UNITED STATES
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: January 24, 1995
CAROLINA FIRST CORPORATION
(Exact name of registrant as specified in its charter)
South Carolina 0-15083 57-0824914
(State of other juris- (Commission (IRS Employer
diction of incorporation) File Number) Identification Number)
102 South Main Street, Greenville, South Carolina 29601
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (803) 255-7900
The Exhibit Index appears on page 4 hereof.
<PAGE>
Item 5. Other Events
On January 24, 1995, Carolina First Bank entered into the Pooling
and Servicing Agreement dated as of December 31, 1994 (the "Pooling and
Servicing Agreement") between the Bank, as Seller and Master Servicer,
and The Chase Manhattan Bank, as Trustee (the "Trustee"), which Pooling
and Servicing Agreement created the Carolina First Credit Card Master
Trust (the "Trust"). In connection with the entry into the Pooling and
Servicing Agreement, the 1994-A Supplement dated as of December 31, 1994
between the Bank, as Seller and Master Servicer, and the Trustee (the
"Supplement") was also executed, which Supplement supplemented the
Pooling and Servicing Agreement (the Supplement, together with the
Pooling and Servicing Agreement, being referred to hereinafter as the
"Pooling Agreement").
In connection with the entry into the Pooling Agreement, the Trust
issued and sold to The Mitsubishi Trust and Banking Corporation, New
York Branch (the "Purchaser") the $70,000,000 Floating Rate Asset Backed
Certificates, Series 1994-A, Class A and $15,000,000 Floating Rate Asset
Backed Certificates, Series 1994-A, Class R, (collectively, the "Offered
Certificates") which represented undivided fractional interests in the
Trust, pursuant to purchase agreements dated as of January 24, 1995
among the Bank, the Purchaser and the Trustee.
Simultaneously with the issuance and sale of the Offered
Certificates, the Trust issued to Carolina First Bank, pursuant to the
Pooling Agreement, $17,500,000 Asset Backed Certificates, Series 1994-A,
Class B (the "Class B Certificates" and, together with the Offered
Certificates, the "Certificates"). The Certificates represent undivided
interests in the Trust. The Class A Certificates rank on a parity with
the Class R Certificates and the Class B Certificates will be
subordinated to the Offered Certificates, in each case as described in
the Pooling Agreement.
In connection with the transactions described above, Carolina First
Bank received proceeds of approximately $66,000,000. The Pooling and
Servicing Agreement and the Supplement, attached hereto as exhibits, are
incorporated herein by reference. The Company will provide to the
Commission, upon request, any other documents entered into in connection
with the above described transaction and referenced in the Pooling
Agreement.
Item 7. Financial Statements and Exhibits
(a) Financial Statements of the Businesses Acquired. Not applicable.
(b) Pro Forma Financial Information. Not Applicable.
(c) Exhibits.
28.1 The Pooling and Servicing Agreement dated as of
December 31, 1994 between Carolina First Bank, as
Seller and Master Servicer, and The Chase Manhattan
Bank, as Trustee.
28.2 The 1994-A Supplement dated as of December 31, 1994
between Carolina First Bank, as Seller and Master
Servicer, and The Chase Manhattan Bank, as Trustee.
<PAGE>
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.
CAROLINA FIRST CORPORATION
February 6, 1995 By: /s/ William S. Hummers III
William S. Hummers III
Executive Vice President
<PAGE>
Exhibit Index
28.1 The Pooling and Servicing Agreement dated as of December 31,
1994 between Carolina First Bank, as Seller and Master
Servicer, and The Chase Manhattan Bank, as Trustee.
28.2 The 1994-A Supplement dated as of December 31, 1994 between
Carolina First Bank, as Seller and Master Servicer, and The Chase
Manhattan Bank, as Trustee.
<PAGE>
<PAGE>
EXHIBIT 28.1
B&W
Draft of
1/24/95
CAROLINA FIRST BANK,
as Seller and Master Servicer
and
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
CAROLINA FIRST CREDIT CARD MASTER TRUST
POOLING AND SERVICING AGREEMENT
Dated as of December 31, 1994
<PAGE>
TABLE OF CONTENTS
Page
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. . . . . . . . . . . . . . . . . . . . . 1
Section 1.02. Other Definitional Provisions. . . . . . . . . . . . 33
ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables. . . . . . . . . . . . . . 35
Section 2.02. Acceptance by Trustee. . . . . . . . . . . . . . . . 36
Section 2.03. Representations and Warranties of the
Seller . . . . . . . . . . . . . . . . . . . . . . 37
Section 2.04. Representations and Warranties as to the
Receivables. . . . . . . . . . . . . . . . . . . . 42
Section 2.05. Addition of Accounts . . . . . . . . . . . . . . . . 46
Section 2.06. Covenants of the Seller. . . . . . . . . . . . . . . 48
Section 2.07. Optional Removal of Accounts . . . . . . . . . . . . 52
ARTICLE THREE
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.01. The Master Servicer. . . . . . . . . . . . . . . . . 54
Section 3.02. Servicing Compensation . . . . . . . . . . . . . . . 59
Section 3.03. Representations, Warranties and
Covenants of the Master Servicer . . . . . . . . . 60
Section 3.04. Reports and Records for the Trustee. . . . . . . . . 65
Section 3.05. Annual Servicer's Certificate and
Report . . . . . . . . . . . . . . . . . . . . . . 65
Section 3.06. Annual Independent Public Accountants'
Servicing Report . . . . . . . . . . . . . . . . . 66
Section 3.07. Tax Treatment. . . . . . . . . . . . . . . . . . . . 67
Section 3.08. Notices to the Bank. . . . . . . . . . . . . . . . . 67
Section 3.09. Reports to the Commission. . . . . . . . . . . . . . 67
ARTICLE FOUR
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.01. Rights of Certificateholders . . . . . . . . . . . . 69
Section 4.02. Establishment of Accounts. . . . . . . . . . . . . . 69
Section 4.03. Allocations and Applications of
Collections and Other Funds. . . . . . . . . . . . 74
Section 4.04. Shared Excess Principal Collections. . . . . . . . . 77
Section 4.05. Shared Excess Finance Charge
Collections. . . . . . . . . . . . . . . . . . . . 78
(i)
<PAGE>
ARTICLE FIVE
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
Section 5.01. Distributions and Reports to
Certificateholders . . . . . . . . . . . . . . . . 79
ARTICLE SIX
THE CERTIFICATES
Section 6.01. The Certificates . . . . . . . . . . . . . . . . . . 80
Section 6.02. Authentication of Certificates . . . . . . . . . . . 80
Section 6.03. New Issuances. . . . . . . . . . . . . . . . . . . . 81
Section 6.04. Registration of Transfer and Exchange of
Certificates . . . . . . . . . . . . . . . . . . . 82
Section 6.05. Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . . . . . . . 87
Section 6.06. Persons Deemed Owners. . . . . . . . . . . . . . . . 87
Section 6.07. Access to List of Registered
Certificateholders' Names
and Addresses. . . . . . . . . . . . . . . . . . . 88
Section 6.08. Book-Entry Certificates. . . . . . . . . . . . . . . 88
Section 6.09. Notices to Depository. . . . . . . . . . . . . . . . 89
Section 6.10. Definitive Certificates. . . . . . . . . . . . . . . 89
Section 6.11. Global Certificate; Exchange Date. . . . . . . . . . 90
Section 6.12. Meetings of Certificateholders . . . . . . . . . . . 92
ARTICLE SEVEN
OTHER MATTERS RELATING
TO THE SELLER
Section 7.01. Liability of the Seller. . . . . . . . . . . . . . . 95
Section 7.02. Limitation on Liability of the Seller. . . . . . . . 95
Section 7.03. Seller Indemnification of the Trust and
the Trustee. . . . . . . . . . . . . . . . . . . . 95
Section 7.04. Merger or Consolidation of, or
Assumption of the Obligations
of, the Seller . . . . . . . . . . . . . . . . . . 96
ARTICLE EIGHT
OTHER MATTERS RELATING
TO THE MASTER SERVICER
Section 8.01. Liability of the Master Servicer . . . . . . . . . . 98
Section 8.02. Merger or Consolidation of, or
(ii)
<PAGE>
Assumption of, the Obligations
of the Master Servicer . . . . . . . . . . . . . . 98
Section 8.03. Limitation on Liability of the Master
Servicer and Others. . . . . . . . . . . . . . . . 99
Section 8.04. Master Servicer Indemnification of the
Trust and the Trustee. . . . . . . . . . . . . . . 99
Section 8.05. The Master Servicer Not to Resign. . . . . . . . . .100
Section 8.06. Access to Certain Documentation and
Information Regarding the Receivables. . . . . . .100
Section 8.07. Delegation of Duties . . . . . . . . . . . . . . . .101
Section 8.08. Examination of Records . . . . . . . . . . . . . . .101
Section 8.09. Appointment of Successor Master
Servicer . . . . . . . . . . . . . . . . . . . . .102
ARTICLE NINE
PAY OUT EVENTS
Section 9.01. Pay Out Events . . . . . . . . . . . . . . . . . . .103
Section 9.02. Additional Rights Upon the Occurrence
of Certain Events. . . . . . . . . . . . . . . . .104
ARTICLE TEN
SERVICER DEFAULTS
Section 10.01. Servicer Defaults . . . . . . . . . . . . . . . . .107
Section 10.02. Trustee to Act; Appointment of
Successor . . . . . . . . . . . . . . . . . . . .109
ARTICLE ELEVEN
THE TRUSTEE
Section 11.01. Duties of Trustee . . . . . . . . . . . . . . . . .112
Section 11.02. Certain Matters Affecting the Trustee . . . . . . .114
Section 11.03. Trustee Not Liable for Certificates
or Receivables. . . . . . . . . . . . . . . . . .116
Section 11.04. Trustee May Own Certificates. . . . . . . . . . . .116
Section 11.05. Trustee's Fees and Expenses . . . . . . . . . . . .116
Section 11.06. Eligibility Requirements for Trustee. . . . . . . .117
Section 11.07. Resignation or Removal of Trustee . . . . . . . . .118
Section 11.08. Successor Trustee . . . . . . . . . . . . . . . . .118
Section 11.09. Merger or Consolidation of Trustee. . . . . . . . .119
Section 11.10. Appointment of Co-Trustee or Separate
Trustee . . . . . . . . . . . . . . . . . . . . .119
Section 11.11. Tax Returns . . . . . . . . . . . . . . . . . . . .121
Section 11.12. Trustee May Enforce Claims Without
Possession of Certificates. . . . . . . . . . . .122
Section 11.13. Suits for Enforcement . . . . . . . . . . . . . . .122
Section 11.14. Rights of Certificateholder to Direct
(iii)
<PAGE>
Trustee . . . . . . . . . . . . . . . . . . . . .122
Section 11.15. Representations and Warranties of
Trustee . . . . . . . . . . . . . . . . . . . . .123
Section 11.16. Maintenance of Office or Agency . . . . . . . . . .123
ARTICLE TWELVE
TERMINATION
Section 12.01. Termination of Trust. . . . . . . . . . . . . . . .124
Section 12.02. Final Distribution. . . . . . . . . . . . . . . . .124
Section 12.03. Seller's Termination Rights . . . . . . . . . . . .126
Section 12.04. Optional Purchase . . . . . . . . . . . . . . . . .126
ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
Section 13.01. Amendment . . . . . . . . . . . . . . . . . . . . .128
Section 13.02. Protection of Right, Title and
Interest to Trust . . . . . . . . . . . . . . . .130
Section 13.03. Limitation on Rights of Certificate
holders. . . . . . . . . . . . . . . . . . . . . . . . . . . .131
Section 13.04. No Petition . . . . . . . . . . . . . . . . . . . .132
Section 13.05. GOVERNING LAW . . . . . . . . . . . . . . . . . . .132
Section 13.06. Notices . . . . . . . . . . . . . . . . . . . . . .132
Section 13.07. Severability of Provisions. . . . . . . . . . . . .133
Section 13.08. Assignment. . . . . . . . . . . . . . . . . . . . .133
Section 13.09. Certificates Nonassessable and
Fully Paid. . . . . . . . . . . . . . . . . . . .133
Section 13.10. Further Assurances. . . . . . . . . . . . . . . . .134
Section 13.11. No Waiver; Cumulative Remedies. . . . . . . . . . .134
Section 13.12. Counterparts. . . . . . . . . . . . . . . . . . . .134
Section 13.13. Third-Party Beneficiaries . . . . . . . . . . . . .134
Section 13.14. Actions by Certificateholders . . . . . . . . . . .134
Section 13.15. Rule 144A Information . . . . . . . . . . . . . . .134
Section 13.16. Merger and Integration. . . . . . . . . . . . . . .135
Section 13.17. Headings. . . . . . . . . . . . . . . . . . . . . .135
(iv)
<PAGE>
EXHIBITS
Exhibit A Form of Seller Certificate. . . . . . . . . . . . . A-1
Exhibit B Form of Seller Assignment . . . . . . . . . . . . . B-1
Exhibit C Form of Annual Servicer's Certificate . . . . . . . C-1
Exhibit D Forms of Legends. . . . . . . . . . . . . . . . . . D-1
Exhibit E Form of Letter of Representations . . . . . . . . . E-1
Exhibit F-1 Form of Opinion of Counsel in Respect
of Additional Accounts. . . . . . . . . . . . . .F-1-1
Exhibit F-2 Form of Opinion of Counsel in Connection
with Amendments and Supplements . . . . . . . . .F-2-1
Exhibit F-3 Form of Annual Opinion of Counsel . . . . . . . . .F-3-1
Exhibit G Form of Reassignment of Receivables in
Removed Accounts. . . . . . . . . . . . . . . . . . G-1
Exhibit H Form of Report of Independent Accountants
on Compliance . . . . . . . . . . . . . . . . . . H-1
Exhibit I Form of Revolving Line of Credit Agreement. . . . . I-1
Exhibit J Form of Subservicing Agreement. . . . . . . . . . . J-1
Exhibit K-1 Form of Certificate for Delivery of
Definitive Certificates in Exchange for
a Portion of a Temporary Global Security. . . . .K-1-1
Exhibit K-2 Form of Certificate with Respect to
Registered Certificates Sold to Qualified
Institutional Buyers. . . . . . . . . . . . . . .K-2-1
Exhibit K-3 Form of Certificate for Use by a
Beneficial Owner of Certificates Other
than a Qualified Institutional Buyer. . . . . . .K-3-1
SCHEDULES
Schedule 1 Schedule of Accounts. . . . . . . . . . . . . . . . . . . S1-1
Schedule 2 Schedule of Accounts Established for Trust. . . . . . . . S2-1
Schedule 3 Location of Servicing Centers . . . . . . . . . . . . . . S3-1
Schedule 4 Collection Account Information. . . . . . . . . . . . . . S4-1
(v)
<PAGE>
POOLING AND SERVICING AGREEMENT dated as of December 31,
1994, between CAROLINA FIRST BANK, a South Carolina state-
chartered bank, as Seller and Master Servicer, and The Chase
Manhattan Bank, N.A., a national banking association, as Trustee.
In consideration of the mutual agreements herein contained,
each party agrees as follows for the benefit of the other parties
and for the benefit of the Certificateholders and the other
Beneficiaries to the extent provided herein:
ARTICLE ONE
DEFINITIONS
Section 1.01. Definitions. Whenever used in this Pooling
Agreement, the following words and phrases shall have the
following meanings:
"Account" means each (i) Initial Account, (ii) Transferred
Account, (iii) Additional Account from and after the related
Addition Date and (iv) Removed Account prior to the related
Removal Date, each of which will be identified by account number,
the aggregate outstanding balance of the related Receivables as
of the Cutoff Date, the related Transfer Date, the related
Addition Date or prior to the related Removal Date, as the case
may be, in the computer file or microfiche list delivered to the
Trustee by the Seller pursuant to Section 2.01, 2.05 and 2.07, as
the case may be.
