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
Date of report (Date of earliest event reported):
September 9, 1999
THE FIRST NATIONAL BANK OF ATLANTA
(Originator of the Wachovia Credit Card Master Trust)
(Exact Name of Registrant as Specified in Charter)
WACHOVIA CREDIT CARD MASTER TRUST
(Issuer of Certificates)
(Exact Name of Registrant as Specified in Charter)
UNITED STATES 33-95714 22-2716130
UNITED STATES 33-99442 22-2716130
UNITED STATES 333-79453 22-2716130
(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
77 Read's Way
New Castle Corporate Commons
New Castle, Delaware 19720
(Address of Principal Executive Offices)
Registrant's telephone number, including area code: (302) 323-2395
ITEM 5. OTHER EVENTS
On September 9, 1999, The First National Bank of Atlanta, Credit Suisse
First Boston Corporation and Wachovia Securities, Inc. entered into an
underwriting agreement, pursuant to which The First National Bank of
Atlanta duly authorized Credit Suisse First Boston Corporation and Wachovia
Securities, Inc. (as representatives of the several underwriters) to issue
and sell $432,500,000 in principal amount of Class A Floating Rate Asset
Backed Certificates, Series 1999-2 and $30,000,000 in principal amount of
Class B Floating Rate Asset Backed Certificates, Series 1999-2 of Wachovia
Credit Card Master Trust.
On September 21, 1999, The First National Bank of Atlanta, as transferor
and servicer, and The Bank of New York (Delaware), as trustee, executed and
delivered the Series 1999-2 Supplement to the Amended and Restated Pooling
and Servicing Agreement, dated as of June 4, 1999.
On September 21, 1999, Wachovia Bank, N.A. and The Bank of New York
(Delaware), as trustee, received the requested tax opinion from legal
counsel concerning the Class A Floating Rate Asset Backed Certificates,
Series 1999-2, the Class B Floating Rate Asset Backed Certificate, Series
1999-2, and the Wachovia Credit Card Master Trust.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL STATEMENTS AND EXHIBITS
(c) Exhibits
4.1 Underwriting Agreement, dated as of September 9, 1999,
between The First National Bank of Atlanta, and Credit
Suisse First Boston Corporation and Wachovia Securities,
Inc. as representatives of the several underwriters.
4.2 Series 1999-2 Supplement, dated as of September 21, 1999,
to the Amended and Restated Pooling and Servicing
Agreement, dated as of June 4, 1999, between The First
National Bank of Atlanta, as transferor and servicer, and
The Bank of New York (Delaware), as trustee.
4.3 Tax Opinion of legal counsel, dated as of September 21,
1999, concerning the Class A Floating Rate Asset Backed
Certificates, Series 1999-2, the Class B Floating Rate
Asset Backed Certificate, Series 1999-2, and the Wachovia
Credit Card Master Trust.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
THE FIRST NATIONAL BANK OF ATLANTA
_______________________________________________
(Originator of the Wachovia Credit Card Master Trust)
(Registrant)
Dated: September 21, 1999 By: /s/ Donald K. Truslow
________________________
Name: Donald K. Truslow
Title: Controller
Exhibit 4.1
WACHOVIA CREDIT CARD MASTER TRUST
SERIES 1999-2
Class A Floating Rate Asset Backed Certificates,
Series 1999-2
Class B Floating Rate Asset Backed Certificates,
Series 1999-2
UNDERWRITING AGREEMENT
September 9, 1999
Credit Suisse First Boston Corporation,
Wachovia Securities, Inc.
As Representatives of the
Several Underwriters
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010
Ladies and Gentlemen:
1. Introductory. The First National Bank of Atlanta, a national
banking association (the "Bank" or the "Transferor"), has duly authorized
the issuance and sale to Credit Suisse First Boston Corporation and
Wachovia Securities, Inc. as representatives of the several underwriters
(the "Representatives") of $432,500,000 principal amount of Class A
Floating Rate Asset Backed Certificates, Series 1999-2 (the "Class A
Certificates") and $30,000,000 principal amount of Class B Floating Rate
Asset Backed Certificates, Series 1999-2 (the "Class B Certificates" and,
collectively with the Class A Certificates, the "Certificates")) of
Wachovia Credit Card Master Trust (the "Trust"). The Certificates will be
issued pursuant to (a) an Amended and Restated Pooling and Servicing
Agreement between the Bank, as Transferor and as Servicer, and The Bank of
New York (Delaware), as Trustee, dated as of June 4, 1999 (the "P&S
Agreement") and (b) the Series 1999-2 Supplement to the P&S Agreement, to
be dated as of September 21, 1999 (the "Supplement" and, together with the
P&S Agreement, the "Pooling and Servicing Agreement"), between the Bank and
the Trustee. The Transferor will enter into a Loan Agreement among the
Bank, as Transferor and Servicer, the Trustee, as Trustee and as Collateral
Agent, and the Agent and Collateral Investors identified therein, to be
dated as of September 21, 1999 (the "Loan Agreement"). Each Certificate
represents a specified percentage undivided interest in the Trust.
This Underwriting Agreement shall hereinafter be referred to as
this "Agreement." This Agreement, the Pooling and Servicing Agreement and
the Loan Agreement shall collectively hereinafter be referred to as the
"Basic Documents." Capitalized terms used but not defined herein have the
meanings assigned in the Pooling and Servicing Agreement. The Transferor
hereby agrees with the several Underwriters named in Schedule A hereto
("Underwriters") as follows:
2. Representations and Warranties of the Transferor. The
Transferor represents and warrants to, and agrees with, the several
Underwriters that:
(a) A registration statement on Form S-3 (No. 333-79453),
including a prospectus and such amendments thereto as may have been
required to the date hereof, relating to the Certificates and the
offering thereof from time to time in accordance with Rule 415 under
the Securities Act of 1933, as amended (the "Act"), has been filed
with the Securities and Exchange Commission ("Commission") and such
registration statement, as amended, has become effective; such
registration statement, as amended, and the prospectus relating to
the sale of the Certificates offered thereby constituting a part
thereof, as from time to time amended or supplemented (including the
base prospectus and any prospectus supplement filed with the
Commission pursuant to Rule 424(b) of the rules and regulations of
the Commission (the "Rules and Regulations") under the Act), are
respectively referred to herein as the "Registration Statement" and
the "Prospectus"; provided, however, that a supplement to the
Prospectus prepared pursuant to Section 5(a) hereof shall be deemed
to have supplemented the Prospectus only with respect to the offering
of the Certificates; and the conditions to the use of a registration
statement on Form S-3 under the Act, as set forth in the General
Instructions on Form S-3, and the conditions of Rule 415 under the
Act, have been satisfied with respect to the Registration Statement;
(b) 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, and did not include any untrue statement of a material
fact or, in the case of the Registration Statement, omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and, in the case of the
Prospectus, omit to state any material fact necessary to make the
statements therein, in light of the circumstances under which they
were made, not misleading, and on the date of this Agreement, 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 included or will include
any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the
foregoing does not apply to statements in or omissions from the
Registration Statement or the Prospectus based upon written
information furnished to the Transferor by the Underwriters
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b).
(c) The Transferor is a national banking association duly
organized and validly existing in good standing under the laws of the
United States, with full power, authority and legal right to own its
properties and conduct its business as described in the Prospectus;
is duly qualified to do business and is in good standing (or is
exempt from such requirements) and has obtained all necessary
licenses and approvals (except with respect to the state securities
or Blue Sky laws of various jurisdictions) in each jurisdiction in
which failure to so qualify or obtain such licenses and approvals
would have a material adverse effect on the interests of
Certificateholders under the Pooling and Servicing Agreement.
(d) 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 Transferor of the transactions
contemplated by this Agreement in connection with the issuance and
sale of the Certificates by the Transferor, 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 or as otherwise
provided in the Basic Documents.
(e) The Transferor is not in violation of its Articles of
Association or Bylaws 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 are bound which would have a material adverse effect on
the transactions contemplated in the Basic Documents. The execution,
delivery and performance of the Basic Documents and the issuance and
sale of the Certificates and compliance with the terms and provisions
thereof will not result in a material breach or violation of any of
the terms and provisions of, or constitute a default under, any
statute, rule, regulation or order of any governmental agency or body
or any court, domestic or foreign, having jurisdiction over the
Transferor or any of its properties, or any material agreement or
instrument to which the Transferor is a party or by which the
Transferor is bound or to which any of the properties of the
Transferor is subject, or the Articles of Association or Bylaws of
the Transferor, and the Transferor has full power and authority to
authorize, issue and sell the Certificates as contemplated by this
Agreement and the Transferor has full power and authority to enter
into the Basic Documents to which it is a party.
(f) As of the Closing Date, the representations and
warranties of the Transferor in the Basic Documents to which it is a
party will be true and correct in all material respects.
(g) This Agreement has been duly authorized, executed and
delivered by the Transferor.
(h) The Transferor has authorized the Trust to issue and
sell the Certificates.
(i) Wachovia Corporation (the "Company") has delivered to
you complete and correct copies of publicly available portions of the
Consolidated Reports of Condition and Income of the Transferor for
the three most recent years for which such reports are available, as
submitted to the Comptroller of the Currency; except as set forth in
or contemplated in the Registration Statement and the Prospectus,
there has been no material adverse change in the condition (financial
or otherwise) of the Company since the last such report;
(j) The Company has delivered to you complete and correct
copies of Form 10-Q for the second quarter of 1999 and Form 10-K for
1998. Except as set forth in or contemplated in a Registration
Statement and the Prospectus, there has been no material adverse
change, nor any development or event involving a prospective material
adverse change, in the condition (financial or otherwise) of either
the Transferor or the Company or the credit card business of the
Company or its Affiliates since the date of the information provided
pursuant to the preceding sentence.
(k) Any taxes, fees and other governmental charges due
and payable from or by the Transferor in connection with the
execution, delivery and performance of the Basic Documents and the
Certificates and any other agreements contemplated therein shall have
been paid or will be paid by the Transferor, at or prior to the
Closing Date to the extent then due.
(l) The Certificates have been duly and validly
authorized by all required action of the Bank, and, when duly and
validly executed by the Bank, authenticated by the Trustee and
delivered in accordance with the Pooling and Servicing Agreement, and
delivered to and paid for by the Underwriters as provided herein,
will be validly issued and outstanding and entitled to the benefits
of the Pooling and Servicing Agreement. As of the Closing Date, the
Certificates will have been duly and validly executed by the Bank,
and will conform in all material respects to the descriptions thereof
contained in the Prospectus.
(m) The Receivables conformed in all material respects
with the description thereof contained in the Prospectus as of the
dates specified therein.
(n) The Trust is not, and will not become as a result of
the issuance and sale of the Certificates, subject to regulation as
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended (the "1940 Act").
3. Purchase, Sale and Delivery of Certificates. On the basis of
the representations, warranties and agreements herein contained, but
subject to the terms and conditions herein set forth, the Transferor agrees
to sell to the Underwriters, and the Underwriters agree, severally and not
jointly, to purchase from the Transferor (i) at a purchase price of 99.80%
of the principal amount of the Class A Certificates, the principal amounts
of Class A Certificates, set forth opposite the names of the applicable
Underwriters in Schedule A hereto and (ii) at a purchase price of 99.75% of
the principal amount of the Class B Certificates, the principal amounts of
Class B Certificates, set forth opposite the names of the applicable
Underwriters in Schedule A hereto.
The Transferor will deliver against payment of the purchase
price the Class A Certificates and Class B Certificates, each in the form
of one or more permanent global securities in definitive form (the "Global
Certificates") deposited with the Trustee as custodian for The Depository
Trust Company ("DTC") and registered in the name of Cede & Co., as nominee
for DTC. Interests in any permanent global securities will be held only in
book-entry form through DTC, except in the limited circumstances described
in the Prospectus. Payment for the Certificates shall be made by the
Underwriters in Federal (same day) funds by wire transfer to an account
previously designated to Credit Suisse First Boston by the Transferor at
10:00 a.m. (New York time), on September 21, 1999, or at such other time
not later than seven full business days thereafter as the Representatives
and the Transferor determine, such time being herein referred to as the
"Closing Date," against delivery to the Trustee as custodian for DTC of the
Global Certificates representing all of the Class A Certificates and Class
B Certificates. For purposes of Rule 15c6-1 under the Securities Exchange
Act of 1934 (the "Exchange Act"), the Closing Date (if later than the
otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of the Certificates. The Global Certificates
will be made available for checking at the office of Skadden, Arps, Slate,
Meagher & Flom LLP at least 24 hours prior to the Closing Date.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Certificates for sale to the public
(which may include selected dealers) as set forth in the Prospectus.
(a) Each Underwriter, severally, represents and warrants
to the Bank that (a) it has not and will not use any information that
constitutes "Computational Materials" with respect to the offering of
Certificates unless is has obtained the prior written consent of the
Bank to such usage and (b) it has not and will not use any
information that constitutes "Series Term Sheets," "ABS Term Sheets,"
"Structural Term Sheets" or "Collateral Term Sheets" with respect to
the offering of Certificates. For purposes hereof, "Series Term
Sheet" shall have the meaning given such term in the no-action
letter, dated April 5, 1996, issued by Commission to Greenwood Trust
Company (the "Greenwood Letter") and "Computational Materials" shall
have the meaning given such term in the Greenwood Letter and,
together with the no-action letter, dated May 20, 1994, issued by the
Commission to Kidder, Peabody Acceptance Corporation I, Kidder,
Peabody & Co., Incorporated and Kidder Structured Asset Corporation,
as made applicable to other issuers and underwriters by the
Commission in the response to the request of the Public Securities
Association, dated May 24, 1994 (collectively, the "Kidder/PSA
Letter"), the PSA Letter and the No-Action Letters. For purposes
hereof, "ABS Term Sheets," "Structural Term Sheets" and "Collateral
Term Sheets" shall have the meanings given such terms in the
no-action letter, dated February 17, 1995, issued by the Commission
to the Public Securities Association (the "PSA Letter").
5. Certain Agreements of the Transferor. The Transferor
covenants and agrees with the several Underwriters that:
(a) Immediately following the execution of this
Agreement, the Transferor will prepare a prospectus supplement
setting forth the amount of Class A Certificates and Class B
Certificates covered thereby and the terms thereof not otherwise
specified in the Prospectus, the price at which such Certificates are
to be purchased by the Underwriters, the initial public offering
price, the selling concessions and allowances and such other
information as the Transferor deems appropriate. The Transferor will
transmit the Prospectus including such prospectus supplement to the
Commission pursuant to Rule 424(b) by a means reasonably calculated
to result in filing with the Commission pursuant to Rule 424(b). The
Transferor will advise the Representatives promptly of any such
filing pursuant to Rule 424(b).
(b) The Transferor will advise the Representatives
promptly of any proposal to amend or supplement the Registration
Statement as filed and will not effect such amendment or
supplementation without the Representatives' consent, which consent
shall not be unreasonably withheld or delayed; and the Transferor
will also advise the Representatives promptly of the effectiveness of
any amendment or supplementation of the Registration Statement and of
the institution by the Commission of any stop order proceedings in
respect of the Registration Statement and the Transferor will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Certificates is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs as a result
of which the Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend the Prospectus to comply with the Act,
the Transferor will promptly notify the Representatives of such event
and will promptly prepare and file with the Commission (subject to
the Representatives' prior review pursuant to paragraph (b) of this
Section 5), at its own expense, an amendment or supplement which will
correct such statement or omission, or an amendment which will effect
such compliance. Neither the Representatives' consent to, nor the
Underwriters' delivery of, any such amendment or supplement shall
constitute a waiver of any of the conditions set forth in Section 6.
(d) As soon as practicable, but not later than the
Availability Date (as defined below), the Transferor will cause the
Trust to make generally available to the Certificateholders an
earnings statement of the Trust covering a period of at least 12
months beginning after the effective date of the Registration
Statement which will satisfy the provisions of Section 11(a) of the
Act. For the purpose of the preceding sentence, "Availability Date"
means the 45th day after the end of the Trust's fourth fiscal quarter
following the fiscal quarter that includes such Effective Date,
except that, if such fourth fiscal quarter is the last quarter of the
Trust's fiscal year, "Availability Date" means the 90th day after the
end of such fourth fiscal quarter.
(e) The Transferor will furnish to the Representatives
copies of the Registration Statement (two of which will be signed and
will include all exhibits), each related preliminary prospectus, and,
so long as delivery of a prospectus relating to the Certificates is
required to be delivered under the Act in connection with sales by
any Underwriter or dealer, the Prospectus and all amendments and
supplements to such documents, in each case as soon as available and
in such quantities as the Representatives reasonably request. The
Prospectus shall be so furnished on or prior to 10:00 A.M., New York
time, two business days following the execution and delivery of this
Agreement or at such other time as the Representatives and the
Transferor determine. All other such documents shall be so furnished
as soon as available. The Transferor will pay the expenses of
printing and distributing to the Underwriters all such documents.
(f) The Transferor will arrange for the qualification of
the Certificates for sale and the determination of their eligibility
for investment under the laws of such jurisdictions as the
Representatives designate and in the continuation of such
qualifications in effect so long as required for the distribution of
the Certificates; provided, however, that the Transferor will not be
obligated to qualify to do business in any jurisdiction where it is
not so qualified or to take action which would subject the Transferor
to the general or unlimited service of process in any jurisdiction
where it is not now subject to such service of process.
(g) For a period from the date of this Agreement until
the retirement of the Class A Certificates and Class B Certificates
(i) the Bank, as Servicer, will furnish to the Representatives and,
upon request, to each of the other Underwriters, copies of each
certificate and the annual statements of compliance delivered to the
Trustee pursuant to Article III and Section 5.2 of the Pooling and
Servicing Agreement and the annual independent certified public
accountant's servicing reports furnished to the Trustee pursuant to
Article III of the Pooling and Servicing Agreement, as soon as such
statements and reports are furnished to the Trustee, (ii) any other
periodic certificates or reports as may be delivered to the Trustee
or the Certificateholders under the Pooling and Servicing Agreement
and (iii) from time to time, such other information concerning the
Transferor as the Representatives may reasonably request.
