to such Transfer Date and (c) the amount of
Collections of Principal Receivables with respect to the Monthly Period relating
to such Transfer Date; provided, however, that such amount shall not exceed the
Collateral Interest after giving effect to any Collateral Charge-Offs for such
Transfer Date.
"Reallocated Principal Collections" shall mean the sum of (a)
---------------------------------
Reallocated Class B Principal Collections and (b) Reallocated Collateral
Principal Collections.
"Reference Banks" shall mean four major banks in the London
----------------
interbank market selected by the Servicer.
"Required Accumulation Factor Number" shall be equal to a fraction,
------------------------------------
rounded upwards to the nearest whole number, the numerator of which is one and
the denominator of which is equal to the lowest monthly principal payment rate
on the Accounts, expressed as a decimal, for the 12 months preceding the date of
such calculation.
"Required Collateral Interest" shall mean (a) initially, $40,000,000
----------------------------
and (b) on any Transfer Date thereafter, 8.0% of the sum of the Class A Adjusted
Investor Interest and the Class B Investor Interest on such Transfer Date, after
taking into account deposits into the Principal Funding Account on such Transfer
Date and payments to be made on the related Distribution Date, and the
Collateral Interest on the prior Transfer Date, after any adjustments to be made
on such date, but not less than $15,000,000; provided, however, that (x) if
-------- -------
either (i) there is a reduction in the Collateral Interest pursuant to clause
(c), (d) or (e) of the definition of such term or (ii) a Pay Out Event with
respect to the Investor Certificates has occurred, the Required Collateral
Interest for any Transfer Date shall equal the Required Collateral Interest for
the Transfer Date immediately preceding such reduction or Pay Out Event, (y) in
no event shall the Required Collateral Interest exceed the sum of the
outstanding principal amounts of (i) the Class A Certificates and (ii) the Class
B Certificates, each as of the last day of the Monthly Period preceding such
Transfer Date after taking into account the payments to be made on the related
16
<PAGE>
Distribution Date and (z) the Required Collateral Interest may be reduced at the
Transferor's option at any time to a lesser amount if the Transferor, the
Servicer, the Collateral Interest Holder and the Trustee have been provided
evidence that the Rating Agency Condition shall have been satisfied.
"Required Reserve Account Amount" shall mean, with respect to any
----------------------------------
Transfer Date on or after the Reserve Account Funding Date, an amount equal to
(a) 0.5% of the outstanding principal balance of the Class A Certificates or (b)
any other amount designated by the Transferor; provided, however, that if such
-------- -------
designation is of a lesser amount, the Transferor shall (i) provide the
Servicer, the Collateral Interest Holder and the Trustee with evidence that the
Rating Agency Condition shall have been satisfied and (ii) deliver to the
Trustee a certificate of an authorized officer to the effect that, based on the
facts known to such officer at such time, in the reasonable belief of the
Transferor, such designation will not cause a Pay Out Event or an event that,
after the giving of notice or the lapse of time, would cause a Pay Out Event to
occur with respect to Series 1996-A.
"Reserve Account" shall have the meaning specified in subsection
---------------
4.16(a).
"Reserve Account Funding Date" shall mean the Transfer Date which
-------------------------------
occurs not later than the earliest of (a) the Transfer Date with respect to the
Monthly Period which commences 3 months prior to the commencement of the
Controlled Accumulation Period; (b) the first Transfer Date for which the
Portfolio Adjusted Yield is less than 2.0%, but in such event the Reserve
Account Funding Date shall not be required to occur earlier than the Transfer
Date with respect to the Monthly Period which commences 12 months prior to the
commencement of the Controlled Accumulation Period; (c) the first Transfer Date
for which the Portfolio Adjusted Yield is less than 3.0%, but in such event the
Reserve Account Funding Date shall not be required to occur earlier than the
Transfer Date with respect to the Monthly Period which commences 6 months prior
to the commencement of the Controlled Accumulation Period; and (d) the first
Transfer Date for which the Portfolio Adjusted Yield is less than 4.0%, but in
such event the Reserve Account Funding Date shall not be required to occur
earlier than the Transfer Date with respect to the Monthly Period which
commences 4 months prior to the commencement of the Controlled Accumulation
Period.
"Reserve Account Surplus" shall mean, as of any Transfer Date
-------------------------
following the Reserve Account Funding Date, the amount, if any, by which the
amount on deposit in the Reserve Account exceeds the Required Reserve Account
Amount.
"Reserve Draw Amount" shall have the meaning specified in
-------------------
subsection 4.16(c).
17
<PAGE>
"Revolving Period" shall mean the period from and including the
-----------------
Closing Date to, but not including, the earlier of (a) the day the Controlled
Accumulation Period commences and (b) the Pay Out Commencement Date.
"Series 1996-A" shall mean the Series of the BA Master Credit Card
--------------
Trust represented by the Investor Certificates.
"Series 1996-A Certificateholders" shall mean the holders of record
---------------------------------
of a Series 1996-A Certificate.
"Series 1996-A Certificates" shall mean the Class A Certificates and
--------------------------
the Class B Certificates.
"Series 1996-A Pay Out Event" shall have the meaning specified in
----------------------------
Section 9 hereof.
"Series 1996-A Termination Date" shall mean the earliest to occur of
------------------------------
(a) the Distribution Date on which the Investor Interest is paid in full, (b)
the August 2003 Distribution Date and (c) the Trust Termination Date.
"Series Finance Charge Shortfall" shall mean with respect to any
----------------------------------
Transfer Date, the excess, if any, of (a) the aggregate amount needed to make
each distribution described in subsections 4.11(a) though (j) over (b) the
aggregate amount of Excess Spread for such Transfer Date.
"Series Principal Shortfall" shall mean with respect to any Transfer
--------------------------
Date, the excess, if any, of (a) (i) with respect to any Transfer Date relating
to the Controlled Accumulation Period, the sum of (A) the Controlled Deposit
Amount for such Transfer Date, and (B) the excess, if any, of the Collateral
Interest for such Transfer Date over the Required Collateral Interest for such
Transfer Date and (ii) with respect to any Transfer Date during the Rapid
Amortization Period, the Adjusted Investor Interest over (b) the Investor
Principal Collections minus the Reallocated Principal Collections (other than
Reallocated Principal Collections available to pay the Class A Investor Default
Amount and the Class B Investor Default Amount) for such Transfer Date.
"Series Servicing Fee Percentage" shall mean 2.0%.
-------------------------------
"Servicer Interchange" shall mean, for any Monthly Period, the
---------------------
portion of Collections of Finance Charge Receivables allocated to the Investor
Certificates and deposited in the Finance Charge Account with respect to such
Monthly Period that is attributable to Interchange; provided, however, that
-------- -------
Servicer Interchange for a Monthly Period shall not exceed one-twelfth of the
product of (i) the Adjusted Investor Interest as of the last day of such Monthly
Period and (ii) 1.0%.
"Shared Excess Finance Charge Collections" shall mean, with respect
-----------------------------------------
to any Distribution Date, either (a) the amount allocated to the Investor
Certificates which may be applied to the Series Finance Charge Shortfall with
18
<PAGE>
respect to other outstanding Series in Shared Excess Finance Charge Group One or
(b) the amounts allocated to the investor certificates of other Series in Shared
Excess Finance Charge Group One which the applicable Supplements for such Series
specify are to be treated as "Shared Excess Finance Charge Collections" and
which may be applied pursuant to Section 4.11 with respect to the Investor
Certificates.
"Shared Excess Principal Collections" shall mean, with respect to
-------------------------------------
any Distribution Date, either (a) the amount allocated to the Investor
Certificates which may be applied to the Series Principal Shortfall with respect
to other outstanding Series in the Shared Excess Principal Collections Group or
(b) the amounts allocated to the investor certificates of other Series in the
Shared Excess Principal Collections Group which the applicable Supplements for
such Series specify are to be treated as "Shared Excess Principal Collections"
and which may be applied to cover the Series Principal Shortfall with respect to
the Investor Certificates.
"Shared Excess Principal Collections Group" shall mean Series 1996-A
-----------------------------------------
and each other Series specified in the related Supplement to be included in the
Shared Excess Principal Collections Group.
"Shared Excess Principal Collections Group Monthly Principal
-------------------------------------------------------------------
Payment" shall mean with respect to any Monthly Period, for all Series in the
- -------
Shared Excess Principal Collections Group (including Series 1996-A) which are in
an Amortization Period or Accumulation Period (as such terms are defined in the
related Supplements for all Series in the Shared Excess Principal Collections
Group), the sum of (a) the Controlled Distribution Amount for the related
Transfer Date for any Series in its Controlled Amortization Period (as such
terms are defined in the related Supplements for all Series in the Shared Excess
Principal Collections Group), (b) the Controlled Deposit Amount for the related
Transfer Date for any Series in its Accumulation Period, other than its Rapid
Accumulation Period, if applicable (as such terms are defined in the related
Supplements for all Series in the Shared Excess Principal Collections Group),
(c) the Investor Interest as of the end of the prior Monthly Period taking into
effect any payments to be made on the following Distribution Date for any Series
in the Shared Excess Principal Collections Group in its Principal Amortization
Period or Rapid Amortization Period (as such terms are defined in the related
Supplements for all Series in the Shared Excess Principal Collections Group),
(d) the Adjusted Investor Interest as of the end of the prior Monthly Period
taking into effect any payments or deposits to be made on the following Transfer
Date and Distribution Date for any Series in the Shared Excess Principal
Collections Group in its Rapid Accumulation Period (as such terms are defined in
the related Supplements for all Series in the Shared Excess Principal
Collections Group), (e) the excess of the Collateral Interest as of the Transfer
Date occurring in such Monthly Period over the Required Collateral Interest for
the related Transfer Date, assuming no Accumulation Shortfall and (f) such other
amounts as may be specified in the related Supplements for all Series in the
Shared Excess Principal Collections Group.
19
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"Telerate Page 3750" shall mean the display page currently so
--------------------
designated on the Dow Jones Telerate Service (or such other page as may replace
that page on that service for displaying comparable rates or prices).
"Unallocated Principal Collections" shall have the meaning
---------------------------------
specified in subsection 4.05(d).
SECTION 3. Servicing Compensation and Assignment of Interchange.
----------------------------------------------------
(a) THE SHARE OF THE SERVICING FEE ALLOCABLE TO SERIES 1996-A WITH RESPECT TO
ANY TRANSFER DATE (THE "INVESTOR SERVICING FEE") SHALL BE EQUAL TO ONE-TWELFTH
OF THE PRODUCT OF (I) THE SERIES SERVICING FEE PERCENTAGE AND (II) THE ADJUSTED
INVESTOR INTEREST AS OF THE LAST DAY OF THE MONTHLY PERIOD PRECEDING SUCH
TRANSFER DATE; PROVIDED, HOWEVER, THAT WITH RESPECT TO THE FIRST TRANSFER DATE,
-------- -------
THE INVESTOR SERVICING FEE SHALL BE EQUAL TO $611,112. ON EACH TRANSFER DATE FOR
WHICH THE TRANSFEROR, AN AFFILIATE OF THE TRANSFEROR, OR AN ACCEPTABLE SUCCESSOR
SERVICER IS THE SERVICER, THE SERVICER INTERCHANGE WITH RESPECT TO THE RELATED
MONTHLY PERIOD THAT IS ON DEPOSIT IN THE FINANCE CHARGE ACCOUNT SHALL BE
WITHDRAWN FROM THE FINANCE CHARGE ACCOUNT AND PAID TO THE SERVICER IN PAYMENT OF
A PORTION OF THE INVESTOR SERVICING FEE WITH RESPECT TO SUCH MONTHLY PERIOD.
SHOULD THE SERVICER INTERCHANGE ON DEPOSIT IN THE FINANCE CHARGE ACCOUNT ON ANY
TRANSFER DATE FOR WHICH THE TRANSFEROR, AN AFFILIATE OF THE TRANSFEROR OR AN
ACCEPTABLE SUCCESSOR SERVICER IS THE SERVICER, WITH RESPECT TO THE RELATED
MONTHLY PERIOD BE LESS THAN ONE-TWELFTH OF 1.0% OF THE ADJUSTED INVESTOR
INTEREST AS OF THE LAST DAY OF SUCH MONTHLY PERIOD, THE INVESTOR SERVICING FEE
WITH RESPECT TO SUCH MONTHLY PERIOD WILL NOT BE PAID TO THE EXTENT OF SUCH
INSUFFICIENCY OF SERVICER INTERCHANGE ON DEPOSIT IN THE FINANCE CHARGE ACCOUNT.
THE SERVICER INTERCHANGE WITH RESPECT TO THE FIRST TRANSFER DATE MAY EQUAL, BUT
SHALL NOT EXCEED $305,556. THE SHARE OF THE INVESTOR SERVICING FEE ALLOCABLE TO
THE CLASS A INVESTOR INTEREST WITH RESPECT TO ANY TRANSFER DATE (THE "CLASS A
SERVICING FEE") SHALL BE EQUAL TO ONE-TWELFTH OF THE PRODUCT OF (I) THE CLASS A
FLOATING ALLOCATION, (II) THE NET SERVICING FEE RATE AND (III) THE ADJUSTED
INVESTOR INTEREST AS OF THE LAST DAY OF THE MONTHLY PERIOD PRECEDING SUCH
TRANSFER DATE; PROVIDED, HOWEVER, THAT WITH RESPECT TO THE FIRST TRANSFER DATE,
-------- -------
THE CLASS A SERVICING FEE SHALL BE EQUAL TO $261,250. THE SHARE OF THE INVESTOR
SERVICING FEE ALLOCABLE TO THE CLASS B INVESTOR INTEREST WITH RESPECT TO ANY
TRANSFER DATE (THE "CLASS B SERVICING FEE") SHALL BE EQUAL TO ONE-TWELFTH OF THE
PRODUCT OF (I) THE CLASS B FLOATING ALLOCATION, (II) THE NET SERVICING FEE RATE
AND (III) THE ADJUSTED INVESTOR INTEREST AS OF THE LAST DAY OF THE MONTHLY
PERIOD PRECEDING SUCH TRANSFER DATE; PROVIDED, HOWEVER, THAT WITH RESPECT TO THE
-------- -------
FIRST TRANSFER DATE, THE CLASS B SERVICING FEE SHALL BE EQUAL TO $19,861. THE
SHARE OF THE INVESTOR SERVICING FEE ALLOCABLE TO THE COLLATERAL INTEREST WITH
20
<PAGE>
RESPECT TO ANY TRANSFER DATE (THE "COLLATERAL INTEREST SERVICING FEE", TOGETHER
WITH THE CLASS A SERVICING FEE AND THE CLASS B SERVICING FEE, THE
"CERTIFICATEHOLDER SERVICING FEE") SHALL BE EQUAL TO ONE-TWELFTH OF THE PRODUCT
OF (I) THE COLLATERAL FLOATING ALLOCATION, (II) THE NET SERVICING FEE RATE AND
(III) THE ADJUSTED INVESTOR INTEREST AS OF THE LAST DAY OF THE MONTHLY PERIOD
PRECEDING SUCH TRANSFER DATE; PROVIDED, HOWEVER, THAT WITH RESPECT TO THE FIRST
-------- -------
TRANSFER DATE, THE COLLATERAL INTEREST SERVICING FEE SHALL BE EQUAL TO $24,445.
EXCEPT AS SPECIFICALLY PROVIDED ABOVE, THE SERVICING FEE SHALL BE PAID BY THE
CASH FLOWS FROM THE TRUST ALLOCATED TO THE TRANSFEROR OR THE CERTIFICATEHOLDERS
OF OTHER SERIES (AS PROVIDED IN THE RELATED SUPPLEMENTS) AND IN NO EVENT SHALL
THE TRUST, THE TRUSTEE OR THE INVESTOR CERTIFICATEHOLDERS BE LIABLE THEREFOR.
THE CLASS A SERVICING FEE SHALL BE PAYABLE TO THE SERVICER SOLELY TO THE EXTENT
AMOUNTS ARE AVAILABLE FOR DISTRIBUTION IN RESPECT THEREOF PURSUANT TO
SUBSECTIONS 4.09(A)(II) AND 4.11(A). THE CLASS B SERVICING FEE SHALL BE PAYABLE
SOLELY TO THE EXTENT AMOUNTS ARE AVAILABLE FOR DISTRIBUTION IN RESPECT THEREOF
PURSUANT TO SUBSECTIONS 4.09(B)(II) AND 4.11(C). THE COLLATERAL INTEREST
SERVICING FEE SHALL BE PAYABLE SOLELY TO THE EXTENT AMOUNTS ARE AVAILABLE FOR
DISTRIBUTION IN RESPECT THEREOF PURSUANT TO SUBSECTION 4.11(F) OR IF APPLICABLE
SUBSECTION 4.09(C)(I).
(b) ON OR BEFORE EACH TRANSFER DATE, THE TRANSFEROR SHALL NOTIFY THE
SERVICER OF THE AMOUNT OF INTERCHANGE TO BE INCLUDED AS COLLECTIONS OF FINANCE
CHARGE RECEIVABLES AND ALLOCABLE TO THE INVESTOR CERTIFICATEHOLDERS WITH RESPECT
TO THE PRECEDING MONTHLY PERIOD AS DETERMINED PURSUANT TO THIS SUBSECTION 3(B).
SUCH AMOUNT OF INTERCHANGE SHALL BE EQUAL TO THE PRODUCT OF (I) THE TOTAL AMOUNT
OF INTERCHANGE PAID OR PAYABLE TO THE TRANSFEROR WITH RESPECT TO SUCH MONTHLY
PERIOD, (II) A FRACTION THE NUMERATOR OF WHICH IS THE AGGREGATE AMOUNT OF
CARDHOLDER CHARGES FOR GOODS AND SERVICES IN THE ACCOUNTS WITH RESPECT TO SUCH
MONTHLY PERIOD AND THE DENOMINATOR OF WHICH IS THE AGGREGATE AMOUNT OF
CARDHOLDER CHARGES FOR GOODS AND SERVICES IN ALL MASTERCARD AND VISA CONSUMER
REVOLVING CREDIT CARD ACCOUNTS OWNED BY THE TRANSFEROR WITH RESPECT TO SUCH
MONTHLY PERIOD AND (III) THE INVESTOR PERCENTAGE WITH REGARD TO FINANCE CHARGE
RECEIVABLES. ON EACH TRANSFER DATE, THE TRANSFEROR SHALL PAY TO THE SERVICER,
AND THE SERVICER SHALL DEPOSIT INTO THE FINANCE CHARGE ACCOUNT, IN IMMEDIATELY
AVAILABLE FUNDS, THE AMOUNT OF INTERCHANGE TO BE SO INCLUDED AS COLLECTIONS OF
FINANCE CHARGE RECEIVABLES ALLOCABLE TO THE INVESTOR CERTIFICATES WITH RESPECT
TO THE PRECEDING MONTHLY PERIOD. THE TRANSFEROR HEREBY ASSIGNS, SETS-OVER,
CONVEYS, PLEDGES AND GRANTS A SECURITY INTEREST AND LIEN TO THE TRUSTEE FOR THE
BENEFIT OF THE INVESTOR CERTIFICATEHOLDERS IN INTERCHANGE AND THE PROCEEDS OF
INTERCHANGE, AS SET FORTH IN THIS SUBSECTION 3(B). IN CONNECTION WITH THE
FOREGOING GRANT OF A SECURITY INTEREST, THIS SERIES SUPPLEMENT SHALL CONSTITUTE
A SECURITY AGREEMENT UNDER APPLICABLE LAW. TO THE EXTENT THAT A SUPPLEMENT FOR A
RELATED SERIES, OTHER THAN SERIES 1996-A, ASSIGNS, SETS-OVER, CONVEYS, PLEDGES
OR GRANTS A SECURITY INTEREST IN INTERCHANGE ALLOCABLE TO THE TRUST, ALL
21
<PAGE>
INVESTOR CERTIFICATES OF ANY SUCH SERIES (EXCEPT AS OTHERWISE SPECIFIED IN ANY
SUCH SUPPLEMENT) AND THE INVESTOR CERTIFICATES SHALL RANK PARI PASSU AND BE
EQUALLY AND RATABLY ENTITLED AS PROVIDED HEREIN TO THE BENEFITS OF SUCH
INTERCHANGE WITHOUT PREFERENCE OR PRIORITY ON ACCOUNT OF THE ACTUAL TIME OR
TIMES OF AUTHENTICATION AND DELIVERY, ALL IN ACCORDANCE WITH THE TERMS AND
PROVISIONS OF THIS SERIES SUPPLEMENT AND OTHER RELATED SUPPLEMENTS.