"Account Information" means the information contained in the
Schedule of Accounts delivered to the Trustee by the Seller or
the Master Servicer pursuant to Section 2.01, as the Schedule of
Accounts may be amended or supplemented from time to time
pursuant to Sections 2.01, 2.05 and 2.07.
"Act" means the Securities Act of 1933, as amended.
"Addition Date" means the date on which Receivables and
Collateral Security from one or more Additional Accounts are sold
to the Trust pursuant to Section 2.05.
"Addition Notice" means a written notice delivered by the
Seller to the Trustee, the Master Servicer, each Rating Agency
and each Credit Enhancer describing the related Receivables and
Collateral Security for the Additional Accounts to be sold to the
Trust on any Addition Date pursuant to Section 2.05 and setting
forth the related Additional Cutoff Date and Addition Date with
respect to such Additional Accounts.
"Additional Accounts" means Eligible Accounts that are
credit card accounts and that are designated by the Seller to be
included as Accounts from and after the Cutoff Date pursuant to
<PAGE>
Section 2.05(a) or (b) and identified as such in the computer
file or microfiche or written list delivered to the Trustee by
the Seller pursuant to Section 2.01 or 2.05(d)(iii), as the case
may be.
"Additional Cutoff Date" means the date specified in the
related Addition Notice from and after which collections in
respect of the related Receivables and Collateral Security will
be transferred to the Trust with respect to Additional Accounts.
Each Additional Cutoff Date must precede the related Addition
Date.
"Adjustment" means the amount of any adjustment to the
balance of a Principal Receivable made by the Master Servicer
pursuant to Section 4.03(e).
"Adjustment Payment" shall have the meaning specified in
Section 4.03(e).
"Advance" means any advance of funds made by the Holders of
the Variable Funding Certificates of any Series to the Trustee
pursuant to the terms of the related Supplement.
"Affiliate" with respect to any specified Person, means any
other Person controlling or controlled by or under common control
with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means
the power to direct the management and policies of such Person,
directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise, and the terms "controlling"
and "controlled" have meanings correlative to the foregoing.
"Agent" with respect to any Series, means the Person, if
any, so designated in the related Supplement, in whose name the
related Variable Funding Certificates will be registered and to
whom certain notices will be delivered and by whom certain
actions will be taken on behalf of the Holders of such Variable
Funding Certificates.
"Aggregate Addition Limit" shall mean, a number of accounts
not to exceed either (i) 15% of the number of Accounts in the
Trust as of the first day of the twelve-month period commencing
on the Cutoff Date or any anniversary thereof and including such
Addition Date or (ii) 10% of the number of Accounts in the Trust
as of the first day of any three-month period starting on such
first Closing Date or on the Determination Date in any third
month thereafter and including such Addition Date.
"Aggregate Invested Amount" as of any date of determination,
means the sum of the Invested Amounts of all Series issued and
outstanding on such date.
"Aggregate Investor Default Amount" for any Monthly Period,
2
<PAGE>
means the aggregate of the Investor Default Amounts for each
outstanding Series for such Monthly Period.
"Aggregate Principal Receivables Amount" means, as of any
date of determination, the sum of the balances of all Principal
Receivables in Accounts (other than Defaulted Receivables) as
determined in respect of such date. The Master Servicer will
determine the Aggregate Principal Receivables Amount with respect
to any date of determination by subtracting from the aggregate
balance of all Receivables as of such date, an amount equal to
the aggregate amount of Finance Charge Receivables billed to
Obligors during the Monthly Period immediately preceding such
date of determination; provided, however, that in determining the
Aggregate Principal Receivables Amount on any date of
determination the Master Servicer will exclude from the foregoing
aggregate amount (i) the aggregate amount of Principal
Receivables (determined in the same manner) in Accounts whose
Obligors are employees of the Seller, the Master Servicer, any
Subservicer or any of their respective Affiliates, in excess of
$250,000, (ii) the aggregate amount of Principal Receivables
(determined in the same manner) in Sales 4 and 5 Accounts in
excess of $10,000,000 and (iii) the aggregate amount of Principal
Receivables in Accounts whose credit limits have been increased
in violation of the covenant set forth in Section 2.06(k) or
Section 3.03(a)(xiv).
"Amortization Date" with respect to any Series, means the
latest date on which the Controlled Amortization Period for such
Series will commence, as specified in the related Supplement.
"Amortization Period" with respect to any Series, means the
period from the day following the day on which the related
Revolving Period terminates and continuing until the date on
which such Amortization Period terminates, as set forth in the
related Supplement, which shall be either a Controlled
Amortization Period or a Rapid Amortization Period with respect
to such Series.
"Appointment Date" shall have the meaning specified in
Section 9.02(a).
"APR" shall have the meaning specified in Section 2.06(c).
"Authorized Newspaper" means any newspaper or newspapers of
general circulation in The City of New York, New York printed in
the English language (and, with respect to any Series or Class,
if and so long as the Investor Certificates of such Series or
Class are listed on the Luxembourg Stock Exchange and such
exchange shall so require, in Luxembourg, printed in any language
satisfying the requirements of such exchange) customarily
published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
3
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"Bank" means Carolina First Bank, a South Carolina state-
chartered bank, and its successors in interest to the extent
permitted hereunder.
"Bank Portfolio" means the VISA (register mark) credit card accounts and
Revolving Line of Credit Accounts owned by the Seller.
"Banking Affiliate" means an Affiliate engaged in the
business of banking.
"Bearer Certificates" means Investor Certificates that are
issued in bearer form with Coupons attached thereto pursuant to
Section 6.11.
"Beneficiary" means any Holder of an Investor Certificate or
the Seller Certificate and any Credit Enhancer.
"Benefit Plan" means an employee benefit plan, trust or
account, including an individual retirement account, that is
subject to ERISA or is described in Section 4975(e)(1) of the
Code or an entity whose underlying assets include plan assets by
reason of a plan's investment in such entity, as well as any
"benefit plan investor" as such term is defined in the
regulations issued pursuant to ERISA.
"BIF" means the Bank Insurance Fund administered by the
FDIC, or any successor thereto.
"Book-Entry Certificates" means certificates evidencing
beneficial interests in Investor Certificates, ownership and
transfers of which shall be made through book entries by a
Depository as described in Section 6.08; provided, however, that
after the occurrence of a condition whereupon book-entry
registration and transfer are no longer authorized and Definitive
Certificates are to be issued to the Certificate Owners, such
certificates shall no longer be "Book-Entry Certificates."
"Business Day" means any day other than a Saturday or a
Sunday or another day on which banking institutions or trust
companies in the City of New York or the State of South Carolina
(or, with respect to any Series, any additional city or state
specified in the related Supplement) are authorized or obligated
by law, executive order or governmental decree to be closed.
"Cardholder Agreement" means the agreement (and the related
application) for a MasterCard (register mark) or VISA (register mark)
credit card account between any Obligor and the Bank (or between any Obligor
and the originator of an Account sold or assigned to the Bank), as such
agreement may be amended, modified or otherwise changed from time
to time.
"Cardholder Fee Processing Date" means any Date of
Processing on which the Master Servicer assesses any Cardholder
4
<PAGE>
Fees on an Obligor.
"Cardholder Fees" with respect to any Account, means any
fees specified in the Cardholder Agreement applicable to such
Account, including annual membership or annual fees, overlimit
charges, late payment charges or default charges or charges
denoted by any similar terms.
"Cardholder Guidelines" means the written policies and
procedures relating to the operation of the Bank's credit card
business, including, without limitation, the written policies and
procedures for determining the creditworthiness of potential and
existing credit card customers or the extension of credit to
credit card customers, and relating to the maintenance of credit
card accounts and collection of credit card receivables, as such
policies and procedures may be amended, modified or otherwise
changed from time to time and as such policies and procedures may
be set forth in an agreement between the Bank, as Master
Servicer, and one or more Subservicers servicing some or all of
the Accounts or Receivables pursuant to Section 3.01. As so
amended, the Cardholder Guidelines shall conform with all
Requirements of Law.
"Certificate" means any of the Investor Certificates or the
Seller Certificate.
"Certificate Owner" means, with respect to any Book-Entry
Certificate, the person who is the beneficial owner of an
interest in such Book-Entry Certificate.
"Certificate Rate" with respect to any Series or Class,
means the certificate rate specified therefor in the related
Supplement.
"Certificate Register" means the register maintained
pursuant to Section 6.04(a).
"Certificateholder" or "Holder" means the registered Holder
of any Registered Certificate or the bearer of any Bearer
Certificate (or Global Certificate, as the case may be) or
Coupon; provided, however, that for purposes of calculating the
percentage or number of Holders purporting to vote, take any
action or give any consent or direction hereunder, if the Bank or
Affiliate thereof is the registered Holder or beneficial owner of
any Investor Certificate, the Bank or such Affiliate shall be
deemed not to be a Certificateholder or Holder for such purposes
and the Investor Certificates held by the Bank shall be excluded
from any calculation made of the number, Invested Amount or
aggregate principal balance of all Investor Certificates or such
Series or Class of Investor Certificates outstanding as to which
any related number or percentage of Investor Certificates is
required in order to so vote, act, direct or consent.
5
<PAGE>
"Certificateholders' Interest" shall have the meaning
specified in Section 4.01.
"CFC" means Carolina First Corporation, or any successor
thereto.
"Class" means, with respect to any Series, all Certificates
of such Series whose form is identical except for variation in
denomination, principal amount, owner or designation of class.
"Class Invested Amount" with respect to any Class and any
date, unless otherwise specified in the related Supplement, means
the Initial Invested Amount of such Class as the same has been
(i) reduced prior to such date based on the allocation thereto of
Collections treated as payments of principal thereon or the
imputation thereto of Defaulted Amounts resulting in charge-offs
thereof and (ii) increased by the allocation thereto of Advances
or amounts proportional to the amount of Advances or of
reimbursements of prior reductions thereto funded from any
source, each as specified in the related Supplement.
"Closing Date" with respect to any Series, means the Closing
Date specified in the related Supplement.
"Collateral Security" with respect to any Receivable, means
the Bank's right, title and interest to the proceeds thereof
(including any Insurance Proceeds) and all rights and benefits
afforded to the Bank under any agreement pursuant to which the
related Account was acquired by the Bank.
"Collection Account" means the account designated as such
and established and maintained pursuant to Section 4.02.
"Collection Subaccount" means a subaccount of the Collection
Account maintained in respect of a Series and held in trust for
the benefit of the related Certificateholders and any related
Credit Enhancer.
"Collections" means, without duplication, all payments
received by the Master Servicer or any Subservicer as payments on
the Accounts by the related Obligors or other proceeds of the
Receivables, in the form of cash, checks or any other form of
payment as provided in the related Cardholder Agreement or
Revolving Line of Credit Agreement. Recoveries and Investment
Proceeds will also be treated as Collections of Finance Charge
Receivables. Collections processed on any Account in excess of
the aggregate amount of Finance Charge Receivables in such
Account as of the Date of Processing of such Collection shall be
deemed to be a payment in respect of Principal Receivables to the
extent of such excess. Collections with respect to a particular
Series and any Monthly Period also shall, to the extent specified
herein and in the related Supplement, include the amount, if any,
of the Servicing Fee or Interchange that the Master Servicer
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waives as servicing compensation, to the extent received by the
Master Servicer, whether deposited into the Collection Account or
a Series Account specified in the related Supplement, to be
allocated as Finance Charge Collections for such Series after the
allocation among all Series of Collections other than such
amounts.
"Commission" means the Securities and Exchange Commission,
or any successor thereto.
"Common Depositary" means the Person specified in the
applicable Supplement, in its capacity as common depositary for
the respective accounts of any Foreign Clearing Agencies.
"Controlled Amortization Period" for any Series or Class,
unless otherwise specified in the related Supplement, means the
period commencing on the Amortization Date and continuing until
the earliest to occur of (i) the payment in full of such Series
or Class, (ii) the related Series Termination Date or (iii) the
commencement of a Rapid Amortization Period with respect to such
Series or all Series. Unless otherwise specified in the related
Supplement, no Controlled Amortization Period will commence if a
Rapid Amortization Period commences prior to the Amortization
Date, or recommence after the commencement of a Rapid
Amortization Period.
"Conveyances" means each of the transfers, assignments, set-
overs and conveyances of Trust Assets described in Section 2.01.
"Corporate Trust Office" means the principal office of the
Trustee in the City of New York, at which at any particular time
its corporate trust business shall be administered, which office
at the date of the execution of this Pooling Agreement is located
at 4 Chase MetroTech Center, Brooklyn, New York 11245,
Attention: Institutional Trust Group.
"Coupon" means interest coupons and one or more special
coupons that are attached to Bearer Certificates.
"Credit Enhancement" means the rights and benefits provided
in respect of any Series or Class pursuant to any letter of
credit, surety bond, financial guaranty policy, cash collateral
account, spread account, reserve fund, guaranteed rate agreement,
maturity liquidity facility, tax protection agreement, interest
rate swap agreement or other similar arrangement.
"Credit Enhancement Agreement" means any agreement,
instrument or document governing the terms of any Credit
Enhancement or pursuant to which any Credit Enhancement is issued
or outstanding.
"Credit Enhancer" means the Person providing any Credit
Enhancement, or any successor thereto.
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"Credit Enhancer Default" means any of the following events
shall have occurred and be continuing: (i) a Credit Enhancer
fails to make a payment under the related Credit Enhancement in
accordance with its terms or the terms of the related Credit
Enhancement Agreement; (ii) a Credit Enhancer (a) files any
petition or commences any case or proceeding under any provision
or chapter of the United States Bankruptcy Code or any other
similar federal or state law relating to insolvency, bankruptcy,
rehabilitation, liquidation or reorganization, (b) makes a
general assignment for the benefit of its creditors, or (c) is
the subject of an order for relief under the United States
Bankruptcy Code or any other similar federal or state law
relating to insolvency, bankruptcy, rehabilitation, liquidation
or reorganization which is final and nonappealable; or (iii) a
court of competent jurisdiction, the New York Department of
Insurance or other competent regulatory authority enters a final
and nonappealable order, judgment or decree (a) appointing a
custodian, trustee, agent or receiver for such Credit Enhancer or
for all or any material portion of its property or (b)
authorizing the taking of possession by a custodian, trustee,
agent or receiver of such Credit Enhancer of all or any material
portion of its property.
"Cutoff Date" means December 31, 1994. References herein to
balances, dollar amounts and percentages measured as of the
Cutoff Date refer to balances, dollar amounts and percentages as
of the close of business on the Cutoff Date.
"Date of Processing" with respect to any transaction with
respect to an Account, means the date on which such transaction
is first recorded on the Master Servicer's computer master file
of VISA (register mark) and other credit card accounts and Revolving Line of
Credit Accounts (without regard to the effective date of such
recordation).
"Defaulted Account" means each Account with respect to
which, in accordance with the Cardholder Guidelines and the
Master Servicer's customary and usual servicing procedures for
servicing credit card and unsecured revolving line of credit
receivables comparable to the Receivables, the Master Servicer
has charged off the Receivables in such Account as uncollectible.
An Account shall become a Defaulted Account on the day on which
such Receivables are recorded as charged off as uncollectible on
the Master Servicer's computer master file of VISA (register mark) and other
credit card accounts or Revolving Line of Credit Accounts.
Notwithstanding any other provision hereof, any Receivables in a
Defaulted Account that are Ineligible Receivables shall be
treated as Ineligible Receivables rather than as Receivables in
Defaulted Accounts.
"Defaulted Amount" with respect to any Monthly Period, means
the aggregate amount of Principal Receivables in Accounts that
became Defaulted Accounts during such Monthly Period, minus the
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amount of any Defaulted Receivables as to which the Seller became
obligated to accept reassignment pursuant to this Pooling
Agreement during such Monthly Period; provided, however, that, if
an Insolvency Event occurs with respect to the Seller which
prevents the reassignment to the Seller of such Defaulted
Receivables, the amount of such Defaulted Receivables shall not
be so subtracted in calculating the Defaulted Amount.