(h) So long as any Certificate is outstanding, the
Transferor will furnish to the Representatives as soon as
practicable, copies of all documents (A) distributed, or caused to be
distributed, by the Transferor to Certificateholders, (B) filed, or
caused to be filed, by the Transferor with the Commission pursuant to
the Exchange Act, any order of the Commission thereunder or pursuant
to a "no-action" letter from the staff of the Commission and (C) from
time to time, such other information in the possession of the
Transferor concerning the Trust as the Representatives may reasonably
request. The Transferor will register the Class A Certificates under
the Exchange Act within 120 days after the end of the fiscal year of
the Trust during which the offering of the Class A Certificates to
the public occurred.
(i) The Transferor will pay all expenses incident to the
performance of its obligations under this Agreement and will
reimburse the Underwriters (if and to the extent incurred by them)
for any filing fees and other expenses (including fees and
disbursements of counsel) incurred by them in connection with
qualification of the Certificates for sale and determination of their
eligibility for investment under the laws of such jurisdictions as
the Representatives designate and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the
rating of the Certificates, for any travel expenses of the
Transferor's officers and employees and any other expenses of the
Transferor in connection with attending or hosting meetings with
prospective purchasers of the Certificates and for expenses incurred
in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto).
(j) To the extent, if any, that the ratings provided with
respect to the Certificates by the Rating Agencies is conditional
upon the furnishing of documents or the taking of any other action by
the Transferor agreed upon on or prior to the Closing Date, the
Transferor shall furnish such documents and take any such other
action.
(k) The Transferor shall not, until after the Closing
Date, offer, sell or contract to sell, directly or indirectly, or
file with the Commission a registration statement under the Act
relating to, securities substantially similar to the Class A
Certificates or Class B Certificates.
6. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the
Certificates on the Closing Date will be subject to the accuracy of the
representations and warranties on the part of the Transferor herein, to the
accuracy of the statements of officers of the Transferor made pursuant to
the provisions hereof, to the performance by the Transferor of its
obligations hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter,
dated the date of delivery thereof, which shall be on or prior to the
date hereof, of Ernst & Young LLP, in form and substance satisfactory
to the Underwriters and counsel for the Underwriters, confirming that
they are independent public accountants within the meaning of the Act
and the applicable published Rules and Regulations thereunder and
stating in effect that (i) they have performed certain specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which
is limited to accounting, financial or statistical information
derived from the general accounting records of the Transferor) set
forth in the Registration Statement and the Prospectus (and any
supplements thereto), agrees with the accounting records of the
Transferor, excluding any questions of legal interpretation, and (ii)
they have performed certain specified procedures with respect to the
accounts.
(b) The Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section
5(a) of this Agreement. Prior to such Closing Date, no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Transferor or the
Representatives, shall be contemplated by the Commission or by any
authority administering any state securities or blue sky laws.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any
development or event involving a prospective change, in the condition
(financial or otherwise), business, properties or results of
operations of the Transferor, the Company or the Transferor's credit
card business which, in the reasonable judgment of the
Representatives, materially impairs the investment quality of the
Certificates and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the
Certificates; (ii) any downgrading in the rating of any debt
securities of the Transferor or the Company by any "nationally
recognized statistical rating organization" (as defined for purposes
of Rule 436(g) under the Act), or any public announcement that any
such organization has under surveillance or review its rating of any
debt securities of the Transferor or the Company (other than an
announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating); (iii) any
suspension or limitation of trading in securities generally on the
New York Stock Exchange, or any setting of minimum prices for trading
on such exchange, or any suspension of trading of any securities of
the Transferor or the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S.
Federal or New York authorities; or (v) any outbreak or escalation of
major hostilities in which the United States is involved, any
declaration of war by Congress or any substantial national or
international calamity or emergency if, in the judgement of the
Representatives, the effect of any such outbreak, escalation,
declaration, calamity or emergency makes it impractical or
inadvisable to proceed with completion of the public offering or the
sale of and payment for the Certificates.
(d) The Representatives shall have received from John H.
Loughridge, Jr., Esq. in-house counsel for the Transferor, such
opinion or opinions dated the Closing Date and satisfactory in form
and substance to the Underwriters and counsel for the Underwriters,
substantially to the effect that:
(i) The Transferor 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 execute, deliver and perform its
obligations under the Basic Documents to which it is a party and, in
all material respects, to own its properties and conduct its business
as such properties are presently owned and as such business is
presently conducted;
(ii) The Transferor is duly qualified to do
business and is in good standing (or is exempt from such
requirements)in any state required in order to conduct its business,
and has obtained all necessary licenses and approvals in each
jurisdiction in which failure to so qualify or to obtain such
licenses and approvals would render any Credit Card Agreement
relating to an Account or any Receivable transferred to the Trust by
the Transferor unenforceable by the Transferor, the Servicer or the
Trustee and would have a material adverse effect on the interests of
the Certificateholders under the Pooling and Servicing Agreement;
(iii) The Certificates have been duly authorized,
executed and delivered by the Transferor and, when duly authenticated
by the Trustee in accordance with the terms of the Pooling and
Servicing Agreement and delivered to and paid for by the Underwriters
in accordance with the terms of this Agreement, will be validly
issued and outstanding and entitled to the benefits provided by the
Pooling and Servicing Agreement;
(iv) Each of the Basic Documents has been duly
authorized, executed and delivered by the Transferor, and constitutes
the legal, valid and binding agreement of the Transferor, enforceable
in accordance with its terms, except (x) to the extent that the
enforceability thereof may be limited by (A) bankruptcy, insolvency,
moratorium, receivership, conservatorship, reorganization, moratorium
or other similar laws now or hereafter in effect relating to or
affecting the rights and remedies of creditors generally and the
rights of creditors as the same may be applied in the event of
bankruptcy, insolvency, receivership, reorganization, moratorium or
other similar event in respect of the Transferor, (B) general
principles of equity (regardless of whether considered and applied in
a proceeding in equity or in law) and (C) with respect to the Pooling
and Servicing Agreement, the qualification that certain of the
remedial provisions of the Pooling and Servicing Agreement may be
unenforceable in whole or in part, but the inclusion of such
provisions does not affect the validity of the Pooling and Servicing
Agreement taken as a whole, and the Pooling and Servicing Agreement,
together with applicable law, contains adequate provisions for the
practical realization of the benefits of the security created
thereby; and (y) such counsel expresses no opinion as to the
enforceability of any rights to contribution or indemnification which
are violative of public policy underlying any law, rule or
regulation;
(v) No consent, approval, authorization or order of
any governmental agency or body is required for (A) the execution,
delivery and performance by the Transferor of its obligations under
any of the Basic Documents or the Certificates to which it is a
party, or (B) the issuance or sale of the Certificates, except such
as have been obtained under the Act and as may be required under
state securities or blue sky laws in connection with the purchase and
distribution of the Certificates by the Underwriters and the filing
of Uniform Commercial Code financing statements with respect to the
Receivables;
(vi) The execution and delivery of the Basic
Documents or the Certificates by the Transferor, or the performance
by the Transferor, of the transactions therein contemplated or the
fulfillment of the terms thereof does not or will not result in any
violation of any statute or regulation or any order or decree of any
court or governmental authority binding upon the Transferor or the
property of the Transferor, or conflict with, or result in a breach
or violation of any term or provision of, or result in a default
under any of the terms and provisions of, the Articles of Association
or By-laws of the Transferor or any material indenture, loan
agreement or other material agreement to which the Transferor is a
party or by which it or its properties are bound;
(vii) There are no proceedings or investigations
pending or, to the knowledge of such counsel, threatened in writing
against the Transferor, before any court, regulatory body,
administrative agency, or other tribunal or governmental
instrumentality (i) asserting the invalidity of any of the Basic
Documents or the Certificates, (ii) seeking to prevent the issuance
of the Certificates or the consummation of any of the transactions
contemplated by any of the Basic Documents or the Certificates, (iii)
seeking any determination or ruling that, in the reasonable judgment
of such counsel, would materially and adversely affect the
performance by the Transferor of its obligations under any of the
Basic Documents, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of any
of the Basic Documents or the Certificates or (v) seeking to affect
adversely the income tax attributes of the Trust or the Certificates
under the Federal or applicable state income or franchise tax
systems; and
(viii) The Registration Statement was declared
effective under the Act as of the date and time specified in such
opinion and the Prospectus has been filed with the Commission
pursuant to Rule 424(b) on the date specified therein and, to the
knowledge of such counsel, 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, and
each amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of the Act and the Rules and
Regulations; such counsel has no reason to believe that any part of
the Registration Statement or any amendment thereto, as of its
effective date or as of such Closing Date, contained any untrue
statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus or any amendment or
supplement thereto, as of its issue date or as of such Closing Date,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; it being understood that such counsel does not express
any opinion as to the financial statements or other financial data
contained in the Registration Statements or the Prospectus.
(e) The Representatives shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, special tax counsel to the
Transferor, such opinion or opinions dated the Closing Date,
substantially to the effect that the Certificates will be treated as
indebtedness for Federal income tax purposes, the Trust will not be
classified as an association taxable as a corporation, the
Certificates will be characterized as debt for Federal income tax
purposes, the Certificates will be characterized as debt for Delaware
income tax purposes, and to the effect that, to the extent that the
Trust will not be subject to tax at the entity level for Federal
income tax purposes, the Trust will not be subject to tax at the
entity level for Delaware income tax purposes.
(f) The Representatives shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel to the Transferor,
such opinion or opinions dated the Closing Date, substantially to the
effect that:
(i) Each of the Basic Documents constitutes the
valid and binding obligation of the Transferor, enforceable against
the Transferor in accordance with its terms, except (x) to the extent
that the enforceability thereof may be limited by (a) bankruptcy,
insolvency, receivership, reorganization, moratorium or other similar
laws now or hereafter in effect relating to creditors' rights
generally and the rights of creditors of national banking
associations as the same may be applied in the event of the
bankruptcy, insolvency, receivership, reorganization, moratorium or
other similar event in respect of the Transferor, (b) general
principles of equity (regardless of whether enforceability is
considered in a proceeding at law or in equity) and (c) the
qualification that certain of the remedial provisions of the Pooling
and Servicing Agreement may be unenforceable in whole or in part, but
the inclusion of such provisions does not affect the validity of the
Pooling and Servicing Agreement taken as a whole, and the Pooling and
Servicing Agreement, together with applicable law, contain adequate
provisions for the practical realization of the benefits of the
security created thereby and (y) such counsel expresses no opinion as
to the enforceability of any rights to contribution or
indemnification which are violative of public policy underlying any
law, rule or regulation;
(ii) The Certificates, when executed and
authenticated in accordance with the terms of the Pooling and
Servicing Agreement 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;
(iii) This Agreement has been duly authorized,
executed and delivered by the Transferor;
(iv) Neither the execution, delivery or performance
by the Transferor of the Basic Documents or this Agreement, nor the
compliance by the Transferor with the terms and provisions thereof or
hereof, will contravene any provision of any applicable law;
(v) Based on such counsel's review of applicable
laws, no governmental approval, which has not been obtained or taken
and is not in full force and effect, is required to authorize or is
required in connection with the execution, delivery or performance of
the Basic Documents by the Transferor; and
(vi) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as
amended, and the Trust is not required to be registered under the
1940 Act.
In rendering such opinion, Skadden, Arps, Slate, Meagher
& Flom LLP may rely as to the organization of the Transferor and
certain other matters upon the opinion referred to in (d) above.
(g) The Representatives shall have received from Skadden,
Arps, Slate, Meagher & Flom LLP, special counsel for the
Underwriters, such opinion or opinions, dated the Closing Date,
substantially to the effect that:
(i) The Certificates conform in all material
respects to the descriptions thereof contained in the Prospectus;
(ii) The statements under the heading "Certain
Legal Aspects of the Receivables" and "Employee Benefit Plan
Considerations" in the Prospectus and "ERISA Considerations" in the
Prospectus Supplement to the extent that they constitute matters of
law or legal conclusions with respect thereto, have been reviewed by
such counsel and are correct in all material respects;
(iii) Each of the Registration Statement, as of its
effective date, and the Prospectus, as of its date, appeared on its
face to be appropriately responsive in all material respects to the
requirements of the Act and the General Rules and Regulations under
the Act, except that in each case such counsel expresses no opinion
as to the financial data included therein or excluded therefrom or
the exhibits to the Registration Statement, and such counsel does not
assume any responsibility for the accuracy, completeness or fairness
of the statements contained in the Registration Statement and the
Prospectus.
(h) The Representatives shall have received from (i)
Richards, Layton & Finger, special counsel to the Transferor, such
opinion or opinions dated the Closing Date and satisfactory in form
and substance to the Underwriters and counsel for the Underwriters,
substantially to the effect that the Pooling and Servicing Agreement
creates a first priority perfected security interest under Article 9
of the Delaware Uniform Commercial Code ("Delaware UCC") in favor of
the Trustee in the Receivables and (ii) Skadden, Arps, Slate, Meagher
& Flom LLP, special counsel to the Transferor, such opinion or
opinions dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, with
respect to the effects of the receivership of the Transferor on the
Trust's interest in the Receivables.
(i) The Representatives shall have received from McGuire,
Woods, Battle & Boothe LLP, counsel to the Trustee, such opinion or
opinions dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters,
substantially to the effect that:
(i) The Trustee is a banking corporation duly
organized, validly existing and in good standing under the laws of
the State of Delaware and has the corporate power and authority to
execute, deliver and perform its obligations under the Pooling and
Servicing Agreement.
(ii) The Supplement has been duly authorized,
executed and delivered by the Trustee. The Pooling and Servicing
Agreement constitutes the legal, valid and binding agreement of the
Trustee, enforceable against the Trustee in accordance with its
terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or
affecting the rights of creditors generally (as such laws would apply
in the event of the insolvency, receivership, conservatorship or
reorganization of, or other similar occurrence with respect to, the
Trustee) and except that the enforceability of the Pooling and
Servicing Agreement may be subject to the application of general
principles of equity (regardless of whether considered or applied in
a proceeding in equity or at law).
(iii) The execution and delivery by the Trustee of
the Supplement and the performance by the Trustee of its obligations
under the Pooling and Servicing Agreement do not conflict with or
result in a violation of (A) any law or regulation of the United
States of America or the State of Delaware governing the banking or
trust activities of the Trustee or (B) the amended and restated
articles of association or bylaws of the Trustee.
(iv) The execution and delivery by the Trustee of
the Supplement and the performance by the Trustee of its obligations
under the Pooling and Servicing Agreement do not require any
approval, authorization or other action by, or filing with, any
governmental authority of the United States of America or the State
of Delaware having jurisdiction over the banking or trust activities
of the Trustee, except such as have been obtained, taken or made.
(v) The Certificates have been duly authenticated
by the Trustee pursuant to the Agency Agreement and in accordance
with the Pooling and Servicing Agreement.
(j) The Representatives shall have received an opinion of
Sullivan & Worcester LLP, counsel to the holder of the Collateral
Interest (the "Enhancement Provider") dated the Closing Date, and
satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, to the effect that:
(i) The Enhancement Provider is duly licensed by
the Superintendent of Banks of the State of New York;
(ii) The Enhancement Provider has the power and
authority as a New York Branch to execute and deliver the Loan
Agreement and to perform its obligations as the Agent thereunder;
(iii) The Enhancement Provider is authorized to
transact business as a New York Branch in the State of New York;
(iv) The Loan Agreement has been duly executed and
delivered by two authorized officers of the Enhancement Provider and
constitutes the legal, valid and binding obligation of the
Enhancement Provider, enforceable against the Enhancement Provider in
accordance with its terms, except as such enforceability may be
limited by (a) applicable bankruptcy, insolvency, fraudulent
conveyance, receivership, conservatorship, reorganization,
liquidation, moratorium, readjustment of debt or other similar laws
affecting the enforcement of creditors' rights generally (including
the effect of the commencement of an ancillary case relating to the
Enhancement Provider under Section 304 of the Bankruptcy Code (Title
11, U.S.C.) and by courts in the United States of America giving
effect to foreign laws or foreign governmental action affecting
creditors' rights against the Enhancement Provider), (b) the
application of general principles of equity, regardless of whether
considered in a proceeding at law or in equity, and (c) the
unenforceability under certain circumstances of provisions
indemnifying a party against liability where such indemnification is
contrary to public policy.
In rendering such opinion, Sullivan & Worcester LLP may rely as
to matters of German law upon the opinion referred to in (k) below.