SECTION 4. Reassignment and Transfer Terms. The Investor
-------------------------------------
Certificates shall be subject to retransfer to the Transferor at its option, in
accordance with the terms specified in subsection 12.02(a), on any Distribution
Date on or after the Distribution Date on which the Investor Interest is reduced
to an amount less than or equal to 5% of the Initial Investor Interest. The
deposit required in connection with any such repurchase shall include the
amount, if any, on deposit in the Principal Funding Account and will be equal to
the sum of (a) the Investor Interest and (b) accrued and unpaid interest on the
Investor Certificates through the day preceding the Distribution Date on which
the repurchase occurs.
SECTION 5. Delivery and Payment for the Investor Certificates. The
---------------------------------------------------
Transferor shall execute and deliver the Series 1996-A Certificates to the
Trustee for authentication in accordance with Section 6.01. The Trustee shall
deliver such Certificates when authenticated in accordance with Section 6.02.
SECTION 6. Depository; Form of Delivery of Investor Certificates.
-----------------------------------------------------
(a) THE CLASS A CERTIFICATES AND THE CLASS B CERTIFICATES SHALL BE
DELIVERED AS BOOK-ENTRY CERTIFICATES AS PROVIDED IN SECTIONS 6.01 AND 6.10.
(b) THE DEPOSITORY FOR SERIES 1996-A SHALL BE THE DEPOSITORY TRUST
COMPANY, AND THE CLASS A CERTIFICATES AND CLASS B CERTIFICATES SHALL BE
INITIALLY REGISTERED IN THE NAME OF CEDE & CO., ITS NOMINEE.
SECTION 7. Article IV of Agreement. Sections 4.01, 4.02 and 4.03
------------------------
shall be read in their entirety as provided in the Agreement. Article IV (except
for Sections 4.01, 4.02 and 4.03 thereof) shall be read in its entirety as
follows and shall be applicable only to the Investor Certificates:
22
<PAGE>
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.04 Rights of Certificateholders and the Collateral
-----------------------------------------------------
Interest Holder . The Investor Certificates shall represent undivided interests
- ---------------
in the Trust, consisting of the right to receive, to the extent necessary to
make the required payments with respect to such Investor Certificates at the
times and in the amounts specified in this Agreement, (a) the Floating Investor
Percentage and Fixed Investor Percentage (as applicable from time to time) of
Collections received with respect to the Receivables and (b) funds on deposit in
the Collection Account, the Finance Charge Account, the Principal Account, the
Principal Funding Account, the Reserve Account and the Distribution Account. The
Collateral Interest shall be subordinate to the Class A Certificates and the
Class B Certificates. The Class B Certificates shall be subordinate to the Class
A Certificates. The Transferor Certificate shall not represent any interest in
the Collection Account, the Finance Charge Account, the Principal Account, the
Principal Funding Account, the Reserve Account or the Distribution Account,
except as specifically provided in this Article IV.
SECTION 4.05 Allocations.
-----------
(a) ALLOCATIONS DURING THE REVOLVING PERIOD. DURING THE REVOLVING
PERIOD, THE SERVICER SHALL, PRIOR TO THE CLOSE OF BUSINESS ON THE DAY ANY
COLLECTIONS ARE DEPOSITED IN THE COLLECTION ACCOUNT, ALLOCATE TO THE INVESTOR
CERTIFICATEHOLDERS OR THE HOLDER OF THE TRANSFEROR CERTIFICATE AND PAY OR
DEPOSIT FROM THE COLLECTION ACCOUNT THE FOLLOWING AMOUNTS AS SET FORTH BELOW:
(i) Allocate to the Investor Certificateholders the product of (y)
the Investor Percentage on the Date of Processing of such Collections and
(z) the aggregate amount of Collections of Finance Charge Receivables on
such Date of Processing, and of that allocation, deposit in the Finance
Charge Account an amount equal to either (I) (A) prior to the LIBOR
Determination Date occurring in such Monthly Period, an amount equal to
the product of (1) the Investor Percentage on the Date of Processing of
such Collections and (2) the aggregate amount of Collections of Finance
Charge Receivables on such Date of Processing, and (B) on and after the
LIBOR Determination Date occurring during such Monthly Period, the
difference between (1) the Monthly Interest with respect to the
immediately following Transfer Date (plus, if the Transferor or an
Affiliate of the Transferor is not the Servicer, the Certificateholder
Servicing Fee for such Transfer Date plus the amount of any
Certificateholder Servicing Fee due but not paid to the Servicer on any
prior Transfer Date) and (2) the amounts previously deposited in the
Finance Charge Account with respect to the current Monthly Period pursuant
23
<PAGE>
to this subsection 4.05(a)(i) or (II) the amount of Collections of Finance
Charge Receivables allocated to the Investor Certificateholders on such
Date of Processing pursuant to this subsection 4.05(a)(i); provided,
--------
however, that if a deposit pursuant to subsection 4.05(a)(i)(I) is made on
-------
any Date of Processing, on the related Transfer Date, the Servicer shall
withdraw from the Collection Account and deposit into the Finance Charge
Account an amount equal to the amount of Collections of Finance Charge
Receivables that have been allocated to the Investor Certificateholders
during the related Monthly Period but not previously deposited in the
Finance Charge Account. Funds deposited into the Finance Charge Account
pursuant to this subsection 4.05(a)(i) shall be applied in accordance with
Section 4.09.
(ii) Deposit into the Principal Account an amount equal to the
product of (A) the Collateral Allocation on the Date of Processing of such
Collections, (B) the Investor Percentage on the Date of Processing of such
Collections and (C) the aggregate amount of Collections processed in
respect of Principal Receivables on such Date of Processing to be applied
first in accordance with Section 4.12 and then in accordance with
subsection 4.09(d).
(iii) Deposit into the Principal Account an amount equal to the
product of (A) the Class B Investor Allocation on the Date of Processing
of such Collections, (B) the Investor Percentage on the Date of Processing
of such Collections and (C) the aggregate amount of Collections processed
in respect of Principal Receivables on such Date of Processing to be
applied first in accordance with Section 4.12 and then in accordance with
subsection 4.09(d).
(iv) (A) Deposit into the Principal Account an amount equal to the
product of (1) the Class A Investor Allocation on the Date of Processing
of such Collections, (2) the Investor Percentage on the Date of Processing
of such Collections and (3) the aggregate amount of Collections processed
in respect of Principal Receivables on such Date of Processing; provided,
--------
however, that the amount deposited into the Principal Account pursuant to
-------
this subsection 4.05(a)(iv)(A) shall not exceed the Daily Principal
Shortfall, and (B) pay to the Holder of the Transferor Certificate an
amount equal to the excess, if any, identified in the proviso to clause
(A) above; provided, however, that the amount to be paid to the Holder of
-------- -------
the Transferor Certificate pursuant to this subsection 4.05(a)(iv)(B) with
respect to any Date of Processing shall be paid to the Holder of the
Transferor Certificate only if the Transferor Interest on such Date of
Processing is greater than zero (after giving effect to the inclusion in
the Trust of all Receivables created on or prior to such Date of
Processing and the application of payments referred to in subsection
4.03(b)) and otherwise shall be considered as Unallocated Principal
24
<PAGE>
Collections and deposited into the Principal Account in accordance with
subsection 4.05(d); provided further, however, that in no event shall the
amount payable to the Holder of the Transferor Certificate pursuant to
this subsection 4.05(a)(iv)(B) be greater than the Transferor Interest on
such Date of Processing.
(b) ALLOCATIONS DURING THE CONTROLLED ACCUMULATION PERIOD.DURING THE
-----------------------------------------------------
CONTROLLED ACCUMULATION PERIOD, THE SERVICER SHALL, PRIOR TO THE CLOSE OF
BUSINESS ON THE DAY ANY COLLECTIONS ARE DEPOSITED IN THE COLLECTION ACCOUNT,
ALLOCATE TO THE INVESTOR CERTIFICATEHOLDERS OR THE HOLDER OF THE TRANSFEROR
CERTIFICATE AND PAY OR DEPOSIT FROM THE COLLECTION ACCOUNT THE FOLLOWING AMOUNTS
AS SET FORTH BELOW:
(i) Deposit into the Finance Charge Account an amount equal to the
product of (A) the Investor Percentage on the Date of Processing of such
Collections and (B) the aggregate amount of Collections processed in
respect of Finance Charge Receivables on such Date of Processing to be
applied in accordance with Section 4.09.
(ii) Deposit into the Principal Account an amount equal to the
product of (A) the Collateral Allocation on the Date of Processing of such
Collections, (B) the Investor Percentage on the Date of Processing of such
Collections and (C) the aggregate amount of Collections processed in
respect of Principal Receivables on such Date of Processing to be applied
first in accordance with Section 4.12 and then in accordance with
subsection 4.09(e).
(iii) Deposit into the Principal Account an amount equal to the
product of (A) the Class B Investor Allocation on the Date of Processing
of such Collections, (B) the Investor Percentage on the Date of Processing
of such Collections and (C) the aggregate amount of Collections processed
in respect of Principal Receivables on such Date of Processing to be
applied first in accordance with Section 4.12 and then in accordance with
subsection 4.09(e).
(iv) (A) Deposit into the Principal Account an amount equal to the
product of (1) the Class A Investor Allocation on the Date of Processing
of such Collections, (2) the Investor Percentage on the Date of Processing
of such Collections and (3) the aggregate amount of Collections processed
in respect of Principal Receivables on such Date of Processing; provided,
--------
however, that the amount deposited into the Principal Account pursuant to
-------
this subsection 4.05(b)(iv)(A) shall not exceed the Daily Principal
Shortfall, and (B) pay to the Holder of the Transferor Certificate an
amount equal to the excess, if any, identified in the proviso to clause
(A) above; provided, however, that the amount to be paid to the Holder of
-------- -------
the Transferor Certificate pursuant to this subsection 4.05(b)(iv)(B) with
respect to any Date of Processing shall be paid to the Holder of the
25
<PAGE>
Transferor Certificate only if the Transferor Interest on such Date of
Processing is greater than zero (after giving effect to the inclusion in
the Trust of all Receivables created on or prior to such Date of
Processing and the application of payments referred to in subsection
4.03(b)) and otherwise shall be considered as Unallocated Principal
Collections and deposited into the Principal Account in accordance with
subsection 4.05(d); provided further, however, that in no event shall the
-------- ------- -------
amount payable to the Holder of the Transferor Certificate pursuant to
this subsection 4.05(b)(iv)(B) be greater than the Transferor Interest on
such Date of Processing.
(c) ALLOCATIONS DURING THE RAPID AMORTIZATION PERIOD. DURING THE
--------------------------------------------------
RAPID AMORTIZATION PERIOD, THE SERVICER SHALL, PRIOR TO THE CLOSE OF BUSINESS ON
THE DAY ANY COLLECTIONS ARE DEPOSITED IN THE COLLECTION ACCOUNT, ALLOCATE TO THE
INVESTOR CERTIFICATEHOLDERS AND PAY OR DEPOSIT FROM THE COLLECTION ACCOUNT THE
FOLLOWING AMOUNTS AS SET FORTH BELOW:
(i) Deposit into the Finance Charge Account an amount equal to the
product of (A) the Investor Percentage on the Date of Processing of such
Collections and (B) the aggregate amount of Collections processed in
respect of Finance Charge Receivables on such Date of Processing to be
applied in accordance with Section 4.09.
(ii) (A) Deposit into the Principal Account an amount equal to the
product of (1) the Investor Percentage on the Date of Processing of such
Collections and (2) the aggregate amount of Collections processed in
respect of Principal Receivables on such Date of Processing; provided,
--------
however, that the amount deposited into the Principal Account pursuant to
-------
this subsection 4.05(c)(ii)(A) shall not exceed the sum of the Investor
Interest as of the close of business on the last day of the prior Monthly
Period (after taking into account any payments to be made on the
Distribution Date relating to such prior Monthly Period and deposits and
any adjustments to be made to the Investor Interest to be made on the
Transfer Date relating to such Monthly Period) and any Reallocated
Principal Collections relating to the Monthly Period in which such deposit
is made and (B) pay to the Holder of the Transferor Certificate an amount
equal to the excess, if any, identified in the proviso to clause (A)
above; provided, however, that the amount to be paid to the Holder of the
-------- -------
Transferor Certificate pursuant to this subsection 4.05(c)(ii)(B) with
respect to any Date of Processing shall be paid to the Holder of the
Transferor Certificate only if the Transferor Interest on such Date of
Processing is greater than zero (after giving effect to the inclusion in
the Trust of all Receivables created on or prior to such Date of
Processing and the application of payments referred to in subsection
4.03(b)) and otherwise shall be considered as Unallocated Principal
Collections and deposited into the Principal Account in accordance with
26
<PAGE>
subsection 4.05(d); provided further, however, that in no event shall the
-------- ------- -------
amount payable to the Holder of the Transferor Certificate pursuant to
this subsection 4.05(c)(ii)(B) be greater than the Transferor Interest on
such Date of Processing.
(d) Unallocated Principal Collections. Any Collections in respect of
---------------------------------
Principal Receivables or Finance Charge Receivables not allocated and paid to
the Holder of the Transferor Certificate because of the limitations contained in
subsections 4.05(a)(iv)(B), 4.05(b)(iv)(B) and 4.05(c)(ii)(B) and any amounts
allocable to the Investor Certificates deposited in the Principal Account
pursuant to subsections 2.04(d)(iii) and 4.03(c) ("Unallocated Principal
Collections") shall be held in the Principal Account and, prior to the
commencement of the Controlled Accumulation Period or the Rapid Amortization
Period, shall be paid to the Holder of the Transferor Certificate when, and only
to the extent that, the Transferor Interest is greater than zero. For each
Transfer Date with respect to the Controlled Accumulation Period or the Rapid
Amortization Period, any such Unallocated Principal Collections held in the
Principal Account on such Transfer Date shall be included in the Investor
Principal Collections which to the extent available shall be distributed as
Available Investor Principal Collections to be applied pursuant to Section 4.09
on such Transfer Date.
With respect to the Investor Certificates, and notwithstanding
anything in the Agreement or this Series Supplement to the contrary, whether or
not the Servicer is required to make monthly or daily deposits from the
Collection Account into the Finance Charge Account or the Principal Account
pursuant to subsections 4.05(a), 4.05(b) and 4.05(c), with respect to any
Monthly Period (i) the Servicer will only be required to deposit Collections
from the Collection Account into the Finance Charge Account or the Principal
Account up to the required amount to be deposited into any such deposit account
or, without duplication, distributed on or prior to the related Distribution
Date to the Investor Certificateholders and (ii) if at any time prior to such
Distribution Date the amount of Collections deposited in the Collection Account
exceeds the amount required to be deposited pursuant to clause (i) above, the
Servicer will be permitted to withdraw the excess from the Collection Account.
SECTION 4.06 Determination of Monthly Interest.
---------------------------------
(a) THE AMOUNT OF MONTHLY INTEREST DISTRIBUTABLE TO THE CLASS A
CERTIFICATES SHALL BE AN AMOUNT EQUAL TO THE PRODUCT OF (I)(A) A FRACTION, THE
NUMERATOR OF WHICH IS THE ACTUAL NUMBER OF DAYS IN THE RELATED INTEREST PERIOD
AND THE DENOMINATOR OF WHICH IS 360, TIMES (B) THE CLASS A CERTIFICATE RATE IN
-----
EFFECT WITH RESPECT TO THE RELATED INTEREST PERIOD, TIMES (II) THE OUTSTANDING
-----
PRINCIPAL BALANCE OF THE CLASS A CERTIFICATES DETERMINED AS OF THE RECORD DATE
PRECEDING THE RELATED TRANSFER DATE (THE "CLASS A MONTHLY INTEREST"); PROVIDED,
--------
HOWEVER, THAT IN ADDITION TO CLASS A MONTHLY INTEREST AN AMOUNT EQUAL TO THE
- -------
27
<PAGE>
AMOUNT OF ANY UNPAID CLASS A DEFICIENCY AMOUNTS, AS DEFINED BELOW, PLUS AN
AMOUNT EQUAL TO THE PRODUCT OF (A) (1) A FRACTION, THE NUMERATOR OF WHICH IS THE
ACTUAL NUMBER OF DAYS IN THE RELATED INTEREST PERIOD AND THE DENOMINATOR OF
WHICH IS 360, TIMES (2) THE SUM OF THE CLASS A CERTIFICATE RATE IN EFFECT WITH
-----
RESPECT TO THE RELATED INTEREST PERIOD, PLUS 2.0% PER ANNUM, AND (B) ANY CLASS A
DEFICIENCY AMOUNT FROM THE PRIOR TRANSFER DATE, AS DEFINED BELOW (OR THE PORTION
THEREOF WHICH HAS NOT THERETOFORE BEEN PAID TO CLASS A CERTIFICATEHOLDERS) (THE
"CLASS A ADDITIONAL INTEREST") SHALL ALSO BE DISTRIBUTABLE TO THE CLASS A
CERTIFICATES, AND ON SUCH TRANSFER DATE THE TRUSTEE SHALL DEPOSIT SUCH FUNDS, TO
THE EXTENT AVAILABLE, INTO THE DISTRIBUTION ACCOUNT. THE "CLASS A DEFICIENCY
AMOUNT" FOR ANY TRANSFER DATE SHALL BE EQUAL TO THE EXCESS, IF ANY, OF THE
AGGREGATE AMOUNT ACCRUED PURSUANT TO THIS SUBSECTION 4.06(A) AS OF THE PRIOR
INTEREST PERIOD OVER THE AMOUNT ACTUALLY TRANSFERRED TO THE DISTRIBUTION ACCOUNT
FOR PAYMENT OF SUCH AMOUNT.
(b) THE AMOUNT OF MONTHLY INTEREST DISTRIBUTABLE TO THE CLASS B
CERTIFICATES SHALL BE AN AMOUNT EQUAL TO THE PRODUCT OF (I)(A) A FRACTION, THE
NUMERATOR OF WHICH IS THE ACTUAL NUMBER OF DAYS IN THE RELATED INTEREST PERIOD
AND THE DENOMINATOR OF WHICH IS 360, TIMES (B) THE CLASS B CERTIFICATE RATE IN
-----
EFFECT WITH RESPECT TO THE RELATED INTEREST PERIOD, TIMES (II) THE OUTSTANDING
-----
PRINCIPAL BALANCE OF THE CLASS B CERTIFICATES DETERMINED AS OF THE RECORD DATE
PRECEDING THE RELATED TRANSFER DATE (THE "CLASS B MONTHLY INTEREST"); PROVIDED,
--------
HOWEVER, THAT IN ADDITION TO THE CLASS B MONTHLY INTEREST AN AMOUNT EQUAL TO THE
- -------
AMOUNT OF ANY UNPAID CLASS B DEFICIENCY AMOUNTS, AS DEFINED BELOW, PLUS AN
AMOUNT EQUAL TO THE PRODUCT OF (A) (1) A FRACTION, THE NUMERATOR OF WHICH IS THE
ACTUAL NUMBER OF DAYS IN THE RELATED INTEREST PERIOD AND THE DENOMINATOR OF
WHICH IS 360, TIMES (2) THE SUM OF THE CLASS B CERTIFICATE RATE IN EFFECT WITH
-----
RESPECT TO THE RELATED INTEREST PERIOD, PLUS 2.0% PER ANNUM, AND (B) ANY CLASS B
DEFICIENCY AMOUNT FROM THE PRIOR TRANSFER DATE, AS DEFINED BELOW (OR THE PORTION
THEREOF WHICH HAS NOT THERETOFORE BEEN PAID TO CLASS B CERTIFICATEHOLDERS) (THE
"CLASS B ADDITIONAL INTEREST") SHALL ALSO BE DISTRIBUTABLE TO THE CLASS B
CERTIFICATES, AND ON SUCH TRANSFER DATE THE TRUSTEE SHALL DEPOSIT SUCH FUNDS, TO
THE EXTENT AVAILABLE, INTO THE DISTRIBUTION ACCOUNT. THE "CLASS B DEFICIENCY
AMOUNT" FOR ANY TRANSFER DATE SHALL BE EQUAL TO THE EXCESS, IF ANY, OF THE
AGGREGATE AMOUNT ACCRUED PURSUANT TO THIS SUBSECTION 4.06(B) AS OF THE PRIOR
INTEREST PERIOD OVER THE AMOUNT ACTUALLY TRANSFERRED TO THE DISTRIBUTION ACCOUNT
FOR PAYMENT OF SUCH AMOUNT.