"Defaulted Receivables" with respect to any Monthly Period,
means all Principal Receivables in any Account which are charged
off as uncollectible during such Monthly Period in accordance
with the Cardholder Guidelines and the Master Servicer's
customary and usual servicing procedures for servicing consumer
credit card and unsecured revolving line of credit receivables
comparable to the Receivables. A Principal Receivable in any
Account shall become a Defaulted Receivable on the day on which
such Principal Receivable is recorded as charged off on the
Master Servicer's computer master file of VISA (register mark) and other credit
card accounts or Revolving Line of Credit Accounts, but in any
event, shall be deemed a Defaulted Receivable no later than the
last day of the month during which such Receivable becomes 180
days delinquent 240 days after the billing date.
"Definitive Certificates" means Investor Certificates issued
in definitive, fully registered form.
"Definitive Euro-Certificates" means Bearer Certificates or
Registered Certificates in definitive form issued in exchange for
a Global Certificate pursuant to Section 6.11.
"Deposit Date" with respect to any Distribution Date, means
the Business Day immediately preceding such Distribution Date.
"Depository" means The Depository Trust Company, as initial
Depository, the nominee of which is CEDE & Co., or any other
organization registered as a "clearing agency" pursuant to
Section 17A of the Exchange Act. The Depository shall at all
times be a "clearing corporation" as defined in Section 8-102(3)
of the UCC as in effect in the State of New York.
"Depository Agreement" with respect to any Series or Class,
means the agreement among the Seller and Master Servicer, the
Trustee and the Depository, dated as of the related Closing Date
and substantially in the form of Exhibit E hereto.
"Depository Participant" means a broker, dealer, bank or
other financial institution or other Person for whom from time to
time a Depository effects book-entry transfers and pledges of
securities deposited with the Depository.
"Determination Date" with respect to any Deposit Date means
the day that is five Business Days prior to such Deposit Date.
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"Distribution Date" means the fifteenth day of each month
or, if such day is not a Business Day, the next succeeding
Business Day, commencing with respect to a Series, on the date
specified in the related Supplement.
"Distribution Date Statement" with respect to any Series,
means a report prepared by the Master Servicer on each
Determination Date with respect to the related Monthly Period and
Distribution Date, substantially in the form set forth in the
related Supplement.
"Duff & Phelps" means Duff & Phelps Credit Rating Company,
or any successor thereto. If Duff & Phelps is a Rating Agency
with respect to a Series or Class, its address for notices shall
be Duff & Phelps Credit Rating Company, 17 State Street, 12th
Floor, New York, New York 10004, Attention: ABS Monitoring, or
such other address as it may hereafter furnish to the Trustee,
the Seller and the Master Servicer.
"Eligible Account" as of the Cutoff Date (or, with respect
to Additional Accounts, as of the relevant Addition Date), means
each credit card account or unsecured revolving line of credit
account which, or as to which:
(i) is in existence and maintained with the Seller;
(ii) is payable in United States dollars;
(iii) the related Obligor is one or more individuals
that has or have provided, as its or their most recent
billing address, an address which is located in the United
States or its territories or possessions or a military
address;
(iv) has not been classified by the Seller or an
Affiliate as cancelled (i.e., which has been closed and
which has a zero Receivables balance), counterfeit, deleted,
fraudulent, stolen or lost;
(v) has not been, and the Receivables of which have
not been, sold, pledged, hypothecated, assigned or otherwise
conveyed to any Person other than as expressly provided in
this Pooling Agreement;
(vi) which was either (a) originated by the Seller or a
Banking Affiliate of the Seller, (b) acquired by the Seller
from a third-party financial institution before the first
Closing Date or (c) if acquired by the Seller from a third-
party financial institution after the first Closing Date,
designated to the Trust only upon the prior written consent
of each Credit Enhancer and each Rating Agency;
(vii) would not be deemed a Defaulted Account upon its
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inclusion in the Trust;
(viii) is neither a business or corporate card account or
an account originated under an affinity program;
(ix) is a VISA (register mark) credit card account or Revolving Line
of Credit Account, in the case of the Initial Accounts or a
VISA (register mark) or MasterCard (register mark) credit card account,
in the case of Additional Accounts, serviced by the Master Servicer,
directly or through one or more Subservicers appointed by
the Master Servicer, at such servicing center identified on
Schedule 3 hereto or as shall be designated by the Master
Servicer pursuant to Section 13.02(c), and established
pursuant to a Cardholder Agreement or Revolving Line of
Credit Agreement, as the case may be; and
(x) in the case of any proposed Additional Account,
does not have a credit limit in excess of $50,000.
provided, however, that Eligible Accounts may include Accounts,
the Receivables of which have been charged off if (a) the balance
of the Receivables included in such Accounts is reflected on the
books and records of the Seller (and is treated for purposes of
this Pooling Agreement) as "zero", and (b) charging privileges
with respect to all such Accounts have been cancelled in
accordance with the Cardholder Guidelines and the Master
Servicer's customary and usual servicing procedures for servicing
credit card and unsecured revolving line of credit receivables
similar to the Receivables and will not be reinstated by the
Seller or Master Servicer.
"Eligible Investments" means book-entry securities,
negotiable instruments or securities represented by instruments
in bearer or registered form having original or remaining
maturities of 30 days or less, but in no event occurring later
than the Distribution Date next succeeding the Trustee's
acquisition thereof, which evidence:
(i) obligations of, or obligations fully guaranteed
by, the United States;
(ii) demand deposits, time deposits or certificates of
deposit of any depository institution or trust company
incorporated under the laws of the United States or any
state thereof (or any domestic branch of a foreign bank) and
subject to supervision and examination by federal or state
banking or depository institution authorities; provided,
however, that at the time of the Trust's investment or
contractual commitment to invest therein, the commercial
paper or other short-term unsecured debt obligations thereof
(or, in the case of a depository institution which is the
principal subsidiary of a holding company, the commercial
paper or other short-term debt obligations of such holding
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company) shall have a credit rating from each Rating Agency
in the highest investment category granted thereby (which is
"A-1+" in the case of Standard & Poor's);
(iii) commercial paper having, at the time of the
Trust's investment or contractual commitment to invest
therein, a rating from each Rating Agency in the highest
investment category granted thereby;
(iv) investments in money market funds or money market
mutual funds (including those of the Trustee and its
Affiliates) irrespective of whether the Trustee or its
Affiliates receive any compensation in connection therewith
having a rating from each Rating Agency in the highest
investment category granted thereby (which is "AAAm" in the
case of Standard & Poor's) or otherwise approved in writing
thereby and approved in writing by each Credit Enhancer;
(v) demand deposits, time deposits and certificates of
deposit (including those of the Trustee and its Affiliates)
which are fully insured by the FDIC;
(vi) bankers' acceptances issued by any depository
institution or trust company referred to in clause (ii)
above; and
(vii) repurchase agreements with any domestic bank the
short-term debt of which is rated "A-1+" or better by
Standard & Poor's (so long as an opinion is rendered that
the repurchase agreement is a "repurchase agreement" and a
"qualified financial contract" as defined in FIRREA and that
such bank is subject to FIRREA) or any foreign bank the
short-term debt of which is rated at least "A-1+" by
Standard & Poor's and "P-1" by Moody's (so long as Moody's
and Standard & Poor's are Rating Agencies); provided the
term of such repurchase agreement is for one year or less.
"Eligible Receivable" means each Receivable:
(i) which has arisen under an Account which was an
Eligible Account at the Cutoff Date or the relevant Addition
Date and when such Receivable arose;
(ii) which was created (a) in compliance with (1) the
Cardholder Guidelines or guidelines with respect to the
origination of Revolving Line of Credit Accounts then in
effect, (2) the applicable Cardholder Agreement or Revolving
Line of Credit Agreement and (3) all Requirements of Law
applicable to the Seller, other than such Requirements of
Law the failure to comply with which would not have a
material adverse effect on Investor Certificateholders or
any other Beneficiary and (b) pursuant to a Cardholder
Agreement or Revolving Line of Credit Agreement which
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complies with all Requirements of Law applicable to the
Seller, the failure to comply with which would have a
material adverse effect on any Beneficiary;
(iii) with respect to which all consents, licenses,
approvals or authorizations of, or registrations or
declarations with, any Governmental Authority required to be
obtained, effected or given by the Seller in connection with
the creation of such Receivable or the execution, delivery
and performance by the Seller of the Cardholder Agreement or
Revolving Line of Credit Agreement pursuant to which such
Receivable was created, have been duly obtained, effected or
given and are in full force and effect as of such date of
creation;
(iv) as to which, at all times following the conveyance
thereof to the Trust, the Seller or the Trust will have good
and marketable title, free and clear of all Liens (other
than the conveyances hereunder or any Permitted Lien);
(v) which has been the subject of either a valid
transfer and assignment from the Seller to the Trust of all
the Seller's right, title and interest therein or the grant
of a first priority perfected security interest therein (and
in the proceeds thereof), effective until the termination of
the Trust;
(vi) which at all times following the Conveyance of
such Receivable to the Trust, is the legal, valid and
binding payment obligation of the related Obligor, which has
not been waived or modified (except in accordance with this
Pooling Agreement) and which is enforceable against such
Obligor in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar
laws, now or hereafter in effect, affecting the enforcement
of creditors' rights in general and except as such
enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity) or
as to which the Master Servicer is required by
Section 4.03(e) to make an Adjustment;
(vii) which constitutes an "account" or a "general
intangible" under and as each such term is defined in
Section 9-106 of the South Carolina UCC;
(viii) as to which, at the time of transfer of such
Receivable to the Trust, the Seller has satisfied all
obligations on its part with respect to such Receivable then
required to be fulfilled;
(ix) as to which, at the time of its transfer to the
Trust, the Seller has not taken any action which, or failed
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to take any action the omission of which, would, at the time
of its transfer to the Trust, impair the rights of the
Trustee or any Beneficiary therein;
(x) which is not subject to any right of rescission,
setoff, counterclaim or other defense (including the defense
of usury), other than defenses arising out of applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights
generally; and
(xi) the Obligor of which has not provided as its most
recent billing address an address outside of the United
States or its territories that is other than a military
address.
"Eligible Servicer" means a Person which, at the time of its
appointment as a Subservicer or Successor Master Servicer, (i) is
the Subservicer as of the first Closing Date, (ii) is legally
qualified and has the capacity to service the Accounts, that
(a) has demonstrated the ability to professionally and
competently service a portfolio of credit card and unsecured
revolving line of credit accounts similar to the Accounts in
accordance with high standards of skill and care, (b) is
qualified to use the software that is then currently being used
to service the Accounts or obtains the right to use or has its
own software which is adequate to perform its duties under this
Pooling Agreement and (c) is approved to act in such capacity in
writing by each Rating Agency and each Credit Enhancer as to
which there has not been a Credit Enhancer Default, such consent,
in the case of each Credit Enhancer, not to be unreasonably
withheld, or (iii) is the Trustee.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended.
"Euroclear Operator" means Morgan Guaranty Trust Company of
New York, Brussels office, as operator of the Euroclear System.
"Excess Finance Charge Collections" with respect to any
Series, means Excess Spread for such Series with respect to any
Monthly Period that is in excess of amounts required to be
distributed to the related Certificateholders, deposited in any
related Reserve Fund, distributed to any Credit Enhancer or
otherwise allocated or applied to make specific deposits or
payments in respect of such Series on the related Distribution
Date as set forth in Articles Four and Five and in the related
Supplement.
"Excess Funding Account" means the account designated as
such and established and maintained pursuant to Section 4.02(c).
"Excess Funding Amount" with respect to any Series and as of
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any Distribution Date, unless otherwise specified in the related
Supplement, means the greater of (i) the amount by which the
Required Seller Amount exceeds the Seller Amount or (ii) the
amount by which the Required Principal Balance exceeds the
Aggregate Principal Receivables Amount.
"Excess Principal Collections" with respect to any Series in
its Revolving Period, means Collections of Principal Receivables
allocable to such Series with respect to any Monthly Period
relating to a Distribution Date during such Revolving Period that
are in excess of amounts required to be treated as Reallocated
Principal Collections, deposited into the Excess Funding Account
or distributed to any related Credit Enhancer in respect of
Unreimbursed Credit Enhancer Amounts or to the Holder of the
Seller Certificate or otherwise allocated to make specific
deposits or payments in respect of such Series on such
Distribution Date as set forth in Articles Four and Five and in
the related Supplement.
"Excess Spread" with respect to any Series and any
Distribution Date, unless otherwise specified in the related
Supplement, means the amount, if any, of Collections of Finance
Charge Receivables allocated thereto in excess of the amounts
necessary to make all required distributions in respect of
current or past due interest or Non-Usage Fees, current or past
due Servicing Fees, current or past due fees, premiums or
reimbursements payable to any related Credit Enhancer in respect
of Unreimbursed Credit Enhancer Amounts (other than amounts
described in clauses (iii) and (iv) of the definition thereof)
and Defaulted Amounts allocable to the Holders of the Class or
Classes of Certificates specified in the related Supplement.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" means any date that is after the Series
Issuance Date, in the case of Definitive Euro-Certificates in
registered form, or upon presentation of certification of
non-United States beneficial ownership (as described in Section
6.11), in the case of Definitive Euro-Certificates in bearer
form.
"FDIC" means the Federal Deposit Insurance Corporation, or
any successor thereto.
"Finance Charge Receivables" with respect to any Monthly
Period, means all amounts billed to Obligors on any Account
during such Monthly Period in respect of periodic finance
charges, cash advance fees and Cardholder Fees minus any such
fees previously charged to an Account that have been rebated back
or waived by the Seller for such Monthly Period in accordance
with the related Cardholder Agreement, the Cardholder Guidelines
and this Pooling Agreement. Certain other amounts received as
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Interchange may, and all Recoveries and Investment Proceeds will,
be treated as Collections of Finance Charge Receivables as
described in the definition of "Collections" and as provided
herein.
"FIRREA" means the Financial Institutions Reform, Recovery
and Enforcement Act of 1989.
"Fitch" means Fitch Investors Service, Inc., or any
successor thereto. If Fitch is a Rating Agency with respect to a
Series or Class, its address for notices shall be Fitch Investors
Service Inc., One State Street Plaza, New York, New York 10004,
Attention: ABS Surveillance Group, or such other address as it
may hereafter furnish to the Trustee, the Seller and the Master
Servicer.
"Floating Allocation Percentage" with respect to any Series
and any date on which an allocation is to be made, unless
otherwise specified in the related Supplement, means the
percentage (not to exceed 100%) obtained by dividing the related
Invested Amount as of the last day of the Monthly Period
preceding the related Monthly Period (or, with respect to the
first Monthly Period, the related Initial Invested Amount) by the
Aggregate Principal Receivables Amount as of such last day (or,
with respect to the first Monthly Period, as of the related
Series Cutoff Date); provided, however, that the Floating
Allocation Percentage for any Series comprised solely of Variable
Funding Certificates will be 0% until the related Holders have
made an Advance; and provided, further, that with respect to the
allocation of Collections of Finance Charge Receivables among all
Series for any Monthly Period, if the sum of the Floating
Allocation Percentages for each Series would, on such date,
exceed 100%, then Collections for such Monthly Period will be
allocated among each Series on the basis of such Floating
Allocation Percentages after the pro rata reduction thereof such
that the sum thereof will equal 100% for such Monthly Period.
"Foreign Clearing Agency" means each of Cedel and the
Euroclear Operator.
"Global Certificate" means a single temporary global
certificate evidencing a Class of Investor Certificates, issued
in bearer form, without interest coupons.
"Governmental Authority" means the United States and any
state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.
"Group" with respect to any Series, means the group of
Series in which such Series is to be included pursuant to the
related Supplement.
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"Indenture" means an indenture or other agreement pursuant
to which any Notes are issued.
"Ineligible Finance Charge Receivable" means any Finance
Charge Receivable that is an Ineligible Receivable.
"Ineligible Principal Receivable" means any Principal
Receivable that is an Ineligible Receivable.