(k) The Representatives shall have received an opinion of
counsel or reliance letter, if applicable, of German counsel to the
Enhancement Provider, dated the Closing Date, and satisfactory in
form and substance to the Underwriters and counsel for the
Underwriters, to the effect that:
(i) The Enhancement Provider is a bank duly
organized and validly existing under the law of Germany and has
the corporate power and authority to execute and deliver the
Loan Agreement and perform its obligations under the Loan
Agreement;
(ii) The Enhancement Provider has the power and
capacity to establish branches and agencies outside Germany
including, without limitation, in the State of New York;
(iii) The Enhancement Provider has full corporate
power and authority under German law to execute and deliver the
Loan Agreement and to perform its obligations under the Loan
Agreement through its New York Branch;
(iv) Relying on the Enhancement Provider's list of
specimen signatures, the Loan Agreement has been duly executed
and delivered for and on behalf of the Enhancement Provider and
constitutes its legal, valid and binding obligation enforceable
against it in accordance with its terms;
(v) Neither the execution and delivery of the Loan
Agreement nor the performance of the Loan Agreement by the
Enhancement Provider will violate any applicable provision of
the German law, or any order, judgment or decree of any court
to which the Enhancement Provider is subject in Germany and of
which we are aware, or conflict with, or result in a breach of,
any provision of the Enhancement Provider's Articles of
Association;
(vi) No authorization, consent or approval of any
court or governmental authority of Germany or any political
subdivision thereof is required for the execution or delivery
of the Loan Agreement or the performance of the Loan Agreement
by the Enhancement Provider;
(vii) Any final judgment against the Enhancement
Provider based on the Loan Agreement for a definite sum of
money obtained in or from any state or federal court in the
State of New York as competent jurisdiction would be recognized
and declared enforceable against the Enhancement Provider by
the competent courts of Germany without re-examination or
re-litigation of the matters adjudicated, unless (i) the courts
of the jurisdiction in which the relevant court is located are
not competent according to German law; (ii) where the judgment
was given in default of appearance and the defendant invokes
such default and the defendant was not served with the document
which instituted the proceedings properly or had insufficient
time to enable him to arrange for his defense; (iii) the
judgment is irreconcilable with a judgment given in Germany or
a previous, recognizable foreign judgment or the proceedings
leading to such judgment are irreconcilable with proceedings
that became pending previously; (iv) such recognition entails
results which are obviously irreconcilable with fundamental
principles of German law, including, among others, the basic
rights provided by the German Constitution; or (v) reciprocity
is not guaranteed;
(viii) The choice of the law of the State of New
York as the law governing the Loan Agreement is valid under
German law and a court in Germany would uphold such choice of
law in a suit or other proceeding with respect to the Loan
Agreement brought in a court of Germany; and
(ix) With the exception of obligations given
priority by mandatory provisions of law, the obligations of the
Enhancement Provider under the Loan Agreement rank pari passu
with its other unsecured and unsubordinated liabilities within
the scope and meaning of German insolvency laws.
(l) The Representatives shall have received a
certificate, dated the Closing Date and satisfactory in form and
substance to the Underwriters and counsel for the Underwriters, of
the Chairman, President or any Vice President of the Transferor, in
which such officers, to their knowledge after reasonable
investigation, shall state that the representations and warranties of
the Transferor in this Agreement are true and correct, that the
Transferor has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or
prior to the Closing Date, that the representations and warranties of
the Transferor in the Basic Documents are true and correct as of the
dates specified therein, 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 contemplated
by the Commission, that, subsequent to the date of the Prospectus,
there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the
condition (financial or otherwise), business, properties or results
of operations of the Transferor or its credit card business except as
set forth in or contemplated by the Prospectus or as described in
such certificate and that nothing has come to the attention of the
Transferor that would lead the Transferor to believe that the
Registration Statement or the Prospectus contains any untrue
statement of a material fact or omits to state any material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(m) The Representatives shall have received evidence
satisfactory to the Underwriters and counsel for the Underwriters
that (i) the Class A Certificates shall be rated "AAA" by Standard &
Poor's Ratings Services, a Division of The McGraw-Hill Companies,
"AAA" by Fitch IBCA, Inc. and "Aaa" by Moody's Investors Service,
Inc. and (ii) the Class B Certificates have been rated "A" by
Standard & Poor's Ratings Services, a Division of The McGraw-Hill
Companies, "A" by Fitch IBCA, Inc. and "A2" by Moody's Investors
Service, Inc.
(n) The Representatives shall have received a letter,
dated such Closing Date and satisfactory in form and substance to the
Underwriters and counsel for the Underwriters, which meets the
requirements of subsection (a) of this Section, except that the
specified date referred to in such subsection will be a date not more
than five days prior to such Closing Date for the purposes of this
subsection (n).
(o) The Representatives shall have received evidence
satisfactory to the Underwriters and counsel for the Underwriters
that, on or before the Closing Date, UCC-1 financing statements have
been filed pursuant to the laws of the State of Delaware (and such
other states as may be necessary or desirable pursuant to applicable
state law) reflecting the interest of the Trust in the Receivables
and the proceeds thereof.
(p) The Representatives shall also receive from each
counsel rendering an opinion not otherwise addressed to the
Representatives a letter dated the Closing Date and satisfactory in
form and substance to the Underwriters and counsel for the
Underwriters, stating that the Representatives may rely on the
opinions of such counsel as delivered to Moody's Investors Service,
Inc. and Standard & Poor's Ratings Services, a Division of The
McGraw-Hill Companies and Fitch IBCA, Inc. in connection with the
rating of the Certificates.
(q) All proceedings in connection with the transactions
contemplated by this Agreement and the other Basic Documents and all
documents incident hereto and thereto shall be reasonably
satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, and the Underwriters and counsel for the
Underwriters shall have received such information, certificates and
documents as the Underwriters and counsel for the Underwriters may
reasonably request.
(r) The Representatives shall have received evidence
satisfactory to the Underwriters and counsel for the Underwriters
that the Certificates will be duly and validly issued and outstanding
and will be entitled to the benefits of the Pooling and Servicing
Agreement.
The Transferor will furnish you with such conformed copies of
such opinions, certificates, letters and documents as you reasonably
request. Credit Suisse First Boston may in its sole discretion waive on
behalf of the Underwriters compliance with any conditions to the
obligations of the Underwriters hereunder.
7. Indemnification and Contribution. (a) The Transferor will
indemnify and hold harmless each Underwriter against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus, or any
amendment or supplement thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading and will reimburse each Underwriter
for any legal or other expenses reasonably incurred by such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that
the Transferor 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 of such documents in reliance upon and in conformity with
written information furnished to the Transferor by any Underwriter through
the Representatives specifically for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists
of the information described as such in subsection (b) below.
(b) Each Underwriter will severally and not jointly
indemnify and hold harmless the Transferor against any losses, claims,
damages or liabilities to which the Transferor may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement, the Prospectus, or any amendment
or supplement thereto, or any related preliminary prospectus, or arise out
of or are based upon the omission or the alleged omission to state therein
in a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in reliance upon and in conformity
with written information furnished to the Transferor by such Underwriter
through the Representatives or otherwise specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the
Transferor or the Company in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are
incurred, it being understood and agreed that the only such information
furnished by any Underwriter consists of the following information in the
Prospectus Supplement furnished on behalf of each Underwriter: the first
sentence of "Structural Summary - ERISA Considerations," the third sentence
of the third paragraph of "ERISA Considerations," the concession and
reallowance figures appearing in "Underwriting" and the last paragraph on
page S-48 of "Underwriting."
(c) Promptly after receipt by an indemnified party under
this Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under subsection (a) or (b) above, notify the
indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which
it may have to any indemnified party otherwise than under subsection (a) or
(b) above. In case any such action is brought against any indemnified party
and it notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein and, to the
extent that it may wish, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party),
and after notice from the indemnifying party to such indemnified party of
its election so to assume the defense thereof, the indemnifying party will
not be liable to such indemnified party under this Section for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party unless such settlement includes an unconditional release
of such indemnified party from all liability on any claims that are the
subject matter of such action.
(d) If the indemnification provided for in this Section
is unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to in subsection (a) or (b)
above (i) in such proportion as is appropriate to reflect the relative
benefits received by the Transferor on the one hand and the Underwriters on
the other from the offering of the Certificates or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the
Transferor on the one hand and the Underwriters on the other in connection
with the statements or omissions which resulted in such losses, claims,
damages or liabilities as well as any other relevant equitable
considerations. The relative benefits received by the Transferor on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Transferor bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Transferor or its affiliates on the one hand or by the Underwriters on the
other and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission.
The amount paid by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in the first sentence of this subsection
(d) shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending any action or claim which is the subject of this subsection (d).
Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the
total price at which the Certificates underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages
which such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) or the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations in this subsection (d) to contribute are several in proportion
to their respective underwriting obligations and not joint.
(e) The obligations of the Transferor under this Section
shall be in addition to any liability which the Transferor may otherwise
have and shall extend, upon the same terms and conditions, to each person,
if any, who controls any Underwriter within the meaning of the Act; and the
obligations of the Underwriters under this Section shall be in addition to
any liability which the respective Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Transferor, to each officer of the Transferor who has signed a Registration
Statement and to each person, if any, who controls the Transferor within
the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters
default in their obligations to purchase Certificates hereunder on the
Closing Date and the aggregate principal amount of Certificates that such
defaulting Underwriter or Underwriters agreed but failed to purchase does
not exceed 10% of the total principal amount of Certificates that the
Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Transferor for
the purchase of such Certificates by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date,
the nondefaulting Underwriters shall be obligated severally, in proportion
to their respective commitments hereunder, to purchase the Certificates
that such defaulting Underwriters agreed but failed to purchase on such
Closing Date. If any Underwriter or Underwriters so default and the
aggregate principal amount of Certificates with respect to which such
default or defaults occur exceeds 10% of the total principal amount of
Certificates that the Underwriters are obligated to purchase on such
Closing Date and arrangements satisfactory to the Representatives and the
Transferor 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
Transferor or the Company, except as provided in Section 9. As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations. The
respective indemnities, agreements, representations, warranties and other
statements of the Transferor and of their respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation, or
statement as to the results thereof, made by or on behalf of any
Underwriter or the Transferor or any of their respective representatives,
officers or directors or any controlling person, and will survive delivery
of and payment for the Certificates. If this Agreement is terminated
pursuant to Section 8 or if for any reason the purchase of the Class A
Certificates or Class B Certificates by the Underwriters is not
consummated, the Transferor shall remain responsible for the expenses to be
paid or reimbursed by it pursuant to Section 5 and the respective
obligations of the Transferor and the Underwriters pursuant to Section 7
shall remain in effect, and if any Certificates have been purchased
hereunder the representations and warranties in Section 2 and all
obligations under Section 5 shall also remain in effect. If the purchase of
the Class A Certificates or Class B Certificates by the Underwriters is not
consummated for any reason other than solely because of the termination of
this Agreement pursuant to Section 8 or the occurrence of any event
specified in clause (iii), (iv) or (v) of Section 6(c), the Transferor 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.
10. Notices. All communications hereunder will be in writing
and, if sent to the Underwriters, will be mailed, delivered or telecopied
and confirmed to the Representatives at Credit Suisse First Boston
Corporation, Eleven Madison Avenue, New York, NY 10010, Attention of: Asset
Backed Securities (facsimile no. (212)325-8261); and if sent to the
Transferor, will be mailed, delivered or telecopied and confirmed to it at
The First National Bank of Atlanta, 100 North Main Street, Winston-Salem,
North Carolina 27150, Attn: Legal Department (facsimile no. (336)732-6630);
provided, however, that any notice to an Underwriter pursuant to Section 7
will be mailed, delivered or telecopied and confirmed to such Underwriter.
11. Successors. This Agreement will inure to the benefit of and
be binding upon the parties hereto and their respective successors and the
officers and directors and controlling persons referred to in Section 7,
and no other person will have any right or obligation hereunder.
12. Representations of Underwriters. The Representatives will
act for the several Underwriters in connection with this financing, and any
action under this Agreement taken by the Representatives will be binding
upon all the Underwriters. Each of the Underwriters represents and warrants
to, and agrees with, the Bank that (w) it has only issued or passed on and
shall 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 1996 (as amended) or who is
a person to whom the document may otherwise lawfully be issued or passed
on, (x) it has complied and shall comply with all applicable provisions of
the Financial Services Act 1986 and other applicable laws and regulations
with respect to anything done by it in relation to the Certificates in,
from or otherwise involving the United Kingdom and (y) if that Underwriter
is an authorized person under the Financial Services Act 1986, it has only
promoted and shall only promote (as that term is defined in Regulation 1.02
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 of 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.
13. Severability of Provisions. Any covenant, provision,
agreement or term of the Agreement that is prohibited or is held to be void
or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof.
14. Entire Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the
matters and transactions contemplated hereby and supersedes all prior
agreements and understandings whatsoever relating to such matters and
transactions.
15. Amendment. Neither this Agreement nor any term hereof may
be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
16. Headings. The headings in the Agreement are for the
purposes of reference only and shall not limit or otherwise affect the
meaning hereof.
17. Counterparts. This Agreement may be executed in any number
of counterparts, each of which shall be deemed to be an original but all
such counterparts shall together constitute one and the same Agreement.
18. Applicable Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO PRINCIPLES OF CONFLICTS OF LAWS.
The Transferor hereby submits to the nonexclusive jurisdiction
of the Federal and state courts in the Borough of Manhattan in The City of
New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to the Transferor
one of the counterparts hereof, whereupon it will become a binding
agreement between the Transferor and the several Underwriters in accordance
with its terms.
Very truly yours,
THE FIRST NATIONAL BANK OF
ATLANTA
By /s/ Suzanne Bachman
________________________
Name: Suzanne Bachman
Title: Vice President
CREDIT SUISSE FIRST BOSTON CORPORATION
Acting on behalf of itself and
Wachovia Securities, Inc. as the
Representatives of the several
Underwriters.
By /s/ Michael Raynes
_______________________
Name: Michael Raynes
Title: Director
SCHEDULE A
Principal Amount Principal Amount
of Class A of Class B
Underwriter Certificates Certificates
----------- ---------------- --------------
Credit Suisse
First Boston
Corporation $172,999,000 $15,000,000
Wachovia
Securities, Inc. $151,375,000 $15,000,000
Chase Securities
Inc. $36,042,000
J.P. Morgan
Securities Inc. $36,042,000
Merrill Lynch,
Pierce, Fenner &
Smith Incorporated $36,042,000
Total............... $ 432,500,000 $ 30,000,000
============= ============
Exhibit 4.2
====================================
THE FIRST NATIONAL BANK OF ATLANTA
Transferor and Servicer
and
THE BANK OF NEW YORK (DELAWARE)
Trustee
on behalf of the Certificateholders
------------------
SERIES 1999-2 SUPPLEMENT
Dated as of September 21, 1999
to the
AMENDED AND RESTATED
POOLING AND SERVICING AGREEMENT
Dated as of June 4, 1999
------------------
WACHOVIA CREDIT CARD MASTER TRUST
Series 1999-2
------------------
====================================
SERIES 1999-2 SUPPLEMENT, dated as of September 21, 1999 (this
"Series Supplement"), between THE FIRST NATIONAL BANK OF ATLANTA, a
national banking association, as Transferor and Servicer, and THE BANK OF
NEW YORK (DELAWARE), as Trustee under the Amended and Restated Pooling and
Servicing Agreement, dated as of June 4, 1999, between The First National
Bank of Atlanta and the Trustee (as amended, modified or supplemented from
time to time, the "Agreement").
Section 6.9 of the Agreement provides, among other things, that
the Transferor and the Trustee may at any time and from time to time enter
into a supplement to the Agreement for the purpose of authorizing the
delivery by the Trustee to the Transferor for the execution and redelivery
to the Trustee for authentication of one or more Series of Certificates.
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 1999-2
Certificates." The two classes shall be designated the Class A Floating
Rate Asset Backed Certificates, Series 1999-2 (the "Class A Certificates")
and the Class B Floating Rate Asset Backed Certificates, Series 1999-2
(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 1999-2 (the "Collateral Interest").
(b) Series 1999-2 shall be included in Group One (as defined
below). Series 1999-2 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 and the Opinion of
Counsel described in Section 6.9(b)(d)(i) 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.
"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 other amounts 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 other amounts specified in the applicable
Supplement) of all outstanding Series (other than Series 1999-2) which are
not expected to be in their revolving periods, and (c) the initial investor
interests (or other amounts specified in the applicable Supplement) of all
other outstanding Series which are not allocating Shared Principal
Collections to other Series and are in their revolving periods.
"Accumulation Period Length" shall have the meaning assigned such
term in subsection 4.9(i).
"Accumulation Shortfall" shall initially mean zero and shall
thereafter mean, with respect to any Monthly Period during the Controlled
Accumulation Period, the excess, if any, of the Controlled Deposit Amount
for the previous Monthly Period over the amount deposited into the
Principal Funding Account pursuant to subsection 4.9(e)(i) with respect to
the Class A Certificates for the previous Monthly Period.
"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 and (b) the Class B Investor Interest and (c) the
Collateral Interest.
"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.
"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 Principal Collections that
are allocated to Series 1999-2 in accordance with subsection 4.13(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 Investor Servicing Fee 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.
"Class A Additional Interest" shall have the meaning specified in
Section 4.6(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 (including net investment
earnings on funds on deposit in the Excess Funding Account) 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 4.3(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).
"Class A Certificate Rate" shall mean from the Closing Date
through October 14, 1999 and from October 15, 1999 through November 14,
1999 and with respect to each Interest Period thereafter, a per annum rate
equal to .18% 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 4.6(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 and the denominator of which is equal to
the Investor Interest as of the close of business on the last day of the
Revolving 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.
"Class A Initial Investor Interest" shall mean the aggregate
initial principal amount of the Class A Certificates, which is
$432,500,000.
"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 4.6(a).
"Class A Monthly Principal" shall mean the monthly principal
distributable in respect of the Class A Certificates as calculated in
accordance with subsection 4.7(a).
"Class A Required Amount" shall have the meaning specified in
subsection 4.8(a).
"Class A Scheduled Payment Date" shall mean the September 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 4.6(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 (including net investment
earnings on funds on deposit in the Excess Funding Account) 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 4.3(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 October 14, 1999 and from October 15, 1999 through November 14,
1999 and with respect to each Interest Period thereafter, a per annum rate
equal to .42% 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 4.6(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 and the denominator of which is equal to
the Investor Interest as of the close of business on the last day of the
Revolving 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 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 $30,000,000.
"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 or 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 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
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 4.6(b).
"Class B Monthly Principal" shall mean the monthly principal
distributable in respect of the Class B Certificates as calculated in
accordance with subsection 4.7(b).