(c) THE AMOUNT OF MONTHLY INTEREST DISTRIBUTABLE TO THE COLLATERAL
INTEREST, WHICH SHALL BE AN AMOUNT EQUAL TO THE PRODUCT OF (I) (A) A FRACTION,
THE NUMERATOR OF WHICH IS THE ACTUAL NUMBER OF DAYS IN THE RELATED INTEREST
PERIOD AND THE DENOMINATOR OF WHICH IS 360, TIMES (B) THE COLLATERAL RATE IN
EFFECT WITH RESPECT TO THE RELATED INTEREST PERIOD, AND (II) THE COLLATERAL
INTEREST DETERMINED AS OF THE RECORD DATE PRECEDING SUCH TRANSFER DATE (THE
"COLLATERAL MONTHLY INTEREST"); PROVIDED, HOWEVER, THAT FOR THE PURPOSES OF
-------- -------
28
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DETERMINING COLLATERAL MONTHLY INTEREST ONLY, THE COLLATERAL RATE SHALL NOT
EXCEED A PER ANNUM RATE OF 1.0% IN EXCESS OF LIBOR AS DETERMINED ON THE RELATED
LIBOR DETERMINATION DATE.
SECTION 4.07 Determination of Monthly Principal .
----------------------------------
(a) THE AMOUNT OF MONTHLY PRINCIPAL DISTRIBUTABLE FROM THE PRINCIPAL
ACCOUNT WITH RESPECT TO THE CLASS A CERTIFICATES ON EACH TRANSFER DATE ("CLASS A
MONTHLY PRINCIPAL"), BEGINNING WITH THE TRANSFER DATE IN THE MONTH FOLLOWING THE
MONTH IN WHICH THE CONTROLLED ACCUMULATION PERIOD OR, IF EARLIER, THE RAPID
AMORTIZATION PERIOD, BEGINS, SHALL BE EQUAL TO THE LEAST OF (I) THE AVAILABLE
INVESTOR PRINCIPAL COLLECTIONS ON DEPOSIT IN THE PRINCIPAL ACCOUNT WITH RESPECT
TO SUCH TRANSFER DATE, (II) FOR EACH TRANSFER DATE WITH RESPECT TO THE
CONTROLLED ACCUMULATION PERIOD PRIOR TO THE CLASS A SCHEDULED PAYMENT DATE, THE
CONTROLLED DEPOSIT AMOUNT FOR SUCH TRANSFER DATE AND (III) THE CLASS A ADJUSTED
INVESTOR INTEREST ON SUCH TRANSFER DATE PRIOR TO ANY DEPOSIT INTO THE PRINCIPAL
FUNDING ACCOUNT ON SUCH TRANSFER DATE.
(b) THE AMOUNT OF MONTHLY PRINCIPAL DISTRIBUTABLE FROM THE PRINCIPAL
ACCOUNT WITH RESPECT TO THE CLASS B CERTIFICATES ON EACH TRANSFER DATE (THE
"CLASS B MONTHLY PRINCIPAL"), FOR THE CONTROLLED ACCUMULATION PERIOD, BEGINNING
WITH THE TRANSFER DATE FOLLOWING THE MONTHLY PERIOD IN WHICH THE CLASS A
INVESTOR INTEREST HAS BEEN PAID IN FULL, AND DURING THE RAPID AMORTIZATION
PERIOD, BEGINNING WITH THE TRANSFER DATE IMMEDIATELY PRECEDING THE DISTRIBUTION
DATE ON WHICH THE CLASS A INVESTOR INTEREST HAS BEEN PAID IN FULL, SHALL BE AN
AMOUNT EQUAL TO THE LESSER OF (I) THE AVAILABLE INVESTOR PRINCIPAL COLLECTIONS
ON DEPOSIT IN THE PRINCIPAL ACCOUNT WITH RESPECT TO SUCH TRANSFER DATE (MINUS
THE PORTION OF SUCH AVAILABLE INVESTOR PRINCIPAL COLLECTIONS APPLIED TO CLASS A
MONTHLY PRINCIPAL ON SUCH TRANSFER DATE) AND (II) THE CLASS B INVESTOR INTEREST
(AFTER TAKING INTO ACCOUNT ANY ADJUSTMENTS TO BE MADE ON SUCH TRANSFER DATE
PURSUANT TO SECTIONS 4.10 AND 4.12) ON SUCH TRANSFER DATE.
(c) THE AMOUNT OF MONTHLY PRINCIPAL (THE "COLLATERAL MONTHLY
PRINCIPAL") DISTRIBUTABLE FROM THE PRINCIPAL ACCOUNT WITH RESPECT TO THE
COLLATERAL INTEREST ON EACH TRANSFER DATE SHALL BE (A) DURING THE REVOLVING
PERIOD FOLLOWING ANY REDUCTION OF THE REQUIRED COLLATERAL INTEREST PURSUANT TO
CLAUSE (Z) OF THE PROVISO IN THE DEFINITION THEREOF, AN AMOUNT EQUAL TO THE
LESSER OF (1) THE EXCESS, IF ANY, OF THE COLLATERAL INTEREST (AFTER TAKING INTO
ACCOUNT ANY ADJUSTMENTS TO BE MADE ON SUCH TRANSFER DATE PURSUANT TO SECTIONS
4.10 AND 4.12) OVER THE REQUIRED COLLATERAL INTEREST ON SUCH TRANSFER DATE AND
(2) THE AVAILABLE INVESTOR PRINCIPAL COLLECTIONS ON SUCH TRANSFER DATE OR (B)
DURING THE CONTROLLED ACCUMULATION PERIOD OR RAPID AMORTIZATION PERIOD, AN
AMOUNT EQUAL TO THE LESSER OF (1) THE EXCESS, IF ANY, OF THE COLLATERAL INTEREST
(AFTER TAKING INTO ACCOUNT ANY ADJUSTMENTS TO BE MADE ON SUCH TRANSFER DATE
PURSUANT TO SECTIONS 4.10 AND 4.12) OVER THE REQUIRED COLLATERAL INTEREST ON
SUCH TRANSFER DATE, AND (2) THE EXCESS, IF ANY, OF (I) THE AVAILABLE INVESTOR
PRINCIPAL COLLECTIONS ON SUCH TRANSFER DATE OVER (II) THE SUM OF THE CLASS A
MONTHLY PRINCIPAL AND THE CLASS B MONTHLY PRINCIPAL FOR SUCH TRANSFER DATE.
29
<PAGE>
SECTION 4.08 Coverage of Required Amount.
---------------------------
(a) ON OR BEFORE EACH TRANSFER DATE, THE SERVICER SHALL DETERMINE
THE AMOUNT (THE "CLASS A REQUIRED AMOUNT"), IF ANY, BY WHICH THE SUM OF (I) THE
CLASS A MONTHLY INTEREST FOR SUCH TRANSFER DATE, PLUS (II) THE CLASS A
----
DEFICIENCY AMOUNT, IF ANY, FOR SUCH TRANSFER DATE, PLUS (III) THE CLASS A
----
ADDITIONAL INTEREST, IF ANY, FOR SUCH TRANSFER DATE, PLUS (IV) THE CLASS A
----
SERVICING FEE FOR THE PRIOR MONTHLY PERIOD PLUS (V) THE CLASS A SERVICING FEE,
IF ANY, DUE BUT NOT PAID ON ANY PRIOR TRANSFER DATE, PLUS (VI) THE CLASS A
----
INVESTOR DEFAULT AMOUNT, IF ANY, FOR THE PRIOR MONTHLY PERIOD, EXCEEDS THE CLASS
A AVAILABLE FUNDS FOR THE RELATED MONTHLY PERIOD.
(b) ON OR BEFORE EACH TRANSFER DATE, THE SERVICER SHALL ALSO
DETERMINE THE AMOUNT (THE "CLASS B REQUIRED AMOUNT"), IF ANY, EQUAL TO THE SUM
OF (I) THE AMOUNT, IF ANY, BY WHICH THE SUM OF (A) THE CLASS B MONTHLY INTEREST
FOR SUCH TRANSFER DATE, PLUS (B) THE CLASS B DEFICIENCY AMOUNT, IF ANY, FOR SUCH
----
TRANSFER DATE PLUS (C) THE CLASS B ADDITIONAL INTEREST, IF ANY, FOR SUCH
TRANSFER DATE, PLUS (D) THE CLASS B SERVICING FEE FOR THE PRIOR MONTHLY PERIOD
----
PLUS (E) THE CLASS B SERVICING FEE, IF ANY, DUE BUT NOT PAID ON ANY PRIOR
- ----
TRANSFER DATE, EXCEEDS THE CLASS B AVAILABLE FUNDS FOR THE RELATED MONTHLY
PERIOD PLUS (II) THE CLASS B INVESTOR DEFAULT AMOUNT, IF ANY, FOR THE PRIOR
----
MONTHLY PERIOD.
(c) THE EVENT THAT THE SUM OF THE CLASS A REQUIRED AMOUNT AND THE
CLASS B REQUIRED AMOUNT FOR SUCH TRANSFER DATE IS GREATER THAN ZERO, THE
SERVICER SHALL GIVE WRITTEN NOTICE TO THE TRUSTEE OF SUCH POSITIVE CLASS A
REQUIRED AMOUNT OR CLASS B REQUIRED AMOUNT ON OR BEFORE SUCH TRANSFER DATE. IN
THE EVENT THAT THE CLASS A REQUIRED AMOUNT FOR SUCH TRANSFER DATE IS GREATER
THAN ZERO, ALL OR A PORTION OF THE EXCESS SPREAD WITH RESPECT TO SUCH TRANSFER
DATE IN AN AMOUNT EQUAL TO THE CLASS A REQUIRED AMOUNT, TO THE EXTENT AVAILABLE,
FOR SUCH TRANSFER DATE SHALL BE DISTRIBUTED FROM THE FINANCE CHARGE ACCOUNT ON
SUCH TRANSFER DATE PURSUANT TO SUBSECTION 4.11(A). IN THE EVENT THAT THE CLASS A
REQUIRED AMOUNT FOR SUCH TRANSFER DATE EXCEEDS THE AMOUNT OF EXCESS SPREAD WITH
RESPECT TO SUCH TRANSFER DATE, THE COLLECTIONS OF PRINCIPAL RECEIVABLES
ALLOCABLE TO THE COLLATERAL INTEREST AND THE COLLECTIONS OF PRINCIPAL
RECEIVABLES ALLOCABLE TO THE CLASS B CERTIFICATES WITH RESPECT TO THE PRIOR
MONTHLY PERIOD SHALL BE APPLIED AS SPECIFIED IN SECTION 4.12. IN THE EVENT THAT
THE CLASS B REQUIRED AMOUNT FOR SUCH TRANSFER DATE EXCEEDS THE AMOUNT OF EXCESS
SPREAD AVAILABLE TO FUND THE CLASS B REQUIRED AMOUNT PURSUANT TO SUBSECTION
4.11(C), THE COLLECTIONS OF PRINCIPAL RECEIVABLES ALLOCABLE TO THE COLLATERAL
INTEREST (AFTER APPLICATION TO THE CLASS A REQUIRED AMOUNT) SHALL BE APPLIED AS
SPECIFIED IN SECTION 4.12; PROVIDED, HOWEVER, THAT THE SUM OF ANY PAYMENTS
-------- -------
PURSUANT TO THIS PARAGRAPH SHALL NOT EXCEED THE SUM OF THE CLASS A REQUIRED
AMOUNT AND CLASS B REQUIRED AMOUNT.
30
<PAGE>
SECTION 4.09 Monthly Payments . On or before each Transfer Date, the
----------------
Servicer shall instruct the Trustee in writing (which writing shall be
substantially in the form of Exhibit B hereto) to withdraw and the Trustee,
acting in accordance with such instructions, shall withdraw on such Transfer
Date or the related Distribution Date, as applicable, to the extent of available
funds, the amounts required to be withdrawn from the Finance Charge Account, the
Principal Account, the Principal Funding Account and the Distribution Account as
follows:
(a) AMOUNT EQUAL TO THE CLASS A AVAILABLE FUNDS DEPOSITED INTO
THE FINANCE CHARGE ACCOUNT FOR THE RELATED MONTHLY PERIOD SHALL BE DISTRIBUTED
ON EACH TRANSFER DATE IN THE FOLLOWING PRIORITY:
(i) amount equal to Class A Monthly Interest for such Transfer
Date, plus the amount of any Class A Deficiency Amount for such Transfer
----
Date, plus the amount of any Class A Additional Interest for such Transfer
----
Date, shall be deposited by the Servicer or the Trustee into the
Distribution Account;
(ii) amount equal to the Class A Servicing Fee for such Transfer
Date plus the amount of any Class A Servicing Fee due but not paid to the
Servicer on any prior Transfer Date shall be distributed to the Servicer;
(iii) an amount equal to the Class A Investor Default Amount, if any,
for the preceding Monthly Period shall be treated as a portion of Investor
Principal Collections and deposited into the Principal Account on such
Transfer Date; and
(iv) the balance, if any, shall constitute Excess Spread and shall
be allocated and distributed as set forth in Section 4.11.
(b) AN AMOUNT EQUAL TO THE CLASS B AVAILABLE FUNDS DEPOSITED INTO
THE FINANCE CHARGE ACCOUNT FOR THE RELATED MONTHLY PERIOD SHALL BE DISTRIBUTED
ON EACH TRANSFER DATE IN THE FOLLOWING PRIORITY:
(i) an amount equal to the Class B Monthly Interest for such Transfer
Date, plus the amount of any Class B Deficiency Amount for such Transfer
----
Date, plus the amount of any Class B Additional Interest for such Transfer
----
Date, shall be deposited by the Servicer or the Trustee into the
Distribution Account;
(ii) an amount equal to the Class B Servicing Fee for such Transfer
Date, plus the amount of any Class B Servicing Fee due but not paid to the
----
Servicer on any prior Transfer Date shall be distributed to the Servicer;
and
31
<PAGE>
(iii) the balance, if any, shall constitute Excess Spread and shall
be allocated and distributed as set forth in Section 4.11.
(c) AN AMOUNT EQUAL TO THE COLLATERAL AVAILABLE FUNDS DEPOSITED INTO
THE FINANCE CHARGE ACCOUNT FOR THE RELATED MONTHLY PERIOD SHALL BE DISTRIBUTED
ON EACH TRANSFER DATE IN THE FOLLOWING PRIORITY:
(i) if the Transferor, an Affiliate of the Transferor or an
Acceptable Successor Servicer is no longer the Servicer, an amount equal
to the Collateral Interest Servicing Fee for such Transfer Date plus the
amount of any Collateral Interest Servicing Fee due but not paid to the
Servicer on any prior Transfer Date shall be distributed to the Servicer;
and
(ii) the balance, if any, shall constitute Excess Spread and
shall be allocated and distributed as set forth in Section 4.11.
(d) DURING THE REVOLVING PERIOD, AN AMOUNT EQUAL TO THE AVAILABLE
INVESTOR PRINCIPAL COLLECTIONS DEPOSITED INTO THE PRINCIPAL ACCOUNT FOR THE
RELATED MONTHLY PERIOD SHALL BE DISTRIBUTED ON EACH TRANSFER DATE IN THE
FOLLOWING PRIORITY:
(i) an amount equal to the Collateral Monthly Principal for such
Transfer Date shall be distributed to the Collateral Interest Holder in
accordance with the Loan Agreement;
(ii) an amount equal to the lesser of (A) the product of (1) a
fraction, the numerator of which is equal to the Available Investor
Principal Collections and the denominator of which is equal to the sum of
the Available Investor Principal Collections available for sharing as
specified in the related Series Supplement for each Series (including this
Series 1996-A) in the Shared Excess Principal Collections Group and (2)
the Cumulative Series Principal Shortfall and (B) Available Investor
Principal Collections, shall remain in the Principal Account to be treated
as Shared Excess Principal Collections and applied to Series in the Shared
Excess Principal Collections Group other than this Series 1996-A; and
(iii) an amount equal to the excess, if any, of (A) the Available
Investor Principal Collections for such Transfer Date over (B) the
applications specified in subsections 4.09(d)(i) and (ii) above shall be
paid to the Holder of the Transferor Certificate; provided, however, that
-------- -------
the amount to be paid to the Holder of the Transferor Certificate pursuant
to this subsection 4.09(d)(iii) with respect to such Transfer Date shall
32
<PAGE>
be paid to the Holder of the Transferor Certificate only if the Transferor
Interest on such Date of Processing is greater than zero (after giving
effect to the inclusion in the Trust of all Receivables created on or
prior to such Transfer Date and the application of payments referred to in
subsection 4.03(b)) and otherwise shall be considered as Unallocated
Principal Collections and deposited into the Principal Account in
accordance with subsection 4.05(d); provided further, however, that in no
-------- ------- -------
event shall the amount payable to the Holder of the Transferor Certificate
pursuant to this subsection 4.09(d)(ii) be greater than the Transferor
Interest on such Transfer Date.
(e) DURING THE CONTROLLED ACCUMULATION PERIOD OR THE RAPID
AMORTIZATION PERIOD, AN AMOUNT EQUAL TO THE AVAILABLE INVESTOR PRINCIPAL
COLLECTIONS DEPOSITED INTO THE PRINCIPAL ACCOUNT FOR THE RELATED MONTHLY PERIOD
SHALL BE DISTRIBUTED ON EACH TRANSFER DATE IN THE FOLLOWING PRIORITY:
(i) an amount equal to the Class A Monthly Principal for such
Transfer Date shall be (A) during the Controlled Accumulation Period,
deposited into the Principal Funding Account, and (B) during the Rapid
Amortization Period, deposited into the Distribution Account;
(ii) after giving effect to the distribution referred to in clause
(i) above, an amount equal to the Class B Monthly Principal shall be
deposited into the Distribution Account;
(iii) for each Transfer Date (other than the Transfer Date
immediately preceding the Series 1996-A Termination Date, in which case on
the Series 1996-A Termination Date) after giving effect to the
distribution referred to in clauses (i) and (ii) above, an amount equal
to Collateral Monthly Principal shall be distributed to the Collateral
Interest Holder in accordance with the Loan Agreement;
(iv) an amount equal to the lesser of (A) the product of (1) a
fraction, the numerator of which is equal to the Available Investor
Principal Collections remaining after the application specified in
subsections 4.09(e)(i), (ii) and (iii) above and the denominator of which
is equal to the sum of the Available Investor Principal Collections
available for sharing as specified in the related Series Supplement for
each Series (including this Series 1996-A) in the Shared Excess Principal
Collections Group and (2) the Cumulative Series Principal Shortfall and
(B) the Available Investor Principal Collections, shall remain in the
Principal Account to be treated as Shared Excess Principal Collections and
applied to Series in the Shared Excess Principal Collections Group other
than this Series 1996-A; and
33
<PAGE>
(v) an amount equal to the excess, if any, of (A) the Available
Investor Principal Collections over (B) the applications specified in
subsections 4.09(e)(i) through (iv) above shall be paid to the Holder of
the Transferor Certificate; provided, however, that the amount to be paid
-------- -------
to the Holder of the Transferor Certificate pursuant to this subsection
4.09(e)(v) with respect to such Transfer Date shall be paid to the Holder
of the Transferor Certificate only if the Transferor Interest on such Date
of Processing is greater than zero (after giving effect to the inclusion
in the Trust of all Receivables created on or prior to such Transfer Date
and the application of payments referred to in subsection 4.03(b)) and
otherwise shall be considered as Unallocated Principal Collections and
deposited into the Principal Account in accordance with subsection
4.05(d); provided further, however, that in no event shall the amount
-------- ------- -------
payable to the Holder of the Transferor Certificate pursuant to this
subsection 4.09(e)(v) be greater than the Transferor Interest on such
Transfer Date.
(f) ON THE EARLIER TO OCCUR OF (I) THE TRANSFER DATE IN THE MONTH
FOLLOWING THE COMMENCEMENT OF THE RAPID AMORTIZATION PERIOD AND (II) THE
TRANSFER DATE IMMEDIATELY PRECEDING THE CLASS A SCHEDULED PAYMENT DATE, THE
TRUSTEE, ACTING IN ACCORDANCE WITH INSTRUCTIONS FROM THE SERVICER, SHALL
WITHDRAW FROM THE PRINCIPAL FUNDING ACCOUNT AND DEPOSIT IN THE DISTRIBUTION
ACCOUNT THE AMOUNT ON DEPOSIT IN THE PRINCIPAL FUNDING ACCOUNT.
(g) ON EACH DISTRIBUTION DATE, THE TRUSTEE SHALL PAY IN ACCORDANCE
WITH SUBSECTION 5.01(A) TO THE CLASS A CERTIFICATEHOLDERS FROM THE DISTRIBUTION
ACCOUNT, THE AMOUNT DEPOSITED INTO THE DISTRIBUTION ACCOUNT PURSUANT TO
SUBSECTION 4.09(A)(I) ON THE PRECEDING TRANSFER DATE AND (B) TO THE CLASS B
CERTIFICATEHOLDERS FROM THE DISTRIBUTION ACCOUNT, THE AMOUNT DEPOSITED INTO THE
DISTRIBUTION ACCOUNT PURSUANT TO SUBSECTION 4.09(B)(I) ON THE PRECEDING TRANSFER
DATE.