"Ineligible Receivable" means any Receivable as to which the
Seller is obligated to accept reassignment pursuant to
Sections 2.04(b)(i) or (ii) or 2.04(c).
"Initial Account" means each Eligible Account which has been
transferred to the Trust pursuant to the Pooling Agreement as of
the Cutoff Date, and which is identified in the computer file or
microfiche or written list delivered to the Trustee on the Cutoff
Date by the Seller pursuant to Section 2.01.
"Initial Invested Amount" with respect to any Series or
Class, shall have the meaning specified in the related
Supplement.
"Insolvency Event" with respect: (i) to the Seller, means
the Seller shall consent to the appointment of a conservator or
receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or
relating to the Seller or of or relating to all or substantially
all of its property, or a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the
Seller; or the Seller shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute,
make an assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations; or the Seller
shall become unable for any reason to transfer Receivables to the
Trust in accordance with the provisions of this Pooling and
Servicing Agreement or (ii) to the Master Servicer, means (a) if
the Master Servicer is the Bank or another Person not subject to
the federal bankruptcy laws, an event described in clause (i)
above appropriately modified to relate to the Master Servicer, or
(b) if the Bank is no longer the Master Servicer, and the
Successor Master Servicer is an entity other than a federally or
state-chartered bank, the Successor Master Servicer shall file a
petition commencing a voluntary case under any chapter of the
federal bankruptcy laws; or the Successor Master Servicer shall
file a petition or answer or consent seeking reorganization,
arrangement, adjustment, or composition under any other similar
applicable federal or state law, or shall consent to the filing
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of any such petition, answer or consent; or the Successor Master
Servicer shall appoint, or consent to the appointment of, a
custodian, receiver, liquidator, trustee, assignee, sequestrator
or other similar official in bankruptcy or insolvency of it or of
any substantial part of its property; or the Successor Master
Servicer shall make an assignment for the benefit of creditors,
shall admit in writing its inability to pay its debts generally
as they become due or shall voluntarily suspend payment of its
obligations; or any order for relief against the Successor Master
Servicer shall have been entered by a court having jurisdiction
in the premises under any chapter of the federal bankruptcy laws;
or a decree or order by a court having jurisdiction in the
premises shall have been entered approving as properly filed a
petition seeking reorganization, arrangement, adjustment or
composition of the Successor Master Servicer under any other
similar applicable federal or state law; or a decree or order of
a court having jurisdiction in the premises for the appointment
of a custodian, receiver, liquidator, trustee, assignee,
sequestrator or other similar official in bankruptcy or
insolvency of the Successor Master Servicer or of any substantial
part of its property or for the winding up or liquidation of its
affairs.
"Insurance Proceeds" means any amounts received by the
Master Servicer or an Affiliate thereof pursuant to any credit
life, credit disability or unemployment insurance policies or
other insurance policies in respect of the Accounts, the related
Obligors or the Receivables.
"Interchange" shall mean interchange fees payable to the
Seller in its capacity as credit card issuer, through VISA (register mark),
MasterCard (register mark) or any other similar entity or organization with
respect to any other type of revolving credit card account
included as Accounts, in connection with cardholder charges for
goods and services.
"Interest Shortfall" with respect to any Series in a Group
and any Distribution Date, means the amount, if any, by which (i)
the aggregate amount of (a) current or past due interest payments
or Non-Usage Fees for the related Certificateholders, (b) current
or past due Investors' Servicing Fee allocable thereto,
(c) Unreimbursed Credit Enhancer Amounts (other than amounts
described in clauses (iii) or (iv) of the definition thereof)
payable to a related Credit Enhancer, (d) Default Amounts
allocable thereto, (e) reimbursable but as yet unreimbursed
Investor Charge-Offs (as specified in the related Supplement)
realized on any prior Distribution Date and (f) amounts required
to be deposited in the related Reserve Fund or similar Credit
Enhancement on any Distribution Date, as specified in the related
Supplement, exceeds (ii) the sum of (a) Collections of Finance
Charge Receivables allocable thereto for the related Monthly
Period, (b) Excess Spread allocable thereto on such Distribution
Date and (c) any other amounts available therefor as specified in
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the related Supplement, as set forth in Articles Four and Five
and in the related Supplement.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended.
"Invested Amount" with respect to any Series and any date,
unless otherwise specified in the related Supplement, means (i)
an amount equal to the Initial Invested Amount for such Series,
minus (ii) the amount, without duplication, of principal payments
made to the Holders of the related Investor Certificates prior to
such date (including distributions from amounts drawn or paid as
principal under any related Credit Enhancement), minus (iii) the
aggregate of related Investor Charge-Offs allocated to any Class
within such Series prior to such date, plus (iv) with respect to
any Series that includes a Class of, or is comprised of, Variable
Funding Certificates, the aggregate amount of Advances made with
respect to such Variable Funding Certificates prior to such date,
plus (v) with respect to any Series that includes a Class of
Certificates that has a Class Invested Amount that increases in
proportion to the amount of Advances made with respect to a Class
of Variable Funding Certificates included in such Series, the
aggregate amount of such increases prior to such date, plus (vi)
the aggregate amount of Excess Spread or Shared Excess Finance
Charge Collections applied to reimburse reductions in the Class
Invested Amount of any Class within such Series, or the Invested
Amount of such Series if such Series is comprised of a single
Class, in accordance with the related Supplement.
"Investment Company Act" means the Investment Company Act of
1940, as amended.
"Investment Proceeds" means an amount equal to the aggregate
of amounts earned on and proceeds of Eligible Investments held in
the Collection Account, the Excess Funding Account and any Series
Account during any Monthly Period, in each case net of expenses
incurred in connection with and any losses on such Eligible
Investments.
"Investor Certificate" means, with respect to a Series or
with respect to all Series, as the context may require, any of
the Certificates (including the Bearer Certificates, the
Registered Certificates or any Global Certificate evidencing such
Certificates) executed and authenticated by the Trustee,
substantially in the form attached to the related Supplement,
other than the Seller Certificate.
"Investor Certificateholder" means the Holder of record of
an Investor Certificate.
"Investor Charge-Off" with respect to any Series or Class
and any Distribution Date, unless otherwise specified in the
related Supplement, means the portion of the sum of the aggregate
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of Defaulted Amounts allocated to such Series or Class not funded
from Collections, Excess Spread and Shared Excess Finance Charge
Collections allocable to such Series, the Series Funding
Percentage of the Seller Percentage of Collections of Finance
Charge Receivables, the subordination of any other Series or
Class or amounts on deposit in any related Reserve Fund or under
any Credit Enhancement on such Distribution Date available
therefor, as specified in the related Supplement.
"Investor Default Amount" for any Series and any Monthly
Period, unless otherwise specified in the related Supplement,
means the product of the related Floating Allocation Percentage
and the Defaulted Amount, each for such Monthly Period.
"Investors' Servicing Fee" means the sum of the Monthly
Servicing Fees allocated to each Series pursuant to the related
Supplements.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), preference, participation interest,
priority or other security agreement or preferential arrangement
of any kind or nature whatsoever, including any conditional sale
or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing,
the filing of any financing statement under the UCC (other than
any such financing statement filed for informational purposes
only) or comparable law of any jurisdiction to evidence any of
the foregoing; provided, however, that any assignment pursuant to
Section 7.04 shall not be deemed to constitute a Lien.
"Majority Holders" with respect to any Series, means the
Holders of Investor Certificates representing 51% or more of the
related Class Invested Amount or principal balance of each Class
or Classes specified in the related Supplement.
"Manager" means the lead manager, manager or co-manager or
person performing a similar function with respect to an offering
of Definitive Euro-Certificates.
"Master Servicer" means the Bank or its successors in
interest to the extent permitted hereunder, in its capacity as
Master Servicer hereunder, or, following a Service Transfer, the
Successor Master Servicer.
"MasterCard" means MasterCard International Incorporated, or
any successor thereto. MasterCard (register mark) is a registered trademark of
MasterCard.
"Maximum Amount" with respect to any Series or Class of
Certificates, means the maximum principal balance, Invested
Amount or Class Invested Amount specified as such in the related
Supplement.
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"Monthly Period" with respect to any Distribution Date,
means the calendar month preceding the month in which such
Distribution Date occurs.
"Monthly Servicing Fee" with respect to any Series and any
Distribution Date, unless otherwise specified in the related
Supplement, will be an amount equal to the product of (i) one-
twelfth, (ii) 2.0% per annum and (iii) the related Invested
Amount as of the last day of the Monthly Period preceding the
related Monthly Period.
"Moody's" means Moody's Investors Service, Inc., or any
successor thereto. If Moody's is a Rating Agency with respect to
a Series or Class, its address for notices shall be Moody's
Investors Service, Inc., 99 Church Street, New York, New York
10009, Attention: ABS Monitoring Department, 4th Floor, or such
other address as it may hereafter furnish to the Trustee, the
Seller and the Master Servicer.
"Non-Usage Fee" with respect to any Series or Class of
Variable Funding Certificates and any Interest Period, means the
fee to be paid to the Holders of such Certificates on the related
Distribution Date on the excess of the related Maximum Amount
over the amount of outstanding Advances, as specified in the
related Supplement.
"Notes" means bonds, notes or other evidences of
indebtedness secured or collateralized by one or more pools of
receivables or by certificates of any class issued by one or more
trusts or by certificates of any class issued by a grantor trust
established by or for the benefit of the Bank.
"Notice Date" with respect to any Addition Date, means any
date on or before the fifth Business Day, but not more than the
thirtieth day, prior to such Addition Date.
"Notices" shall have the meaning specified in Section
13.06(a).
"Obligor" with respect to any Account, means the Person or
Persons obligated to make payments with respect to such Account,
including any guarantor thereof.
"Officer's Certificate" with respect to any entity, unless
otherwise specified in this Pooling Agreement or any Supplement,
means a certificate signed by the Chairman of the Board, Vice
Chairman of the Board, President, any Vice President, Treasurer,
Assistant Treasurer or Secretary of such entity.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for or an employee of the Person providing such
opinion, but who shall be reasonably acceptable to the Trustee
and each Credit Enhancer or other Person who is entitled to
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receive such opinion of counsel.
"Pay Out Event" shall have the meaning specified in Section
9.01 and, with respect to any Series, shall also mean any
additional Pay Out Event specified in the related Supplement.
"Permitted Liens" means Liens for municipal or other local
taxes if such taxes shall not at the time be due and payable or
if the Seller shall currently be contesting the validity thereof
in good faith by appropriate proceedings and shall have set aside
on its books adequate reserves with respect thereto in accordance
with GAAP.
"Person" means any legal person, including any individual,
corporation, partnership, association, joint-stock company,
trust, unincorporated organization, governmental entity or other
entity of similar nature.
"Pooling Agreement" means this Pooling and Servicing
Agreement, as the same may from time to time be amended, modified
or otherwise supplemented, including, with respect to any Series
or Class, by the related Supplement.
"Principal Allocation Percentage" with respect to any Series
and any Monthly Period, means the percentage equivalent (not to
exceed 100%) of a fraction, (i) the numerator of which is (a)
during the related Revolving Period, the related Invested Amount
as of the last day of the Monthly Period preceding such Monthly
Period (or, with respect to the Monthly Period relating to the
first Distribution Date for such Series, the related Initial
Invested Amount) or (b) during a related Controlled Amortization
Period or Rapid Amortization Period, the related Invested Amount
as of the last day of the Revolving Period, and (ii) the
denominator of which is the greater of (a) the Aggregate
Principal Receivables Amount as of the last day of the Monthly
Period preceding such Monthly Period (or, in the case of the
Monthly Period relating to the first Distribution Date, the
Cutoff Date) and (ii) the sum of the numerators used to calculate
the Principal Allocation Percentages for all outstanding Series
as of such date; provided, however, that with respect to the
allocation of Collections of Principal Receivables among all
Series, if on any date of determination the sum of the Principal
Allocation Percentages for each outstanding Series exceeds 100%,
then such allocations shall be made on the basis of such
percentages after a pro rata reduction thereof such that the sum
thereof will equal 100% for such Monthly Period.
"Principal Receivables" means all amounts charged by
Obligors for merchandise and services and cash advances (plus
capitalized unpaid Finance Charge Receivables), but shall not
include Defaulted Receivables. In calculating the aggregate
amount of Principal Receivables in an Account on any day, the
amount of Principal Receivables shall be reduced by the aggregate
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amount of credit balances in such Account on such day. Any
Receivables which the Seller is unable to transfer as provided in
Section 2.06(d) or 9.02 shall not be included in calculating the
Aggregate Principal Receivables Amount, except to the extent so
provided in Section 2.06(d) or 9.02.
"Principal Shortfall" with respect to any Series in a Group,
means the amount, if any, by which (i) the aggregate of principal
payments to be made to the related Investor Certificateholders,
the Excess Funding Amount and the amount to be deposited in any
related Series Account or distributed to any related Credit
Enhancer as set forth in Articles Four and Five and in the
related Supplement on any Distribution Date exceeds (ii) the sum
of (a) the amount of Collections of Principal Receivables
allocable to such Series for the related Monthly Period and
(b) other amounts available to make such distributions and
deposits as set forth in Articles Four and Five and in the
related Supplement.
"Principal Terms" with respect to any Series, means (i) the
name or designation of such Series; (ii) the Initial Invested
Amount thereof (or method for calculating such amount) and the
initial principal balance of each Class of such Series;
(iii) each applicable Certificate Rate (or formula for the
determination thereof) and the manner, if any, in which such rate
may be adjusted from time to time; (iv) the related Closing Date;
(v) the identity of each Rating Agency; (vi) the interest payment
date or dates and the manner, if any, in which the interest
payment date or dates may be reset from time to time and the
periods during which interest shall accrue; (vii) the name of the
Depository or other clearing agency if any; (viii) the method for
allocating collections to Certificateholders of such Series,
including all relevant allocation percentages, the method by
which the principal amount of such Series shall amortize or
accrue and the date on which any Controlled Amortization Period
therefor shall commence; (ix) the designation of any Series
Accounts and the terms governing the operation of such Series
Accounts; (x) the method of calculating the Servicing Fee with
respect thereto; (xi) the provider and the terms of any form of
Credit Enhancement with respect thereto; (xii) the terms on which
the Investor Certificates of such Series may be exchanged for
Investor Certificates of another Series, repurchased by the
Seller or remarketed to other investors; (xiii) the Series
Termination Date; (xiv) the number of Classes of Investor
Certificates of such Series and, if such Series consists of more
than one Class, the rights and priorities of each such Class;
(xv) the priority of such Series with respect to any other
Series; (xvi) whether Recoveries or Interchange or other fees
will be included in funds available to the related Certificate-
holders; (xvii) the extent to which the Investor Certificates of
such Series will be issuable in temporary or permanent global
form (and, in such case, the depositary for such Global
Certificate or Certificates, the terms and conditions, if any,
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upon which such Global Certificate may be exchanged, in whole or
in part, for Definitive Certificates, and the manner in which any
interest payable on a temporary or Global Certificate will be
paid); (xviii) whether the Investor Certificates of such Series
may be issued as Bearer Certificates and any limitations imposed
thereon; (xix) whether such Series is being issued in book-entry
form and the minimum denominations in which the Investor
Certificates of such Series will be issued; (xx) the minimum
amount of Principal Receivables required to be maintained through
the designation of Additional Accounts; (xxi) the amount of any
deposit into any account maintained for the benefit of
Certificateholders; (xxii) the rights, if any, of the Holder of
the Seller's Certificate that have been transferred to the
Holders of such Series; (xxiii) whether such Series is part of a
Group, and the name or Series designation of each other Series in
such Group; (xxiv) whether all or part of such Series are
Variable Funding Certificates; and (xxv) any other terms of such
Series.