"Class B Required Amount" shall have the meaning specified in
subsection 4.8(b).
"Class B Scheduled Payment Date" shall mean the October 2001
Distribution Date.
"Class B Servicing Fee" shall have the meaning specified in
subsection 3(a) hereof.
"Closing Date" shall mean September 21, 1999.
"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 or 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 (including net investment
earnings or funds on deposit in the Excess Funding Account) 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 4.3(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 and the denominator of which is equal to the
Investor Interest as of the close of business on the last day of the
Revolving Period.
"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 Initial Collateral Interest and the denominator
of which is the Initial Investor Interest.
"Collateral Interest" shall mean, on any date of determination,
an amount equal to (a) the Initial Collateral 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 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 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 4.6(c).
"Collateral Monthly Principal" shall mean the monthly principal
distributable in respect of the Collateral Interest as calculated in
accordance with subsection 4.7 (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, $36,041,667; provided,
however, that if the Accumulation Period Length is determined to be less
than 12 months pursuant to subsection 4.9(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, (b) for any Transfer Date
with respect to the Controlled Accumulation Period after payment in full of
the Class A Investor Interest but prior to the payment in full of the Class
B Investor Interest, an amount equal to the Class B Investor Interest as of
such Transfer Date and (c) for any Transfer Date with respect to the
Controlled Accumulation Period after payment in full of the Class B
Investor Interest, an amount equal to the Collateral 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 August 31, 2000 or such later date as is determined in
accordance with subsection 4.9(i) and ending on the first to occur of (a)
the commencement of the Rapid Amortization Period and (b) the Series 1999-2
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 existing Accumulation Shortfall.
"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.
"Cumulative Finance Charge Shortfall" shall mean the sum of the
Finance Charge Shortfalls (as such term is defined in each of the related
Series Supplements) for each Series in 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.
"Daily Principal Shortfall" shall mean, on any date of
determination, the excess of the 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, 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 November 15, 1999 and the
fifteenth day of each calendar month thereafter, or if such fifteenth day
is not a Business Day, the next succeeding Business Day.
"Excess Principal Funding Investment Proceeds" 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 exceed the Covered Amount determined on
such Transfer Date.
"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 4.9(a)(iv), 4.9(b)(iii) and 4.9(c)(ii).
"Finance Charge Shortfall" shall mean, with respect to any
Transfer Date, the excess, if any, of the amount distributable pursuant to
subsections 4.11(a)-(j) over Excess Spread.
"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 sum of (i) 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 (ii) the Excess Funding Amount as of the close of business on
such 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
with respect to any Monthly Period in which an Addition Date occurs or in
which a Removal Date occurs, the denominator determined pursuant to clause
(a)(i) 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.
"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 prior 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 sum of (i) the aggregate amount of Principal Receivables
as of the close of business on the last day of the prior Monthly Period (or
with respect to the first calendar month in the first Monthly Period, the
aggregate amount of Principal Receivables in the Trust as of the opening of
business 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 (ii) the Excess Funding Amount as of the
close of business on such 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 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, the denominator
determined pursuant to clause (a)(i) 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.
"Group One" shall mean Series 1999-2 and each other Series
specified in the related Supplement to be included in Group One.
"Initial Collateral Interest" shall mean the aggregate initial
principal amount of the Collateral Interest, which is $37,500,000.
"Initial Investor Interest" shall mean $500,000,000.
"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
4.5(a)(ii), (iii) and (iv), 4.5(b)(ii), (iii) and (iv) or 4.5(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 4.9(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).
"Investor Servicing Fee shall have the meaning specified in
subsection 3(a) hereof.
"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 September 17, 1999 for the
period from the Closing Date through October 14, 1999, October 13, 1999 for
the period from October 15, 1999 through November 14, 1999 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
September 21, 1999 as amended or modified from time to time.
"London Business Day" shall mean any Business Day on which
dealings in deposits in United States dollars are transacted in the London
interbank market.
"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 October 31, 1999.
"Monthly Principal Payment" shall mean with respect to any
Monthly Period, for all Series (including Series 1999-2) which are in an
Amortization Period or Accumulation Period (as such terms are defined in
the related Supplements for all Series), 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), (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), (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 its Principal
Amortization Period or Rapid Amortization Period (as such terms are defined
in the related Supplements for all Series), (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 Group One in its Rapid Accumulation
Period (as such terms are defined in the related Supplements for all
Series), (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.
"Net Servicing Fee Rate" shall mean (a) so long as the
Transferor, an Affiliate thereof, The Bank of New York (Delaware) or an
Affiliate thereof is the Servicer, 1% per annum and (b) if the Transferor,
an Affiliate thereof, The Bank of New York (Delaware) or an Affiliate
thereof is no longer the Servicer, 2% per annum.
"Pay Out Commencement Date" shall mean the date on which a Trust
Pay Out Event is deemed to occur pursuant to Section 9.1 or a Series 1999-2
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.
"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 (including
recoveries on charged-off Receivables and net investment earnings on funds
on deposit in the Excess Funding 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, and (c) the amount of the Reserve Draw
Amount (up to the Available Reserve Account Amount) plus any amounts of
interest and earnings described in subsection 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 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.
"QIB" shall mean a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act.
"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 1999-2 Termination Date and (b) the termination of
the Trust pursuant to Section 12.1.
"Rating Agency" shall mean Moody's Investors Service, Inc.,
Standard & Poor's, a division of McGraw-Hill Companies, and Fitch IBCA,
Inc.
"Rating Agency Condition" shall mean the notification in writing
by each Rating Agency 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 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) on the Initial
Transfer Date, $37,500,000 and (b) on any Transfer Date thereafter, an
amount equal to 7.5% of the sum of (x) 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
(y) the Collateral Interest on the prior Transfer Date after any
adjustments made on such Transfer 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
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 1999-2.
"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%, 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%,
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%, 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).
"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 1999-2" shall mean the Series of the Wachovia Credit Card
Master Trust represented by the Investor Certificates.
"Series 1999-2 Certificateholders" shall mean the holder of
record of a Series 1999-2 Certificate.
"Series 1999-2 Certificates" shall mean the Class A Certificates
and the Class B Certificates.
"Series 1999-2 Pay Out Event" shall have the meaning specified in
Section 9 hereof.
"Series 1999-2 Termination Date" shall mean the earliest to occur
of (a) the Distribution Date on which the Investor Interest is paid in
full, (b) the February 2004 Distribution Date and (c) the Trust Termination
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 for such Transfer Date.
"Series Servicing Fee Percentage" shall mean 2%.
"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%.
"Shared Excess Finance Charge Collections" shall mean, with
respect to any Distribution Date, either (a) the amount described in
subsection 4.11(l) allocated to the Investor Certificates but available to
cover shortfalls in amounts payable from Collections of Finance Charge
Receivables allocated to other Series in Group One, if any, or (b) the
aggregate amount of Collections Finance Charge Receivables allocable to
other Series in Group One in excess of the amounts necessary to make
required payments with respect to such Series, if any, and available to
cover shortfalls with respect to the Investor Certificates in accordance
with subsection 4.14(b).
"Shared 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 or (b) the sum of the Excess Funding
Amount, with respect to any Distribution Date, and amounts allocated to the
investor certificates of other Series which the applicable Supplements for
such Series specify are to be treated as "Shared Principal Collections" and
which may be applied to cover the Series Principal Shortfall with respect
to the Investor Certificates.
"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 the purpose of displaying comparable
rates or prices).
SECTION 3. Servicing Compensation and Assignment of Interchange.
(a) The share of the Servicing Fee allocable to Series 1999-2 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
$1,111,111.12. On each Transfer Date for which the Transferor, an
Affiliate thereof, The Bank of New York (Delaware) or an Affiliate thereof
is the Servicer, a portion of 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 ("Servicer Interchange"). Should the Servicer Interchange
on deposit in the Finance Charge Account on any Transfer Date with respect
to the related Monthly Period be less than one-twelfth of 1% 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 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 $480,555.56. 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
$33,333.33. The share of the Investor Servicing Fee allocable to the
Collateral Interest with respect to any Transfer Date (the "Collateral
Interest 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 $41,666.67. 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 4.9(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 4.9(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 4.9(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 respect to Finance Charge Receivables with respect to such
Monthly Period. 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 1999-2, assigns, sets-over, conveys, pledges or
grants a security interest in Interchange allocable to the Trust, all
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 purchase by the Transferor at its option,
in accordance with the terms specified in subsection 12.2(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
purchase 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 1999-2 Certificates to
the Trustee for authentication in accordance with Section 6.1. The Trustee
shall deliver such Certificates when authenticated in accordance with
Section 6.2.
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 6.1 and
6.10.
(b) The Depository for Series 1999-2 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 4.1, 4.2 and 4.3
shall be read in their entirety as provided in the Agreement. Article IV
(except for Sections 4.1, 4.2 and 4.3 thereof) shall be read in its
entirety as follows and shall be applicable only to the Investor
Certificates:
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
SECTION 4.4 Rights of Certificateholders. 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 Excess Funding 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 Excess Funding 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 4.5 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) 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 4.9.
(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 4.9(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 4.9(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 4.5(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 4.5(a)(iv)(B) with respect to any Date of
Processing shall be paid to the Holder of the Transferor Certificate
only if the Transferor Amount on such Date of Processing is greater
than the Minimum Transferor Amount (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 4.3(b)) and otherwise shall be deposited into the Excess
Funding Account.
(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 4.9.
(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 4.9(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 4.9(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 4.5(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 4.5(b)(iv)(B) with respect to any Date of
Processing shall be paid to the Holder of the Transferor Certificate
only if the Transferor Amount on such Date of Processing is greater
than the Minimum Transferor Amount (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 4.3(b)) and otherwise shall be deposited into the Excess
Funding Account.
(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 (E) the aggregate amount of Collections
processed in respect of Finance Charge Receivables on such Date of
Processing to be applied in accordance with Section 4.9.
(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 4.5(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 4.5(c)(ii)(B) with respect to any Date of
Processing shall be paid to the Holder of the Transferor Certificate
only if the Transferor Amount on such Date of Processing is greater
than the Minimum Transferor Amount (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 4.3(b)) and otherwise shall be deposited into the Excess
Funding Account.
(d) Limitation on Required Deposits. 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
4.5(a), 4.5(b) and 4.5(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. To the extent that, in accordance with this subsection
4.5(d), the Servicer has retained amounts which would otherwise be required
to be deposited in the Finance Charge Account or the Principal Account with
respect to any Monthly Period, the Servicer shall be required to deposit
such amounts in the Finance Charge Account or the Principal Account on the
related Transfer Date to the extent necessary to make required
distributions to the Investor Certificateholders on the related
Distribution Date, including any amounts which are required to be applied
as Reallocated Principal Collections.
For so long as the Servicer shall (i) satisfy the conditions
specified in the third paragraph of subsection 4.3(a) of the Agreement and
(ii) be making deposits to the Collection Account, the Principal Account
and Finance Charge Account on a monthly basis, all requirements herein to
deposit amounts on a daily basis shall be deemed to be satisfied to the
extent that the required monthly deposit is made and all references to
amounts on deposit in such accounts shall be deemed to include amounts
which would otherwise have been deposited therein on a daily basis.
SECTION 4.6 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, and
(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 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% 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
4.6(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, and
(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% 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
4.6(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 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 4.7 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 to be
made on such day.
(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, at the option of
the Transferor, 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 sum 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.
SECTION 4.8 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) In 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
and Shared Excess Finance Charge Collections allocable to Series 1999-2
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 and Shared Excess
Finance Charge Collections allocable to Series 1999-2 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
and Shared Excess Finance Charge Collections allocable to Series 1999-2
with respect to such Transfer Date and not applied toward the Class A
Required Amount, 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.
SECTION 4.9 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) An 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) an 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) an 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 for such Transfer
Date shall be distributed to the Servicer; and
(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 thereof, The Bank of New
York (Delaware) or an Affiliate thereof 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 remaining after the application specified in
subsection 4.9(d)(i) 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 Supplement for each Series and (2)
the Cumulative Series Principal Shortfall and (B) Available Investor
Principal Collections shall remain in the Principal Account to be
treated as Shared Principal Collections and applied to other Series;
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 4.9(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 4.9(d)(iii) with respect to
such Transfer Date shall be paid to the Holder of the Transferor
Certificate only if the Transferor Amount on such Date of Processing
is greater than the Minimum Transferor Amount (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 4.3(b)) and otherwise shall be deposited into the Excess
Funding Account.
(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 1999-2 Termination Date, in which
case on the Series 1999-2 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 4.9(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
Supplement for each Series 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 Principal
Collections and applied to other Series; and
(v) an amount equal to the excess, if any, of (A) the Available
Investor Principal Collections over (B) the applications specified in
subsections 4.9(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 4.9(e)(v) with respect to such Transfer Date shall be paid
to the Holder of the Transferor Certificate only if the Transferor
Amount on such Date of Processing is greater than the Minimum
Transferor Amount (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 4.3(b)) and
otherwise shall be deposited into the Excess Funding Account.
(f) on the earlier to occur of (i) the first Transfer Date with
respect to 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 5.1(a) to the Class A Certificateholders from
the Distribution Account, the amount deposited into the Distribution
Account pursuant to subsection 4.9(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
4.9(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 5.1 from the Distribution Account the amount
so deposited into the Distribution Account pursuant to subsections 4.9(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.
(i) The Controlled Accumulation Period is scheduled to commence
at the close of business on August 31, 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 a
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 November 1999 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 4.9(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 and Shared Excess Finance Charge Collections
allocable to Series 1999-2 allocated and available for such purpose
pursuant to subsection 4.11(b).
(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 Shared Excess Finance Charge Collections allocable to
Series 1999-2 and the 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 and
Shared Excess Finance Charge Collections allocable to Series 1999-2
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 and Shared Excess Finance Charge Collections allocable to
Series 1999-2 which are 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 (but not by an amount in
excess of the unpaid principal balance of the Collateral Interest) on any
Transfer Date by the amount of the Excess Spread and Shared Excess Finance
Charge Collections allocable to Series 1999-2 allocated and available for
that purpose as described under subsection 4.11(h).
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 with respect to the related
Monthly Period, and to the extent of the Finance Charge Shortfall, any
Shared Excess Finance Charge Collections with respect to other Series in
Group One allocable to Series 1999-2, 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 4.9(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 4.9(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 thereof, The Bank of New York
(Delaware) or an Affiliate thereof 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;
(h) an amount equal to the aggregate amount by which the
Collateral Interest has been reduced 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) the aggregate of any other amounts then due to the Collateral
Interest Holder pursuant to the Loan Agreement shall be paid to the
Collateral Interest Holder for application in accordance with the Loan
Agreement; and
(k) the balance, if any, after giving effect to the payments made
pursuant to subparagraphs (a) through (j) above shall first be treated as
"Shared Excess Finance Charge Collections" with respect to other Series in
Group One and then the balance, if any, remaining after such sharing shall
be paid 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 with respect to the related Monthly Period and the
amount of Shared Excess Finance Charge Collections, shall be applied in
accordance with, and in the priority set forth in, subsection 4.9(a); 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 of Excess Spread and the amount of 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 in
accordance with and in the priority set forth in, subsection 4.9(b) and
then pursuant to subsection 4.11(c).
(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 Principal Collections.
(a) The portion of Shared Principal Collections on deposit in the
Principal Account equal to the amount of Shared Principal Collections
allocable to Series 1999-2 on any Transfer Date shall be applied as an
Available Investor Principal Collection pursuant to Section 4.9 and
pursuant to such Section 4.9 shall be deposited in the Distribution Account
or distributed in accordance with the Loan Agreement.
(b) Shared Principal Collections allocable to Series 1999-2 with
respect to any Transfer Date shall mean an amount equal to the Series
Principal Shortfall, if any, with respect to Series 1999-2 for such
Transfer Date; provided, however, that if the aggregate amount of Shared
Principal Collections for all Series for such Transfer Date (including the
Excess Funding Amount) is less than the Cumulative Series Principal
Shortfall for such Transfer Date, then Shared Principal Collections
allocable to Series 1999-2 on such Transfer Date shall equal the product of
(i) Shared Principal Collections for all Series for such Transfer Date
(including the Excess Funding Amount) and (ii) a fraction, the numerator of
which is the Series Principal Shortfall with respect to Series 1999-2 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 4.14 Shared Excess Finance Charge Collections.
(a) 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 1999-2 on any Transfer Date
shall be applied pursuant to Section 4.11.
(b) Shared Excess Finance Charge Collections allocable to Series
1999-2 with respect to any Transfer Date shall mean an amount equal to the
Finance Charge Shortfall, if any, with respect to Series 1999-2 for such
Transfer Date; provided, however, that if the aggregate amount of Shared
Excess Finance Charge Collections for all Series in Group One for such
Transfer Date is less than the Cumulative Finance Charge Shortfall for such
Transfer Date, the Shared Excess Finance Charge Collections allocable to
Series 1999-2 on such Transfer Date shall equal the product of (i) Shared
Excess Finance Charge Collections for all Series in Group One for such
Transfer Date and (ii) a fraction, the numerator of which is the Finance
Charge Shortfall with respect to Series 1999-2 for such Transfer Date and
the denominator of which is the aggregate amount of the Cumulative Finance
Charge Shortfall for all Series on 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 (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 4.9(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. 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, but not in excess of the Covered Amount,
for application as Class A Available Funds applied pursuant to subsection
4.9(a)(i).
Any Excess Principal Funding Investment Proceeds shall be paid to
the Transferor on each Transfer Date. 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.
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 (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.
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 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 Section 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 1999-2 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.
SECTION 4.17 Determination of LIBOR.