(h) ON THE EARLIER TO OCCUR OF (I) THE FIRST DISTRIBUTION DATE WITH
RESPECT TO THE RAPID AMORTIZATION PERIOD AND (II) THE CLASS A SCHEDULED PAYMENT
DATE AND ON EACH DISTRIBUTION DATE THEREAFTER, THE TRUSTEE, ACTING IN ACCORDANCE
WITH INSTRUCTIONS FROM THE SERVICER, SHALL PAY IN ACCORDANCE WITH SECTION 5.01
FROM THE DISTRIBUTION ACCOUNT THE AMOUNT SO DEPOSITED INTO THE DISTRIBUTION
ACCOUNT PURSUANT TO SUBSECTIONS 4.09(E) AND (F) ON THE RELATED TRANSFER DATE IN
THE FOLLOWING PRIORITY:
(i) an amount equal to the lesser of such amount on deposit in
the Distribution Account and the Class A Investor Interest shall be
paid to the Class A Certificateholders; and
(ii) for each Distribution Date with respect to the Rapid
Amortization Period and on the Class B Scheduled Payment Date, after
giving effect to the distributions referred to in clause (i) above, an
amount equal to the lesser of such amount on deposit in the Distribution
Account and the Class B Investor Interest shall be paid to the Class B
Certificateholders.
34
<PAGE>
(i) THE CONTROLLED ACCUMULATION PERIOD IS SCHEDULED TO COMMENCE AT
THE CLOSE OF BUSINESS ON JUNE 30, 2000; PROVIDED, HOWEVER, THAT, IF THE
-------- -------
ACCUMULATION PERIOD LENGTH (DETERMINED AS DESCRIBED BELOW) IS LESS THAN 12
MONTHS, THE DATE ON WHICH THE CONTROLLED ACCUMULATION PERIOD ACTUALLY COMMENCES
WILL BE DELAYED TO THE FIRST BUSINESS DAY OF THE MONTH THAT IS THE NUMBER OF
WHOLE MONTHS PRIOR TO THE CLASS A SCHEDULED PAYMENT DATE AT LEAST EQUAL TO THE
ACCUMULATION PERIOD LENGTH AND, AS A RESULT, THE NUMBER OF MONTHLY PERIODS IN
THE CONTROLLED ACCUMULATION PERIOD WILL AT LEAST EQUAL THE ACCUMULATION PERIOD
LENGTH. ON THE DETERMINATION DATE IMMEDIATELY PRECEDING THE JUNE 2000
DISTRIBUTION DATE, AND EACH DETERMINATION DATE THEREAFTER UNTIL THE CONTROLLED
ACCUMULATION PERIOD BEGINS, THE SERVICER WILL DETERMINE THE "ACCUMULATION PERIOD
LENGTH" WHICH WILL EQUAL THE NUMBER OF WHOLE MONTHS SUCH THAT THE SUM OF THE
ACCUMULATION PERIOD FACTORS FOR EACH MONTH DURING SUCH PERIOD WILL BE EQUAL TO
OR GREATER THAN THE REQUIRED ACCUMULATION FACTOR NUMBER; PROVIDED, HOWEVER, THAT
-------- -------
THE ACCUMULATION PERIOD LENGTH WILL NOT BE DETERMINED TO BE LESS THAN ONE MONTH.
SECTION 4.10 Investor Charge-Offs.
--------------------
(a) ON OR BEFORE EACH TRANSFER DATE, THE SERVICER SHALL CALCULATE
THE CLASS A INVESTOR DEFAULT AMOUNT. IF ON ANY TRANSFER DATE, THE CLASS A
INVESTOR DEFAULT AMOUNT FOR THE PRIOR MONTHLY PERIOD EXCEEDS THE SUM OF THE
AMOUNT ALLOCATED WITH RESPECT THERETO PURSUANT TO SUBSECTION 4.09(A)(III),
SUBSECTION 4.11(A) AND SECTION 4.12 WITH RESPECT TO SUCH MONTHLY PERIOD, THE
COLLATERAL INTEREST (AFTER GIVING EFFECT TO REDUCTIONS FOR ANY COLLATERAL
CHARGE-OFFS AND ANY REALLOCATED PRINCIPAL COLLECTIONS ON SUCH TRANSFER DATE)
WILL BE REDUCED BY THE AMOUNT OF SUCH EXCESS, BUT NOT BY MORE THAN THE LESSER OF
THE CLASS A INVESTOR DEFAULT AMOUNT AND THE COLLATERAL INTEREST (AFTER GIVING
EFFECT TO REDUCTIONS FOR ANY COLLATERAL CHARGE-OFFS AND ANY REALLOCATED
PRINCIPAL COLLECTIONS ON SUCH TRANSFER DATE) FOR SUCH TRANSFER DATE. IN THE
EVENT THAT SUCH REDUCTION WOULD CAUSE THE COLLATERAL INTEREST TO BE A NEGATIVE
NUMBER, THE COLLATERAL INTEREST WILL BE REDUCED TO ZERO, AND THE CLASS B
INVESTOR INTEREST (AFTER GIVING EFFECT TO REDUCTIONS FOR ANY CLASS B INVESTOR
CHARGE-OFFS AND ANY REALLOCATED CLASS B PRINCIPAL COLLECTIONS ON SUCH TRANSFER
DATE) WILL BE REDUCED BY THE AMOUNT BY WHICH THE COLLATERAL INTEREST WOULD HAVE
BEEN REDUCED BELOW ZERO. IN THE EVENT THAT SUCH REDUCTION WOULD CAUSE THE CLASS
B INVESTOR INTEREST TO BE A NEGATIVE NUMBER, THE CLASS B INVESTOR INTEREST WILL
BE REDUCED TO ZERO, AND THE CLASS A INVESTOR INTEREST WILL BE REDUCED BY THE
AMOUNT BY WHICH THE CLASS B INVESTOR INTEREST WOULD HAVE BEEN REDUCED BELOW
ZERO, BUT NOT BY MORE THAN THE CLASS A INVESTOR DEFAULT AMOUNT FOR SUCH TRANSFER
DATE (A "CLASS A INVESTOR CHARGE-OFF"). IF THE CLASS A INVESTOR INTEREST HAS
BEEN REDUCED BY THE AMOUNT OF ANY CLASS A INVESTOR CHARGE-OFFS, IT WILL BE
REIMBURSED ON ANY TRANSFER DATE (BUT NOT BY AN AMOUNT IN EXCESS OF THE AGGREGATE
CLASS A INVESTOR CHARGE-OFFS) BY THE AMOUNT OF EXCESS SPREAD ALLOCATED AND
AVAILABLE FOR SUCH PURPOSE PURSUANT TO SUBSECTION 4.11(B).
35
<PAGE>
(b) ON OR BEFORE EACH TRANSFER DATE, THE SERVICER SHALL CALCULATE
THE CLASS B INVESTOR DEFAULT AMOUNT. IF ON ANY TRANSFER DATE, THE CLASS B
INVESTOR DEFAULT AMOUNT FOR THE PRIOR MONTHLY PERIOD EXCEEDS THE AMOUNT OF
EXCESS SPREAD AND REALLOCATED COLLATERAL PRINCIPAL COLLECTIONS WHICH ARE
ALLOCATED AND AVAILABLE TO FUND SUCH AMOUNT PURSUANT TO SUBSECTION 4.11(C) AND
SECTION 4.12, THE COLLATERAL INTEREST (AFTER GIVING EFFECT TO REDUCTIONS FOR ANY
COLLATERAL CHARGE-OFFS AND ANY REALLOCATED PRINCIPAL COLLECTIONS ON SUCH
TRANSFER DATE AND ANY ADJUSTMENTS WITH RESPECT THERETO AS DESCRIBED IN
SUBSECTION 4.10(A) ABOVE) WILL BE REDUCED BY THE AMOUNT OF SUCH EXCESS BUT NOT
BY MORE THAN THE LESSER OF THE CLASS B INVESTOR DEFAULT AMOUNT AND THE
COLLATERAL INTEREST (AFTER GIVING EFFECT TO REDUCTIONS FOR ANY COLLATERAL
CHARGE-OFFS AND ANY REALLOCATED PRINCIPAL COLLECTIONS ON SUCH TRANSFER DATE AND
ANY ADJUSTMENTS WITH RESPECT THERETO AS DESCRIBED IN SUBSECTION 4.10(A) ABOVE)
FOR SUCH TRANSFER DATE. IN THE EVENT THAT SUCH REDUCTION WOULD CAUSE THE
COLLATERAL INTEREST TO BE A NEGATIVE NUMBER, THE COLLATERAL INTEREST SHALL BE
REDUCED TO ZERO AND THE CLASS B INVESTOR INTEREST SHALL BE REDUCED BY THE AMOUNT
BY WHICH THE COLLATERAL INTEREST WOULD HAVE BEEN REDUCED BELOW ZERO, BUT NOT BY
MORE THAN THE CLASS B INVESTOR DEFAULT AMOUNT FOR SUCH TRANSFER DATE (A "CLASS B
INVESTOR CHARGE-OFF"). THE CLASS B INVESTOR INTEREST WILL ALSO BE REDUCED BY THE
AMOUNT OF REALLOCATED CLASS B PRINCIPAL COLLECTIONS IN EXCESS OF THE COLLATERAL
INTEREST PURSUANT TO SECTION 4.12 AND THE AMOUNT OF ANY PORTION OF THE CLASS B
INVESTOR INTEREST ALLOCATED TO THE CLASS A CERTIFICATES TO AVOID A REDUCTION IN
THE CLASS A INVESTOR INTEREST PURSUANT TO SUBSECTION 4.10(A) ABOVE. THE CLASS B
INVESTOR INTEREST WILL THEREAFTER BE REIMBURSED (BUT NOT TO AN AMOUNT IN EXCESS
OF THE UNPAID PRINCIPAL BALANCE OF THE CLASS B CERTIFICATES) ON ANY TRANSFER
DATE BY THE AMOUNT OF EXCESS SPREAD ALLOCATED AND AVAILABLE FOR THAT PURPOSE AS
DESCRIBED UNDER SUBSECTION 4.11(D).
(c) ON OR BEFORE EACH TRANSFER DATE, THE SERVICER SHALL CALCULATE
THE COLLATERAL DEFAULT AMOUNT. IF ON ANY TRANSFER DATE, THE COLLATERAL DEFAULT
AMOUNT FOR THE PRIOR MONTHLY PERIOD EXCEEDS THE AMOUNT OF EXCESS SPREAD WHICH IS
ALLOCATED AND AVAILABLE TO FUND SUCH AMOUNT PURSUANT TO SUBSECTION 4.11(G), THE
COLLATERAL INTEREST WILL BE REDUCED BY THE AMOUNT OF SUCH EXCESS BUT NOT BY MORE
THAN THE LESSER OF THE COLLATERAL DEFAULT AMOUNT AND THE COLLATERAL INTEREST FOR
SUCH TRANSFER DATE (A "COLLATERAL CHARGE-OFF"). THE COLLATERAL INTEREST WILL
ALSO BE REDUCED BY THE AMOUNT OF REALLOCATED PRINCIPAL COLLECTIONS PURSUANT TO
SECTION 4.12 AND THE AMOUNT OF ANY PORTION OF THE COLLATERAL INTEREST ALLOCATED
TO THE CLASS A CERTIFICATES OR THE CLASS B CERTIFICATES TO AVOID A REDUCTION IN
THE CLASS A INVESTOR INTEREST, PURSUANT TO SUBSECTION 4.10(A), OR THE CLASS B
INVESTOR INTEREST, PURSUANT TO SUBSECTION 4.10(B), RESPECTIVELY. THE COLLATERAL
INTEREST WILL THEREAFTER BE REIMBURSED ON ANY TRANSFER DATE BY THE AMOUNT OF THE
EXCESS SPREAD ALLOCATED AND AVAILABLE FOR THAT PURPOSE AS DESCRIBED UNDER
SUBSECTION 4.11(H).
36
<PAGE>
SECTION 4.11 Excess Spread; Shared Excess Finance Charge Collections.
-------------------------------------------------------
On or before each Transfer Date, the Servicer shall instruct the Trustee in
writing (which writing shall be substantially in the form of Exhibit B hereto)
to apply Excess Spread and Shared Excess Finance Charge Collections allocated to
Series 1996-A with respect to the related Monthly Period to make the following
distributions on each Transfer Date in the following priority:
(a) AN AMOUNT EQUAL TO THE CLASS A REQUIRED AMOUNT, IF ANY, WITH
RESPECT TO SUCH TRANSFER DATE SHALL BE USED TO FUND THE CLASS A REQUIRED AMOUNT
AND BE APPLIED IN ACCORDANCE WITH, AND IN THE PRIORITY SET FORTH IN, SUBSECTION
4.09(A);
(b) AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT OF CLASS A INVESTOR
CHARGE-OFFS WHICH HAVE NOT BEEN PREVIOUSLY REIMBURSED SHALL BE TREATED AS A
PORTION OF INVESTOR PRINCIPAL COLLECTIONS AND DEPOSITED INTO THE PRINCIPAL
ACCOUNT ON SUCH TRANSFER DATE;
(c) AN AMOUNT EQUAL TO THE CLASS B REQUIRED AMOUNT, IF ANY, WITH
RESPECT TO SUCH TRANSFER DATE SHALL BE USED TO FUND THE CLASS B REQUIRED AMOUNT
AND BE APPLIED FIRST IN ACCORDANCE WITH, AND IN THE PRIORITY SET FORTH IN,
SUBSECTION 4.09(B) AND THEN ANY REMAINING AMOUNT AVAILABLE TO PAY THE CLASS B
INVESTOR DEFAULT AMOUNT SHALL BE TREATED AS A PORTION OF INVESTOR PRINCIPAL
COLLECTIONS AND DEPOSITED INTO THE PRINCIPAL ACCOUNT ON SUCH TRANSFER DATE;
(d) AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT BY WHICH THE CLASS B
INVESTOR INTEREST HAS BEEN REDUCED BELOW THE INITIAL CLASS B INVESTOR INTEREST
FOR REASONS OTHER THAN THE PAYMENT OF PRINCIPAL TO THE CLASS B
CERTIFICATEHOLDERS (BUT NOT IN EXCESS OF THE AGGREGATE AMOUNT OF SUCH REDUCTIONS
WHICH HAVE NOT BEEN PREVIOUSLY REIMBURSED) SHALL BE TREATED AS A PORTION OF
INVESTOR PRINCIPAL COLLECTIONS AND DEPOSITED INTO THE PRINCIPAL ACCOUNT ON SUCH
TRANSFER DATE;
(e) AN AMOUNT EQUAL TO THE COLLATERAL MONTHLY INTEREST PLUS THE
----
AMOUNT OF ANY PAST DUE COLLATERAL MONTHLY INTEREST FOR SUCH TRANSFER DATE SHALL
BE PAID TO THE COLLATERAL INTEREST HOLDER IN ACCORDANCE WITH THE LOAN AGREEMENT;
(f) IF THE TRANSFEROR, AN AFFILIATE OF THE TRANSFEROR OR AN
ACCEPTABLE SUCCESSOR SERVICER IS THE SERVICER, AN AMOUNT EQUAL TO THE
AGGREGATE AMOUNT OF ACCRUED BUT UNPAID COLLATERAL INTEREST SERVICING FEES
SHALL BE PAID TO THE SERVICER;
(g) AN AMOUNT EQUAL TO THE COLLATERAL DEFAULT AMOUNT, IF ANY,
FOR THE PRIOR MONTHLY PERIOD SHALL BE TREATED AS A PORTION OF INVESTOR
PRINCIPAL COLLECTIONS AND DEPOSITED INTO THE PRINCIPAL ACCOUNT ON SUCH
TRANSFER DATE;
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(h) AN AMOUNT EQUAL TO THE AGGREGATE AMOUNT BY WHICH THE COLLATERAL
INTEREST HAS BEEN REDUCED BELOW THE REQUIRED COLLATERAL INTEREST FOR REASONS
OTHER THAN THE PAYMENT OF PRINCIPAL TO THE COLLATERAL INTEREST HOLDER (BUT NOT
IN EXCESS OF THE AGGREGATE AMOUNT OF SUCH REDUCTIONS WHICH HAVE NOT BEEN
PREVIOUSLY REIMBURSED) SHALL BE TREATED AS A PORTION OF INVESTOR PRINCIPAL
COLLECTIONS AND DEPOSITED INTO THE PRINCIPAL ACCOUNT ON SUCH TRANSFER DATE;
(i) ON EACH TRANSFER DATE FROM AND AFTER THE RESERVE ACCOUNT FUNDING
DATE, BUT PRIOR TO THE DATE ON WHICH THE RESERVE ACCOUNT TERMINATES AS DESCRIBED
IN SECTION 4.16(F), AN AMOUNT UP TO THE EXCESS, IF ANY, OF THE REQUIRED RESERVE
ACCOUNT AMOUNT OVER THE AVAILABLE RESERVE ACCOUNT AMOUNT
SHALL BE DEPOSITED INTO THE RESERVE ACCOUNT;
(j) AN AMOUNT EQUAL TO THE AGGREGATE OF ANY OTHER AMOUNTS THEN DUE
TO THE COLLATERAL INTEREST HOLDER OUT OF COLLECTIONS OF EXCESS SPREAD AND SHARED
EXCESS FINANCE CHARGE COLLECTIONS ALLOCATED TO SERIES 1996-A PURSUANT TO THE
LOAN AGREEMENT SHALL BE DISTRIBUTED TO THE COLLATERAL INTEREST HOLDER FOR
APPLICATION IN ACCORDANCE WITH THE LOAN AGREEMENT; AND
(k) THE BALANCE, IF ANY, WILL CONSTITUTE A PORTION OF SHARED EXCESS
FINANCE CHARGE COLLECTIONS FOR SUCH DISTRIBUTION DATE AND WILL BE AVAILABLE FOR
ALLOCATION TO OTHER SERIES IN SHARED EXCESS FINANCE CHARGE COLLECTIONS GROUP ONE
AND, TO THE EXTENT NOT REQUIRED TO BE APPLIED AS SHARED EXCESS FINANCE CHARGE
COLLECTIONS WITH RESPECT TO ANY SERIES IN SHARED EXCESS FINANCE CHARGE
COLLECTIONS GROUP ONE, SHALL BE DISTRIBUTED TO THE HOLDER OF THE TRANSFEROR
CERTIFICATE.
SECTION 4.12 Reallocated Principal Collections . On or before each
-----------------------------------
Transfer Date, the Servicer shall instruct the Trustee in writing (which writing
shall be substantially in the form of Exhibit B hereto) to withdraw from the
Principal Account and apply Reallocated Principal Collections (applying all
Reallocated Collateral Principal Collections in accordance with subsections
4.12(a) and (b) prior to applying any Reallocated Class B Principal Collections
in accordance with subsection 4.12(a) for any amounts still owing after the
application of Reallocated Collateral Principal Collections) with respect to
such Transfer Date, to make the following distributions on each Transfer Date in
the following priority:
(a) AN AMOUNT EQUAL TO THE EXCESS, IF ANY, OF (I) THE CLASS A
REQUIRED AMOUNT, IF ANY, WITH RESPECT TO SUCH TRANSFER DATE OVER (II) THE AMOUNT
OF EXCESS SPREAD AND SHARED EXCESS FINANCE CHARGE COLLECTIONS ALLOCATED TO
SERIES 1996-A WITH RESPECT TO THE RELATED MONTHLY PERIOD, SHALL BE APPLIED IN
ACCORDANCE WITH, AND IN THE PRIORITY SET FORTH IN, SUBSECTION 4.09(A)(I), (II)
AND (III); AND
(b) AN AMOUNT EQUAL TO THE EXCESS, IF ANY, OF (I) THE CLASS B
REQUIRED AMOUNT, IF ANY, WITH RESPECT TO SUCH TRANSFER DATE OVER (II) THE AMOUNT
38
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OF EXCESS SPREAD AND SHARED EXCESS FINANCE CHARGE COLLECTIONS ALLOCATED AND
AVAILABLE TO THE CLASS B CERTIFICATES PURSUANT TO SUBSECTION 4.11(C) ON SUCH
TRANSFER DATE SHALL BE APPLIED FIRST PURSUANT TO SUBSECTIONS 4.09(B)(I) AND
(II), AND IN THE PRIORITY SET FORTH IN SUBSECTION 4.09(B), AND THEN PURSUANT TO
SUBSECTION 4.11(C).