"Private Rating Indication" with respect to any Rating
Agency, means its opinion of the credit risk exposure to a
related Credit Enhancer with respect to any Series or Class,
expressed in terms of a ratings designation or the lowest rating
in a range of such designations communicated to such Credit
Enhancer; provided, however, that no Private Rating Indication
shall be deemed to be changed from that in effect on the related
Series Closing Date unless such change is communicated in writing
by such Credit Enhancer to the Trustee, the Master Servicer and
the Seller.
"Purchase Price" with respect to any Receivable for any date
on which such Receivable is to be purchased by the Seller or
Master Servicer from the Trust pursuant to Section 3.03(b), means
the amount specified in such Section.
"Qualified Institution" means (i) the corporate trust
department of the Trustee or (ii) a depository institution or
trust company (a) as to which each Credit Enhancer has given its
written consent and (b) that is organized under the laws of the
United States or any State (or any domestic branch of a foreign
bank) which at all times (1) has either (A) a long-term unsecured
debt obligation rating (other than such obligation the rating of
which is based on collateral or on the credit of a Person other
than such institution or trust company) of A1 or better by
Moody's (if Moody's is a Rating Agency), of "A+" or better by
Standard & Poor's (if Standard & Poor's is a Rating Agency) or
such other rating as is acceptable to each Rating Agency or
(B) the highest certificate of deposit rating from each Rating
Agency, and (2) has deposit insurance provided by the FDIC
through either BIF or SAIF.
"Rapid Amortization Period" with respect to any Series,
means the period beginning on the day on which a Pay Out Event
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occurs or is deemed to have occurred, and in each case ending
upon the earlier to occur of (i) the payment in full to the
Certificateholders of such Series of all amounts due to such
Certificateholders in accordance with the terms of the related
Supplement and such Certificates or (ii) the Series Termination
Date with respect to such Series.
"Rated Certificates" means each Class of Certificates of a
Series that on the related Closing Date has been rated by a
Rating Agency at the request of the Seller.
"Rating Agency" means each nationally recognized statistical
rating agency specified in the related Supplement as having rated
one or more classes of Rated Certificates at the request of the
Seller (which shall be any of Duff & Phelps, Fitch, Moody's or
Standard & Poor's).
"Rating Agency Condition" with respect to any action, means
that each related Rating Agency (other than Moody's) shall have
notified any related Credit Enhancer that such action will not
result in a reduction or withdrawal of the then-current Private
Rating Indication given with respect to the Rated Certificates of
any Series or Class of Certificates without taking into account
the availability of funds under the related Credit Enhancement.
"Ratings Effect" with respect to any action or event, means
that (i) any Rating Agency reduces or withdraws or gives notice
to the Trustee that it will reduce or withdraw its rating of the
Rated Certificates of any Series or Class as to which it is a
Rating Agency, or (ii) the Rating Agency Condition is not
satisfied.
"Reallocated Principal Collections" with respect to any
Series or Class that is subordinated to another Series or Class,
the amount, if any, of Collections of Principal Receivables
otherwise allocable to such subordinated Series or Class that
are, pursuant to the related Supplement, to be applied to fund
amounts to be distributed or allocated to such other Series or
Class.
"Reassignment" means a reassignment in substantially the
form of Exhibit G pursuant to which one or more Removed Accounts
are reconveyed by the Trustee to the Seller pursuant to
Section 2.07.
"Receivables" means any amount owing by an Obligor under an
Account for purchases of goods and services or the repayment of
cash advances, periodic finance charges and amounts charged in
respect of cash advance fees, Cardholder Fees and all other fees
and charges. A Receivable shall be deemed to have been created
as of the close of business on the Date of Processing of such
Receivable. Each such enumerated item shall be considered a
Receivable and shall be treated separately for purposes of
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Section 2.04. Any such amount shall cease to be a Receivable
upon reassignment of such amount by the Trust to the Seller.
Receivables which become Defaulted Receivables shall not be shown
on the Master Servicer's records as amounts payable (and will
cease to be included as Receivables) on the day on which they
become Defaulted Receivables. Receivables which arise in Removed
Accounts from and after the related Removal Date shall not be
included in calculating the amount of Receivables.
"Record Date" with respect to any Distribution Date, means
the last day of the preceding calendar month, irrespective of
whether such day is a Business Day.
"Recoveries" means all amounts received by the Master
Servicer with respect to Receivables in Defaulted Accounts from
and after the date on which such Accounts became Defaulted
Accounts, including all net amounts received by the Seller upon
the sale of Receivables in Defaulted Accounts.
"Registered Certificates" means Certificates that are issued
in fully registered form.
"Related Account" means any VISA (register mark) or
MasterCard (register mark) account having the following characteristics:
(i) such Related Account was established in compliance with the Cardholder
Guidelines pursuant to a Cardholder Agreement; (ii) the Obligor or Obligors
with respect to such Related Account are the same Person or
Persons as the Obligor or Obligors of the Account; (iii) such
Related Account is originated (a) as a result of the credit card
with respect to the Account being lost or stolen; (b) as a result
of the Obligor requesting a change in his billing cycle; (c) as a
result of an Obligor requesting the discontinuance of
responsibility with respect to an Account; (d) as a result of a
product change for an Obligor; or (e) for any other reasons
permitted by the Cardholder Guidelines; and (iv) such Related
Account can be traced or identified by reference to or by way of
the computer or other records of the Seller. From and after the
date on which an Account replaced by a Related Account is removed
from the computer records of the Seller, such Account shall no
longer be an Account hereunder.
"Related Documents" with respect to any Series, means any
agreement pursuant to which the Bank has acquired Additional
Accounts while such Series is outstanding and any Credit
Enhancement Agreement relating to a Credit Enhancement issued or
established for the benefit of the Holders of the related
Investor Certificates.
"Removal Date" means the Determination Date on which one or
more Accounts are removed pursuant to Section 2.07.
"Removal Notice" means a written notice specifying the
Removal Date on which one or more Accounts will be removed
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pursuant to Section 2.07.
"Removed Accounts" means one or more Accounts that are to be
removed pursuant to Section 2.07.
"Repurchase Price" with respect to any Series, shall have
the meaning specified in the related Supplement.
"Required Principal Balance" as of any date of
determination, means the Aggregate Invested Amount less the
amount on deposit in the Excess Funding Account, as specified in
the related Supplement.
"Required Seller Amount" as of any date of determination,
means the Required Seller Percentage of the sum of the Aggregate
Principal Receivables Amount and the amount on deposit in the
Excess Funding Account as of such date.
"Required Seller Percentage" means 5.0%; provided, however,
that the Seller may reduce the Required Seller Percentage upon 30
days' prior written notice to the Trustee, each Rating Agency and
each related Credit Enhancer, if (i) such reduction does not have
a Ratings Effect (as evidenced by written notice from each Rating
Agency and each Credit Enhancer), (ii) the Seller delivers to the
Trustee and each related Credit Enhancer an Officer's Certificate
stating that the Seller reasonably believes that such reduction
will not, based on the facts known to such officer at the time of
such certification, then or thereafter cause a Pay Out Event to
occur with respect to any Series, (iii) the Seller delivers to
the Trustee a Tax Opinion with respect to such reduction and
(iv) if so specified in the related Supplement, each Credit
Enhancer shall have given its prior written consent; and provided
further, that the Required Seller Percentage shall not be reduced
to less than 2%.
"Requirements of Law" for any Person, means the certificate
of incorporation and by-laws or other organizational or governing
documents of such Person, and any law, treaty, rule or
regulation, or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person
or to which such Person is subject, whether federal, state or
local (including usury laws and the Federal Truth in Lending
Act).
"Reserve Fund" with respect to any Series, means the account
established and maintained pursuant to Section 4.02(b) and
designated as such on Schedule 2.
"Responsible Officer" means any Vice President, Assistant
Vice President, Assistant Secretary, Assistant Treasurer, and any
other officer of the Trustee customarily performing functions
within the corporate trust department and also, with respect to a
particular matter, any other officer to whom such matter is
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referred because of such officer's knowledge of and familiarity
with that matter.
"Revolving Line of Credit Account" means any of the Initial
Accounts that is not a credit card account and is identified on
Schedule 1 as such.
"Revolving Line of Credit Agreement" means the application
for and all instruments or documents relating to, any Revolving
Line of Credit Account, forms of which are attached hereto as
Exhibit I.
"Revolving Period" with respect to any Series, unless
otherwise specified in the related Supplement, means the period
commencing on the related Closing Date and terminating on the
earliest to occur of the day before the related Amortization Date
or the commencement of a Rapid Amortization Period with respect
to such Series.
"Rule 144A" means Rule 144A promulgated by the Commission
under the Securities Act.
"SAIF" means the Savings Association Insurance Fund
administered by the FDIC, or any successor thereto.
"Sales 4 and 5 Accounts" means all of the Accounts
identified as such on the Schedule of Accounts, as amended from
time to time.
"Schedule of Accounts" means a computer file or microfiche
or written list, marked as Schedule 1 hereto and hereby
incorporated into and made a part of this Pooling Agreement,
containing a true and complete list of all Accounts specifying
for each such Account, as of the Cutoff Date, in the case of the
Initial Accounts, the applicable Additional Cutoff Date, in the
case of Additional Accounts: (i) its account number; (ii) the
aggregate amount of Receivables outstanding in such Account; and
(iii) identifying the removal of Removed Accounts as of the
related Removal Date and the transfer of the Transferred Accounts
as of the related Transfer Dates.
"Securities Act" means the Securities Act of 1933, as
amended.
"Seller" means the Bank, or its successors in interest to
the extent permitted hereunder, in its capacity as Seller
hereunder.
"Seller Amount" as of any date of determination, means an
amount equal to the sum of the Aggregate Principal Receivables
Amount and the amount on deposit in the Excess Funding Account
minus the Aggregate Invested Amount as of such date.
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"Seller Assignment" with respect to Additional Accounts,
means the written assignment of the Eligible Receivables in such
Additional Accounts and the related Collateral Security by the
Seller to the Trust, substantially in the form attached hereto as
Exhibit B.
"Seller Certificate" means the certificate executed and
authenticated by the Trustee on behalf of the Seller,
substantially in the form of Exhibit A hereto, which shall be
issued to and held by the Seller.
"Seller Default Amount" for any Monthly Period, means the
aggregate amount of Principal Receivables in Defaulted Accounts
that were charged off during such Monthly Period minus the
Aggregate Investor Default Amount.
"Seller Interest" means the undivided interest in the Trust
not represented by the Investor Certificates of any Series.
"Seller Percentage" shall mean, with respect to Finance
Charge Receivables and Defaulted Receivables, 100% less the sum
of the Floating Allocation Percentages with respect to all
outstanding Series and with respect to Principal Receivables,
100% less the sum of the Principal Allocation Percentages with
respect to all outstanding Series.
"Seller's Servicing Fee" with respect to any Monthly Period,
means the excess of the Servicing Fee over the Investors'
Servicing Fee.
"Series" means any series of Certificates issued pursuant to
a Supplement.
"Series Account" means any deposit, trust, escrow, reserve,
special funding or similar account maintained for the benefit of
any Series or Class, as specified in the related Supplement.
"Series Closing Date" with respect to any Series, means the
date of initial issuance of such Series specified in the related
Supplement.
"Series Cutoff Date" with respect to any Series, means the
date specified as such in the related Supplement.
"Series Funding Percentage" with respect to any Series and
for purposes of making allocations on any date of determination
during a Monthly Period, means the percentage equivalent of a
fraction, the numerator of which is the related Invested Amount
as of the first day of such Monthly Period and the denominator of
which is the Aggregate Invested Amount as of such first day.
"Series Investment Proceeds" with respect to any Series and
any Monthly Period, means the portion of Investment Proceeds
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allocable to such Series which, unless a lesser amount is
specified in the related Supplement, shall equal the product of
(i) the related Floating Allocation Percentage and (ii)
Investment Proceeds realized on Eligible Investments with respect
to such Monthly Period.
"Series Majority Holders" with respect to any Series, shall
have the meaning specified as such in the related Supplement.
"Series Termination Date" with respect to any Series, means
the date specified in the related Supplement as the date on or
before which such Series will terminate.
"Service Transfer" shall have the meaning specified in
Section 10.01(b).
"Servicer Default" shall have the meaning specified in
Section 10.01(a).
"Servicing Fee" with respect to any Monthly Period, means
the product of one-twelfth of 2.0% per annum and the Aggregate
Principal Receivables Amount as of the first day of such Monthly
Period.
"Servicing Officer" means any officer of the Master Servicer
involved in, or responsible for, the administration and servicing
of the Receivables whose name appears on a list of servicing
officers furnished to the Trustee by the Master Servicer as such
list may from time to time be amended.
"Shared Excess Finance Charge Collections" with respect to
any Group and any Distribution Date, means the aggregate of
Excess Finance Charge Collections on such Distribution Date with
respect to each Series in such Group.
"Shared Excess Principal Collections" with respect to any
Group and any Distribution Date, means the aggregate of Excess
Principal Collections on such Distribution Date with respect to
each Series included in such Group.
"South Carolina UCC" means the UCC in the State of South
Carolina.
"Standard & Poor's" means Standard & Poor's Rating Group, a
division of McGraw-Hill Inc., or any successor thereto. If
Standard & Poor's is a Rating Agency with respect to a Series or
Class, its address for notices shall be Standard & Poor's Ratings
Group, 26 Broadway, 15th Floor, New York, New York 10004,
Attention: Asset Backed Group, 15th Floor, or such other address
as it may hereafter furnish to the Trustee, the Seller and the
Master Servicer.
"State" means any state of the United States or the District
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of Columbia.
"Subservicer" means any subservicer engaged by the Master
Servicer to subservice one or more of the Accounts and
Receivables pursuant to Section 3.01.
"Subservicing Agreement" means an agreement between the
Master Servicer and a Subservicer relating to the servicing of
one or more of the Accounts and Receivables.
"Successor Master Servicer" means any successor to the
obligations of the Master Servicer appointed pursuant to Section
8.09 or Section 10.02(a).
"Supplement" with respect to any Series, means a Supplement
to this Pooling Agreement, executed and delivered in connection
with the original issuance of the Investor Certificates of such
Series pursuant to Section 6.03, and all amendments thereof and
supplements thereto.
"Tax Opinion" with respect to any action, means an Opinion
of Counsel of a nationally recognized law firm to the effect that
for federal income tax purposes (i) such action will not affect
the tax characterization as debt of Investor Certificates of any
outstanding Series or Class that were characterized as debt at
the time of their issuance and immediately prior to such action,
(ii) such action will not cause the Trust to be an association or
publicly traded partnership taxable as a corporation and
(iii) such action will not cause a taxable event to any Investor
Certificateholders.
"Termination Notice" with respect to any Series, shall have
the meaning specified in Section 10.01(b).
"Termination Proceeds" shall have the meaning specified in
Section 12.02(c).
"Transfer Agent and Registrar" shall have the meaning
specified in Section 6.04(a) and shall initially be the Trustee.
"Transfer Date" means each date on which a Transferred
Account is created on the books and records of the Master
Servicer.
"Transfer Deposit Amount" with respect to any Receivable
reassigned or assigned to the Seller or the Master Servicer
pursuant to Sections 2.04(b), 2.04(c) or 3.03(b), as applicable,
means the amounts specified in such Sections.
"Transferred Account" means (i) an Account with respect to
which a new credit account number has been issued by the Master
Servicer or the Seller under circumstances resulting from a lost
or stolen credit card, from the transfer from one group to
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another group or from the transfer from one Obligor to another or
from the addition of any Obligor and not requiring standard
application and credit evaluation procedures under the Cardholder
Guidelines or (ii) an Eligible Account resulting from the
conversion of an Account that was a standard account to a premium
account or from a premium account to a standard account, or the
conversion of an Account that was a VISA (register mark) account to a
MasterCard (register mark) account or from a MasterCard (register mark)
account to a VISA (register mark) account, and which in any such case can be
traced or identified by reference to or by way of the computer files or
microfiche lists delivered to the Trustee pursuant to Section 2.01, 2.05 or
2.07 as an account into which an Account has been transferred.