(a) On each LIBOR Determination Date, the Trustee shall determine
LIBOR on the basis of the rate for deposits in United States dollars for a
period equal to the relevant Interest 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
shall 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 period equal to the relevant Interest Period. The Trustee
shall 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 shall be the
arithmetic mean of the quotations. If fewer than two quotations are
provided as requested, the rate for that LIBOR Determination Date shall 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 period equal to the relevant Interest 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 (800) 254-2826.
(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 2.4(d) and (e) and 12.2(a) or Sections 10.2 and 12.1) 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 1999-2 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.
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 5.1 Distributions. (a) 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 3.4(b)) to each Class A Certificateholder of record on the
immediately preceding Record Date (other than as provided in subsection
2.4(e) or Section 12.3 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 4.9 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 3.4(b)) to each
Class B Certificateholder of record on the immediately preceding Record
Date (other than as provided in subsection 2.4(e) or Section 12.3
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 4.9 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 5.2 Monthly Series 1999-2 Certificateholders' Statement.
(a) On or before each Distribution Date, the Trustee shall
forward to each Series 1999-2 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 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 (viii) and (ix) 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 past
due 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;
(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 and the Collateral Servicing Fee 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 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;
(xx) the amount of the Reserve Draw Amount on the related
Transfer Date; and
(xxi) 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 2000, the
Trustee shall distribute to each Person who at any time during the
preceding calendar year was a Series 1999-2 Certificateholder, a statement
prepared by the Servicer containing the information required to be
contained in the regular monthly report to Series 1999-2
Certificateholders, as set forth in subclauses (i) and (ii) above,
aggregated for such calendar year or the applicable portion thereof during
which such Person was a Series 1999-2 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 1999-2 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 Internal Revenue Code as
from time to time in effect.
SECTION 5.3 Rule 144A Information. So long as any of the Class
B Certificates are "restricted securities" within the meaning of Rule
144(a)(3) under the Securities Act and during any period in which the Trust
is not subject to Section 13 or 15(d) of the Exchange Act, the Transferor
agrees to make available to any QIB or beneficial owner of the Class B
Certificates in connection with any sale thereof and any prospective
purchaser of such Class B Certificates from such QIB or beneficial owner,
the information required by Rule 144A(d)(4) under the Securities Act.
SECTION 9. Series 1999-2 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 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 1999-2
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 1999-2, and continues to
affect materially and adversely the interests of the Series 1999-2
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 2.1 or 2.6, (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 1999-2, and (ii) as a result of which the
interests of the Series 1999-2 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 1999-2
Pay Out Event pursuant to this subsection 9(b) 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;
(c) the average Portfolio Yield for any three consecutive Monthly
Periods is reduced to a rate which 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 2.6(a);
(e) any Servicer Default shall occur which would have a material
adverse effect on the Series 1999-2 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 1999-2 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 1999-2 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 1999-2 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 1999-2 Termination. The right of the
Investor Certificateholders to receive payments from the Trust will
terminate on the first Business Day following the Series 1999-2 Termination
Date.
SECTION 11. Transfers of Collateral Interest.
The Collateral Interest shall be subject to the restrictions
on transfer set forth in the Loan Agreement, including Section 7.08
thereof.
SECTION 12. 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 13. Governing Law. THIS SERIES SUPPLEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, 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 14. No Petition. The Transferor, the Servicer and the
Trustee, by entering into this Series Supplement and each Investor
Certificateholder, by accepting a Series 1999-2 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.
(a) It is the intention of the parties hereto that the Collateral
Interest be treated under applicable tax law as indebtedness. In the event
that the Collateral Interest is not so treated, it is the intention of the
parties that the Collateral Interest be treated under applicable tax law as
an interest in a partnership that owns the Receivables. In the event that
the Collateral Interest is treated under applicable tax law as an interest
in a partnership, it is the intention of the parties that the Collateral
Interest be treated as guaranteed payments and, if for any reason it is not
so treated, that the holder of the Collateral Interest be specially
allocated gross interest income equal to the interest accrued during each
Interest Period on the Collateral Interest.
(b) Any Collateral Interest Holder shall be required to represent
and covenant in connection with its acquisition of an interest in the Trust
(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 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, (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. Rights Upon Insolvency Event. If an Insolvency Event
occurs relating to the Transferor or any holder of an interest in the
Transferor Certificate (including any Transferor Participation) while any
of the Series 1995-1 Certificates or the Series 1999-1 Certificates remain
outstanding, in accordance with Section 9.2 of the Agreement, within
fifteen (15) days of the Appointment Day, the Trustee will publish a notice
of the occurrence of such event stating that the Trustee intends to sell,
dispose of or otherwise liquidate the Receivables in a commercially
reasonable manner. Notwithstanding the foregoing and anything to the
contrary set forth in this Supplement, the Series Supplement for any other
Series or the Agreement, no such sale, disposal or liquidation of
Receivables shall occur in connection with an Insolvency Event after the
Series 1995-1 Certificates or the Series 1999-1 Certificates have been paid
in full.
IN WITNESS WHEREOF, the Transferor, the Servicer and the Trustee
have caused this Series 1999-2 Supplement to be duly executed by their
respective officers as of the day and year first above written.
THE FIRST NATIONAL BANK
OF ATLANTA
Transferor and Servicer
By: /s/ Suzanne Bachman
------------------------------
Name: Suzanne Bachman
Title: Vice President
THE BANK OF NEW YORK
(DELAWARE)
Trustee
By: /s/ Reyne A. Macadaeg
------------------------------
Name: Reyne A. Macadaeg
Title: Vice President
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 THE FIRST NATIONAL BANK OF ATLANTA
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. 929772 AF 8
WACHOVIA CREDIT CARD MASTER TRUST
CLASS A FLOATING RATE
ASSET BACKED CERTIFICATE, SERIES 1999-2
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 The First National Bank of Atlanta and other
assets and interests constituting the Trust under the Amended and Restated
Pooling and Servicing Agreement described below.
(Not an interest in or obligation of
The First National Bank of Atlanta
or any Affiliate thereof.)
--------------------
* MasterCard(R) and VISA(R) are federally registered service marks of
MasterCard International Inc. and of Visa U.S.A., Inc., respectively.
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
The First National Bank of Atlanta, a national banking association, all
monies due or to become due in payment of the Receivables (including all
Finance Charge Receivables and recoveries on any charged-off Receivables),
the right to certain amounts received as Intercharge and the Collateral
Interest, all proceeds of the foregoing and the other assets and interests
constituting the Trust pursuant to an Amended and Restated Pooling and
Servicing Agreement dated as of June 4, 1999 as supplemented by the Series
1999-2 Supplement dated as of September 21, 1999 (collectively, as amended
from time to time, the "Pooling and Servicing Agreement"), by and between
The First National Bank of Atlanta, as Transferor (the "Transferor") and as
Servicer (the "Servicer"), and The Bank of New York (Delaware), 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 1999-2 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 1999-2 Certificates with the intention that the Series 1999-
2 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 1999-2 Certificateholder (or Series 1999-2
Certificate Owner) by acceptance of its Series 1999-2 Certificate (or in
the case of a Series 1999-2 Certificate Owner, by virtue of such Series
1999-2 Certificate Owner's acquisition of a beneficial interest therein),
agrees to treat and to take no action inconsistent with the treatment of
the Series 1999-2 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 1999-2 Certificateholder agrees that it will cause any Series 1999-2
Certificate Owner acquiring an interest in a Series 1999-2 Certificate
through it to comply with the Pooling and Servicing Agreement as to
treatment of the Series 1999-2 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. This Class A Certificates is
one of a duly authorized Series of Investor Certificates entitled "Wachovia
Credit Card Master Trust Class A Floating Rate Asset Backed Certificates,
Series 1999-2" (the "Class A Certificates"), each of which represents an
Undivided Interest in the Trust, including the right to receive the
Collections and other amounts allocated to the Class A Certificates at the
times and in the amounts specified in the Pooling and Servicing Agreement
and to be deposited in the Investor Accounts, the Principal Funding Account
and the Reserve Account or paid to the Class A Certificateholders.
Also issued under the Pooling and Servicing Agreement are the
"Wachovia Credit Master Card Trust Class B Floating Rate Asset Backed
Certificates, Series 1999-2" (the "Class B Certificates"), which represent
an Undivided Interest in the Trust subordinate to the Class A Certificates,
and the "Wachovia Credit Card Master Trust Collateral Interest, Series
1999-2" (the "Collateral Interest" and, collectively with the Class A
Certificates and the Class B Certificates, the "Investor Certificates"),
which is an undivided interest in the Trust subordinated to the Class A
Certificates and Class B Certificates. The subordination of the Class B
Certificates and the subordination of the Collateral Interest to the Class
A Certificates shall constitute the Credit Enhancement for the Class A
Certificates.
The aggregate interest represented by the Class A Certificates
and the Class B Certificates at any time in the Principal Receivables in
the Trust shall not exceed an amount equal to the Class A Investor Interest
and the Class B Investor Interest, respectively, at such time. As of the
Closing Date, the Class A Initial Investor Interest is $432,500,000, the
Class B Initial Investor Interest is $30,000,000 and the Initial Collateral
Interest is $37,500,000. The Class A Investor Interest on any date of
determination will be an amount equal to (a) the Class A Initial Investor
Interest minus (b) the aggregate amount of payments of principal made to
the Class A Certificateholders prior to such date of determination, and
minus (c) the excess, if any, of the aggregate amount of Class A Investor
Charge-Offs pursuant to subsection 4.10(a) of the Pooling and Servicing
Agreement over Class A Investor Charge-Offs reimbursed prior to such date
of determination pursuant to subsection 4.11(b) of the Pooling and
Servicing Agreement; provided, however, that the Class A Investor Interest
may not be reduced below zero.
For the purpose of allocating Collections of Finance Charge
Receivables and Receivables in Defaulted Accounts for each Monthly Period
during the Controlled Accumulation Period, the Class A Investor Interest
will be reduced (such reduced amount, the "Class A Adjusted Investor
Interest") by the aggregate principal amount of funds on deposit in the
Principal Funding Account. The Class A Investor Interest together with the
aggregate interest represented by the Class B Certificates in the Principal
Receivables in the Trust (the "Class B Investor Interest") and the
aggregate interest represented by the Collateral Interest in the Principal
Receivables in the Trust are sometimes collectively referred to herein as
the "Investor Interest."
In addition to the Class A Certificates, the Class B Certificats
and the Collateral Interest, a Transferor Certificate representing an
undivided interest in the Trust will be issued to the Transferor pursuant
to the Pooling and Servicing Agreement. The Transferor Certificate will
represent the interest in the Principal Receivables not represented by all
of the Series of Investor Certificates issued by the Trust. The Transferor
Certificate may be exchanged by the Transferor pursuant to the Pooling and
Servicing Agreement for a newly issued Series of Investor Certificates and
a reissued Transferor Certificate upon the conditions set forth in the
Pooling and Servicing Agreement.
Interest will accrue on the Class A Certificates from the Closing
Date through October 14, 1999 from October 15, 1999 through November 14,
1999 and with respect to each Interest Period thereafter, at the rate of
LIBOR plus .18% per annum, as more specifically set forth in the Pooling
and Servicing Agreement (the "Class A Certificate Rate"), and will be
distributed on November 15, 1999 and on the 15th day of each calendar month
thereafter, or if such day is not a Business Day, on the next succeeding
Business Day (a "Distribution Date"), to the Class A Certificateholders of
record as of the last Business Day of the calendar month preceding such
Distribution Date (the "Record Date"). During the Rapid Amortization
Period, in addition to Class A Monthly Interest, Class A Monthly Principal
will be distributed to the Class A Certificateholder on each Distribution
Date until the Class A Investor Interest has been paid in full. With
respect to the Controlled Accumulated Period, in addition to monthly
payments of Class A Monthly Interest, the amount on deposit in the
Principal Funding Account will be distributed as principal to the Class A
Certificateholders on the September 2001 Distribution Date (the "Class A
Scheduled Payment Date"), unless distributed earlier as a result of the
occurrence of a Pay Out Event in accordance with the Pooling and Servicing
Agreement.
On or before each Transfer Date, the Servicer shall instruct the
Trustee in writing to withdraw and the Trustee, acting in accordance with
such instructions, shall withdraw on such Transfer Date, from the Finance
Charge Account to the extent of funds on deposit therein (i) Collections of
Finance Charge Receivables processed as of the end of the preceding Monthly
Period which have been allocated to the Series 1999-2 Certificates, (ii)
with respect to the Class A Certificates, from other amounts constituting
Class A Available Funds, and (iii) with respect to the Class B
Certificates, from other amounts constituting Class B Available Funds, the
following amounts: (x) 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 for such Interest Period and (ii) the Class A
Investor Interest as of the close of business on the last day of the
preceding Monthly Period ("Class A Monthly Interest"); provided, however,
that with respect to the first Distribution Date, Class A Monthly Interest
shall be equal to the interest accrued on the Class A Initial Investor
Interest at the applicable Class A Certificate Rate for the period from the
Closing Date through October 14, 1999 and the period from October 15, 1999
through November 14, 1999; and (y) amounts up to the Class B Monthly
Interest followed by the Collateral Monthly Interest, in the actual amounts
and manner described in the Pooling and Servicing Agreement.
On each Transfer Date, the Trustee shall apply the Class A
Available Funds withdrawn from the Finance Charge Account, as required by
the Pooling and Servicing Agreement, in the following order of priority:
(i) an amount equal to the 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,
(ii) an 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 on any prior
Transfer Date and (iii) an amount equal to the Class A Investor Default
Amount, if any, for the preceding Monthly Period. The Trustee on each
Transfer Date shall apply the Class B Available Funds withdrawn from the
Finance Charge Account, as required by the Pooling and Servicing Agreement,
in the following order of priority: (i) 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, and (ii) the Class B Servicing Fee for such Transfer
Date plus the amount of any Class B Servicing Fee due but not paid on any
prior Transfer Date. The balance of the amount withdrawn from the Finance
Charge Account allocable to the Series 1999-2 Certificates, if any, after
giving effect to the applications above (and, in certain circumstances,
payments in respect of the Collateral Interest Servicing Fee) shall
constitute "Excess Spread."
On or before the Transfer Date immediately succeeding the Monthly
Period in which the Controlled Accumulated Period or the Rapid Amortization
Period commences and on or before each Transfer Date thereafter, the
Servicer shall instruct the Trustee in writing to withdraw, and the
Trustee, acting in accordance with such instructions, shall withdraw on
such Transfer Date from the Principal Account an amount equal to the
Available Investor Principal Collections on deposit in the Principal
Account and from such amounts, (A) deposit an amount equal to Class A
Monthly Principal (i) during the Controlled Accumulation Period, into the
Principal Funding Account, and (ii) during the Rapid Amortization Period,
into the Distribution Account, (B) after the Class A Investor Interest has
been paid in full, deposit an amount equal to Class B Monthly Principal
into the Distribution Account, and (C) any remaining amounts in the
Principal Account shall be used for payment of Collateral Monthly
Principal.
On the earlier to occur of the first Transfer Date with respect
to the Rapid Amortization Period or the Transfer Date immediately preceding
the Class A Scheduled Payment Date, the Servicer shall instruct the Trustee
to withdraw, and the Trustee shall withdraw from the Principal Funding
Account and deposit in the Distribution Account the amount on deposit in
the Principal Funding Account.
On the Class A Scheduled Payment Date or on each Distribution
Date with respect to a Rapid Amortization Period, the Trustee shall pay
from amounts on deposit in the Distribution Account an amount equal to the
lesser of the Class A Investor Interest and the amount of Available
Investor Principal Collections on deposit in the distribution Account with
respect to the related Monthly Period, and after the Class A Investor
Interest has been paid in full (after taking into account distributions to
be made on the related Distribution Date), Available Investor Principal
Collections shall be applied to the Class B Certificates and Collateral
Interest as specified in the Pooling and Servicing Agreement.
On each Distribution Date, the Trustee shall pay to the Class A
Certificateholders and the Class B Certificateholders the amount deposited
on the related Transfer Date into the Distribution Account in respect of
Class A Monthly Interest and Class B Monthly Interest, respectively. On
each Transfer Date, the Trustee shall pay to the Collateral Interest Holder
the Collateral Monthly Interest, to the extent funds are available.
Distributions with respect to this Series 1999-2 Certificate will be made
by the Trustee by, except as otherwise provided in the Pooling and
Servicing Agreement, check mailed to the address of each Series 1999-2
Certificateholder of record appearing in the Certificate Register and
except for the final distribution in respect of this Series 1999-2
Certificate, without the presentation or surrender of this Series 1999-2
Certificate or the making of any notation thereon; provided, however, that
with respect to Series 1999-2 Certificates registered in the name of the
nominee of a Clearing Agency, distributions will be made in the form of
immediately available funds.
This Class A Certificate represents an interest in only the
Wachovia Credit Master Card Trust. This Class A Certificate does not
represent an obligation of, or an interest in, the Transferor or the
Servicer, and neither the Series 1999-2 Certificates nor the Accounts or
Receivables are insured or guaranteed by the Federal Deposit Insurance
Corporation or any other governmental agency. This Series 1999-2
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.
The Transfer of this Class A Certificate shall be registered in
the Certificate Register upon surrender of this agency maintained by the
Transfer Agent and Registrar accompanied by a written instrument of
transfer in a form satisfactory to the Trustee and the Transfer Agent and
Registrar duly executed by the Class A Certificateholder or such Class A
Certificateholder's attorney-in-fact duly authorized in writing, and
thereupon one or more new Class A Certificates of authorized denominations
and for the same aggregate Undivided Interests will be issued to the
designated transferee or transferees.