On each Transfer Date, the Collateral Interest shall be reduced by
the amount of Reallocated Collateral Principal Collections and by the amount of
Reallocated Class B Principal Collections for such Transfer Date. In the event
that such reduction would cause the Collateral Interest (after giving effect to
any Collateral Charge-Offs for such Transfer Date) to be a negative number, the
Collateral Interest (after giving effect to any Collateral Charge-Offs for such
Transfer Date) shall be reduced to zero and the Class B Investor Interest shall
be reduced by the amount by which the Collateral Interest would have been
reduced below zero. In the event that the reallocation of Reallocated Principal
Collections would cause the Class B Investor Interest (after giving effect to
any Class B Investor Charge-Offs for such Transfer Date) to be a negative number
on any Transfer Date, Reallocated Principal Collections shall be reallocated on
such Transfer Date in an aggregate amount not to exceed the amount which would
cause the Class B Investor Interest (after giving effect to any Class B Investor
Charge-Offs for such Transfer Date) to be reduced to zero.
SECTION 4.13 Shared Excess Finance Charge Collections .
----------------------------------------
(a) SUBJECT TO SUBSECTION 4.13(C) BELOW THE PORTION OF SHARED EXCESS
FINANCE CHARGE COLLECTIONS ON DEPOSIT IN THE FINANCE CHARGE ACCOUNT EQUAL TO THE
AMOUNT OF SHARED EXCESS FINANCE CHARGE COLLECTIONS ALLOCABLE TO SERIES 1996-A ON
ANY TRANSFER DATE SHALL BE APPLIED AS SHARED EXCESS FINANCE CHARGE COLLECTIONS
PURSUANT TO SECTION 4.11 AND PURSUANT TO SUCH SECTION 4.11 SHALL BE DEPOSITED IN
THE DISTRIBUTION ACCOUNT OR TO THE EXTENT NOT NEEDED TO MAKE DISTRIBUTIONS
PURSUANT TO SECTION 4.11, SHALL BE PAID TO THE HOLDER OF THE TRANSFEROR
CERTIFICATE.
(b) SUBJECT TO SUBSECTION 4.13(C) BELOW SHARED EXCESS FINANCE CHARGE
COLLECTIONS ALLOCABLE TO SERIES 1996-A WITH RESPECT TO ANY TRANSFER DATE SHALL
MEAN AN AMOUNT EQUAL TO THE SERIES FINANCE CHARGE SHORTFALL, IF ANY, WITH
RESPECT TO SERIES 1996-A FOR SUCH TRANSFER DATE; PROVIDED, HOWEVER, THAT IF THE
AGGREGATE AMOUNT OF SHARED EXCESS FINANCE CHARGE COLLECTIONS FOR ALL SERIES IN
SHARED EXCESS FINANCE CHARGE COLLECTIONS GROUP ONE FOR SUCH TRANSFER DATE IS
LESS THAN THE CUMULATIVE SERIES FINANCE CHARGE SHORTFALL FOR SUCH TRANSFER DATE,
THEN SHARED EXCESS FINANCE CHARGE COLLECTIONS ALLOCABLE TO SERIES 1996-A ON SUCH
TRANSFER DATE SHALL EQUAL THE PRODUCT OF (I) SHARED EXCESS FINANCE CHARGE
COLLECTIONS FOR ALL SERIES IN SHARED EXCESS FINANCE CHARGE COLLECTIONS GROUP ONE
FOR SUCH TRANSFER DATE AND (II) A FRACTION, THE NUMERATOR OF WHICH IS THE SERIES
FINANCE CHARGE SHORTFALL WITH RESPECT TO SERIES 1996-A FOR SUCH TRANSFER DATE
AND THE DENOMINATOR OF WHICH IS THE AGGREGATE AMOUNT OF CUMULATIVE SERIES
FINANCE CHARGE SHORTFALL FOR ALL SERIES IN SHARED EXCESS FINANCE CHARGE
COLLECTIONS GROUP ONE FOR SUCH TRANSFER DATE.
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<PAGE>
(c) NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT TO THE CONTRARY,
THE PROVISIONS OF THIS SECTION 4.13 SHALL TERMINATE AT, AND THE APPLICATION OF
SHARED EXCESS FINANCE CHARGE COLLECTIONS AMONG THE SERIES WITHIN SHARED EXCESS
FINANCE CHARGE COLLECTIONS GROUP ONE SHALL CONTINUE ONLY UNTIL, SUCH TIME, IF
ANY, AT WHICH THE TRANSFEROR SHALL DELIVER TO THE TRUSTEE AN OFFICER'S
CERTIFICATE TO THE EFFECT THAT, IN THE REASONABLE BELIEF OF THE TRANSFEROR, THE
CONTINUED APPLICATION OF SHARED EXCESS FINANCE CHARGE COLLECTIONS AMONG THE
SERIES WITHIN SHARED EXCESS FINANCE CHARGE COLLECTIONS GROUP ONE WOULD HAVE
ADVERSE REGULATORY IMPLICATIONS WITH RESPECT TO THE TRANSFEROR. FOLLOWING THE
DELIVERY BY THE TRANSFEROR OF SUCH AN OFFICER'S CERTIFICATE TO THE TRUSTEE,
THERE WILL NOT BE ANY FURTHER APPLICATION OF SHARED EXCESS FINANCE CHARGE
COLLECTIONS AMONG THE SERIES WITHIN SHARED EXCESS FINANCE CHARGE COLLECTIONS
GROUP ONE.
SECTION 4.14 Shared Excess Principal Collections .
-----------------------------------
(a) THE PORTION OF SHARED EXCESS PRINCIPAL COLLECTIONS ON DEPOSIT IN
THE PRINCIPAL ACCOUNT EQUAL TO THE AMOUNT OF SHARED EXCESS PRINCIPAL COLLECTIONS
WITH RESPECT TO THE SHARED EXCESS PRINCIPAL COLLECTIONS GROUP ALLOCABLE TO
SERIES 1996-A ON ANY TRANSFER DATE SHALL BE APPLIED AS AN AVAILABLE INVESTOR
PRINCIPAL COLLECTION PURSUANT TO SECTION 4.09 AND PURSUANT TO SUCH SECTION 4.09
SHALL BE DEPOSITED IN THE DISTRIBUTION ACCOUNT OR DISTRIBUTED IN ACCORDANCE WITH
THE LOAN AGREEMENT.
(b) SHARED EXCESS PRINCIPAL COLLECTIONS WITH RESPECT TO THE SHARED
EXCESS PRINCIPAL COLLECTIONS GROUP ALLOCABLE TO SERIES 1996-A WITH RESPECT TO
ANY TRANSFER DATE SHALL MEAN AN AMOUNT EQUAL TO THE SERIES PRINCIPAL SHORTFALL,
IF ANY, WITH RESPECT TO SERIES 1996-A FOR SUCH TRANSFER DATE; PROVIDED, HOWEVER,
-------- -------
THAT IF THE AGGREGATE AMOUNT OF SHARED EXCESS PRINCIPAL COLLECTIONS FOR ALL
SERIES FOR SUCH TRANSFER DATE IS LESS THAN THE CUMULATIVE SERIES PRINCIPAL
SHORTFALL FOR SUCH TRANSFER DATE, THEN SHARED EXCESS PRINCIPAL COLLECTIONS
ALLOCABLE TO SERIES 1996-A ON SUCH TRANSFER DATE SHALL EQUAL THE PRODUCT OF (I)
SHARED EXCESS PRINCIPAL COLLECTIONS FOR ALL SERIES IN THE SHARED EXCESS
PRINCIPAL COLLECTIONS GROUP FOR SUCH TRANSFER DATE AND (II) A FRACTION, THE
NUMERATOR OF WHICH IS THE SERIES PRINCIPAL SHORTFALL WITH RESPECT TO SERIES
1996-A FOR SUCH TRANSFER DATE AND THE DENOMINATOR OF WHICH IS THE AGGREGATE
AMOUNT OF CUMULATIVE SERIES PRINCIPAL SHORTFALL FOR ALL SERIES FOR SUCH TRANSFER
DATE.
SECTION 4.15 Principal Funding Account .
-------------------------
(a) THE TRUSTEE SHALL ESTABLISH AND MAINTAIN WITH A QUALIFIED
INSTITUTION, WHICH MAY BE THE TRUSTEE, IN THE NAME OF THE TRUST, ON BEHALF OF
THE TRUST, FOR THE BENEFIT OF THE INVESTOR CERTIFICATEHOLDERS, A SEGREGATED
TRUST ACCOUNT WITH THE CORPORATE TRUST DEPARTMENT OF SUCH QUALIFIED INSTITUTION
40
<PAGE>
(THE "PRINCIPAL FUNDING ACCOUNT"), BEARING A DESIGNATION CLEARLY INDICATING THAT
THE FUNDS DEPOSITED THEREIN ARE HELD FOR THE BENEFIT OF THE INVESTOR
CERTIFICATEHOLDERS. THE TRUSTEE SHALL POSSESS ALL RIGHT, TITLE AND INTEREST IN
ALL FUNDS ON DEPOSIT FROM TIME TO TIME IN THE PRINCIPAL FUNDING ACCOUNT AND IN
ALL PROCEEDS THEREOF. THE PRINCIPAL FUNDING ACCOUNT SHALL BE UNDER THE SOLE
DOMINION AND CONTROL OF THE TRUSTEE FOR THE BENEFIT OF THE INVESTOR
CERTIFICATEHOLDERS. IF AT ANY TIME THE INSTITUTION HOLDING THE PRINCIPAL FUNDING
ACCOUNT CEASES TO BE A QUALIFIED INSTITUTION, THE TRANSFEROR SHALL NOTIFY THE
TRUSTEE, AND THE TRUSTEE UPON BEING NOTIFIED (OR THE SERVICER ON ITS BEHALF)
SHALL, WITHIN 10 BUSINESS DAYS, ESTABLISH A NEW PRINCIPAL FUNDING ACCOUNT
MEETING THE CONDITIONS SPECIFIED ABOVE WITH A QUALIFIED INSTITUTION, AND SHALL
TRANSFER ANY CASH OR ANY INVESTMENTS TO SUCH NEW PRINCIPAL FUNDING ACCOUNT. THE
TRUSTEE, AT THE DIRECTION OF THE SERVICER, SHALL (I) MAKE WITHDRAWALS FROM THE
PRINCIPAL FUNDING ACCOUNT FROM TIME TO TIME, IN THE AMOUNTS AND FOR THE PURPOSES
SET FORTH IN THIS SERIES SUPPLEMENT, AND (II) ON EACH TRANSFER DATE (FROM AND
AFTER THE COMMENCEMENT OF THE CONTROLLED ACCUMULATION PERIOD) PRIOR TO
TERMINATION OF THE PRINCIPAL FUNDING ACCOUNT MAKE A DEPOSIT INTO THE PRINCIPAL
FUNDING ACCOUNT IN THE AMOUNT SPECIFIED IN, AND OTHERWISE IN ACCORDANCE WITH,
SUBSECTION 4.09(E).
(b) FUNDS ON DEPOSIT IN THE PRINCIPAL FUNDING ACCOUNT SHALL BE
INVESTED AT THE DIRECTION OF THE SERVICER BY THE TRUSTEE IN PERMITTED
INVESTMENTS EVIDENCING OBLIGATIONS OF ANY OF THE CORPORATION OR ANY AFFILIATE
THEREOF; PROVIDED, HOWEVER, THAT IF NO OBLIGATIONS OF THE CORPORATION OR OF ANY
-------- -------
AFFILIATE THEREOF SHALL QUALIFY AS PERMITTED INVESTMENTS, NOTWITHSTANDING THE
PRECEDING, THE FUNDS ON DEPOSIT IN THE PRINCIPAL FUNDING ACCOUNT SHALL BE
INVESTED BY THE TRUSTEE IN PERMITTED INVESTMENTS. FUNDS ON DEPOSIT IN THE
PRINCIPAL FUNDING ACCOUNT ON ANY TRANSFER DATE, AFTER GIVING EFFECT TO ANY
WITHDRAWALS FROM THE PRINCIPAL FUNDING ACCOUNT ON SUCH TRANSFER DATE, SHALL BE
INVESTED IN SUCH INVESTMENTS THAT WILL MATURE SO THAT SUCH FUNDS WILL BE
AVAILABLE FOR WITHDRAWAL ON OR PRIOR TO THE FOLLOWING TRANSFER DATE. THE TRUSTEE
SHALL MAINTAIN FOR THE BENEFIT OF THE INVESTOR CERTIFICATEHOLDERS POSSESSION OF
THE NEGOTIABLE INSTRUMENTS OR SECURITIES, IF ANY, EVIDENCING SUCH PERMITTED
INVESTMENTS. NO PERMITTED INVESTMENT SHALL BE DISPOSED OF PRIOR TO ITS MATURITY.
On the Transfer Date occurring in the month following the
commencement of the Controlled Accumulation Period and on each Transfer Date
thereafter with respect to the Controlled Accumulation Period, the Trustee,
acting at the Servicer's direction given on or before such Transfer Date, shall
transfer from the Principal Funding Account to the Finance Charge Account the
Principal Funding Investment Proceeds on deposit in the Principal Funding
Account, for application as Class A Available Funds applied pursuant to
subsection 4.09(a)(i).
An amount equal to any Principal Funding Investment Shortfall shall
be deposited in the Finance Charge Account on each Transfer Date from the
Reserve Account to the extent funds are available pursuant to subsection
4.16(d). Principal Funding Investment Proceeds (including reinvested interest)
shall not be considered part of the amounts on deposit in the Principal Funding
Account for purposes of this Series Supplement.
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<PAGE>
SECTION 4.16 Reserve Account .
---------------
(a) THE TRUSTEE SHALL ESTABLISH AND MAINTAIN WITH A QUALIFIED
INSTITUTION, WHICH MAY BE THE TRUSTEE, IN THE NAME OF THE TRUST, ON BEHALF OF
THE TRUST, FOR THE BENEFIT OF THE INVESTOR CERTIFICATEHOLDERS, A SEGREGATED
TRUST ACCOUNT WITH THE CORPORATE TRUST DEPARTMENT OF SUCH QUALIFIED INSTITUTION
(THE "RESERVE ACCOUNT"), BEARING A DESIGNATION CLEARLY INDICATING THAT THE FUNDS
DEPOSITED THEREIN ARE HELD FOR THE BENEFIT OF THE INVESTOR CERTIFICATEHOLDERS.
THE TRUSTEE SHALL POSSESS ALL RIGHT, TITLE AND INTEREST IN ALL FUNDS ON DEPOSIT
FROM TIME TO TIME IN THE RESERVE ACCOUNT AND IN ALL PROCEEDS THEREOF. THE
RESERVE ACCOUNT SHALL BE UNDER THE SOLE DOMINION AND CONTROL OF THE TRUSTEE FOR
THE BENEFIT OF THE INVESTOR CERTIFICATEHOLDERS. IF AT ANY TIME THE INSTITUTION
HOLDING THE RESERVE ACCOUNT CEASES TO BE A QUALIFIED INSTITUTION, THE TRANSFEROR
SHALL NOTIFY THE TRUSTEE, AND THE TRUSTEE UPON BEING NOTIFIED (OR THE SERVICER
ON ITS BEHALF) SHALL, WITHIN 10 BUSINESS DAYS, ESTABLISH A NEW RESERVE ACCOUNT
MEETING THE CONDITIONS SPECIFIED ABOVE WITH A QUALIFIED INSTITUTION, AND SHALL
TRANSFER ANY CASH OR ANY INVESTMENTS TO SUCH NEW RESERVE ACCOUNT. THE TRUSTEE,
AT THE DIRECTION OF THE SERVICER, SHALL (I) MAKE WITHDRAWALS FROM THE RESERVE
ACCOUNT FROM TIME TO TIME IN AN AMOUNT UP TO THE AVAILABLE RESERVE ACCOUNT
AMOUNT AT SUCH TIME, FOR THE PURPOSES SET FORTH IN THIS SERIES SUPPLEMENT, AND
(II) ON EACH TRANSFER DATE (FROM AND AFTER THE RESERVE ACCOUNT FUNDING DATE)
PRIOR TO TERMINATION OF THE RESERVE ACCOUNT MAKE A DEPOSIT INTO THE RESERVE
ACCOUNT IN THE AMOUNT SPECIFIED IN, AND OTHERWISE IN ACCORDANCE WITH, SUBSECTION
4.11(I).
(b) FUNDS ON DEPOSIT IN THE RESERVE ACCOUNT SHALL BE INVESTED AT THE
DIRECTION OF THE SERVICER BY THE TRUSTEE IN PERMITTED INVESTMENTS EVIDENCING
OBLIGATIONS OF ANY OF THE CORPORATION OR ANY AFFILIATE THEREOF; PROVIDED,
--------
HOWEVER, THAT IF NO OBLIGATIONS OF THE CORPORATION OR ANY AFFILIATE THEREOF
- -------
SHALL QUALIFY AS PERMITTED INVESTMENTS, NOTWITHSTANDING THE PRECEDING, THE FUNDS
ON DEPOSIT IN THE RESERVE ACCOUNT SHALL BE INVESTED BY THE TRUSTEE IN PERMITTED
INVESTMENTS. FUNDS ON DEPOSIT IN THE RESERVE ACCOUNT ON ANY TRANSFER DATE, AFTER
GIVING EFFECT TO ANY WITHDRAWALS FROM THE RESERVE ACCOUNT ON SUCH TRANSFER DATE,
SHALL BE INVESTED IN SUCH INVESTMENTS THAT WILL MATURE SO THAT SUCH FUNDS WILL
BE AVAILABLE FOR WITHDRAWAL ON OR PRIOR TO THE FOLLOWING TRANSFER DATE. THE
TRUSTEE SHALL MAINTAIN FOR THE BENEFIT OF THE INVESTOR CERTIFICATEHOLDERS
POSSESSION OF THE NEGOTIABLE INSTRUMENTS OR SECURITIES, IF ANY, EVIDENCING SUCH
PERMITTED INVESTMENTS. NO PERMITTED INVESTMENT SHALL BE DISPOSED OF PRIOR TO ITS
MATURITY. ON EACH TRANSFER DATE, ALL INTEREST AND EARNINGS (NET OF LOSSES AND
INVESTMENT EXPENSES) ACCRUED SINCE THE PRECEDING TRANSFER DATE ON FUNDS ON
DEPOSIT IN THE RESERVE ACCOUNT SHALL BE RETAINED IN THE RESERVE ACCOUNT (TO THE
42
<PAGE>
EXTENT THAT THE AVAILABLE RESERVE ACCOUNT AMOUNT IS LESS THAN THE REQUIRED
RESERVE ACCOUNT AMOUNT) AND THE BALANCE, IF ANY, SHALL BE DEPOSITED INTO THE
FINANCE CHARGE ACCOUNT AND INCLUDED IN CLASS A AVAILABLE FUNDS FOR SUCH TRANSFER
DATE. FOR PURPOSES OF DETERMINING THE AVAILABILITY OF FUNDS OR THE BALANCE IN
THE RESERVE ACCOUNT FOR ANY REASON UNDER THIS SERIES SUPPLEMENT, EXCEPT AS
OTHERWISE PROVIDED IN THE PRECEDING SENTENCE, INVESTMENT EARNINGS ON SUCH FUNDS
SHALL BE DEEMED NOT TO BE AVAILABLE OR ON DEPOSIT.
(c) ON OR BEFORE EACH TRANSFER DATE WITH RESPECT TO THE CONTROLLED
ACCUMULATION PERIOD PRIOR TO THE PAYMENT IN FULL OF THE CLASS A INVESTOR
INTEREST AND ON OR BEFORE THE FIRST TRANSFER DATE WITH RESPECT TO THE RAPID
AMORTIZATION PERIOD, THE SERVICER SHALL CALCULATE THE "RESERVE DRAW AMOUNT"
WHICH SHALL BE EQUAL TO THE PRINCIPAL FUNDING INVESTMENT SHORTFALL WITH RESPECT
TO EACH TRANSFER DATE WITH RESPECT TO THE CONTROLLED ACCUMULATION PERIOD OR THE
FIRST TRANSFER DATE WITH RESPECT TO THE RAPID AMORTIZATION PERIOD; PROVIDED,
--------
HOWEVER, THAT SUCH AMOUNT WILL BE REDUCED TO THE EXTENT THAT FUNDS OTHERWISE
- -------
WOULD BE AVAILABLE FOR DEPOSIT IN THE RESERVE ACCOUNT UNDER SUBSECTION 4.11(I)
WITH RESPECT TO SUCH TRANSFER DATE.