"Trust" means the Carolina First Credit Card Master Trust
created by this Pooling Agreement, the corpus of which shall
consist of the Trust Assets.
"Trust Assets" shall have the meaning specified in
Section 2.01.
"Trust Indenture Act" means the Trust Indenture Act of 1939,
as amended.
"Trust Liquidation Proceeds" means the proceeds from the
sale, disposition or liquidation of the Receivables pursuant to
Section 9.02(a).
"Trust Termination Date" means the earlier of (i) the day
after the Distribution Date with respect to which, pursuant to
this Pooling Agreement, funds shall have been deposited in the
Collection Account for the payment in full of the Investor
Certificateholders of each outstanding Series, or (ii) December
1, 2015.
"Trustee" means The Chase Manhattan Bank, N.A., or its
successor in interest, or any successor trustee appointed as
herein provided.
"UCC" means the Uniform Commercial Code, as amended from
time to time, as in effect in any specified jurisdiction.
"United States" means the United States of America,
including the States, its territories, its possessions and other
areas subject to its jurisdiction.
"Unreimbursed Credit Enhancer Amounts" with respect to any
Distribution Date, means the sum of (i) current and overdue
premiums or similar payments, (ii) draws, claims or payments made
by the Credit Enhancer on such Credit Enhancement, (iii) any
optional payments by the related Credit Enhancer (if so provided
in the related Supplement), (iv) any other amounts owed to the
related Credit Enhancer under the related Credit Enhancement
Agreement (if so provided in the related Supplement) and (v)
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interest accrued thereon during the related Interest Period at
the rate specified in the related Credit Enhancement Agreement
(if so specified in the related Supplement).
"U.S. person" or "United States person" means a citizen or
resident of the United States, a corporation, partnership or
other entity created or organized in or under the laws of the
United States, or an estate or trust the income of which is
subject to United States federal income taxation regardless of
its source.
"Variable Funding Certificates" means Certificates pursuant
to which the related Holders will be required to make Advances
from time to time to the Seller pursuant to the terms thereof.
"VISA" means VISA USA, Inc., or any successor thereto.
VISA (register mark) is a registered trademark of VISA.
Section 1.02. Other Definitional Provisions.
(a) All terms defined in this Pooling Agreement shall have
the defined meanings when used in any certificate or other
document made or delivered pursuant hereto unless otherwise
defined therein.
(b) As used in this Pooling Agreement and in any
certificate or other document made or delivered pursuant hereto
or thereto, accounting terms not defined in this Pooling
Agreement or in any such certificate or other document, and
accounting terms partly defined in this Pooling Agreement or in
any such certificate or other document to the extent not defined,
shall have the respective meanings given to them under generally
accepted accounting principles in the United States. To the
extent that the definitions of accounting terms in this Pooling
Agreement or in any such certificate or other document are
inconsistent with the meanings of such terms under generally
accepted accounting principles, the definitions contained in this
Pooling Agreement or in any such certificate or other document
shall control.
(c) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Pooling Agreement shall refer
to this Pooling Agreement as a whole and not to any particular
provision of this Pooling Agreement; Article, Section, Schedule
and Exhibit references contained in this Pooling Agreement are
references to Articles, Sections, Schedules and Exhibits in or to
this Pooling Agreement unless otherwise specified; and the term
"including" means "including without limitation".
(d) The definitions contained in this Pooling Agreement are
applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter
genders of such terms.
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ARTICLE TWO
CONVEYANCE OF RECEIVABLES
Section 2.01. Conveyance of Receivables. By execution of
this Pooling Agreement, the Seller does hereby transfer, assign,
set-over and otherwise convey, without recourse (except as
expressly provided herein), to the Trust for the benefit of the
Certificateholders and the other Beneficiaries, (a) all of its
right, title and interest in, to and under the Receivables in
each Account or Additional Account, as the case may be, owned by
the Seller at the close of business on the Cutoff Date, in the
case of the Initial Accounts, and on the applicable Additional
Cutoff Date, in the case of Additional Accounts, and in each case
all Receivables thereafter arising in such Accounts prior to any
related Removal Date and the Trust Termination Date, and all
monies due or to become due thereon, all amounts received with
respect thereto and all related Collateral Security, (b) such
funds as from time to time are deposited in the Collection
Account, the Excess Funding Account or any Series Account and any
Investment Proceeds with respect thereto, (c) any rights the
Seller may have with respect to any Credit Enhancement or
pursuant to any Credit Enhancement Agreement and (d) all proceeds
(as defined in Section 9-306 of the South Carolina UCC) of all of
the foregoing (including Recoveries on the Receivables). Such
property shall collectively constitute the assets of the Trust
(the "Trust Assets"). The foregoing transfer, assignment,
set-over and conveyance and any subsequent transfers, assign-
ments, set-overs and conveyances (the "Conveyances") do not
constitute, and are not intended to result in, the creation or an
assumption by the Trust, the Trustee, any Agent or any
Beneficiary of any obligation of the Bank, as Seller or Master
Servicer or otherwise, or of any other Person in connection with
the Accounts, the Receivables or under any agreement or
instrument relating thereto, including any obligation to any
Obligors.
In connection with the Conveyances, the Seller agrees to
record and file, at its own expense, a financing statement on
Form UCC-1 (and any appropriate continuation statements) with
respect to the Receivables now existing and hereafter created for
the sale of "accounts" or "general intangibles" (in each case as
defined in Section 9-106 of the South Carolina UCC) meeting the
requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect the transfer and
assignment of the Receivables, the Collateral Security and the
other Trust Assets to the Trust, and to deliver to the Trustee a
file-stamped copy of each such financing statement and
continuation statement or other evidence of such filing
satisfactory to the Trustee on or prior to the Closing Date
relating to the first Series to be issued pursuant to this
Pooling Agreement, in the case of the Initial Accounts, and (if
any additional filing is so necessary) the applicable Addition
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Date, in the case of Additional Accounts. The Trustee shall be
under no obligation whatsoever to file any such financing
statement or continuation statement to such financing statement,
or to make any other filing under the UCC in connection with such
Conveyances.
In connection with the Conveyances, the Seller further
agrees, at its own expense, on or prior to the Closing Date
relating to the first Series to be issued pursuant to this
Pooling Agreement, in the case of the Initial Accounts, and the
applicable Addition Date, in the case of Additional Accounts, (a)
to indicate in its computer files, that the Receivables have been
or will have been sold, and the related Collateral Security has
been or will have been assigned, to the Trust pursuant to this
Pooling Agreement and (b) to deliver or cause to be delivered to
the Trustee the Schedule of Accounts or a supplemented Schedule
of Accounts reflecting the addition of Additional Accounts, the
removal of Removed Accounts and the creation of the Transferred
Accounts. The Seller further agrees not to alter the file
designation referenced in clause (a) above with respect to any
Account during the term of this Pooling Agreement unless and
until such Account becomes a Removed Account.
The parties intend that if, and to the extent that, any of
the Conveyances is deemed not to be a sale by a court of
competent jurisdiction, the Seller shall be deemed hereunder to
have granted, and the Seller does hereby grant, to the Trustee a
first priority perfected security interest in all of the Seller's
right, title and interest in, to and under the Receivables now
existing and hereafter created and arising in connection with the
Accounts, all Collateral Security with respect thereto and all
other Trust Assets, for the purposes of (i) securing the rights
of the Trustee for the benefit of the Certificateholders and the
other Beneficiaries under this Pooling Agreement and
(ii) securing the right, ability and obligation of the Trustee to
make distributions set forth in this Pooling Agreement, and that
this Pooling Agreement shall constitute a security agreement
under applicable law.
In consideration of all of the foregoing, and at the request
and direction of the Seller, the Trustee shall cause Certificates
in authorized denominations evidencing the entire interest in the
Trust to be duly authenticated and delivered to or upon the order
of the Seller pursuant to Section 6.02.
Section 2.02. Acceptance by Trustee.
(a) The Trustee hereby acknowledges its acceptance, on
behalf of the Trust, of all right, title and interest previously
held by the Seller to the property, now existing and hereafter
created, conveyed to the Trust pursuant to Section 2.01 and
declares that it shall maintain such right, title and interest,
upon the trusts herein set forth, for the benefit of the
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Beneficiaries. The Trustee further acknowledges that, prior to
or simultaneously with the execution and delivery of this Pooling
Agreement, the Seller delivered the Schedule of Accounts to the
Trustee pursuant to Section 2.01.
(b) The Trustee hereby agrees not to disclose to any Person
any Account Information except as is required in connection with
the performance of its duties hereunder or in enforcing the
rights of the Certificateholders or to a Successor Master
Servicer appointed (or proposed to be appointed) pursuant to
Section 8.09 or 10.02 or as mandated pursuant to any Requirement
of Law. The Trustee agrees to take such measures as shall be
reasonably requested by the Seller to protect and maintain the
security and confidentiality of such information, and, in
connection therewith, shall allow the Seller or Master Servicer
to inspect the Trustee's security and confidentiality
arrangements from time to time upon reasonable notice and during
normal business hours. In the event that the Trustee is required
by law to disclose any Account Information, the Trustee shall
provide the Seller with prompt written notice, unless such notice
is prohibited by law, of any such request or requirement so that
the Seller may request a protective order or other appropriate
remedy. The Trustee shall use its best efforts to provide the
Seller with such written notice no later than five days prior to
any disclosure pursuant to this Section. The Trustee hereby
agrees not to use any information it obtains pursuant to this
Pooling Agreement, including any Account Information delivered by
the Seller to the Trustee pursuant to this Pooling Agreement,
directly or indirectly, to compete or assist any Person in
competing with the Seller in its business.
(c) The Trustee shall have no power to create, assume or
incur indebtedness or other liabilities in the name of the Trust
other than as contemplated in this Pooling Agreement.
Section 2.03. Representations and Warranties of the Seller.
(a) Representations and Warranties as to the Seller. The
Seller hereby represents and warrants to the Trust and to the
Trustee as of each Closing Date that:
(i) Organization and Good Standing. The Seller is a
state chartered bank duly organized and validly existing and
in good standing under the laws of the State of South
Carolina and has, in all material respects, full corporate
power, authority and legal right to own its properties and
conduct its business as such properties are presently owned
and such business is presently conducted, and to execute,
deliver and perform all of its obligations under this
Pooling Agreement, the applicable Supplement, the related
Certificates and Related Documents with respect to the
Series issued on such Closing Date.
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(ii) Due Qualification. The Seller is duly qualified
to do business and, where necessary, is in good standing as
a foreign corporation (or is exempt from such requirement)
and has obtained all necessary licenses and approvals in
each jurisdiction in which the conduct of its business
requires such qualification except where the failure to so
qualify or be in good standing or obtain licenses or
approvals would not affect the enforceability of any of the
Accounts or Receivables or have a material adverse effect on
its ability to perform any of its obligations hereunder.
(iii) Due Authorization. The execution and delivery of
this Pooling Agreement, the applicable Supplement, the
related Certificates and Related Documents with respect to
the Series issued on such Closing Date and the consummation
of the transactions provided for or contemplated hereby and
thereby, have been duly authorized by the Seller by all
necessary corporate action on the part of the Seller, and
each of this Pooling Agreement, each Supplement, the related
Certificates and each Related Document will remain, from the
time of its execution, an official record of the Seller.
(iv) No Conflict. The execution and delivery of this
Pooling Agreement, the applicable Supplement, the related
Certificates and Related Documents with respect to the
Series issued on such Closing Date, the performance of the
transactions contemplated hereby and thereby, and the
fulfillment of the terms hereof and thereof, will not
conflict with, result in any breach of any of the material
terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under,
any indenture, contract, agreement, mortgage, deed of trust
or other instrument to which the Seller is a party or by
which it or its properties are bound, except to the extent
that such conflict, breach or default will not have a
material adverse effect on the ability of the Seller to
perform any of its obligations hereunder and thereunder.
(v) No Violation. The execution and delivery of this
Pooling Agreement, the applicable Supplement, the related
Certificates and Related Documents with respect to the
Series issued on such Closing Date, the performance of the
transactions contemplated hereby and thereby and the
fulfillment of the terms hereof and thereof applicable to
the Seller will not conflict with or violate any
Requirements of Law applicable to the Seller.
(vi) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the
Seller, threatened against the Seller before any
Governmental Authority (i) asserting the invalidity of this
Pooling Agreement, the applicable Supplement, the related
Certificates or any Related Document with respect to the
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Series issued on such Closing Date, (ii) seeking to prevent
the issuance of such Certificates or the consummation of any
of the transactions contemplated hereby or thereby,
(iii) seeking any determination or ruling that, in the
reasonable judgment of the Seller, would materially and
adversely affect the performance by the Seller of its
obligations hereunder or thereunder, (iv) seeking any
determination or ruling that would materially and adversely
affect the validity or enforceability hereof or thereof or
(v) seeking to affect adversely the income tax attributes of
the Trust under United States federal or South Carolina
income or franchise tax systems.
(vii) All Consents Obtained. All approvals,
authorizations, consents, orders or other actions of any
Person or of any Governmental Authority required in
connection with the execution and delivery by the Seller of
this Pooling Agreement, the applicable Supplement, the
related Certificates and Related Documents with respect to
the Series issued on such Closing Date, the performance by
the Seller of the transactions contemplated hereby and
thereby and the fulfillment by such entity of the terms
hereof and thereof have been obtained.
(viii) Enforceability. Taken together with the
applicable Supplement and the Related Documents with respect
to the Series issued on such Closing Date, this Pooling
Agreement constitutes a legal, valid and binding obligation
of the Seller enforceable against the Seller in accordance
with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general or
the rights of creditors of depository institutions the
accounts of which are insured by the FDIC and except as such
enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity)
and the availability of equitable remedies.
(ix) Record of Accounts. As of the first Closing Date
or, in the case of the Initial Accounts, as of the
applicable Addition Date, in the case of the Additional
Accounts, and, as of the applicable Removal Date, in the
case of Removed Accounts, Schedule 1 to this Pooling
Agreement (as amended from time to time) is and will be an
accurate and complete listing in all material respects of
all the Accounts as of the Cutoff Date, the applicable
Additional Cutoff Date or the applicable Removal Date, as
the case may be, and the information contained therein with
respect to the identity of such Accounts and the Receivables
existing thereunder is true and correct in all material
respects as of the Cutoff Date, such Addition Date or such
Removal Date, as the case may be.
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(x) Place of Business. The principal place of
business of the Seller is in Greenville, South Carolina or
at such other address as has been furnished by the Seller in
writing to the Trustee, and the offices where the Seller
keeps its records concerning the Receivables and related
contracts are listed on Schedule 3.
(xi) Use of Proceeds. No proceeds of the issuance of
any Certificate will be used by the Seller to purchase or
carry any margin security.
(xii) Not an Investment Company. The Seller (A) is
neither an "investment company" nor is "controlled" by an
"investment company "within the meaning of the Investment
Company Act, or (B) is exempt from all provisions of the
Investment Company Act.
(xiii) Insolvency. The Seller is not insolvent for
purposes of Sections 27-23-10, 20, 30 and 40, Code of Laws
of South Carolina, no Insolvency Event has occurred and the
transfer of the Receivables by the Seller to the Trust has
not been made in contemplation of the occurrence of an
Insolvency Event.