The Servicer, the Trustee and the Transfer Agent and Registrar,
and any agent of any of them, may treat the Person in whose name this Class
A Certificate is registered as the owner hereof for all purposes, and
neither the Servicer, the Trustee, the Paying Agent, the Transfer Agent and
Registrar, nor any agent of any of them or of any such agent shall be
affected by notice to the contrary except in certain circumstances
described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the right of
the Series 1999-2 Certificateholders to receive payment from the Trust will
terminate on the first Business Day following the Series 1999-2 Termination
Date. Upon the termination of the Trust pursuant to Section 12.1 of the
Pooling and Servicing Agreement, the Trustee shall assign and convey 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, and all proceeds of such
Receivables and Insurance Proceeds relating to such Receivables. The
Trustee shall execute and deliver such instruments of transfer and
assignment, in each case without recourse, as shall be prepared by the
Servicer reasonably requested by the Holder of the Transferor Certificate
to vest in such Holder all right, title and interest which the Trustee had
in the Receivables.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee, by manual signature, this Class A
Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, The First National Bank of Atlanta has caused
this Class A certificate to be duly executed by a duly authorized officer.
By:_____________________________
Authorized Officer
Date:___________________
Form of Trustee's Certificate of Authentication
CERTIFICATE OF AUTHENTICATION
This is one of the Class A Certificates referred to in the
within-mentioned Amended and Restated Pooling and Servicing Agreement.
THE BANK OF NEW YORK (DELAWARE),
Trustee
By:______________________________
Authorized Signatory
EXHIBIT A-2
FORM OF CERTIFICATE
CLASS B
EACH PURCHASER REPRESENTS AND WARRANTS FOR THE BENEFIT
OF THE FIRST NATIONAL BANK OF ATLANTA AND THE TRUSTEE THAT
SUCH PURCHASER IS NOT (I) AN EMPLOYEE BENEFIT PLAN (AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA")) THAT IS SUBJECT
TO THE PROVISIONS OF TITLE I OF ERISA, (II) A PLAN DESCRIBED
IN SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF 1986,
AS AMENDED (THE "CODE"), (III) A GOVERNMENTAL PLAN, AS
DEFINED IN SECTION 3(32) OF ERISA, SUBJECT TO ANY FEDERAL,
STATE OR LOCAL LAW WHICH IS, TO A MATERIAL EXTENT, SIMILAR
TO THE PROVISIONS OF SECTION 406 OF ERISA OR SECTION 4975 OF
THE CODE, (IV) AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE
PLAN ASSETS (AS DEFINED IN 29 C.F.R. SECTION 2510.3-101 OR
OTHERWISE UNDER ERISA) BY REASON OF A PLAN'S INVESTMENT IN
THE ENTITY OR (V) A PERSON INVESTING PLAN ASSETS OF ANY SUCH
PLAN (INCLUDING WITHOUT LIMITATION, FOR PURPOSES OF CLAUSE
(IV) AND THIS CLAUSE (V), ANY INSURANCE COMPANY GENERAL
ACCOUNT, BUT EXCLUDING ANY ENTITY REGISTERED UNDER THE
INVESTMENT COMPANY ACT OF 1940, AS AMENDED).
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK
CORPORATION ("DTC"), TO THE FIRST NATIONAL BANK OF ATLANTA
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. 929772 AG 6
WACHOVIA CREDIT CARD MASTER TRUST
CLASS B FLOATING RATE
ASSET BACKED CERTIFICATE, SERIES 1999-2
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 The First National Bank of Atlanta and other
assets and interests constituting the Trust under the Amended and Restated
Pooling and Servicing Agreement described below.
(Not an interest in or obligation of
The First National Bank of Atlanta
or any Affiliate thereof.)
---------------
* MasterCard(R) and VISA(R) are federally registered service marks of
MasterCard International Inc. and of Visa U.S.A., Inc., respectively.
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 The First National Bank of Atlanta, a national banking
association, all monies due or to become due in payment of the Receivables
(including all Finance Charge Receivables and recoveries on any charged-off
Receivables), the right to certain amounts received as Intercharge and the
Collateral Interest, all proceeds of the foregoing and the other assets and
interests constituting the Trust pursuant to an Amended and Restated
Pooling and Servicing Agreement dated as of June 4, 1999 as supplemented by
the Series 1999-2 Supplement dated as of September 21, 1999 (collectively,
as amended from time to time, the "Pooling and Servicing Agreement"), by
and between The First National Bank of Atlanta, as Transferor (the
"Transferor") and as Servicer (the "Servicer"), and The Bank of New York
(Delaware), 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 1999-2 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 1999-2 Certificates with the intention that the Series 1999-
2 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 1999-2 Certificateholder (or Series 1999-2
Certificate Owner) by acceptance of its Series 1999-2 Certificate (or in
the case of a Series 1999-2 Certificate Owner, by virtue of such Series
1999-2 Certificate Owner's acquisition of a beneficial interest therein),
agrees to treat and to take no action inconsistent with the treatment of
the Series 1999-2 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 1999-2 Certificateholder agrees that it will cause any Series 1999-2
Certificate Owner acquiring an interest in a Series 1999-2 Certificate
through it to comply with the Pooling and Servicing Agreement as to
treatment of the Series 1999-2 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. This Class B Certificates is
one of a duly authorized Series of Investor Certificates entitled "Wachovia
Credit Card Master Trust Class B Floating Rate Asset Backed Certificates,
Series 1999-2" (the "Class B Certificates"), each of which represents an
Undivided Interest in the Trust, including the right to receive the
Collections and other amounts allocated to the Class B Certificates at the
times and in the amounts specified in the Pooling and Servicing Agreement
and to be deposited in the Investor Accounts, the Principal Funding Account
and the Reserve Account or paid to the Class B Certificateholders.
Also issued under the Pooling and Servicing Agreement are the
"Wachovia Credit Card Master Trust Class A Floating Rate Asset Backed
Certificates, Series 1999-2" (the "Class A Certificates"), which represent
an Undivided Interest in the Trust, and the "Wachovia Credit Card Master
Trust Collateral Interest, Series 1999-2" (the "Collateral Interest" and,
collectively with the Class A Certificates and the Class B Certificates,
the "Investor Certificates"), which is an undivided interest in the Trust
subordinated to the Class A Certificates and Class B Certificates. The
subordination of the Collateral Interest to the Class B Certificates shall
constitute the Credit Enhancement for the Class B Certificates. The Class
B Certificates are subordinated to the Class A Certificates.
The aggregate interest represented by the Class A Certificates
and the Class B Certificates at any time in the Principal Receivables in
the Trust shall not exceed an amount equal to the Class A Investor Interest
and the Class B Investor Interest, respectively, at such time. As of the
Closing Date, the Class A Initial Investor Interest is $432,500,000 the
Class B Initial Investor Interest is $30,000,000 and the Initial Collateral
Interest is $37,500,000. The Class B Investor Interest on any date of
determination will be an amount equal to (a) the Class B Initial Investor
Interest minus (b) the aggregate amount of payments of principal made to
the Class B Certificateholders prior to such date of determination, minus
(c) the aggregate amount of Class B Investor Charge-Offs pursuant to
subsection 4.10(b) of the Pooling and Servicing Agreement, minus (d) the
amount of Reallocated Class B Principal Collections allocated pursuant to
subsection 4.12(a) 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 pursuant to subsection 4.10(a) and plus (f) the
aggregate amount of Excess Spread allocated and available 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.
The Class B Investor Interest together with the Class A Investor
Interest and the aggregate interest represented by the Collateral Interest
in the Principal Receivables in the Trust are sometimes collectively
referred to herein as the "Investor Interest."
In addition to the Class A Certificates, the Class B Certificats
and the Collateral Interest, a Transferor Certificate representing an
undivided interest in the Trust will be issued to the Transferor pursuant
to the Pooling and Servicing Agreement. The Transferor Certificate will
represent the interest in the Principal Receivables not represented by all
of the Series of Investor Certificates issued by the Trust. The Transferor
Certificate may be exchanged by the Transferor pursuant to the Pooling and
Servicing Agreement for a newly issued Series of Investor Certificates and
a reissued Transferor Certificate upon the conditions set forth in the
Pooling and Servicing Agreement.
Interest will accrue on the Class B Certificates from the Closing
Date through October 14, 1999 from October 15, 1999 through November 14,
1999 and with respect to each Interest Period thereafter, at the rate of
LIBOR plus 0.42% per annum, as more specifically set forth in the Pooling
and Servicing Agreement (the "Class B Certificate Rate"), and will be
distributed on November 15, 1999 and on the 15th day of each calendar month
thereafter, or if such day is not a Business Day, on the next succeeding
Business Day (a "Distribution Date"), to the Class B Certificateholders of
record as of the last Business Day of the calendar month preceding such
Distribution Date (the "Record Date"). During the Rapid Amortization
Period, in addition to Class B Monthly Interest, following payment in full
of the Class A Investor Interest, Class B Monthly Principal will be
distributed to the Class B Certificateholder on each Distribution Date
until the Class B Investor Interest has been paid in full. With respect to
the Controlled Accumulated Period following payment in full of the Class A
Investor Interest, Class B Monthly Principal will be distributed to the
Class B Certificateholders on the September 2001 Distribution Date (the
"Class B Scheduled Payment Date"), unless distributed earlier as a result
of the occurrence of a Pay Out Event in accordance with the Pooling and
Servicing Agreement.
On or before each Transfer Date, the Servicer shall instruct the
Trustee in writing to withdraw and the Trustee, acting in accordance with
such instructions, shall withdraw on such Transfer Date, from the Finance
Charge Account to the extent of funds on deposit therein (i) Collections of
Finance Charge Receivables processed as of the end of the preceding Monthly
Period which have been allocated to the Series 1999-2 Certificates, (ii)
with respect to the Class A Certificates, from other amounts constituting
Class A Available Funds, and (iii) with respect to the Class B
Certificates, from other amounts constituting Class B Available Funds, the
following amounts: (x) amounts up to the Class A Monthly Interest; (y) 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 for
such Interest Period and (ii) the Class B Investor Interest as of the close
of business on the last day of the preceding Monthly Period ("Class B
Monthly Interest"), provided, however, that with respect to the first
Distribution Date, Class B Monthly Interest shall be equal to the interest
accrued on the Class B Initial Investor Interest at the applicable Class B
Certificate Rate for the period from the Closing Date through October 14,
1999 and the period from October 15, 1999 through November 14, 1999; and
(z) amounts up to the Collateral Monthly Interest, in the actual amounts
and manner described in the Pooling and Servicing Agreement.
On each Transfer Date, the Trustee shall apply the Class A
Available Funds withdrawn from the Finance Charge Account, as required by
the Pooling and Servicing Agreement, in the following order of priority:
(i) an amount equal to the 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,
(ii) an 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 on any prior
Transfer Date and (iii) an amount equal to the Class A Investor Default
Amount, if any, for the preceding Monthly Period. The Trustee on each
Transfer Date shall apply the Class B Available Funds withdrawn from the
Finance Charge Account, as required by the Pooling and Servicing Agreement,
in the following order of priority: (i) 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, and (ii) the Class B Servicing Fee for such Transfer
Date plus the amount of any Class B Servicing Fee due but not paid on any
prior Transfer Date. The balance of the amount withdrawn from the Finance
Charge Account allocable to the Series 1999-2 Certificates, if any, after
giving effect to the applications above (and, in certain circumstances,
payments in respect of the Collateral Interest Servicing Fee) shall
constitute "Excess Spread."
On or before the Transfer Date immediately succeeding the Monthly
Period in which the Controlled Accumulated Period or the Rapid Amortization
Period commences and on or before each Transfer Date thereafter, the
Servicer shall instruct the Trustee in writing to withdraw, and the
Trustee, acting in accordance with such instructions, shall withdraw on
such Transfer Date from the Principal Account an amount equal to the
Available Investor Principal Collections on deposit in the Principal
Account and from such amounts, (A) deposit an amount equal to Class A
Monthly Principal (i) during the Controlled Accumulation Period, into the
Principal Funding Account, and (ii) during the Rapid Amortization Period,
into the Distribution Account, (B) after the Class A Investor Interest has
been paid in full, deposit an amount equal to Class B Monthly Principal
into the Distribution Account, and (C) any remaining amounts in the
Principal Account shall be used for payment of Collateral Monthly
Principal.
On the Class B Scheduled Payment Date or on each Distribution
Date with respect to a Rapid Amortization Period, the Trustee shall pay
from amounts on deposit in the Distribution Account an amount equal to the
lesser of the Class B Investor Interest and the amount of Available
Investor Principal Collections on deposit in the Distribution Account with
respect to the related Monthly Period after payment of any Class A Monthly
Principal, and after the Class B Investor Interest has been paid in full
(after taking into account distributions to be made on the related
Distribution Date), Available Investor Principal Collections shall be
applied to the Collateral Interest as specified in the Pooling and
Servicing Agreement.
On each Distribution Date, the Trustee shall pay to the Class A
Certificateholders and the Class B Certificateholders the amount deposited
on the related Transfer Date into the Distribution Account in respect of
Class A Monthly Interest and Class B Monthly Interest, respectively. On
each Transfer Date, the Trustee shall pay to the Collateral Interest Holder
the Collateral Monthly Interest, to the extent funds are available.
Distributions with respect to this Series 1999-2 Certificate will be made
by the Trustee by, except as otherwise provided in the Pooling and
Servicing Agreement, check mailed to the address of each Series 1999-2
Certificateholder of record appearing in the Certificate Register and
except for the final distribution in respect of this Series 1999-2
Certificate, without the presentation or surrender of this Series 1999-2
Certificate or the making of any notation thereon; provided, however, that
with respect to Series 1999-2 Certificates registered in the name of the
nominee of a Clearing Agency, distributions will be made in the form of
immediately available funds.
This Class B Certificate represents an interest in only the
Wachovia Credit Card Master Trust. This Class B Certificate does not
represent an obligation of, or an interest in, the Transferor or the
Servicer, and neither the Series 1999-2 Certificates nor the Accounts or
Receivables are insured or guaranteed by the Federal Deposit Insurance
Corporation or any other governmental agency. This Series 1999-2
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.
The Transfer of this Class B Certificate shall be registered in
the Certificate Register upon surrender of this agency maintained by the
Transfer Agent and Registrar accompanied by a written instrument of
transfer in a form satisfactory to the Trustee and the Transfer Agent and
Registrar duly executed by the Class B Certificateholder or such Class B
Certificateholder's attorney-in-fact duly authorized in writing, and
thereupon one or more new Class B Certificates of authorized denominations
and for the same aggregate Undivided Interests will be issued to the
designated transferee or transferees.
The Servicer, the Trustee and the Transfer Agent and Registrar,
and any agent of any of them, may treat the Person in whose name this Class
B Certificate is registered as the owner hereof for all purposes, and
neither the Servicer, the Trustee, the Paying Agent, the Transfer Agent and
Registrar, nor any agent of any of them or of any such agent shall be
affected by notice to the contrary except in certain circumstances
described in the Pooling and Servicing Agreement.
The Pooling and Servicing Agreement provides that the right of
the Series 1999-2 Certificateholders to receive payment from the Trust will
terminate on the first Business Day following the Series 1999-2 Termination
Date. Upon the termination of the Trust pursuant to Section 12.1 of the
Pooling and Servicing Agreement, the Trustee shall assign and convey 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, and all proceeds of such
Receivables and Insurance Proceeds relating to such Receivables. The
Trustee shall execute and deliver such instruments of transfer and
assignment, in each case without recourse, as shall be prepared by the
Servicer reasonably requested by the Holder of the Transferor Certificate
to vest in such Holder all right, title and interest which the Trustee had
in the Receivables.
Unless the certificate of authentication hereon has been executed
by or on behalf of the Trustee, by manual signature, this Class B
Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, The First National Bank of Atlanta has caused
this Class B Certificate to be duly executed by a duly authorized officer.
By:___________________________
Authorized Officer
Date:__________________
Form of Trustee's Certificate of Authentication
CERTIFICATE OF AUTHENTICATION
This is one of the Class B Certificates referred to in the
within-mentioned Amended and Restated Pooling and Servicing Agreement.
THE BANK OF NEW YORK (Delaware),
Trustee
By:______________________________
Authorized Signatory
EXHIBIT B
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND NOTIFICATION
TO THE BANK OF NEW YORK (DELAWARE), AS TRUSTEE
WACHOVIA CREDIT CARD MASTER TRUST SERIES 1999-2
MONTHLY PERIOD ENDING __________ __, ____
Capitalized terms used in this notice have their respective meanings set
forth in the Amended and Restated Pooling and Servicing Agreement.
References herein to certain sections and subsections are references to the
respective sections and subsections of the Amended and Restated Pooling and
Servicing Agreement as supplemented by the Series 1999-2 Supplement. This
notice is delivered pursuant to Section 4.9.
A) The First National Bank of Atlanta is the Servicer under the
Amended and Restated 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 Amended and Restated Pooling and Servicing Agreement.