(d) IN THE EVENT THAT FOR ANY TRANSFER DATE THE RESERVE DRAW AMOUNT
IS GREATER THAN ZERO, THE RESERVE DRAW AMOUNT, UP TO THE AVAILABLE RESERVE
ACCOUNT AMOUNT, SHALL BE WITHDRAWN FROM THE RESERVE ACCOUNT ON SUCH TRANSFER
DATE BY THE TRUSTEE (ACTING IN ACCORDANCE WITH THE INSTRUCTIONS OF THE
SERVICER), DEPOSITED INTO THE FINANCE CHARGE ACCOUNT AND INCLUDED IN CLASS A
AVAILABLE FUNDS FOR SUCH TRANSFER DATE.
(e) IN THE EVENT THAT THE RESERVE ACCOUNT SURPLUS ON ANY TRANSFER
DATE, AFTER GIVING EFFECT TO ALL DEPOSITS TO AND WITHDRAWALS FROM THE RESERVE
ACCOUNT WITH RESPECT TO SUCH TRANSFER DATE, IS GREATER THAN ZERO, THE TRUSTEE,
ACTING IN ACCORDANCE WITH THE INSTRUCTIONS OF THE SERVICER, SHALL WITHDRAW FROM
THE RESERVE ACCOUNT, AND PAY IN ACCORDANCE WITH THE LOAN AGREEMENT, AN AMOUNT
EQUAL TO SUCH RESERVE ACCOUNT SURPLUS.
(f) UPON THE EARLIEST TO OCCUR OF (I) THE TERMINATION OF THE TRUST
PURSUANT TO ARTICLE XII OF THE AGREEMENT, (II) IF THE CONTROLLED ACCUMULATION
PERIOD HAS NOT COMMENCED, THE FIRST TRANSFER DATE RELATING TO THE RAPID
AMORTIZATION PERIOD AND (III) IF THE CONTROLLED ACCUMULATION PERIOD HAS
COMMENCED, THE EARLIER OF THE FIRST TRANSFER DATE WITH RESPECT TO THE RAPID
AMORTIZATION PERIOD AND THE TRANSFER DATE IMMEDIATELY PRECEDING THE CLASS A
SCHEDULED PAYMENT DATE, THE TRUSTEE, ACTING IN ACCORDANCE WITH THE INSTRUCTIONS
OF THE SERVICER, AFTER THE PRIOR PAYMENT OF ALL AMOUNTS OWING TO THE SERIES
1996-A CERTIFICATEHOLDERS THAT ARE PAYABLE FROM THE RESERVE ACCOUNT AS PROVIDED
HEREIN, SHALL WITHDRAW FROM THE RESERVE ACCOUNT AND PAY IN ACCORDANCE WITH THE
LOAN AGREEMENT, ALL AMOUNTS, IF ANY, ON DEPOSIT IN THE RESERVE ACCOUNT AND THE
RESERVE ACCOUNT SHALL BE DEEMED TO HAVE TERMINATED FOR PURPOSES OF THIS SERIES
SUPPLEMENT.
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SECTION 4.17 Determination of LIBOR .
----------------------
(a) On each LIBOR Determination Date, the Trustee will determine
LIBOR on the basis of the rate for deposits in United States dollars for a
one-month period which appears on Telerate Page 3750 as of 11:00 a.m., London
time, on such date. If such rate does not appear on Telerate Page 3750, the rate
for that LIBOR Determination Date will be determined on the basis of the rates
at which deposits in United States dollars are offered by the Reference Banks at
approximately 11:00 a.m., London time, on that day to prime banks in the London
interbank market for a one-month period. The Trustee will request the principal
London office of each of the Reference Banks to provide a quotation of its rate.
If at least two such quotations are provided, the rate for that LIBOR
Determination Date will be the arithmetic mean of the quotations. If fewer than
two quotations are provided as requested, the rate for that LIBOR Determination
Date will be the arithmetic mean of the rates quoted by major banks in New York
City, selected by the Servicer, at approximately 11:00 a.m., New York City time,
on that day for loans in United States dollars to leading European banks for a
one-month period.
(b) The Class A Certificate Rate and Class B Certificate Rate
applicable to the then current and the immediately preceding Interest Periods
may be obtained by any Investor Certificateholder by telephoning the Trustee at
its Corporate Trust Office at (800) 934-6807.
(c) On each LIBOR Determination Date prior to 12:00 noon New York
City time, the Trustee shall send to the Servicer by facsimile, notification of
LIBOR for the following Interest Period.
SECTION 4.18 Transferor's or Servicer's Failure to Make a Deposit or
-------------------------------------------------------
Payment.
- -------
If the Servicer or the Transferor fails to make, or give
instructions to make, any payment or deposit (other than as required by
subsections 2.04(d) and (e) and 12.02(a) or Sections 10.02 and 12.01) required
to be made or given by the Servicer or Transferor, respectively, at the time
specified in the Agreement (including applicable grace periods), the Trustee
shall make such payment or deposit from the applicable Investor Account without
instruction from the Servicer or Transferor. The Trustee shall be required to
make any such payment, deposit or withdrawal hereunder only to the extent that
the Trustee has sufficient information to allow it to determine the amount
thereof; provided, however, that the Trustee shall in all cases be deemed to
-------- -------
have sufficient information to determine the amount of interest payable to the
Series 1996-A Certificateholders on each Distribution Date. The Servicer shall,
upon request of the Trustee, promptly provide the Trustee with all information
necessary to allow the Trustee to make such payment, deposit or withdrawal. Such
funds or the proceeds of such withdrawal shall be applied by the Trustee in the
manner in which such payment or deposit should have been made by the Transferor
or the Servicer, as the case may be.
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<PAGE>
SECTION 8. Article V of the Agreement. Article V of the Agreement
---------------------------
shall read in its entirety as follows and shall be applicable only to the
Investor Certificateholders:
ARTICLE V
DISTRIBUTIONS AND REPORTS TO INVESTOR
CERTIFICATEHOLDERS
SECTION 5.01 Distributions . 58. ON EACH DISTRIBUTION DATE, THE
-------------
TRUSTEE SHALL DISTRIBUTE (IN ACCORDANCE WITH THE CERTIFICATE DELIVERED ON OR
BEFORE THE RELATED TRANSFER DATE BY THE SERVICER TO THE TRUSTEE PURSUANT TO
SUBSECTION 3.04(B)) TO EACH CLASS A CERTIFICATEHOLDER OF RECORD ON THE
IMMEDIATELY PRECEDING RECORD DATE (OTHER THAN AS PROVIDED IN SUBSECTION 2.04(E)
OR SECTION 12.03 RESPECTING A FINAL DISTRIBUTION) SUCH CERTIFICATEHOLDER'S PRO
---
RATA SHARE (BASED ON THE AGGREGATE UNDIVIDED INTERESTS REPRESENTED BY CLASS A
- ----
CERTIFICATES HELD BY SUCH CERTIFICATEHOLDER) OF AMOUNTS ON DEPOSIT IN THE
DISTRIBUTION ACCOUNT AS ARE PAYABLE TO THE CLASS A CERTIFICATEHOLDERS PURSUANT
TO SECTION 4.09 BY CHECK MAILED TO EACH CLASS A CERTIFICATEHOLDER (AT SUCH
CERTIFICATEHOLDER'S ADDRESS AS IT APPEARS IN THE CERTIFICATE REGISTER), EXCEPT
THAT WITH RESPECT TO CLASS A CERTIFICATES REGISTERED IN THE NAME OF THE NOMINEE
OF A CLEARING AGENCY, SUCH DISTRIBUTION SHALL BE MADE IN IMMEDIATELY AVAILABLE
FUNDS.
(b) ON EACH DISTRIBUTION DATE, THE TRUSTEE SHALL DISTRIBUTE (IN
ACCORDANCE WITH THE CERTIFICATE DELIVERED ON OR BEFORE THE RELATED TRANSFER DATE
BY THE SERVICER TO THE TRUSTEE PURSUANT TO SUBSECTION 3.04(B)) TO EACH CLASS B
CERTIFICATEHOLDER OF RECORD ON THE IMMEDIATELY PRECEDING RECORD DATE (OTHER THAN
AS PROVIDED IN SUBSECTION 2.04(E) OR SECTION 12.03 RESPECTING A FINAL
DISTRIBUTION) SUCH CERTIFICATEHOLDER'S PRO RATA SHARE (BASED ON THE AGGREGATE
--- ----
UNDIVIDED INTERESTS REPRESENTED BY CLASS B CERTIFICATES HELD BY SUCH
CERTIFICATEHOLDER) OF AMOUNTS ON DEPOSIT IN THE DISTRIBUTION ACCOUNT AS ARE
PAYABLE TO THE CLASS B CERTIFICATEHOLDERS PURSUANT TO SECTION 4.09 BY CHECK
MAILED TO EACH CLASS B CERTIFICATEHOLDER (AT SUCH CERTIFICATEHOLDER'S ADDRESS AS
IT APPEARS IN THE CERTIFICATE REGISTER), EXCEPT THAT WITH RESPECT TO CLASS B
CERTIFICATES REGISTERED IN THE NAME OF THE NOMINEE OF A CLEARING AGENCY, SUCH
DISTRIBUTION SHALL BE MADE IN IMMEDIATELY AVAILABLE FUNDS.
SECTION 5.02 Monthly Series 1996-A Certificateholders' Statement.
---------------------------------------------------
(a) ON OR BEFORE EACH DISTRIBUTION DATE, THE TRUSTEE SHALL FORWARD
TO EACH SERIES 1996-A CERTIFICATEHOLDER, EACH RATING AGENCY AND THE COLLATERAL
INTEREST HOLDER A STATEMENT SUBSTANTIALLY IN THE FORM OF EXHIBIT C TO THIS
SERIES SUPPLEMENT PREPARED BY THE SERVICER, DELIVERED TO THE TRUSTEE AND SETTING
45
<PAGE>
FORTH, AMONG OTHER THINGS, THE FOLLOWING INFORMATION (WHICH, IN THE CASE OF
SUBCLAUSES (I) AND (II) BELOW, SHALL BE STATED ON THE BASIS OF AN ORIGINAL
PRINCIPAL AMOUNT OF $1,000 PER CERTIFICATE AND, IN THE CASE OF SUBCLAUSES (IX)
AND (X) SHALL BE STATED ON AN AGGREGATE BASIS AND ON THE BASIS OF AN ORIGINAL
PRINCIPAL AMOUNT OF $1,000 PER CERTIFICATE, AS APPLICABLE):
(i) the amount of the current distribution allocable to Class A
Monthly Principal, Class B Monthly Principal and Collateral Monthly
Principal, respectively;
(ii) the amount of the current distribution allocable to Class A
Monthly Interest, Class A Deficiency Amounts, Class A Additional Interest,
Class B Monthly Interest, Class B Deficiency Amounts, Class B Additional
Interest and Collateral Monthly Interest, and any accrued and unpaid
Collateral Monthly Interest, respectively;
(iii) the amount of Collections of Principal Receivables processed
during the related Monthly Period and allocated in respect of the Class
A Certificates, the Class B Certificates and the Collateral Interest,
respectively;
(iv) the amount of Collections of Finance Charge Receivables
processed during the related Monthly Period and allocated in respect
of the Class A Certificates, the Class B Certificates and the
Collateral Interest, respectively;
(v) the aggregate amount of Principal Receivables, the Investor
Interest, the Adjusted Investor Interest, the Class A Investor Interest,
the Class A Adjusted Investor Interest, the Class B Investor Interest, the
Collateral Interest, the Floating Investor Percentage, the Class A
Floating Allocation, the Class B Floating Allocation, the Collateral
Floating Allocation and the Fixed Investor Percentage, Class A Fixed
Allocation, the Class B Fixed Allocation and the Collateral Fixed
Allocation with respect to the Principal Receivables in the Trust as of
the end of the day on the Record Date;
(vi) the aggregate outstanding balance of Accounts which were 30 to
59, 60 to 89 and 90 or more days delinquent as of the end of the day on
the Record Date;
(vii) the Aggregate Investor Default Amount, the Class A Investor
Default Amount, the Class B Investor Default Amount and the Collateral
Default Amount for the related Monthly Period;
(viii) the aggregate amount of Class A Investor Charge-Offs, Class B
Investor Charge-Offs and Collateral Charge-Offs for the related Monthly
Period;
46
<PAGE>
(ix) the aggregate amount of Class A Investor Charge-Offs, Class B
Investor Charge-Offs and Collateral Charge-Offs reimbursed on the
Transfer Date immediately preceding such Distribution Date;
(x) the amount of the Class A Servicing Fee, the Class B
Servicing Fee, the Collateral Servicing Fee and the Servicer
Interchange for the related Monthly Period;
(xi) the Portfolio Yield for the preceding Monthly Period;
(xii) the amount of Reallocated Collateral Principal Collections
and Reallocated Class B Principal Collections with respect to such
Distribution Date;
(xiii) the Class B Investor Interest and the Collateral Interest as
of the close of business on such Distribution Date;
(xiv) LIBOR for the Interest Period ending on such Distribution
Date;
(xv) the Principal Funding Account Balance on the related Transfer
Date;
(xvi) the Accumulation Shortfall;
(xvii) the Principal Funding Investment Proceeds transferred to the
Finance Charge Account on the related Transfer Date;
(xviii) the Principal Funding Investment Shortfall on the related
Transfer Date;
(xix) the amount of Class A Available Funds and Class B Available
Funds on deposit in the Finance Charge Account on the related Transfer
Date; and
(xx) such other items as are set forth in Exhibit C to this Series
Supplement.
(b) ANNUAL CERTIFICATEHOLDERS' TAX STATEMENT. ON OR BEFORE JANUARY
------------------------------------------
31 OF EACH CALENDAR YEAR, BEGINNING WITH CALENDAR YEAR 1997, THE TRUSTEE SHALL
DISTRIBUTE TO EACH PERSON WHO AT ANY TIME DURING THE PRECEDING CALENDAR YEAR WAS
A SERIES 1996-A CERTIFICATEHOLDER, A STATEMENT PREPARED BY THE SERVICER
CONTAINING THE INFORMATION REQUIRED TO BE CONTAINED IN THE REGULAR MONTHLY
REPORT TO SERIES 1996-A CERTIFICATEHOLDERS, AS SET FORTH IN SUBCLAUSES (I), (II)
AND (III) IN SUBSECTION 5.02(A), AGGREGATED FOR SUCH CALENDAR YEAR OR THE
APPLICABLE PORTION THEREOF DURING WHICH SUCH PERSON WAS A SERIES 1996-A
CERTIFICATEHOLDER, TOGETHER WITH SUCH OTHER CUSTOMARY INFORMATION (CONSISTENT
WITH THE TREATMENT OF THE CERTIFICATES AS DEBT) AS THE SERVICER DEEMS NECESSARY
OR DESIRABLE TO ENABLE THE SERIES 1996-A CERTIFICATEHOLDERS TO PREPARE THEIR TAX
RETURNS. SUCH OBLIGATIONS OF THE TRUSTEE SHALL BE DEEMED TO HAVE BEEN SATISFIED
TO THE EXTENT THAT SUBSTANTIALLY COMPARABLE INFORMATION SHALL BE PROVIDED BY THE
TRUSTEE PURSUANT TO ANY REQUIREMENTS OF THE CODE.
47
<PAGE>
SECTION 9. Series 1996-A Pay Out Events. If any one of the
----------------------------
following events shall occur with respect to the Investor Certificates:
(a) FAILURE ON THE PART OF THE TRANSFEROR (I) TO MAKE ANY PAYMENT OR
DEPOSIT REQUIRED BY THE TERMS OF (A) THE AGREEMENT OR (B) THIS SERIES
SUPPLEMENT, ON OR BEFORE THE DATE OCCURRING FIVE 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 COVENANTS OR AGREEMENTS OF THE
TRANSFEROR SET FORTH IN THE AGREEMENT OR THIS SERIES SUPPLEMENT, WHICH FAILURE
HAS A MATERIAL ADVERSE EFFECT ON THE SERIES 1996-A CERTIFICATEHOLDERS (WHICH
DETERMINATION SHALL BE MADE WITHOUT REFERENCE TO THE AMOUNT OF THE COLLATERAL
INTEREST) AND WHICH CONTINUES UNREMEDIED FOR A PERIOD OF 60 DAYS AFTER THE DATE
ON WHICH WRITTEN NOTICE OF SUCH FAILURE, REQUIRING THE SAME TO BE REMEDIED,
SHALL HAVE BEEN GIVEN TO THE TRANSFEROR BY THE TRUSTEE, OR TO THE TRANSFEROR AND
THE TRUSTEE BY THE HOLDERS OF INVESTOR CERTIFICATES EVIDENCING UNDIVIDED
INTERESTS AGGREGATING NOT LESS THAN 50% OF THE INVESTOR INTEREST OF THIS SERIES
1996-A, AND CONTINUES TO AFFECT MATERIALLY AND ADVERSELY THE INTERESTS OF THE
SERIES 1996-A CERTIFICATEHOLDERS (WHICH DETERMINATION SHALL BE MADE WITHOUT
REFERENCE TO THE AMOUNT OF THE COLLATERAL INTEREST) FOR SUCH PERIOD;
(b) ANY REPRESENTATION OR WARRANTY MADE BY THE TRANSFEROR IN THE
AGREEMENT OR THIS SERIES SUPPLEMENT, OR ANY INFORMATION CONTAINED IN A COMPUTER
FILE OR MICROFICHE LIST REQUIRED TO BE DELIVERED BY THE TRANSFEROR PURSUANT TO
SECTION 2.01 OR 2.06, (I) SHALL PROVE TO HAVE BEEN INCORRECT IN ANY MATERIAL
RESPECT WHEN MADE OR WHEN DELIVERED, 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
TRANSFEROR BY THE TRUSTEE, OR TO THE TRANSFEROR AND THE TRUSTEE BY THE HOLDERS
OF INVESTOR CERTIFICATES EVIDENCING UNDIVIDED INTERESTS AGGREGATING NOT LESS
THAN 50% OF THE INVESTOR INTEREST OF THIS SERIES 1996-A, AND (II) AS A RESULT OF
WHICH THE INTERESTS OF THE SERIES 1996-A CERTIFICATEHOLDERS ARE MATERIALLY AND
ADVERSELY AFFECTED (WHICH DETERMINATION SHALL BE MADE WITHOUT REFERENCE TO THE
AMOUNT OF THE COLLATERAL INTEREST) AND CONTINUE TO BE MATERIALLY AND ADVERSELY
AFFECTED FOR SUCH PERIOD; PROVIDED, HOWEVER, THAT A SERIES 1996-A PAY OUT EVENT
-------- -------
PURSUANT TO THIS SUBSECTION 9(B) HEREOF SHALL NOT BE DEEMED TO HAVE OCCURRED
HEREUNDER IF THE TRANSFEROR HAS ACCEPTED REASSIGNMENT OF THE RELATED RECEIVABLE,
OR ALL OF SUCH RECEIVABLES, IF APPLICABLE, DURING SUCH PERIOD IN ACCORDANCE WITH
THE PROVISIONS OF THE AGREEMENT;
48
<PAGE>
(c) THE AVERAGE PORTFOLIO YIELD FOR ANY THREE CONSECUTIVE
MONTHLY PERIODS IS LESS THAN THE AVERAGE BASE RATE FOR SUCH PERIOD;
(d) THE TRANSFEROR SHALL FAIL TO CONVEY RECEIVABLES ARISING
UNDER ADDITIONAL ACCOUNTS, OR PARTICIPATIONS, TO THE TRUST, AS REQUIRED BY
SUBSECTION 2.06(A);
(e) ANY SERVICER DEFAULT SHALL OCCUR WHICH WOULD HAVE A
MATERIAL ADVERSE EFFECT ON THE SERIES 1996-A CERTIFICATEHOLDERS; OR
(f) THE CLASS A INVESTOR INTEREST SHALL NOT BE PAID IN FULL ON THE
CLASS A SCHEDULED PAYMENT DATE OR THE CLASS B INVESTOR INTEREST SHALL NOT BE
PAID IN FULL ON THE CLASS B SCHEDULED PAYMENT DATE;
then, in the case of any event described in subsection 9(a), (b) or (e) hereof,
after the applicable grace period set forth in such subparagraphs, either the
Trustee or Holders of Investor Certificates evidencing Undivided Interests
aggregating not less than 50% of the Investor Interest of this Series 1996-A by
notice then given in writing to the Transferor and the Servicer (and to the
Trustee if given by the Certificateholders) may declare that a pay out event (a
"Series 1996-A Pay Out Event") has occurred as of the date of such notice, and
in the case of any event described in subsection 9(c), (d) or (f) hereof, a
Series 1996-A Pay Out Event shall occur without any notice or other action on
the part of the Trustee or the Investor Certificateholders immediately upon the
occurrence of such event.