(xiv) Valid Transfer. (A) This Pooling Agreement or, in
the case of Additional Accounts, this Pooling Agreement
together with the related Assignment, constitutes a valid
sale, transfer and assignment to the Trust of all right,
title and interest of the Seller in the Receivables and any
Collateral Security and the proceeds thereof (including any
related Insurance Proceeds and Recoveries) and all of the
rights, remedies, powers and privileges of the Seller under
any Related Document and, upon the filing of the financing
statements described in Section 2.01 with the Secretary of
State of the State of South Carolina (and in the case of the
Receivables hereafter created and the proceeds thereof, upon
the creation thereof) the Trust shall have either an
ownership interest or, in the event a court of competent
jurisdiction characterizes the Conveyances as a secured
financing, a first priority perfected security interest in,
such property (except for Permitted Liens); (B) except as
otherwise provided in this Pooling Agreement, neither the
Seller nor any Person claiming through or under the Seller
has any claim to or interest in the Trust Assets; (C) if
this Pooling Agreement constitutes the grant of a security
interest to the Trust in such property, upon the filing of
the financing statement described in Section 2.01 and in the
case of the Receivables hereafter created and the related
Collateral Security, upon such creation, the Trust shall
have a first priority perfected security interest in such
property (subject to Section 9-306 of the South Carolina
UCC), except for Permitted Liens; provided, however, that
such security interest in proceeds shall remain perfected
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nine days after receipt by the Master Servicer (so long as
the Seller is the Master Servicer) or the Seller only to the
extent that such proceeds are identifiable cash proceeds or
they are received by the Trustee within such nine-day
period; and provided, further, that the Seller makes no
representation or warranty with respect to the effect of
Section 9-306(4) of the South Carolina UCC on the rights of
the Trustee to proceeds held by the Seller at the time
insolvency proceedings are instituted by or against the
Seller; and (D) neither the Seller nor any Person claiming
through or under the Seller shall have any claim to or
interest in the Collection Account or any Series Account
except for (i) the Seller's rights, if any, to receive
interest accruing on, and investment earnings in respect of,
the Collection Account or any Series Account as provided in
any Supplement, (ii) if this Pooling Agreement constitutes
the grant of a security interest in such property, the
interest of the Seller in such property as a debtor for
purposes of the South Carolina UCC and (iii) the rights
evidenced by any Certificate issued in accordance with the
provisions hereof and held by the Seller or such Person.
(xv) FDIC Insured Deposits. The Seller is a financial
institution whose deposits are insured by the FDIC.
The representations and warranties set forth in this Section
shall survive the transfer and assignment of the Receivables to
the Trust and the issuance of the related Certificates on each
Closing Date. Upon discovery by the Seller, the Master Servicer,
any Credit Enhancer, any Agent, or the Trustee of a breach of any
of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the
other parties and each other Credit Enhancer and each other
Agent. The Seller agrees to cooperate with the Master Servicer
and the Trustee in attempting to cure any such breach. For
purposes of the representations and warranties set forth in this
Section, each reference to a Supplement shall be deemed to refer
only to those Supplements in effect as of the relevant Closing
Date.
(b) Reassignment of Trust Assets. In the event that any of
the representations and warranties set forth in Sections
2.03(a)(i), (iii), (viii), (ix), (xiii) or (xiv) has been
breached and such breach is not cured within 60 days of the
Seller's receipt of written notice thereof from the Trustee, any
Credit Enhancer or Holders of Investor Certificates of all Series
evidencing not less than 50% of the Aggregate Invested Amount
(which notice shall also be given to the Trustee and each Credit
Enhancer if given by such Holders or any Credit Enhancer) then,
unless an Insolvency Event has occurred, the Trustee, any Credit
Enhancer or such Holders may direct the Seller to accept
reassignment of all of the Trust Assets at the end of such 60-day
period (or within such longer period as may be specified in such
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notice).
In connection with such reassignment, and in payment for the
Trust Assets, the Seller shall deposit in the Collection Account
in immediately available funds on the Business Day preceding the
date specified in such notice as the date of such reassignment,
an amount equal to the sum of the amounts specified as the
Repurchase Prices for each outstanding Series in the related
Supplements plus the aggregate amount of Unreimbursed Credit
Enhancer Amounts for each Series. Notwithstanding anything to
the contrary in this Pooling Agreement, such amounts shall be
distributed on the Distribution Date following the date specified
in such notice as the date of such reassignment in accordance
with Articles Four and Five hereof and the terms of each
Supplement. The obligation of the Seller to effect such
reassignment and deposit pursuant to this Section shall
constitute the sole remedy available to the Trustee, the
Certificateholders or any Credit Enhancer in connection with an
uncured breach of such representations and warranties. The
deposit of such payment into the Collection Account, together
with all other amounts required to be deposited therein prior to
such Distribution Date, and the payment to the Holders of each
outstanding Series of the portion of such deposited amounts
allocable thereto will constitute payment in full of each
outstanding Series.
Section 2.04. Representations and Warranties as to the
Receivables.
(a) Representations and Warranties. The Seller hereby
represents and warrants to the Trust that:
(i) Each Receivable and all Collateral Security
existing on the first Closing Date or, in the case of
Additional Accounts, on the applicable Addition Date, and on
each Transfer Date, has been conveyed to the Trust free and
clear of any Lien (except for Permitted Liens), and in
compliance, in all material respects, with all Requirements
of Law applicable to the Seller or such conveyance.
(ii) With respect to each Receivable and all Collateral
Security existing on the Closing Date relating to the first
Series to be issued pursuant to this Pooling Agreement or,
in the case of Additional Accounts, on the applicable
Addition Date, and on each Transfer Date, all consents,
licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be
obtained, effected or given by the Seller and the Master
Servicer in connection with the conveyance of such
Receivable or Collateral Security to the Trust have been
duly obtained, effected or given and are in full force and
effect.
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(iii) On the Cutoff Date and Closing Date relating to
the first Series to be issued pursuant to this Pooling
Agreement, each Initial Account is an Eligible Account and,
in the case of Additional Accounts, on the applicable
Additional Cutoff Date and Addition Date, each such
Additional Account is an Eligible Account.
(iv) On the Cutoff Date and the Closing Date relating
to the first Series to be issued pursuant to this Pooling
Agreement, in the case of the Initial Accounts, and, in the
case of the Additional Accounts, on the applicable
Additional Cutoff Date, each Receivable conveyed to the
Trust on such date is an Eligible Receivable.
(v) On each day on which any new Receivable is
created, the Seller shall be deemed to represent and warrant
to the Trust that (A) each Receivable created on such day is
an Eligible Receivable, (B) each Receivable created on such
day has been conveyed to the Trust in compliance, in all
material respects, with all Requirements of Law applicable
to the Seller or such conveyance, (C) with respect to each
such Receivable, all consents, licenses, approvals or
authorizations of or registrations or declaration with, any
Governmental Authority required to be obtained, effected or
given by the Seller in connection with the conveyance of
such Receivable to the Trust have been duly obtained (other
than any that the Trustee may have been required to obtain),
effected or given and are in full force and effect and (D)
the representations and warranties set forth in
Section 2.04(a) are true and correct with respect to each
Receivable created on such day as if made on such day.
The representations and warranties set forth in this Section
shall survive the transfer and assignment of the Receivables to
the Trust and the issuance of the Certificates of each Series.
Upon discovery by the Seller, the Master Servicer, the Trustee or
any Credit Enhancer of a breach of any of the foregoing
representations and warranties, the party discovering such breach
shall give prompt written notice to the other parties and to each
other Credit Enhancer. The Seller agrees to cooperate with the
Master Servicer and the Trustee in attempting to cure any such
breach. For purposes of the representations and warranties set
forth in this Section, each reference to a Supplement shall be
deemed to refer only to those Supplements in effect as of the
date of the relevant representations or warranties.
(b) Reassignment of Receivables.
(i) Automatic Reassignment. In the event of a breach
with respect to a Receivable of any of the representations
and warranties set forth in Section 2.04(a)(i), or in the
event that a Receivable is not an Eligible Receivable as a
result of the failure to satisfy the conditions set forth in
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clause (iv) or clause (vi) of the definition of Eligible
Receivable, and any of the following three conditions is
met: (A) as a result of such breach or event such
Receivable is charged off as uncollectible, (B) the Trust's
rights in, to or under such Receivable or its proceeds are
impaired or (C) the proceeds of such Receivable are not
available for any reason to the Trust free and clear of
Liens (except for Permitted Liens) then, upon the earlier to
occur of the discovery of such breach or event by the Seller
or the Master Servicer or receipt by the Seller of written
notice of such breach or event given by the Master Servicer,
the Trustee or any Credit Enhancer, each such Receivable
shall be automatically removed from the Trust on the terms
and conditions set forth in Section 2.04(b)(iii).
(ii) Reassignment After Cure Period. In the event that
a breach of the representations and warranties set forth in
Section 2.04(a)(ii) through (iv) remains uncured for a
period of 60 days from the earlier to occur of the discovery
of any such breach or event by either the Seller or the
Master Servicer, or receipt by the Seller of written notice
of any such breach or event given by the Master Servicer,
the Trustee, any Credit Enhancer or any Agent, which breach
or event (A) causes such Receivable to be an Ineligible
Receivable, (B) causes the Trust's rights in, to or under
the Receivable, the related Collateral Security or proceeds
thereof to be impaired or subject to any Lien or (C) has any
other material adverse effect on the interests of any of the
Beneficiaries, then, upon the expiration of such 60 days,
each such Receivable shall be removed from the Trust
pursuant to Section 2.04(b)(iii).
(iii) Procedures for Removal. The Seller shall accept
reassignment of each Ineligible Receivable as follows:
(A) The Seller shall accept reassignment of
Ineligible Finance Charge Receivables on or before
the Deposit Date in the succeeding Monthly Period by
depositing immediately available funds into the
Collection Account in an amount equal to the balance
of each such Ineligible Finance Charge Receivable,
which deposit shall be applied as a Collection of
Finance Charge Receivables in accordance with
Articles Four and Five; and
(B) The Seller shall accept reassignment of
Ineligible Principal Receivables by directing the
Master Servicer to deduct the principal balance of
such Ineligible Principal Receivables from the
Aggregate Principal Receivables Amount and to
decrease the Seller Amount by such amount. In the
event that any such removal of Ineligible Principal
Receivables from the Trust causes the Seller Amount
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to be reduced below the Required Seller Amount or
the Aggregate Principal Receivables Amount to be
reduced below the Required Principal Balance, then,
unless an Insolvency Event has occurred, the Seller
shall designate Additional Accounts the Receivables
of which are to be transferred to the Trust, or
shall transfer to the Trustee for deposit into the
Excess Funding Account immediately available funds
in an amount such that the Seller Amount shall at
least equal the Required Seller Amount and the
Aggregate Principal Receivables Amount shall at
least equal the Required Principal Balance on such
date (such amount of funds, the "Transfer Deposit
Amount"); provided, however, that if such Transfer
Deposit Amount is not deposited as required, then
the principal amounts of such Receivables shall only
be deducted from the Aggregate Principal Receivables
Amount to the extent that the Aggregate Principal
Receivables Amount is reduced below the Required
Principal Balance and the Receivables having
unadjusted principal amounts shall not be reassigned
to the Seller but shall remain part of the Trust.
Upon reassignment of any such Receivable, but only
after payment by the Seller of the Transfer Deposit
Amount, if any, the Trust shall automatically and
without further action be deemed to sell, transfer,
assign, set over and otherwise convey to the Seller,
without recourse, representation or warranty, all of
the right, title and interest of the Trust in and to
such Receivable, all related Collateral Security and
all proceeds thereof. Such reassigned Ineligible
Receivable shall be treated by the Trust as
collected in full as of the date on which it was
transferred. The Trustee shall execute such
documents and instruments of transfer or assignment
and take such other actions as shall reasonably be
requested by the Seller and Master Servicer to
effect the conveyance of such Receivables pursuant
to this Section. The obligation of the Seller to
accept a reassignment of any such Receivable and to
either designate Additional Accounts or pay the
related Transfer Deposit Amount shall constitute the
sole remedy respecting the breach or event giving
rise to such obligation available to any Credit
Enhancer, the Certificateholders or the Trustee.
(iv) Proceeds Held by the Master Servicer. For
purposes of Sections 2.04(b)(i) and (ii), proceeds of a
Receivable shall not be deemed to be impaired hereunder
solely because such proceeds are held by the Master Servicer
(if the Master Servicer is the Bank) for more than the
applicable period under Section 9-306(3) of the South
Carolina UCC.
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(c) Reassignment of Receivables in Additional Accounts. In
the event that a breach of any of the representations and
warranties set forth in Section 5(a) or 5(e) of any Seller
Assignment remains uncured for a period of 60 days from the date
of receipt by the Seller of written notice thereof, then any of
the Trustee, any Credit Enhancer or Holders of Investor
Certificates of all Series representing at least 66-2/3% of the
Aggregate Invested Amount, by notice then given in writing to the
Seller (and to the Trustee, the Master Servicer and each Credit
Enhancer, if given by the Investor Certificateholders or any
Credit Enhancer), may direct the Seller to accept reassignment of
each Receivable then existing in an Account, the Receivables of
which were conveyed to the Trust pursuant to such Seller
Assignment, on the terms and conditions set forth herein, on or
prior to the first Distribution Date next succeeding 60 days
after such notice, and the Seller shall be obligated to remove
such Receivables on a Distribution Date occurring within such
applicable period pursuant to Section 2.04(b)(iii).
Section 2.05. Addition of Accounts.
(a) Mandatory Addition of Accounts or Funds. On each
Determination Date the Master Servicer will determine the
Aggregate Principal Receivables Amount and the Seller Amount as
of the last day of the related Monthly Period. If the Master
Servicer determines that either (i) the Aggregate Principal
Receivables Amount as of such last day is less then the Required
Principal Balance as of such last day or (ii) the Seller Amount
as of such last day is less than the Required Seller Amount as of
such last day, then, unless an Insolvency Event has occurred, the
Seller shall, within ten Business Days, designate and transfer to
the Trust the Receivables (and any related Collateral Security)
of Additional Accounts meeting the criteria set forth in
Section 2.05(d) to be included as Additional Accounts or shall
transfer to the Trustee for deposit into the Excess Funding
Account immediately available funds in an amount such that, after
giving effect to such addition and any amount otherwise to be
deposited into the Excess Funding Account on the related
Distribution Date: (i) the Aggregate Principal Receivables Amount
(after giving effect to any addition or deposit) as of the close
of business on the Addition Date will at least equal the Required
Principal Balance as of the last day of such related Monthly
Period and (ii) the Seller Amount (after giving effect to any
addition or deposit) as of the close of business on the Addition
Date will at least equal the Required Seller Amount as of the
last day of such related Monthly Period. The failure of the
Seller to transfer Receivables or funds to the Trust as provided
in this Section solely as a result of the prior occurrence of an
Insolvency Event shall not constitute a breach of this Pooling
Agreement but will nevertheless result in the occurrence of a Pay
Out Event.
(b) Optional Addition of Accounts. The Seller may from
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time to time, in its sole discretion, subject to the conditions
specified in Section 2.05(d), voluntarily designate additional
Eligible Accounts to be included as Accounts and transfer to the
Trust the Receivables (and the related Collateral Security) in
such Additional Accounts. The Seller may not exercise its right
to designate Additional Accounts in excess of the Aggregate
Addition Limit (i) unless additions in excess of such limitations
will not result in a Ratings Effect (as evidenced by written
notice from each Rating Agency and each Credit Enhancer) Pay Out
Event or (ii) without the written consent of each Credit Enhancer
(which consent may not be unreasonably withheld if the proposed
addition is required in order to avoid the occurrence or
continuance of a Pay Out Event).
(c) Receivables and Collateral Security relating to such
Additional Accounts shall be sold to the Trust effective on the
Addition Date specified in an Addition Notice delivered on or
before the related Notice Date.