I. INSTRUCTION TO MAKE A WITHDRAWAL
Pursuant to Section 4.9, the Servicer does hereby instruct the Trustee (i)
to make withdrawals from the Finance Charge Account, the Principal Account,
the Principal Funding Account and the Distribution Account on ___________
__, ____, which date is a Transfer Date under the Amended and Restated
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 accordance with subsection 3(a) of the
Series 1999-2 Supplement and Section 4.9 of the Supplement:
A. Pursuant to subsection 3(a) of the Series 1999-2
Supplement:
1. Servicer Interchange $_____________
B. Pursuant to subsection 4.9(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 4.9(a)(ii):
1. Class A Servicing Fee $_____________
2. Accrued and unpaid Class A Servicing Fee $_____________
D. Pursuant to subsection 4.9(a)(iii):
1. Class A Investor Default Amount $_____________
E. Pursuant to subsection 4.9(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 4.9(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 4.9(b)(ii):
1. Class B Servicing Fee $_____________
2. Accrued and unpaid Class B Servicing Fee $_____________
H. Pursuant to subsection 4.9(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 4.9(c)(i):
1. Collateral Interest Servicing Fee, if
applicable $_____________
2. Accrued and unpaid Collateral Interest
Servicing Fee, if applicable $_____________
J. Pursuant to subsection 4.9(c)(ii):
1. Portion of Excess Spread from Collateral
Available Funds to be allocated and
distributed as provided in Section 4.11 $_____________
Total $
=============
K. Pursuant to subsection 4.9(d)(i):
1. Collateral Monthly Principal, if any,
applied in accordance with the Loan
Agreement $_____________
L. Pursuant to subsection 4.9(d)(ii):
1. Amount to be treated as Shared
Principal Collections $_____________
M. Pursuant to subsection 4.9(d)(iii):
1. Amount to be paid to the Holder of the
Transferor Certificate $_____________
2. Amount to be deposited in the Excess
Funding Account $_____________
N. Pursuant to subsection 4.9(e)(i):
1. Class A Monthly Principal $_____________
O. Pursuant to subsection 4.9(e)(ii):
1. Class B Monthly Principal $_____________
P. Pursuant to subsection 4.9(e)(iii):
1. Collateral Monthly Principal to be
applied in accordance with the Loan
Agreement $_____________
Q. Pursuant to subsection 4.9(e)(iv):
1. Amount to be treated as Shared
Principal Collections $_____________
R. Pursuant to subsection 4.9(e)(v):
1. Amount to be paid to the Holder of
the Transferor Certificate $_____________
2. Amount to be deposited in the Excess
Funding Account $_____________
Total $
=============
S. Pursuant to subsection 4.9(f):
1. Amount to be withdrawn from the Principal
Funding Account and deposited into the
Distribution Account $_____________
II. INSTRUCTION TO MAKE CERTAIN PAYMENTS
Pursuant to Section 4.9, the Servicer does hereby instruct the Trustee to
pay in accordance with Section 5.1 from the Distribution Account on
__________ __, ____, which date is a Distribution Date under the Amended
and Restated Pooling and Servicing Agreement, amounts so deposited in the
Distribution Account pursuant to Section 4.9 as set forth below:
A. Pursuant to subsection 4.9(g):
1. Amount to be distributed to Class A
Certificateholders $_____________
2. Amount to be distributed to Class B
Certificateholders $_____________
B. Pursuant to subsection 4.9(h)(i):
1. Amount to be distributed to the Class A
Certificateholders $_____________
C. Pursuant to subsection 4.9(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 4.9(a) $_____________
B. The amount equal to the aggregate amount of
Class A Investor Charge-Offs which have not
been previously reimbursed which will be
treated
as a portion of Invest
Collections and deposited into the Principal
Account on such Transfer Date $_____________
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 4.9(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 an Affiliate
thereof, The Bank of New York (Delaware) or
an Affiliate thereof 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 $_____________
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 have not been previously reimbursed)
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 amount equal to the amounts determined to
be payable to the Collateral Interest Holder
for application pursuant to the Loan Agreement $_____________
K. The balance, if any, after giving effect to
the payments made pursuant to subparagraphs
(a) through (j) above which shall constitute
"Shared Excess Finance Charge Collections"
with respect to other Series in Group One. $_____________
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 Collections $_____________
B. Reallocated Class B Principal Collections $_____________
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. Subsection 4.9(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 4.9(a)(ii) and (b)(ii):
The aggregate amount of all accrued and unpaid
Investor Monthly Servicing Fees $_____________
C. Section 4.10:
The aggregate amount of all unreimbursed
Investor Charge Offs $_____________
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate this ____ day of __________, ____.
THE FIRST NATIONAL BANK OF ATLANTA,
Servicer
By:_______________________________
Name:
Title:
EXHIBIT C
FORM OF MONTHLY SERIES 1999-2 CERTIFICATEHOLDERS' STATEMENT
THE FIRST NATIONAL BANK OF ATLANTA
________________________________________________
WACHOVIA CREDIT CARD MASTER TRUST
________________________________________________
Listed below is 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 Amended and Restated Pooling and Servicing
Agreement.
D. 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 Class A
Monthly Principal . . . . . . . . . . . . . . . . . . $_________
2. The amount of the currently monthly
distribution in respect of Class B
Monthly Principal . . . . . . . . . . . . . . . . . . $_________
3. The amount of the currently monthly
distribution in respect of Collateral
Monthly Principal . . . . . . . . . . . . . . . . . . $_________
4. The amount of the currently monthly
distribution in respect of Class A
Monthly Interest . . . . . . . . . . . . . . . . . . $_________
5. The amount of the currently monthly
distribution in respect of Class A
Deficiency Amounts . . . . . . . . . . . . . . . . . $_________
6. The amount of the currently monthly
distribution in respect of Class A
Additional Interest . . . . . . . . . . . . . . . . . $_________
7. The amount of the currently monthly
distribution in respect of Class B
Monthly Interest . . . . . . . . . . . . . . . . . . $_________
8. The amount of the currently monthly
distribution in respect of Class B
Deficiency Amounts . . . . . . . . . . . . . . . . . $_________
9. The amount of the currently monthly
distribution in respect of Class B
Additional Interest . . . . . . . . . . . . . . . . . $_________
10. The amount of the currently monthly
distribution in respect of Collateral
Monthly Interest . . . . . . . . . . . . . . . . . . $_________
11. The amount of the currently monthly
distribution in respect of any
accrued and unpaid Collateral
Monthly Interest . . . . . . . . . . . . . . . . . . $_________
E. 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 1999-2
as of the end of the day on
the last day of the related
Monthly Period . . . . . . . . . . . . . . . . . $_________
(c) The amount of Principal
Receivables in the Trust
represented by the Series
1999-2 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 date 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 . . . . . . . . . . . . . . . . . _____%
(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 . . . . . . . . . . . . . . . . . _____%
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 the 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) The aggregate amount of Class B
Investor Charge-Offs for the re-
lated Monthly Period . . . . . . . . . . . . . . $_________
(d) The aggregate amount of Class B
Investor Charge-Offs 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 re-
imbursed 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 re-
imbursed 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 . . . . . . . . $_________
(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
Interest Servicing Fee 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 Distri-
bution 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 Certificate . . . . . . . . . . . . . . $_________
(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 Amount
(a) The principal amount on
deposit in the Principal
Funding Accounted on the
related Transfer Date . . . . . . . . . . . . . $_________
(b) The Accumulation Shortfall
with respect to the related
Monthly Period . . . . . . . . . . . . . . . . . $_________
(c) The Principal Funding In-
vestment Proceeds deposited
in the Finance Charge Account
on the related Transfer Date . . . . . . . . . . $_________
(d) 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) 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 . . . . . . . . . ____%
F. Floating Rate Determinations
1. LIBOR for the Interest Period
ending on this Distribution Date . . . . . . . . . . ____%
THE FIRST NATIONAL BANK OF ATLANTA
Servicer
By:_______________________________
Name:
Title:
SCHEDULE TO EXHIBIT C
SCHEDULE TO MONTHLY SERVICER'S CERTIFICATE
MONTHLY PERIOD ENDING _________ __, ____
THE FIRST NATIONAL BANK OF ATLANTA
WACHOVIA CREDIT CARD MASTER TRUST SERIES 1999-2
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 de-
posit in Finance Charge Account
allocable to the Series 1999-2
Certificates . . . . . . . . . . . . . . . . . . . . . . . $_________
6. The aggregate amount of funds on
deposit in the Principal Account
allocable to the Series 1999-2
Certificates . . . . . . . . . . . . . . . . . . . . . . . $_________
7. The aggregate amount of fund on
deposit in the Principal Funding
Account allocable to the Series 1999-2
Certificates . . . . . . . . . . . . . . . . . . . . . . . $_________
8. The aggregate amount to be withdrawn
from the Finance Charge Account and
paid in accordance with the Loan
Agreement pursuant to Section 4.11 . . . . . . . . . . . . $_________
9. The excess, if any, of the Required
Collateral Interest over the sum of the
Collateral Interest . . . . . . . . . . . . . . . . . . . $_________
10. The Collateral Interest on the Transfer
Date of the current calendar month,
after giving effect to the deposits and
withdrawals on such Transfer Date 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 . . . . . . . . . . . . . $_________
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 1999-2 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 ______________, ____.
THE FIRST NATIONAL BANK OF ATLANTA
Servicer
By: ______________________________
Name:
Title:
TABLE OF CONTENTS
Page
SECTION 1. Designation . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 3. Servicing Compensation and Assignment of Interchange . . . 21
SECTION 4. Reassignment and Transfer Terms . . . . . . . . . . . . . . 23
SECTION 5. Delivery and Payment for the Investor Certificates . . . . 24
SECTION 6. Depository; Form of Delivery of Investor Certificates . . . 24
SECTION 7. Article IV of Agreement . . . . . . . . . . . . . . . . . . 24
SECTION 4.4 Rights of Certificateholders . . . . . . . . . . . . 24
SECTION 4.5 Allocations . . . . . . . . . . . . . . . . . . . . 25
SECTION 4.6 Determination of Monthly Interest . . . . . . . . . 29
SECTION 4.7 Determination of Monthly Principal . . . . . . . . . 30
SECTION 4.8 Coverage of Required Amount . . . . . . . . . . . . 31
SECTION 4.9 Monthly Payments . . . . . . . . . . . . . . . . . . 32
SECTION 4.10 Investor Charge-Offs . . . . . . . . . . . . . . . . 37
SECTION 4.11 Excess Spread; Shared Excess Finance Charge
Collections . . . . . . . . . . . . . . . . . . . 39
SECTION 4.12 Reallocated Principal Collections . . . . . . . . . 41
SECTION 4.13 Shared Principal Collections . . . . . . . . . . . . 42
SECTION 4.14 Shared Excess Finance Charge Collections . . . . . . 42
SECTION 4.15 Principal Funding Account . . . . . . . . . . . . . 43
SECTION 4.16 Reserve Account . . . . . . . . . . . . . . . . . . 44
SECTION 4.17 Determination of LIBOR . . . . . . . . . . . . . . . 47
SECTION 4.18 Transferor's or Servicer's Failure to Make a
Deposit or Payment . . . . . . . . . . . . . . . . 47
SECTION 8. Article V of the Agreement . . . . . . . . . . . . . . . . 47
SECTION 5.1 Distributions . . . . . . . . . . . . . . . . . . . 47
SECTION 5.2 Monthly Series 1999-2 Certificateholders'
Statement . . . . . . . . . . . . . . . . . . . . 48
SECTION 5.3 Rule 144A Information . . . . . . . . . . . . . . . 51
SECTION 9. Series 1999-2 Pay Out Events . . . . . . . . . . . . . . . 51
SECTION 10. Series 1999-2 Termination . . . . . . . . . . . . . . . . 53
SECTION 11. Transfers of Class B Certificates . . . . . . . . . . . . 53
SECTION 12. Counterparts . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 13. Governing Law . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 14. No Petition . . . . . . . . . . . . . . . . . . . . . . . 53
SECTION 15. Tax Representation and Covenant . . . . . . . . . . . . . 53
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 1999-2 Certificateholders'
Statement
Exhibit 4.3
September 21, 1999
To the Addressees Listed on
Schedule A Attached Hereto
Re: Wachovia Credit Card Master Trust $432,500,000 Class A
Floating Rate Asset Backed Certificates, Series 1999-2
$30,000,000 Class B Floating Rate Asset Backed Certificates,
Series 1999-2
Ladies and Gentlemen:
You have requested our opinion as to certain federal and state
income tax consequences of the issuance of certificates pursuant to the
Amended and Restated Pooling and Servicing Agreement dated as of June 4,
1999 (the "Agreement")(1), as amended to the date hereof and the Series
1999-2 Supplement thereto dated as of September 21, 1999 (the "Supplement"),
between The First National Bank of Atlanta (the "Bank"), as Transferor and
Servicer, and The Bank of New York (Delaware), as trustee (the "Trustee").
Specifically, you have asked us whether the Class A Floating Rate Asset
Backed Certificates, Series 1999-2 and the Class B Floating Rate Asset
Backed Certificates, Series 1999-2 (collectively, the "Certificates")
purchased by investors will be characterized as indebtedness for federal
income tax purposes and for Delaware state income tax purposes and whether
Wachovia Credit Card Master Trust (the "Trust") will be classified as an
association (or a publicly traded partnership) taxable as a corporation.
-----------------
(1) All capitalized terms used below that are not otherwise defined have
the same meaning as set forth in the Agreement and the Supplement.
In connection with your request, we have examined and relied upon
(i) the prospectus dated September 9, 1999, and a prospectus supplement
dated September 9, 1999, for the Certificates (such prospectus and
prospectus supplement being hereinafter referred to as the "Prospectus");
(ii) the Agreement; (iii) the Supplement; (iv) the Participation Agreement
between the Transferor and Wachovia Bank, N.A. (the "Participant") dated
April 1, 1992 (as amended, the "Participation Agreement"); (v) the Loan
Agreement among the Bank, the Trustee, the Collateral Investors and the
agent acting on their behalf, dated September 21, 1999 (the "Loan
Agreement"); and (v) such other documents as we have deemed material to the
opinions set forth herein. Our opinions are based on, among other things,
the initial and continued accuracy of the information, statements,
representations, and covenants contained in the Agreement, the Supplement,
and the other documents referred to herein, and we have assumed that all
parties to such documents will comply with their obligations thereunder and
that all such documents are enforceable according to their terms.
Our opinion is also based upon the Internal Revenue Code of 1986,
as amended (the "Code"), administrative rulings, judicial decisions,
proposed, temporary, and final Treasury regulations, and other applicable
authorities. The statutory provisions, regulations, and interpretations
upon which our opinions are based are subject to change, and such changes
could apply retroactively. In addition, there can be no assurance that
positions contrary to those stated in our opinion may not be asserted by
the Internal Revenue Service.
This opinion is based upon the terms and characteristics of the
Certificates solely in the form such Certificates have been issued by the
Trust to initial purchasers pursuant to the Agreement and does not in any
way address the characterization of any derivative investments in any such
Certificates or of any securities collateralized or otherwise supported by
any such Certificates. This opinion is also based upon the Transferor's
representation that it has not participated in the structuring, terms or
characteristics of any such derivative investments or securities
collateralized by the Certificates and that the obligation of the purchaser
with respect to the Certificates is not in any way dependent upon the
structuring, terms or characteristics of such derivative investments or
securities.
In our opinion, under current law as of the date hereof (i) the
Certificates will constitute indebtedness for federal income tax purposes
and for Delaware state income tax purposes and (ii) the Trust will not be
classified as an association (or a publicly traded partnership) taxable as
a corporation for federal income tax purposes.
I. Federal Income Tax Characterization of the Certificates.
A. Economic Substance of the Transaction. If the economic substance
of a transaction differs from the form in which it is cast, except in
certain limited circumstances (see discussion below), the substance, rather
than the form, governs the federal income tax consequences of the
transaction. Gregory v. Helvering, 293 U.S. 465 (1935); Helvering v. F. &
R. Lazarus & Co., 308 U.S. 252, aff'g, 101 F.2d 728 (6th Cir. 1939); Gatlin
v. Commissioner, 34 B.T.A. 50 (1936).
Whether the Certificates are in substance debt or ownership
interests in the Receivables is based on a determination of which party to
the transaction holds the "substantial incidents of ownership." The courts
have identified a variety of factors that must be considered in making that
determination. See, Town & Country Food Co. v. Commissioner, 51 T.C. 1049
(1969), acq., 1969-2 C.B. xxv; United Surgical Steel Co. v. Commissioner,
54 T.C. 1215 (1970), acq., 1971-2 C.B. 3; G.C.M. 39584 (December 3, 1986).
In the context of this transaction, the most important considerations are:
(i) whether the Transferor bears the burdens of ownership (i.e., the risk
of loss from the Receivables) and (ii) whether the Transferor retains the
benefits of ownership (i.e., the potential for gain from the Receivables).
The following discussion considers these as well as other relevant factors
and demonstrates that each factor supports characterization of the
Certificates as debt.
1. The Burdens of Ownership are Not Borne by Certificateholders.
The principal burden of ownership with respect to the Receivables is risk
of loss arising from defaulted payments and changes in interest rates.
These risks, under all reasonable default scenarios, are not borne by
Certificateholders.
Defaults on the Receivables that are allocable to the
Certificateholders will first be absorbed by Excess Spread and Reallocated
Principal Collections. Based on historical performance of the assets, a
present value calculation prepared by Credit Suisse First Boston
Corporation indicates that the net present value of the Excess Finance
Charge Collections, discounted at the weighted average of the Class A
Certificate Rate, the Class B Certificate Rate and the rate used to
determine Collateral Monthly Interest pursuant to Section 4.6(c) of the
Supplement, and assuming that LIBOR remains at its rate as of the date of
such present value calculation, would be as much as 8.74% of the sum of the
outstanding principal balances of the Class A Certificates, the Class B
Certificates and the Collateral Interest plus such net present value.
If Excess Spread were insufficient to cover defaults allocated to
the Class A Certificates, Reallocated Principal Collections allocable first
to the Collateral Interest and then to the Class B Investor Interest would
be available to protect the Class A Certificateholders against default
losses. If Reallocated Principal Collections are insufficient to fund the
remaining Class A Required Amount, then the Collateral Interest will be
reduced (but not below zero). In the event that such reduction would cause
the Collateral Interest to be a negative number, the Class B Investor
Interest will be reduced by the amount which the Collateral Interest would
have been reduced below zero (but not below zero).
If Excess Spread were insufficient to cover defaults allocated to
the Class B Certificates, Reallocated Principal Collections allocable to
the Collateral Interest not required to fund the Class A Required Amount
would be available to protect the Class B Certificateholders against
default losses. If such Reallocated Principal Collections are insufficient
to fund the remaining Class B Required Amount, then the Collateral Interest
will be reduced (but not below zero).