SECTION 10. Series 1996-A Termination. The right of the Investor
---------------------------
Certificateholders to receive payments from the Trust will terminate on the
first Business Day following the Series 1996-A Termination Date.
SECTION 11. Counterparts. This Series Supplement may be executed in
------------
any number of counterparts, each of which so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same instrument.
SECTION 12. Periodic Finance Charges and Other Fees. The Transferor
----------------------------------------
hereby agrees that, except as otherwise required by any Requirement of Law, or
as is deemed by the Transferor to be necessary in order for the Transferor to
maintain its credit card business, based upon a good faith assessment by the
Transferor, in its sole discretion, of the nature of the competition in the
credit card business, it shall not at any time reduce the Periodic Finance
Charges assessed on any Receivable or other fees on any Account if, as a result
of such reduction, the Transferor's reasonable expectation of the Portfolio
Yield as of such date would be less than the then Base Rate.
49
<PAGE>
SECTION 13. Governing Law. THIS SERIES SUPPLEMENT SHALL BE
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 14. No Petition. The Transferor, the Servicer and the
------------
Trustee, by entering into this Series Supplement and each Investor
Certificateholder, by accepting a Series 1996-A Certificate hereby covenant and
agree that they will not at any time institute against the Trust, or join in any
institution against the Trust of, any bankruptcy proceedings under any United
States Federal or state bankruptcy or similar law in connection with any
obligations relating to the Investor Certificateholders, the Agreement or this
Series Supplement.
SECTION 15. Tax Representation and Covenant. Any holder of an
----------------------------------
interest in the Trust acquired pursuant to Section 12.01(b) in respect of the
Series 1996-A Certificates shall be required to represent and covenant in
connection with such acquisition that (x) it has neither acquired, nor will it
sell, trade or transfer any interest in the Trust or cause any interest in the
Trust to be marketed on or through either (i) an "established securities market"
within the meaning of Code section 7704 (b) (1), including without limitation an
interdealer quotation system that regularly disseminates firm buy or sell
quotations by identified brokers or dealers by electronic means or otherwise or
(ii) a "secondary market (or the substantial equivalent thereof)" within the
meaning of Code section 7704(b) (2), including a market wherein interests in the
Trust are regularly quoted by any person making a market in such interests and a
market wherein any person regularly makes available bid or offer quotes with
respect to interests in the Trust and stands ready to effect buy or sell
transactions at the quoted prices for itself or on behalf of others, (y) unless
the Transferor consents otherwise, such holder (i) is properly classified as,
and will remain classified as, a "corporation" as described in Code section
7701(a)(3) and (ii) is not, and will not become, an S corporation as described
in Code section 1361, and (z) it will (i) cause any participant with respect to
such interest otherwise permitted hereunder to make similar representations and
covenants for the benefit of the Transferor and the Trust and (ii) forward a
copy of such representations and covenants to the Trustee. Each such holder
shall further agree in connection with its acquisition of such interest that, in
the event of any breach of its (or its participant's) representation and
covenant that it (or its participant) is and shall remain classified as a
corporation other than an S corporation, the Transferor shall have the right to
procure a replacement investor to replace such holder (or its participant), and
further that such holder shall take all actions necessary to permit such
replacement investor to succeed to its rights and obligations as a holder (or to
the rights of its participant).
SECTION 16. Certain Tax Related Amendments. In addition to any other
------------------------------
provisions relating to amendments in either the Agreement or this Series
Supplement, this Series Supplement may be amended by the Transferor without the
50
<PAGE>
consent of the Servicer, Trustee or any Investor Certificateholder if the
Transferor provides the Trustee with (i) an Opinion of Counsel to the effect
that such amendment or modification would reduce the risk the Trust would be
treated as taxable as a publicly traded partnership pursuant to Code section
7704 and (ii) a certificate that such amendment or modification would not
materially and adversely affect any Investor Certificateholder; provided,
--------
however, that no such amendment shall be deemed effective without the Trustee's
- -------
consent, if the Trustee's rights, duties and obligations hereunder are thereby
modified.
51
<PAGE>
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee
have caused this Series 1996-A Supplement to be duly executed by their
respective officers as of the day and year first above written.
BANK OF AMERICA NATIONAL
ASSOCIATION,
Transferor and Servicer
By: /s/ Margaret A. Sprude
-----------------------
Name: Margaret A. Sprude
Title: Senior Vice President
FIRST BANK NATIONAL ASSOCIATION,
Trustee
By: /s/ Lynn M. Steiner
--------------------
Name: Lynn M. Steiner
Title: Assistant Vice President
52
<PAGE>
EXHIBIT A-1
FORM OF CERTIFICATE
-------------------
CLASS A
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO BANK OF AMERICA NATIONAL ASSOCIATION OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
No.__ $________
CUSIP NO. _________
BA MASTER CREDIT CARD TRUST
CLASS A FLOATING-RATE
ASSET BACKED CERTIFICATE, SERIES 1996-A
Evidencing an Undivided Interest in a trust, the corpus of which consists of a
portfolio of MasterCard(R) and VISA(R)* credit card receivables generated or
acquired by Bank of America National Association and other assets and interests
constituting the Trust under the Pooling and Servicing Agreement described
below.
- -------------------------------------------------------------------------------
Proceeds from the assets in the related Trust will be the only source of
payments on the Certificates. The Certificates do not represent an
obligation of or interest in the Transferor, BankAmerica Corporation, Bank of
America NT&SA or any of their affiliates. Neither the Certificates nor the
underlying Receivables or other assets of the Trust are insured or guaranteed
by any governmental agency or instrumentality or by BankAmerica Corporation,
Bank of America NT&SA or any of their affiliates.
- -------------------------------------------------------------------------------
- --------------------
* MasterCard(R) and VISA(R) are federally registered servicemarks of MasterCard
International Inc. and of Visa U.S.A. Inc., respectively.
<PAGE>
This certifies that CEDE & CO. (the "Class A Certificateholder") is
the registered owner of an Undivided Interest in a trust (the "Trust"), the
corpus of which consists of a portfolio of receivables (the "Receivables") now
existing or hereafter created and arising in connection with selected MasterCard
and VISA credit card accounts (the "Accounts") of Bank of America National
Association, a national banking association organized and existing under the
laws of the United States of America, all monies due or to become due in payment
of the Receivables (including all Finance Charge Receivables), the right to
certain amounts received as Interchange and Recoveries (if any), the benefits of
the Collateral Interest, all proceeds of the foregoing and the other assets and
interests constituting the Trust pursuant to a Pooling and Servicing Agreement
dated as of July 19, 1996 as supplemented by the Series 1996-A Supplement dated
as of July 19, 1996 (collectively, as amended from time to time, the "Pooling
and Servicing Agreement"), by and between Bank of America National Association
as Transferor (the "Transferor") and as Servicer (the "Servicer"), and First
Bank National Association, as Trustee (the "Trustee"), a summary of certain of
the pertinent provisions of which is set forth herein. To the extent not defined
herein, capitalized terms used herein have the respective meanings assigned to
them in the Pooling and Servicing Agreement.
The Series 1996-A Certificates are issued in two classes, the Class
A Certificates (of which this certificate is one) and the Class B Certificates,
which are subordinated to the Class A Certificates in certain rights of payment
as described herein and in the Pooling and Servicing Agreement.
The Transferor has structured the Pooling and Servicing Agreement
and the Series 1996-A Certificates with the intention that the Series 1996-A
Certificates will qualify under applicable tax law as indebtedness, and each of
the Transferor, the Holder of the Transferor Certificate, the Servicer and each
Series 1996-A Certificateholder (or Series 1996-A Certificate Owner) by
acceptance of its Series 1996-A Certificate (or in the case of a Series 1996-A
Certificate Owner, by virtue of such Series 1996-A Certificate Owner's
acquisition of a beneficial interest therein), agrees to treat and to take no
action inconsistent with the treatment of the Series 1996-A Certificates (or any
beneficial interest therein) as indebtedness for purposes of federal, state,
local and foreign income or franchise taxes and any other tax imposed on or
measured by income. Each Series 1996-A Certificateholder agrees that it will
cause any Series 1996-A Certificate Owner acquiring an interest in a Series
1996-A Certificate through it to comply with the Pooling and Servicing Agreement
as to treatment of the Series 1996-A Certificates as indebtedness for certain
tax purposes.
This Class A 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 Class A
Certificateholder by virtue of the acceptance hereof assents and by which the
Class A Certificateholder is bound.
A-1-2
<PAGE>
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, this Class A Certificate shall
not be entitled to any benefit under the Pooling and Servicing Agreement, or be
valid for any purpose.
A-1-3
<PAGE>
IN WITNESS WHEREOF, Bank of America National Association has caused this
Class A Certificate to be duly executed.
By:__________________________
Authorized Officer
Date: July 19, 1996
A-1-4
<PAGE>
Form of Trustee's Certificate of Authentication
-----------------------------------------------
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Series 1996-A Class A Certificates referred to in
the within-mentioned Pooling and Servicing Agreement.
FIRST BANK NATIONAL ASSOCIATION,
Trustee
By:_____________________________
Authorized Signatory
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE
-------------------
CLASS B
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO BANK OF AMERICA NATIONAL ASSOCIATION OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC
(AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE &
CO., HAS AN INTEREST HEREIN.
No.__ $_________
CUSIP NO. ___________
BA MASTER CREDIT CARD TRUST
CLASS A FLOATING-RATE
ASSET BACKED CERTIFICATE, SERIES 1996-A
Evidencing an Undivided Interest in a trust, the corpus of which consists of a
portfolio of MasterCard(R) and VISA(R)* credit card receivables generated or
acquired by Bank of America National Association and other assets and interests
constituting the Trust under the Pooling and Servicing Agreement described
below.
- -------------------------------------------------------------------------------
Proceeds from the assets in the related Trust will be the only source of
payments on the Certificates. The Certificates do not represent an
obligation of or interest in the Transferor, BankAmerica Corporation, Bank of
America NT&SA or any of their affiliates. Neither the Certificates nor the
underlying Receivables or other assets of the Trust are insured or guaranteed
by any governmental agency or instrumentality or by BankAmerica Corporation,
Bank of America NT&SA or any of their affiliates.
- -------------------------------------------------------------------------------
- --------------------
* MasterCard(R) and VISA(R) are federally registered servicemarks of MasterCard
International Inc. and of Visa U.S.A. Inc., respectively.
<PAGE>
This certifies that CEDE & CO. (the "Class B Certificateholder") is the
registered owner of an Undivided Interest in a trust (the "Trust"), the corpus
of which consists of a portfolio of receivables (the "Receivables") now existing
or hereafter created and arising in connection with selected MasterCard and VISA
credit card accounts (the "Accounts") of Bank of America National Association, a
national banking association organized and existing under the laws of the United
States of America, all monies due or to become due in payment of the Receivables
(including all Finance Charge Receivables), the right to certain amounts
received as Interchange and Recoveries (if any), the benefits of the Collateral
Interest, all proceeds of the foregoing and the other assets and interests
constituting the Trust pursuant to a Pooling and Servicing Agreement dated as of
July 19, 1996 as supplemented by the Series 1996-A Supplement dated as of July
19, 1996 (collectively, as amended from time to time the "Pooling and Servicing
Agreement"), by and between Bank of America National Association as Transferor
(the "Transferor") and as Servicer (the "Servicer"), and First Bank National
Association, as Trustee (the "Trustee"), a summary of certain of the pertinent
provisions of which is set forth herein. To the extent not defined herein,
capitalized terms used herein have the respective meanings assigned to them in
the Pooling and Servicing Agreement.
The Series 1996-A Certificates are issued in two classes, the Class A
Certificates and the Class B Certificates (of which this certificate is one),
which are subordinated to the Class A Certificates in certain rights of payment
as described herein and in the Pooling and Servicing Agreement.
The Transferor has structured the Pooling and Servicing Agreement and the Series
1996-A Certificates with the intention that the Series 1996-A Certificates will
qualify under applicable tax law as indebtedness, and each of the Transferor,
the Holder of the Transferor Certificate, the Servicer and each Series 1996-A
Certificateholder (or Series 1996-A Certificate Owner) by acceptance of its
Series 1996-A Certificate (or in the case of a Series 1996-A Certificate owner,
by virtue of such Series 1996-A Certificate Owner's acquisition of a beneficial
interest therein), agrees to treat and to take no action inconsistent with the
treatment of the Series 1996-A Certificates (or any beneficial interest therein)
as indebtedness for purposes of federal, state, local and foreign income or
franchise taxes and any other tax imposed on or measured by income. Each Series
1996-A Certificateholder agrees that it will cause any Series 1996-A Certificate
owner acquiring an interest in a Series 1996-A Certificate through it to comply
with the Pooling and Servicing Agreement as to treatment of the Series 1996-A
Certificates as indebtedness for certain tax purposes.
This Class B 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 Class B Certificateholder
by virtue of the acceptance hereof assents and by which the Class B
Certificateholder is bound.
A-2-2
<PAGE>
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, this Class B Certificate shall
not be entitled to any benefit under the Pooling and Servicing Agreement, or be
valid for any purpose.
A-2-3
<PAGE>
IN WITNESS WHEREOF, Bank of America National Association has caused
this Class B Certificate to be duly executed.
By:__________________________
Authorized Officer
Date: July 19, 1996
A-2-4
<PAGE>
Form of Trustee's Certificate of Authentication
-----------------------------------------------
CERTIFICATE OF AUTHENTICATION
-----------------------------
This is one of the Series 1996-A Class B Certificates referred to in
the within-mentioned Pooling and Servicing Agreement.
FIRST BANK NATIONAL ASSOCIATION,
Trustee
By:_____________________________
Authorized Signatory
<PAGE>
EXHIBIT B
---------
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND NOTIFICATION
TO THE TRUSTEE
BANK OF AMERICA NATIONAL ASSOCIATION
BA MASTER CREDIT CARD TRUST SERIES 1996-A
MONTHLY PERIOD ENDING _________ __, ____
Capitalized terms used in this notice have their respective meanings
set forth in the Pooling and Servicing Agreement. References herein to certain
sections and subsections are references to the respective sections and
subsections of the Pooling and Servicing Agreement as supplemented by the Series
1996-A Supplement. This notice is delivered pursuant to Section 4.09.
A. BANK OF AMERICA IS THE SERVICER UNDER THE POOLING AND SERVICING
AGREEMENT.
B. THE UNDERSIGNED IS A SERVICING OFFICER.
C. THE DATE OF THIS NOTICE IS ON OR BEFORE THE RELATED TRANSFER DATE
UNDER THE POOLING AND SERVICING AGREEMENT.
I. INSTRUCTION TO MAKE A WITHDRAWAL
Pursuant to Section 4.09, the Servicer does hereby instruct the
Trustee (i) to make withdrawals from the Finance Charge Account, the Principal
Account, and the Principal Funding Account on _________ __, ____, which date is
a Transfer Date under the Pooling and Servicing Agreement, in aggregate amounts
set forth below in respect of the following amounts and (ii) to apply the
proceeds of such withdrawals in accordance with subsection 3(a) of the Series
1996-A Supplement and Section 4.09 of the Pooling and Servicing Agreement:
A. PURSUANT TO SUBSECTION 3(A) OF THE SERIES 1996-A
SUPPLEMENT:
1. SERVICER INTERCHANGE $___________
B. PURSUANT TO SUBSECTION 4.09(A)(I):
1. CLASS A MONTHLY INTEREST AT THE $___________
CLASS A CERTIFICATE RATE ON THE
CLASS A INVESTOR INTEREST
2. CLASS A DEFICIENCY AMOUNT $___________
3. CLASS A ADDITIONAL INTEREST $___________
C. PURSUANT TO SUBSECTION 4.09(A)(II):
1. CLASS A SERVICING FEE $___________
2. ACCRUED AND UNPAID CLASS A $___________
SERVICING FEE
<PAGE>
D. PURSUANT TO SUBSECTION 4.09(A)(III):
1. CLASS A INVESTOR DEFAULT AMOUNT $___________
E. PURSUANT TO SUBSECTION 4.09(A)(IV):
1. PORTION OF EXCESS SPREAD FROM $___________
CLASS A AVAILABLE FUNDS TO BE
ALLOCATED AND DISTRIBUTED AS
PROVIDED IN SECTION 4.11
F. PURSUANT TO SUBSECTION 4.09(B)(I):
1. CLASS B MONTHLY INTEREST AT THE $___________
CLASS B CERTIFICATE RATE ON THE
CLASS B INVESTOR INTEREST
2. CLASS B DEFICIENCY AMOUNT $___________
3. CLASS B ADDITIONAL INTEREST $___________
G. PURSUANT TO SUBSECTION 4.09(B)(II):
1. CLASS B SERVICING FEE $___________
2. ACCRUED AND UNPAID CLASS B $___________
SERVICING FEE
H. PURSUANT TO SUBSECTION 4.09(B)(III):
1. PORTION OF EXCESS SPREAD FROM $___________
CLASS B AVAILABLE FUNDS TO BE
ALLOCATED AND DISTRIBUTED AS
PROVIDED IN SECTION 4.11
I. PURSUANT TO SUBSECTION 4.09(C)(I):
1. COLLATERAL INTEREST SERVICING FEE, $___________
IF APPLICABLE
2. ACCRUED AND UNPAID COLLATERAL $___________
INTEREST SERVICING FEE, IF
APPLICABLE
J. PURSUANT TO SUBSECTION 4.09(C)(II):
1. PORTION OF EXCESS SPREAD FROM $___________
COLLATERAL AVAILABLE FUNDS TO BE
ALLOCATED AND DISTRIBUTED AS
PROVIDED IN SECTION 4.11
TOTAL $
===========
B-2
<PAGE>
K. PURSUANT TO SUBSECTION 4.09(D)(I):
1. AMOUNT TO BE TREATED AS SHARED $___________
EXCESS PRINCIPAL COLLECTIONS
L. PURSUANT TO SUBSECTION 4.09(D)(II):
1. AMOUNT TO BE PAID TO THE HOLDER OF $___________
THE TRANSFEROR CERTIFICATE
2. UNALLOCATED PRINCIPAL COLLECTIONS $___________
M. PURSUANT TO SUBSECTION 4.09(E)(I):
1. CLASS A MONTHLY PRINCIPAL $___________
N. PURSUANT TO SUBSECTION 4.09(E)(II):
1. CLASS B MONTHLY PRINCIPAL $___________
O. PURSUANT TO SUBSECTION 4.09(E)(III)
1. COLLATERAL MONTHLY PRINCIPAL TO BE $___________
APPLIED IN ACCORDANCE WITH THE
LOAN AGREEMENT
P. PURSUANT TO SUBSECTION 4.09(E)(IV):
1. AMOUNT TO BE TREATED AS SHARED $___________
EXCESS PRINCIPAL COLLECTIONS
Q. PURSUANT TO SUBSECTION 4.09(E)(V):
1. AMOUNT TO BE PAID TO THE HOLDER OF $___________
THE TRANSFEROR CERTIFICATE
2. UNALLOCATED PRINCIPAL COLLECTIONS $___________
TOTAL $
===========
R. PURSUANT TO SUBSECTION 4.09(F):
1. AMOUNT TO BE WITHDRAWN FROM THE $___________
PRINCIPAL FUNDING ACCOUNT AND
DEPOSITED INTO THE DISTRIBUTION
ACCOUNT
S. PURSUANT TO SECTION 4.13:
1. AMOUNT OF SHARED EXCESS FINANCE $___________
CHARGE COLLECTIONS TO BE WITHDRAWN
FROM THE FINANCE CHARGE ACCOUNT TO
BE ALLOCATED TO SERIES 1996-A AND
DISTRIBUTED AS PROVIDED IN SECTION
4.11.