In reasonable interest rate scenarios, the Transferor bears the
risk that the difference between the amount of interest earned on the
Receivables and the interest payable on the Certificates will decline
because the Transferor is ultimately entitled to receive Excess Spread. In
addition, a Series 1999-2 Pay Out Event will occur if the average Portfolio
Yield for any three consecutive Monthly Periods is reduced to a rate which
is less than the average Base Rate for such period. The "Base Rate", in
general terms, is the rate that would be necessary to fund interest on the
Class A Certificates, the Class B Certificates, the Collateral Interest,
and the portion of the Servicing Fee allocable to investors, and "Portfolio
Yield" is, in general terms, the yield allocable to the Investor Interest
for the month, calculated on a cash basis after taking into account
defaults. Thus, a Series 1999-2 Pay Out Event will occur if the portfolio
does not continue to provide sufficient funds allocable to investors to
make payments on the Certificates.
Finally, the likelihood of the Certificateholders bearing any
actual loss is remote, since such losses would occur only if Excess Spread
as well as Reallocated Principal Collections allocable to the Collateral
Interest were exhausted. Furthermore, the Class A Certificates will be
rated Aaa by Moody's Investors Service, Inc., AAA by Standard & Poor's
Ratings Services, and AAA by Fitch IBCA, Inc., and the Class B Certificates
will be rated A2 by Moody's Investors Service, Inc., A by Standard & Poor's
Ratings Services, and A by Fitch IBCA, Inc. Such ratings indicate a strong
likelihood that all interest and principal will be paid and that the
Certificateholders do not bear the risk of loss associated with ownership
of the Receivables.
2. The Benefits of Ownership are not Transferred to
Certificateholders. If market interest rates for comparable receivables
decrease in relation to the yield on the Receivables, the Receivables will
increase in value. If interest rates remain constant, but customers take a
longer period of time to pay their principal balances, the value of the
Receivables will also increase because the Transferor will continue to
receive the yield on the Receivables over a longer period of time.
Regardless of interest rates, a change in customer payment patterns
resulting in fewer defaults than expected based on historical experience
will also increase the value of the Receivables. Any increase (to the
extent permitted by applicable law and the terms of the Agreement) in the
rate at which interest is assessed on the Accounts will also increase the
value of the Receivables and the amount of Excess Finance Charge
Collections.
The Agreement provides that the rate of return to the
Certificateholders (a floating rate based on a spread of 0.18% over LIBOR
in the case of the Class A Certificates and 0.42% over LIBOR in the case of
the Class B Certificates) is set at the time of the issuance of the
Certificates; in contrast, finance charges payable with respect to certain
Receivables are fixed at annual percentage rates that range from 14.98% to
17.98% and others carry variable rates that range from prime to prime plus
9.9% per annum. The Transferor receives the remaining proceeds from the
Receivables (after payment of fixed costs); consequently, all of the
benefit of any increase in the value of the Receivables or in the Excess
Finance Charge Collections will inure to the Transferor rather than to the
holders of the Certificates.
3. Other Factors. A number of other factors support the
conclusion that the Certificates are in substance debt. The terms of the
Receivables differ materially from the terms of the Certificates with
regard to their respective interest rates and maturity dates. The
Transferor will retain control and possession of the Receivables. The
Bank, as Servicer, is responsible for servicing, management, collection and
administration of the Receivables and will bear all costs and expenses
incurred in connection with such activities, although an amount to
compensate the Servicer for collection activity is permitted by the
Agreement to be periodically withdrawn by the Bank from the assets held by
the Trust to secure the Certificates. The obligors on the Receivables will
not be notified of the transfer of the Receivables to the Trust and will at
all times treat the Bank as the owner of such Receivables. In addition,
the Bank will agree to indemnify the Trust for the entire amount of losses,
claims, damages or liabilities arising out of the activities of the Bank as
Servicer. The Trustee, on behalf of the Certificateholders, has the right
to inspect the Servicer's documentation on the Receivables, a right which
is common in loan transactions. In addition, the Bank, as Servicer,
collects the Receivables without significant supervision by the Trustee or
Certificateholders. The foregoing additional factors support the
conclusion that the transaction described in the Agreement and in the
Supplement constitutes a loan from the Certificateholders to the
Transferor.
B. Form versus Economic Substance. There is a series of cases that
have been interpreted to stand for the proposition that the Internal
Revenue Service may require a taxpayer to be bound by the form of a
transaction and which preclude the taxpayer from arguing that the form of a
transaction should be disregarded in favor of the economic substance of the
transaction. See, e.g., Commissioner v. Danielson, 378 F.2d 771 (3rd
Cir.), cert. denied, 389 U.S. 858 (1967)(purchase agreement expressly
allocated consideration to a covenant not to compete; however, taxpayer
reported the entire amount as proceeds from the sale of capital assets;
held: the taxpayer could not contradict the form of the agreement and
attack the allocation to the covenant not to compete except in cases of
fraud, duress or undue influence); Spector v. U.S., 641 F.2d 376 (5th Cir.
1981)(pursuant to a written agreement, a partnership deducted Section 736
guarantee payments to a withdrawing partner but the partner, contrary to
the terms of the agreement treated such payments as Section 741 capital
gain payments realized upon the sale of the partnership interest; held:
payments were Section 736 ordinary income); Sullivan v. U.S., 618 F.2d 1001
(3d Cir. 1980)(taxpayer disavowed original allocation of purchase price
between land and agreements to lease space in a shopping mall to be built
on the land when, upon audit, the gain on the sale of the leases was held
to be short-term capital gain; held: contract allocations must be
respected).
The Danielson line of cases covers diverse transactions that are
highly fact specific and difficult to summarize. In general, these cases
involve taxpayers who, contrary to the written documents, later adopt
inconsistent positions regarding (i) the allocation of purchase price, (ii)
the valuation of assets or (iii) the character of income or gain to the
detriment of the Treasury. None of these cases is directly applicable,
however, to the facts of the transactions described in the Agreement.
Unlike the Danielson line of cases, the Certificateholders, the Servicer,
and the Transferor do not have adverse economic interests with respect to
the Certificates.
In addition, the form of the transaction is consistent with
characterization of the Certificates as debt. Accordingly, these
authorities are not applicable to the transaction and will not cause the
transaction to be treated as a sale of an interest in the Receivables to
the holders of the Certificates. An analysis of the following demonstrates
that the form of the transaction is consistent with the characterization of
the transaction as an issuance of debt and not as a sale of the Receivables
to Certificateholders.
1. The Prospectus, the Agreement and the Certificates will
state that the Certificateholders, Certificate Owners, the Bank, and the
Holder of the Transferor Certificate (including the Participant) will treat
the transaction as a financing for federal and state income tax purposes.
2. The Certificates will state that they represent an "undivided
interest" in the Trust. However, the rights of a Certificateholder are
only to receive payments of interest at the applicable Certificate Rate on
the outstanding amount of the Certificates and repayment of the par amount
of the Certificates on or prior to their maturity dates. The Certificates
will not provide the Certificateholders with any specific rights in any
Receivable, but rather will provide only for rights to cash flow from the
Receivables pool. Moreover, upon fulfillment of certain conditions, the
Transferor may add additional accounts to, or remove accounts from, the
pool of accounts the Receivables in which secure the Certificates.
3. Although the Certificates state that they represent an
"undivided interest" in the Trust, during the Amortization Period, the
allocation of Principal Receivables to the Certificates will be
disproportionately large in comparison to the Investor Interest. In
addition, certain collections of principal allocable to other Series of
certificates may be available to make payments of principal on the
Certificates.
Furthermore it is difficult to distinguish clearly between
"form," "substance," and nomenclature. The language in the Agreement that
could be read to suggest that a sale to the Trust is intended has no effect
on the contractual rights of the parties. Regardless of whether "sale"
language or "pledge" language is employed in the Agreement, the economic
rights of the Certificateholders are not affected. See Frank Lyon Co. v.
U.S., 435 U.S. 561, 583-84 (1978)(form is the structure of the underlying
economic transaction); Freesen v. Commissioner, 798 F.2d 195 (7th Cir.
1986), rev'g 84 T.C. 920("form" must be distinguished from nomenclature);
Coulter Electronics, Inc. v. Commissioner, 59 T.C.M. 350 (1990), aff'd, 943
F.2d 1318 (11th Cir. 1991).
If certain aspects of the transaction should be determined to be
inconsistent with treatment of the Certificates as debt and the form of the
transaction is therefore ambiguous, numerous cases hold that the economic
substance of the transaction controls the transaction's characterization.
Elrod v. Commissioner, 87 T.C. 1046, 1065 (1986); Smith v. Commissioner, 82
T.C. 705, 713 (1984); Morrison v. Commissioner, 59 T.C. 248, 256 (1972),
acq., 1973-2 C.B. 3; Kreider v. Commissioner, 762 F.2d. 580,588 (7th Cir.
1985); Comdisco, Inc. v. United States, 756 F.2d. 569, 578 (7th Cir. 1985).
In such a circumstance, it would be inappropriate to restrict taxpayers to
the "four corners" of their document, since the written instrument by its
own terms, is unclear. "The Danielson rule ...[is not] applicable to
exclude parol evidence offered with respect to an ambiguous document."
Elrod, supra at 1066. Accordingly, if the form of the transaction is
deemed to be ambiguous, a court would look to evidence of the transaction's
economic substance to determine its character.
C. Divergent Accounting Treatment. In Notice 94-47, 1994-1 C.B. 357,
the Internal Revenue Service has taken the position that the fact that an
instrument is intended to be treated differently for tax purposes than for
other purposes, including regulatory accounting purposes, is a key factor
to be considered in determining whether the instrument should be
characterized as debt or equity for federal income tax purposes. That
factor, however, does not by itself determine the classification of the
instrument for tax purposes; accordingly, the fact that the Transferor
intends to report the transaction as a sale of the Receivables to
Certificateholders for certain regulatory and financial accounting purposes
does not by itself control the result for tax purposes.
Indeed, the Supreme Court has frequently rejected the proposition
that the financial accounting treatment of a transaction controls its tax
treatment. For example, in Cottage Savings Ass'n v. Commissioner, 499 U.S.
554 (1991) rev'g 890 F.2d 848 (6th Cir. 1989), rev'g 90 T.C. 372 (1988),
reciprocal "sales" of mortgage loans were respected as sales for federal
income tax purposes (permitting thrifts to realize losses that produced
loss carrybacks and tax refunds) even though such transactions were not
treated as sales for regulatory accounting purposes. Thus, thrifts were
able to generate tax losses without such losses being reflected on their
financial statements for regulatory accounting purposes.(2)
----------------
(2) It should be noted that in Cottage Savings the legal form of the
transaction (which was a sale) was respected. Thus, the taxpayer
was not asserting a tax position inconsistent with the form of the
transaction. Here, the language describing the transfer of the
Receivables to the Trust is ambiguous.
Several other Supreme Court cases demonstrate that divergence
between tax and financial accounting is not uncommon. Thor Power Tool Co.
v. Commissioner, 439 U.S. 552, 538-44 (1979)(company's inventory deductions
for financial accounting purposes were disallowed for federal income tax
purposes--"any presumptive equivalency between tax and financial accounting
would be unacceptable"); Commissioner v. Hansen, 360 U.S. 446
(1959)(reserve to cover contingent liability in event of nonperformance of
guaranty); Lucas v. American Code Co., 280 U.S. 445 (1930)(reserve to cover
expected liability on contested lawsuit). See also Frank Lyon Co. v.
United States, supra, at 577 (financial accounting treatment of a mortgage
reflected the taxpayer's proper tax treatment of a sale-leaseback
transaction although tax and accounting treatment "need not necessarily be
the same").
*
Based on the foregoing, although there is no authority directly
applicable to the facts of this transaction, in our opinion the substance
of the transaction is consistent with the characterization of the
Certificates as debt and the Certificates will properly be treated as debt
for federal income tax purposes.
II. Characterization of the Trust.
The use of a trust form of issuer raises a number of issues
regarding its proper characterization for federal income tax purposes. In
many respects, the Trust is similar to trusts established to hold
collateral pledged as security in connection with lending transactions. If
interests in the Trust which are not held by the Bank are treated as debt
for federal income tax purposes, the Trust will be disregarded for federal
income tax purposes, and will be characterized instead as a mere security
arrangement. Treas. Reg. section 1.61-13(b); Rev. Rul. 76-265, 1976-2 C.B.
448; see also Rev. Rul. 73-100, 1973-1 C.B. 613 (domestic corporation's
transfer of securities to Canadian security holder, to secure liabilities
to policyholders in Canada, does not create a trust where discretionary
powers retained by corporation); Rev. Rul. 71-119, 1971-1 C.B. 163
(settlement fund administered by "trustee" not a trust).
The Trust will, however, also issue certificates, or other
interests, that may not be classified as debt for federal income tax
purposes. The Transferor Participation issued to the Participant, for
example, is not intended to be treated as debt. Such interest could cause
the Trust to be subject to the rules of entity classification under Section
7701 of the Code and the Treasury regulations thereunder. Under these
rules, an entity that was in existence on December 31, 1996 "will have the
same classification that the entity claimed" under prior rules. Treas.
Reg. section 301.7701-3(b)(3). Under prior rules, the Trust claimed that
if any interest in the Trust was properly characterized as equity, the
Trust was a partnership. Thus, the Trust would continue to be classified
as a partnership under the current rules.
Alternatively, if no interest in the Trust was properly
characterized as equity prior to January 1, 1997, but an interest in the
Trust is properly characterized as equity after January 1, 1997, the Trust
will be classified as a partnership under current rules. Under these
rules, a "business entity" with at least two members is classified as a
partnership unless (i) it is required to be classified as a corporation or
(ii) it affirmatively elects to be classified as an association taxable as
a corporation. Treas. Reg. section 301.7701-3(a). In this case, the Trust
would have at least two members: the Transferor and the holder of any
interest in the Trust not characterized as indebtedness for federal tax
purposes. In addition, the Trust is not one of the kind of entities which
are required to be classified as a corporation under Treas. Reg. section
301.7701-2(b). Thus, assuming the Trust would not elect to be classified
as an association taxable as a corporation, it would be classified as a
partnership.(3)
-------------------
(3) This discussion also assumes that the Trust is a "business entity."
Generally, the term "business entity" means an entity recognized for
federal tax purposes as a separate entity which is not classified as
a trust under the Code. Treas. Reg. section301.7701-2(a).
*
Accordingly, based on the foregoing and assuming the Trust does
not elect to be classified as an association taxable as a corporation, the
Trust would be characterized as a partnership for federal income tax
purposes.
A. Publicly Traded Partnership.
Under Section 7704 of the Code, a partnership will constitute a
"publicly traded partnership" taxable as a corporation if interests in the
partnership are traded on an established securities market or are readily
tradable on a secondary market (or the substantial equivalent thereof).
Treas. Reg. section 1.7704-1 provides a "safe harbor" from
treatment as a publicly traded partnership if (i) no interest in the
partnership is "traded on an established securities market," (ii) (subject
to certain exceptions) all interests in the partnership were issued in a
transaction (or transactions) that was not required to be registered under
the Securities Act of 1933 and (iii) (subject to certain exceptions) the
partnership does not have more than one hundred partners at any time during
the taxable year of the partnership. Based on a representation of the
Transferor, it is our understanding that there are not today, and have not
been at any time during the current taxable year, more than one hundred
holders of collateral interests (or interests therein) or of other
interests in the Trust with respect to which an opinion was not rendered
that such interests will be treated as debt for federal income tax purposes
nor are such interests "traded on an established securities market."
Moreover, the Supplement and the Collateral Interest contain provisions
intended to limit the total number of holders of the Collateral Interest
and the collateral interests of other Series, and the Collateral Interest
Holder covenants to restrict transfers of the Collateral Interest so that
there will never be more than 100 holders of interests in the Trust for
which no opinion has been rendered that such interest is "debt" for federal
income tax purposes and to prevent the Collateral Interest from being
"traded on an established securities market." Accordingly, as of the date
hereof, the Trust is not a "publicly traded partnership" taxable as a
corporation.
III. Delaware Income Tax Characterization of the Certificates.
In rendering the following opinion regarding state taxation in
Delaware, we have considered and relied upon the applicable provisions of
the tax laws of Delaware, the regulations promulgated thereunder, cases and
administrative rulings and such other authorities as we have deemed
appropriate.
Based on the foregoing, although there is no authority directly
applicable to the facts of this transaction, in our opinion the substance
of the transaction is consistent with the characterization of the
Certificates as debt, and the Certificates will properly be treated as debt
for Delaware income tax purposes.
* * *
This opinion is being furnished to you solely for your benefit
and is not to be used, circulated, quoted, or otherwise referred to for any
purpose without our express written permission.
Very truly yours,
/s/ Skadden, Arps, Slate, Meagher & Flom LLP
SCHEDULE A
Wachovia Bank, N.A.
100 North Main Street
Winston-Salem, NC 27150
Credit Suisse First Boston Corporation
Wachovia Securities, Inc.
as Representatives of the Several Underwriters
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, NY 10010
Commerzbank Aktiengesellschaft,
New York Branch
2 World Financial Center
New York, NY 10281
Standard & Poor's Rating Services,
a division of the McGraw-Hill Companies
26 Broadway
New York, New York 10004
Moody's Investors Service, Inc.
99 Church Street, 4th Floor
New York, New York 10007
Fitch IBCA, Inc.
One State Street Plaza
New York, New York 10004
The Bank of New York (Delaware), as Trustee
White Clay Center
Route 273
Newark, Delaware 19711
The Bank of New York, as Co-Trustee
101 Barclay Street
New York, New York 10286
Four Winds Funding Corporation
c/o Commerzbank Aktiengesellschaft,
New York Branch
2 World Financial Center
New York, NY 10281