B-3
<PAGE>
II. INSTRUCTION TO MAKE CERTAIN PAYMENTS
PURSUANT TO SECTION 4.09, THE SERVICER DOES HEREBY INSTRUCT THE
TRUSTEE TO PAY IN ACCORDANCE WITH SECTION 5.01 FROM THE DISTRIBUTION ACCOUNT
ON _________ __, ____, WHICH DATE IS A DISTRIBUTION DATE UNDER THE POOLING AND
SERVICING AGREEMENT, AMOUNTS SO DEPOSITED IN THE DISTRIBUTION ACCOUNT PURSUANT
TO SECTION 4.09 AS SET FORTH BELOW:
A. PURSUANT TO SUBSECTION 4.09(G);
1. AMOUNT TO BE DISTRIBUTED TO CLASS $___________
A CERTIFICATEHOLDERS
2. AMOUNT TO BE DISTRIBUTED TO CLASS $___________
B CERTIFICATEHOLDERS
B. PURSUANT TO SUBSECTION 4.09(H)(I):
1. AMOUNT TO BE DISTRIBUTED TO THE $___________
CLASS A CERTIFICATEHOLDERS
C. PURSUANT TO SUBSECTION 4.09(H)(II):
1. AMOUNT TO BE DISTRIBUTED TO THE $___________
CLASS B CERTIFICATEHOLDERS
III. APPLICATION OF EXCESS SPREAD
PURSUANT TO SECTION 4.11, THE SERVICER DOES HEREBY INSTRUCT THE TRUSTEE
TO APPLY THE EXCESS SPREAD WITH RESPECT TO THE RELATED MONTHLY PERIOD AND TO
MAKE THE FOLLOWING DISTRIBUTIONS IN THE FOLLOWING PRIORITY:
A. THE AMOUNT EQUAL TO THE CLASS A REQUIRED $___________
AMOUNT, IF ANY, WHICH WILL BE USED TO
FUND THE CLASS A REQUIRED AMOUNT AND BE
APPLIED IN ACCORDANCE WITH, AND IN THE
PRIORITY SET FORTH IN, SUBSECTION 4.09(A)
B. THE AMOUNT EQUAL TO THE AGGREGATE AMOUNT $___________
OF CLASS A INVESTOR CHARGE-OFFS WHICH HAVE
NOT BEEN PREVIOUSLY REIMBURSED (AFTER GIVING
EFFECT TO THE ALLOCATION ON SUCH TRANSFER
DATE OF CERTAIN OTHER AMOUNTS APPLIED FOR
THAT PURPOSE) WHICH WILL BE TREATED AS A
PORTION OF INVESTOR PRINCIPAL COLLECTIONS AND
DEPOSITED INTO THE PRINCIPAL ACCOUNT ON SUCH
TRANSFER DATE
B-4
<PAGE>
C. THE AMOUNT EQUAL TO THE CLASS B REQUIRED $___________
AMOUNT, IF ANY, WHICH WILL BE USED TO
FUND THE CLASS B REQUIRED AMOUNT AND BE
APPLIED FIRST IN ACCORDANCE WITH, AND
IN THE PRIORITY SET FORTH IN, SUBSECTION
4.09(B) AND THEN ANY AMOUNT AVAILABLE
TO PAY THE CLASS B INVESTOR DEFAULT AMOUNT
SHALL BE TREATED AS A PORTION OF INVESTOR
PRINCIPAL COLLECTIONS AND DEPOSITED INTO
THE PRINCIPAL ACCOUNT
D. THE AMOUNT EQUAL TO THE AGGREGATE AMOUNT BY $___________
WHICH THE CLASS B INVESTOR INTEREST HAS BEEN
REDUCED BELOW THE INITIAL CLASS B INVESTOR
INTEREST FOR REASONS OTHER THAN THE PAYMENT
OF PRINCIPAL TO THE CLASS B CERTIFICATEHOLDERS
(BUT NOT IN EXCESS OF THE AGGREGATE AMOUNT OF
SUCH REDUCTIONS WHICH HAVE NOT BEEN PREVIOUSLY
REIMBURSED) WHICH WILL BE TREATED AS A PORTION
OF INVESTOR PRINCIPAL COLLECTIONS AND DEPOSITED
INTO THE PRINCIPAL ACCOUNT
E. THE AMOUNT EQUAL TO THE COLLATERAL MONTHLY $___________
INTEREST PLUS THE AMOUNT OF ANY PAST DUE
----
COLLATERAL MONTHLY INTEREST WHICH WILL BE
PAID TO THE COLLATERAL INTEREST HOLDER FOR
APPLICATION IN ACCORDANCE WITH THE LOAN
AGREEMENT
F. THE AMOUNT EQUAL TO THE AGGREGATE AMOUNT OF $___________
ACCRUED BUT UNPAID COLLATERAL INTEREST
SERVICING FEES WHICH WILL BE PAID TO THE
SERVICER IF THE TRANSFEROR OR AN ACCEPTABLE
SUCCESSOR SERVICER IS THE SERVICER,
G. THE AMOUNT EQUAL TO THE COLLATERAL DEFAULT $___________
AMOUNT, IF ANY, FOR THE PRIOR MONTHLY PERIOD
WHICH WILL BE TREATED AS A PORTION OF INVESTOR
PRINCIPAL COLLECTIONS AND DEPOSITED INTO
THE PRINCIPAL ACCOUNT
B-5
<PAGE>
H. THE AMOUNT EQUAL TO THE AGGREGATE AMOUNT BY $___________
WHICH THE COLLATERAL INTEREST HAS BEEN
REDUCED BELOW THE REQUIRED COLLATERAL
INTEREST FOR REASONS OTHER THAN
THE PAYMENT OF PRINCIPAL TO THE COLLATERAL
INTEREST HOLDER (BUT NOT IN EXCESS OF THE
AGGREGATE AMOUNT OF SUCH REDUCTIONS WHICH
HAVE NOT BEEN PREVIOUSLY REIMBURSED) WHICH
WILL BE TREATED AS A PORTION OF INVESTOR
PRINCIPAL COLLECTIONS AND DEPOSITED INTO
THE PRINCIPAL ACCOUNT
I. ON EACH TRANSFER DATE FROM AND AFTER THE $___________
RESERVE ACCOUNT FUNDING DATE, BUT PRIOR
TO THE DATE ON WHICH THE RESERVE ACCOUNT
TERMINATES AS DESCRIBED IN SUBSECTION
4.16(F), THE AMOUNT UP TO THE EXCESS,
IF ANY, OF THE REQUIRED RESERVE ACCOUNT
AMOUNT OVER THE AVAILABLE RESERVE ACCOUNT
AMOUNT WHICH SHALL BE DEPOSITED INTO THE
RESERVE ACCOUNT
J. THE BALANCE, IF ANY, AFTER GIVING EFFECT $___________
TO THE PAYMENTS MADE PURSUANT TO
SUBPARAGRAPHS (A) THROUGH (I) ABOVE WHICH
SHALL BE DEPOSITED INTO THE DISTRIBUTION
ACCOUNT AND APPLIED IN ACCORDANCE WITH
THE PROVISIONS OF THE LOAN AGREEMENT
IV. REALLOCATED PRINCIPAL COLLECTIONS
PURSUANT TO SECTION 4.12, THE SERVICER DOES HEREBY INSTRUCT THE TRUSTEE
TO WITHDRAW FROM THE PRINCIPAL ACCOUNT AND APPLY REALLOCATED PRINCIPAL
COLLECTIONS PURSUANT TO SECTION 4.12 WITH RESPECT TO THE RELATED MONTHLY PERIOD
IN THE FOLLOWING AMOUNTS:
A. REALLOCATED COLLATERAL PRINCIPAL RECEIVABLES $___________
B. REALLOCATED CLASS B PRINCIPAL RECEIVABLES $___________
B-6
<PAGE>
V. ACCRUED AND UNPAID AMOUNTS
AFTER GIVING EFFECT TO THE WITHDRAWALS AND TRANSFERS TO BE MADE IN
ACCORDANCE WITH THIS NOTICE, THE FOLLOWING AMOUNTS WILL BE ACCRUED AND UNPAID
WITH RESPECT TO ALL MONTHLY PERIODS PRECEDING THE CURRENT CALENDAR MONTH
A. SUBSECTIONS 4.09(A)(I) AND (B)(I):
(1) THE AGGREGATE AMOUNT OF THE CLASS A $___________
DEFICIENCY AMOUNT
(2) THE AGGREGATE AMOUNT OF CLASS B $___________
DEFICIENCY AMOUNT
B. SUBSECTIONS 4.09(A)(II) AND (B)(II):
THE AGGREGATE AMOUNT OF ALL ACCURED AND $___________
UNPAID INVESTOR MONTHLY SERVICING FEES
C. SECTION 4.10:
THE AGGREGATE AMOUNT OF ALL UNREIMBURSED $___________
INVESTOR CHARGE OFFS
B-7
<PAGE>
IN WITNESS WHEREOF, THE UNDERSIGNED HAS DULY EXECUTED THIS
CERTIFICATE THIS __TH DAY OF __________, ____.
BANK OF AMERICA NATIONAL
ASSOCIATION
TRANSFEROR AND SERVICER
By:_________________________
Name:
Title:
B-8
<PAGE>
EXHIBIT C
---------
FORM OF MONTHLY SERIES 1996-A CERTIFICATEHOLDERS' STATEMENT
-----------------------------------------------------------
Series 1996-A
BANK OF AMERICA NATIONAL ASSOCIATION
---------------------------------------------
BA MASTER CREDIT CARD TRUST
---------------------------------------------
The information which is required to be prepared with respect to the
distribution date of ______ __, ____ and with respect to the performance of the
Trust during the related Monthly Period.
Capitalized terms used in this Statement have their respective meanings
set forth in the Pooling and Servicing Agreement.
A. Information Regarding the Current Monthly Distribution (Stated on the
---------------------------------------------------------------------
Basis of $1,000 Original Certificate Principal Amount)
------------------------------------------------------
1. The amount of the current monthly distribution in respect
of Clas A Monthly Principal $__________
2. The amount of the current monthly distribution in respect
of Class B Monthly Principal $__________
3. The amount of the current monthly distribution in respect
of Collateral Monthly Principal $__________
4. The amount of the current monthly distribution in respect
of Class A Monthly Interest $__________
5. The amount of the current monthly distribution in respect
of Class A Deficiency Amounts $__________
6. The amount of the current monthly distribution in respect
of Class A Additional Interest $__________
7. The amount of the current monthly distribution in respect
of Class B Monthly Interest
<PAGE>
8. The amount of the current monthly distribution in respect
of Class B Deficiency Amounts $__________
9. The amount of the current monthly distribution in respect
of Class B Additional Interest $__________
10. The amount of the current monthly distribution in respect
of Collateral Monthly Interest $__________
11. The amount of the current monthly distribution in respect
of any accrued and unpaid Collateral Monthly Interest $__________
B. Information Regarding the Performance of the Trust
--------------------------------------------------
1. Collection of Principal Receivables
-----------------------------------
(a) The aggregate amount of Collections of Principal
Receivables processed during the related Monthly
Period which were allocated in respect of the
Class A Certificates $__________
(b) The aggregate amount of Collections of Principal
Receivables processed during the related Monthly
Period which were allocated in respect of the
Class B Certificates $__________
(c) The aggregate amount of Collections of Principal
Receivables processed during the related Monthly
Period which were allocated in respect of the
Collateral Interest $__________
2. Principal Receivables in the Trust
----------------------------------
(a) The aggregate amount of Principal Receivables
in the Trust as of the end of the day on the
last day of the related Monthly Period $__________
(b) The amount of Principal Receivables in the
Trust represented by the Investor Interest
of Series 1996-A as of the end of the day
on the last day of the related Monthly Period $__________
C-2
<PAGE>
(c) The amount of Principal Receivables in the
Trust represented by the Series 1996-A
Adjusted Investor Interest as of the end of
the day on the last day of the related
Monthly Period $__________
(d) The amount of Principal Receivables in the
Trust represented by the Class A Investor
Interest as of the end of the day on the
last day of the related Monthly Period $__________
(e) The amount of Principal Receivables in the
Trust represented by the Class A Adjusted
Investor interest as of the end of day on
the last day of the related Monthly Period $__________
(f) The amount of Principal Receivables in the
Trust represented by the Class B Investor
Interest as of the end of the day on the
last day of the related Monthly Period $__________
(g) The amount of Principal Receivables in the
Trust represented by the Collateral Interest
as of the end of the day on the last day of
the related Monthly Period $__________
(h) The Floating Investor Percentage with respect
to the related Monthly Period ____%
(i) The Class A Floating Allocation with respect
to the related Monthly Period ____%
(j) The Class B Floating Allocation with respect
to the related Monthly Period ____%
(k) The Collateral Floating Allocation with respect
to the related Monthly Period ____%
(l) The Fixed Investor Percentage with respect to the
related Monthly Period ____%
C-3
<PAGE>
(m) The Class A Fixed Allocation with respect to the
related Monthly Period ____%
(n) The Class B Fixed Allocation with respect to the
related Monthly Period ____%
(o) The Collateral Fixed Allocation with respect to
the related Monthly Period ____%
RESPECT TO THE RELATED MONTHLY PERIOD
3. Delinquent Balances
-------------------
The aggregate amount of outstanding balances in the Accounts which
were delinquent as of the end of the day on the last day of the
related Monthly Period:
Aggregate Percentage
Account of Total
Balance Receivables
--------- -----------
(a) 30 - 59 days: $__________ ____%
(b) 60 - 89 days: $__________ ____%
(c) 90 - or more days: $__________ ____%
Total: $__________ ____%
4. Investor Default Amount
-----------------------
(a) The Aggregate Investor Default Amount for
the related Monthly Period $__________
(b) The Class A Investor Default Amount for
the related Monthly Period $__________
(c) The Class B Investor Default Amount for
related Monthly Period $__________
(d) The Collateral Default Amount for the
related Monthly Period $__________
5. Investor Charge Offs
--------------------
(a) The aggregate amount of Class A Investor
Charge Offs for the related Monthly Period $__________
(b) The aggregate amount of Class A Investor
Charge Offs set forth in 5(a) above per
$1,000 of original certificate principal
amount $__________
C-4
<PAGE>
(c) The aggregate amount of Class B Investor
Charge Offs for the related Monthly Period $__________
(d) The aggregate amount of Class B Investor
Charge Off set forth in 5(c) above per
$1,000 of original certificate principal
amount $__________
(e) The aggregate amount of Collateral
Charge Offs for the related Monthly
Period $__________
(f) The aggregate amount of Collateral
Charge Offs set forth in 5(e) above
per $1,000 of original certificate
principal amount $__________
(g) The aggregate amount of Class A
Investor Charge Offs reimbursed on
the Transfer Date immediately
preceding this Distribution Date $__________
(h) The aggregate amount of Class A
Investor Charge Offs set forth in
5(g) above per $1,000 original
certificate principal amount
reimbursed on the Transfer Date
immediately preceding this
Distribution Date $__________
(i) The aggregate amount of Class B
Investor Charge Offs reimbursed on
the Transfer Date immediately
preceding this Distribution Date $__________
(j) The aggregate amount of Class b
Investor Charge Offs set forth in
5(i) above per $1,000 original
certificate principal amount
reimbursed on the Transfer Date
immediately preceding this
Distribution Date $__________
(k) The aggregate amount of Collateral
Charge Offs reimbursed on the
Transfer Date immediately preceding
this Distribution Date $__________
C-5
<PAGE>
(l) The aggregate amount of Collateral
Charge Offs set forth in 5(k) above
per $1,000 original certificate
principal amount reimbursed on the
Transfer Date immediately preceding
Distribution Date $__________
6. Investor Servicing Fee
----------------------
(a) The amount of the Class A Servicing
Fee payable by the Trust to the
Servicer for the related Monthly Period $__________
(b) The amount of the Class B Servicing
Fee payable by the Trust to the
Servicer for the related Monthly Period $__________
(c) The amount of the Collateral Servicing
Fee payable by the Trust to the Servicer
for the related Monthly Period $__________
(d) The amount of Servicer Interchange payable
by the Trust to the Servicer for the
related Monthly Period $__________
7. Reallocations
-------------
(a) The amount of Reallocated Collateral Principal
Collections with respect to this Distribution
Date $__________
(b) The amount of Reallocated Class B Principal
Collections with respect to this Distribution
Date $__________
(c) The Collateral Interest as of the close of
business on this Distribution Date $__________
(d) The Class B Investor Interest as of the close
of business on this Distribution Date $__________
8. Collection of Finance Charge Receivables
----------------------------------------
(a) The aggregate amount of Collections of Finance
Charge Receivables processed during the related
Monthly Period which were allocated in respect
of the Class A Certificates $__________
C-6
<PAGE>
(b) The aggregate amount of Collections of Finance
Charge Receivables processed during the related
Monthly Period which were allocated in respect
of the Class B Certificates $__________
(c) The aggregate amount of Collections of Finance
Charge Receivables processed during the related
Monthly Period which were allocated in respect
of the Collateral Interest $__________
9. Principal Funding Account
-------------------------
(a) The principal amount on deposit in the Principal
Funding Account on the related Transfer Date $__________
(b) The Accumulation Shortfall with respect to the
related Monthly Period $__________
(c) The Principal Funding Investment Proceeds
deposited in the Finance Charge Account on
the related Transfer Date $__________
(d) The Principal Funding Investment Shortfall $__________
(e) The amount of all or the portion of the
Reserve Draw Amount deposited in the
Finance Charge Account on the related
Transfer Date from the Reserve Account $__________
10. Reserve Draw Amount $__________
-------------------
11. Available Funds
---------------
(a) The amount of Class A Available Funds on deposit
in the Finance Charge Account on the related
Transfer Date $__________
(b) The amount of Class B Available Funds on deposit
in the Finance Charge Account on the related
Transfer Date $__________
C-7
<PAGE>
(c) The amount of Collateral Available Funds on
deposit in the Finance Charge Account on the
related Transfer Date $__________
12. Portfolio Yield
---------------
(a) The Portfolio Yield for the related Monthly
Period ____%
(b) The Portfolio Adjusted Yield for the related
Monthly Period ____%
C. Floating-Rate Determinations
----------------------------
1. LIBOR for the Interest Period ending on this
Distribution Date ____%
BANK OF AMERICA NATIONAL
ASSOCIATION
TRANSFEROR AND SERVICER
By:_________________________
Name:
Title:
C-8
<PAGE>
SCHEDULE TO EXHIBIT C
---------------------
SCHEDULE TO MONTHLY SERVICER'S CERTIFICATE
MONTHLY PERIOD ENDING _________ __, ____
BANK OF AMERICA NATIONAL ASSOCIATION
BA MASTER CREDIT CARD TRUST SERIES 1996-A
1. THE AGGREGATE AMOUNT OF THE INVESTOR PERCENTAGE OF $__________
COLLECTIONS OF PRINCIPAL RECEIVABLES
2. THE AGGREGATE AMOUNT OF THE INVESTOR PERCENTAGE $__________
OF COLLECTIONS OF FINANCE CHARGE RECEIVABLES
(EXCLUDING INTERCHANGE)
3. THE AGGREGATE AMOUNT OF THE INVESTOR PERCENTAGE $__________
OF INTERCHANGE
4. THE AGGREGATE AMOUNT OF SERVICER INTERCHANGE $__________
5. THE AGGREGATE AMOUNT OF FUNDS ON DEPOSIT IN FINANCE $__________
CHARGE ACCOUNT ALLOCABLE TO THE SERIES 1996-A
CERTIFICATES
6. THE AGGREGATE AMOUNT OF FUNDS ON DEPOSIT IN THE $__________
PRINCIPAL ACCOUNT ALLOCABLE TO THE SERIES 1996-A
CERTIFICATES
7. THE AGGREGATE AMOUNT OF FUNDS ON DEPOSIT IN THE $__________
PRINCIPAL FUNDING ACCOUNT ALLOCABLE TO THE SERIES
1996-A CERTIFICATES
8. THE AGGREGATE AMOUNT TO BE WITHDRAWN FROM THE FINANCE $__________
CHARGE ACCOUNT AND PAID IN ACCORDANCE WITH THE LOAN
AGREEMENT PURSUANT TO SECTION
9. THE EXCESS, IF ANY, OF THE REQUIRED COLLATERAL $__________
INTEREST OVER THE COLLATERAL INTEREST
10. THE COLLATERAL INTEREST ON THE TRANSFER DATE OF $__________
THE CURRENT CALENDAR MONTH, AFTER GIVING EFFECT
TO THE DEPOSITS AND WITHDRAWALS SPECIFIED ABOVE,
IS EQUAL TO
11. THE AMOUNT OF MONTHLY INTEREST, DEFICIENCY AMOUNTS
AND ADDITIONAL INTEREST PAYABLE TO THE
(i) Class A Certificateholders $__________
(ii) Class B Certificateholders $__________
(iii) Collateral Interest Holder $__________
<PAGE>
12. THE AMOUNT OF PRINCIPAL PAYABLE TO THE
(i) Class A Certificateholders $__________
(ii) Class B Certificateholders $__________
(iii) Collateral Interest Holder $__________
13. THE SUM OF ALL AMOUNTS PAYABLE TO THE
(i) Class A Certificateholders $__________
(ii) Class B Certificateholders $__________
(iii) Collateral Interest Holder $__________
14. TO THE KNOWLEDGE OF THE UNDERSIGNED, NO SERIES 1996-A PAY
OUT EVENT OR TRUST PAY OUT EVENT HAS OCCURRED EXCEPT AS
DESCRIBED BELOW:
NONE
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Certificate this __th day of __________, ____.
BANK OF AMERICA NATIONAL
ASSOCIATION
TRANSFEROR AND SERVICER
By:_______________________
Name:
Title:
S-2