(d) The Seller and Master Servicer shall be permitted to
convey to the Trust the Receivables and all Collateral Security
related thereto in any Additional Accounts designated by the
Seller and Master Servicer as such pursuant to Section 2.05(a) or
(b) only upon satisfaction of each of the following conditions on
or prior to the related Addition Date:
(i) the Seller shall have provided the Trustee, the
Master Servicer and each Agent, Rating Agency and Credit
Enhancer with a timely Addition Notice;
(ii) each such Additional Account shall be an Eligible
Account;
(iii) the Seller shall have delivered to the Trustee a
Seller Assignment and an amended Schedule of Accounts which
shall be true and correct in all material respects as of the
Additional Cutoff Date;
(iv) the Seller and Master Servicer shall, to the
extent required by Section 4.03, have deposited in the
Collection Account all Collections with respect to such
Additional Accounts since the related Additional Cutoff
Date;
(v) no selection procedures reasonably believed by the
Seller to be adverse to the interests of the Beneficiaries
were used in selecting such Additional Accounts;
(vi) as of each of the Notice Date and the Addition
Date, the Seller was not insolvent and will not have been
made insolvent by such transfer, and the Seller is not aware
of any pending insolvency;
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(vii) the Seller shall have delivered to the Trustee
copies of UCC-1 financing statements covering such
Additional Accounts, if necessary to perfect the Trust's
interest in the Receivables arising therein;
(viii) the Seller and Master Servicer shall have
delivered to the Trustee and each Credit Enhancer an
Officer's Certificate confirming the items set forth in
clauses (i) through (vii) above; and
(ix) the Seller shall deliver to the Trustee (with a
copy to each Rating Agency and Credit Enhancer) an Opinion
of Counsel with respect to the Receivables in the Additional
Accounts substantially in the form of Exhibit F-1.
(e) Upon discovery by the Seller, the Master Servicer, the
Trustee or any Credit Enhancer of a breach of the foregoing
representations and warranties, the party discovering the breach
shall give prompt written notice to the other parties, and to
each Credit Enhancer.
Section 2.06. Covenants of the Seller. Each of the Seller
and the Master Servicer hereby covenants that:
(a) No Liens. Except for the conveyances hereunder, the
Seller will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any
Lien on, any Receivable or any Collateral Security, whether now
existing or hereafter created, or any interest therein, or the
rights, remedies, powers or privileges of the Seller or the
Master Servicer with respect to any Receivables under any Related
Document or any other Trust Assets, the Seller Interest or the
Seller Certificate and the Seller shall defend the right, title
and interest of the Trust in, to and under the Receivables,
Collateral Security and other Trust Assets, whether now existing
or hereafter created, and such rights, remedies, powers and
privileges, against all claims of third parties claiming through
or under the Seller; provided, however, that nothing in this
Section shall prevent or be deemed to prohibit the Seller from
suffering to exist upon any of the Receivables any Permitted
Liens. The Seller shall notify the Trustee, the Master Servicer,
each Credit Enhancer and each Agent promptly after becoming aware
of any Lien on any Receivable other than the conveyances
hereunder or Liens permitted under this Section.
(b) Receivables Not to be Evidenced by Promissory Notes.
The Seller will take no action to cause any Receivable to be
evidenced by any instrument or chattel paper (each as defined in
the South Carolina UCC); each Receivable shall be payable
pursuant to a contract which does not create a Lien on any goods
purchased thereunder, and the Seller will take no action to cause
any Receivable to be anything other than an "account" or a
"general intangible" (each as defined in the South Carolina UCC).
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(c) Cardholder Agreements and Cardholder Guidelines. The
Seller shall comply with and perform its obligations under the
Cardholder Agreements and Revolving Line of Credit Agreements
relating to the Accounts and the Cardholder Guidelines and all
applicable rules and regulations of VISA (register mark) and
MasterCard (register mark) except insofar as any failure to comply or perform
would not materially and adversely affect the rights of the Trust, any Credit
Enhancer or the Certificateholders hereunder or under the Certificates.
Subject to all Requirements of Law, the Seller may change the
terms and provisions of the Cardholder Agreements and Revolving
Line of Credit Agreements or the Cardholder Guidelines in any
respect (including, without limitation, the reduction of the
required minimum monthly payment, the calculation of the amount,
or the timing, of charge-offs and the periodic finance charges
and other fees to be assessed thereon) only if such change (i)
would not, in the reasonable belief of the Seller, cause a
Ratings Effect (as evidenced by written notice from each Rating
Agency and each Credit Enhancer) or a Pay Out Event to occur for
any Rated Certificates then outstanding, and (ii) is made
applicable to the comparable segment of the credit card or
unsecured revolving line of credit accounts owned by the Seller
which have characteristics the same as, or substantially similar
to, the Accounts that are the subject of such change, and if
there are no such accounts, no changes shall be made which prefer
the interests of the Seller over those of the Trust, the
Certificateholders or any Credit Enhancer. The Seller shall give
each Credit Enhancer and Rating Agency advance notice of any such
changes. In addition, the Seller hereby agrees that, except as
otherwise required by any Requirement of Law applicable to the
Seller or as is deemed by the Seller to be necessary in order for
the Seller to maintain the credit card business on a competitive
basis based on a good faith assessment by the Seller of the
nature of its competition in the credit card business, it shall
not at any time reduce (a) the annual percentage rate ("APR") of
the periodic finance charges assessed on the Receivables with
respect to which a fixed rate APR is assessed or, in the case of
Receivables as to which a variable rate APR is assessed, the
percentage charged in excess of the index rate used in
calculating the related periodic finance charge or (b) any other
fees charged on any of the Accounts, if the Seller reasonably
expects that such a reduction would result in the occurrence of a
Pay Out Event.
(d) Account Allocations. In the event that the Seller is
unable for any reason to transfer Receivables to the Trust when
required in accordance with the terms of this Pooling Agreement,
(including, without limitation, by reason of the application of
the provisions of Section 9.02 or an order by any federal or
state governmental agency having regulatory authority over the
Seller or any court of competent jurisdiction that the Seller not
transfer any additional Principal Receivables to the Trust) then,
in any such event: (i) the Seller shall allocate and pay to the
Trust, after the date of such inability, all Collections of
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Principal Receivables, and all amounts which would have
constituted Collections of Principal Receivables but for the
Seller's inability to transfer such Receivables (up to an
aggregate amount equal to the Aggregate Principal Receivables
Amount on such date); (ii) the Seller agrees to have such amounts
applied as Collections of Principal Receivables in accordance
with Article Four; and (iii) for so long as Collections of
Principal Receivables and amounts which would have constituted
Collections of Principal Receivables are allocated and applied in
accordance with clauses (i) and (ii) above, Principal Receivables
(and all amounts which would have constituted Principal
Receivables but for the Seller's inability to transfer
Receivables to the Trust) that are charged off as uncollectible
in accordance with this Pooling Agreement shall continue to be
allocated in accordance with Article Four, and all amounts that
would have constituted Principal Receivables but for the Seller's
inability to transfer Receivables to the Trust shall be deemed to
be Principal Receivables for the purpose of calculating the
applicable Floating Allocation Percentages and Principal
Allocation Percentages and the Aggregate Principal Receivables
Amount. If the Seller is unable pursuant to any Requirement of
Law to allocate Collections of Principal Collections as described
above, the Seller agrees that it shall in any such event
thereafter allocate payments on each Account with respect to the
principal balance of such Account first to the oldest principal
balance of such Account and to have such payments applied as
Collections of Principal Receivables in accordance with Articles
Four and Five. The parties hereto agree that Finance Charge
Receivables, whenever created, accrued in respect of Principal
Receivables that have been conveyed to the Trust, or that would
have been conveyed to the Trust but for the above described
inability to transfer such Receivables, shall continue to be a
part of the Trust notwithstanding any cessation of the transfer
of additional Principal Receivables to the Trust, and that
Collections with respect to such Finance Charge Receivables shall
continue to be allocated and paid in accordance with Articles
Four and Five.
In the event that, pursuant to Section 2.04(b), the Seller
accepts reassignment of an Ineligible Receivable and payments
received from or on behalf of an Obligor are not specifically
applicable either to an Ineligible Receivable reassigned to the
Seller or to the Receivables of such Obligor retained in the
Trust, then the Seller agrees to allocate payments proportion-
ately based on (i) in the case of Principal Receivables, the
total amount of Principal Receivables of such Obligor retained in
the Trust and the total amount owing by such Obligor on any
Ineligible Principal Receivables reassigned to the Seller, and
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(ii) in the case of Finance Charge Receivables, the total amount
of Finance Charge Receivables of such Obligor retained in the
Trust and the total amount owing by such Obligor on any
Ineligible Finance Charge Receivables reassigned to the Seller.
(e) Delivery of Collections. In the event that the Seller
or any Affiliate thereof receives payments in respect of any
Receivables, the Seller agrees to pay or cause to be paid to the
Master Servicer or any Successor Master Servicer all payments
received thereby in respect of the Receivables as soon as
practicable after receipt thereof, but in no event later than two
Business Days after such receipt.
(f) Conveyance of Accounts. The Seller covenants and
agrees that it will not convey, assign, exchange or otherwise
transfer the Accounts to any Person prior to the termination of
this Pooling Agreement; provided, however, that the Seller shall
not be prohibited hereby from conveying, assigning, exchanging or
otherwise transferring the Accounts in connection with a
transaction complying with Section 7.04.
(g) Credit Card Systems. The Seller shall use its best
efforts to remain a member in good standing of both the VISA (register mark)
and MasterCard (register mark) systems to the extent Accounts include
VISA (register mark) credit or MasterCard (register mark) credit card accounts,
as the case may be.
(h) Seller Interest. Except as provided herein with
respect to permissible fluctuations in the Seller Amount, the
Seller shall at all times own a beneficial interest in the Seller
Interest that is not less than the Required Seller Amount. The
Seller agrees not to transfer, assign, exchange or otherwise
convey or pledge, hypothecate or otherwise grant a security
interest in the Seller Interest represented by the Seller
Certificate other than in connection with the issuance of a new
Series as provided in Section 6.03(b) or the merger of the Seller
as provided in Section 7.04(c), and that any other attempted
transfer, assignment, exchange, conveyance, pledge, hypothecation
or grant shall be void.
(i) Compliance with Law. The Seller hereby agrees to
comply in all material respects with all Requirements of Law
applicable to the Seller in connection with the origination,
purchase or conveyance of the Accounts and Receivables or the
performance of its obligations hereunder the failure to comply
with which would have a materially adverse effect on the
interests of any of the Beneficiaries.
(j) Reinstatement of Charging Privileges. The Seller
hereby covenants that it will not reinstate the charging
privileges of any Obligor with respect to an Account that was an
Eligible Account the Receivables of which had been charged off at
the time such Account was designated as an Account.
(k) Official Record. The Seller hereby agrees that this
Pooling Agreement is and shall remain, and each Supplement will
be and shall remain, at all times prior to the time at which this
Pooling Agreement or such Supplement shall terminate, an official
record of the Seller, as referred to in Section 13(e) of the
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Federal Deposit Insurance Act, as amended. In addition, the
Seller covenants to comply with all applicable statutes,
regulations, and policy statements affecting the enforceability
of agreements with insured depository institutions or prescribing
the form or maintenance of documentation evidencing the transfer
of assets, including, but not limited to Section 11(e) of the
Federal Deposit Insurance Act, as amended, for so long as any of
the Investor Certificates is outstanding.
(l) Notice of Liens. The Seller hereby covenants to notify
the Trustee promptly after becoming aware of any Lien on any
Receivable that is other than a Permitted Lien and the Lien
created by this Pooling Agreement.
(m) Increase of Credit Limit. The Seller hereby covenants
that it will not increase the credit limit on any Account to an
amount greater than $50,000 and that it will not increase the
credit limit on any Account to an amount greater than $25,000 if
as a result of any such increase the aggregate number of Accounts
that have credit limits in excess of $25,000 (but less than
$50,000) will exceed 0.25% of the aggregate number of Accounts,
each as of the date of such increase.
Section 2.07. Optional Removal of Accounts.
(a) On each Determination Date, the Seller shall have the
right to remove Accounts (the "Removed Accounts"), including all
Receivables therein and thereafter created therein and related
Collateral Security, from the Trust upon the satisfaction of all
of the following conditions:
(i) not less than five Business Days prior to the
related Removal Date, the Seller shall have furnished a
Removal Notice to the Trustee, the Master Servicer, each
Credit Enhancer and each Rating Agency;
(ii) from and after such Removal Date, the Seller shall
cease to transfer to the Trust any and all Receivables
arising in such Removed Accounts;
(iii) the Seller shall represent and warrant (A) that
the removal of any such Account on any Removal Date shall
not, in the reasonable belief of the Seller, (1) cause a Pay
Out Event to occur, (2) cause the Aggregate Principal
Receivables Amount to be, on the Removal Date, less than the
Required Principal Balance, (3) cause the Seller Amount to
be, on the Removal Date, less than the Required Seller
Amount or (4) result in a failure to make any payment
specified in Articles Four or Five or in the related
Supplement with respect to any Series or Class and (B) that
no selection procedures reasonably believed by the Seller to
be adverse to the interests of the Beneficiaries were
utilized in selecting the Removed Accounts;
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(iv) each Rating Agency shall have received notice of
the proposed removal, specifying the Accounts and the
balances of Receivables in the Accounts to be removed and
the proposed related Removal Date, and neither of the Seller
nor the Master Servicer shall have received notice prior to
the Removal Date from any Rating Agency or Credit Enhancer
that such removal will have a Ratings Effect;
(v) on or before the related Removal Date, the Seller
shall deliver to the Trustee and each Credit Enhancer an
Officer's Certificate confirming the items set forth in
clauses (i) through (iv) above upon which the Trustee may
conclusively rely and as to which the Trustee shall have no
duty to make inquiries as to the matters set forth therein,
and the Trustee shall incur no liability in so relying; and
(vi) on or before the fifth Business Day after the
Removal Date, the Seller shall furnish to the Trustee a
computer file, microfiche list or other list of the Removed
Accounts that were removed on the Removal Date, specifying
for each Removed Account as of the date of the Removal
Notice its number, the aggregate amount of Receivables
outstanding in such Removed Account, and the Seller shall
represent and warrant that such computer file, microfiche
list or other list of the Removed Accounts is true and
complete in all material respects.
(b) After the Removal Date and upon the written request of
the Seller, the Trustee shall deliver to the Seller a
Reassignment and shall, without further action, be deemed to
transfer, assign, set-over and otherwise convey to the Seller or
its designee, effective as of the Removal Date, without recourse,
representation or warranty, all the right, title and interest of
the Trust in and to the Receivables arising in the Removed
Accounts, all related Collateral Security and all proceeds
thereof.
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ARTICLE THREE
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.01. The Master Servicer.
(a) The Bank agrees to act as Master Servicer under this
Pooling Agreement. The Investor Certificateholders, by their
acceptance of the related Certificates (or beneficial interests
therein), consent to the Bank acting as Master Servicer.
(b) The Master Servicer shall service and administer the
Receivables, collect payments due under the Receivables and
charge-off as uncollectible Receivables, all in accordance with
its customary and usual procedures for servicing credit card and
unsecured revolving line of credit receivables comparable to the
Receivables and in accordance with the Cardholder Agreements and
Cardholder Guidelines or the Revolving Line of Credit Agreements,
as the case may be. The Master Servicer shall have full power
and authority, acting alone or through any party properly
designated hereunder, to do any and all things in connection with
such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing and
subject to Section 10.01, the Master Servicer is hereby
authorized and empowered, unless such power and authority is
revoked by the Trustee in connection with the occurrence of a
Servicer Default pursuant to Section 10.01:
(i) to instruct the Trustee to make withdrawals and
payments from the Collection Account, the Excess Funding
Account and any Series Account as set forth in this Pooling
Agreement and the related Supplement;
(ii) to instruct the Trustee to take any action
required or permitted under this Pooling Agreement and any
Supplement or under any Credit Enhancement Agreement;
(iii) to execute and deliver, on behalf of the Trust for
the benefit of the Beneficiaries, any and all instruments of
satisfaction or cancellation, or of partial or full release
or discharge, and all other comparable instruments, with
respect to the Receivables and, after the delinquency of any
Receivable and to the extent permitted under and in
compliance with applicable Requirements of Law, to commence
enforcement proceedings with respect to such Receivables;
(iv) to make any filings, reports, notices, applica-
tions, registrations with, and seek any consents or authori-
zations from, the Commission and any state securities
authority on behalf of the Trust as may be necessary or
advisable to comply with any federal or state securities
laws or reporting requirements;
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(v) to sell or pledge Defaulted Receivables to one or
more collection agencies in accordance with its customary
and usual procedures;
(vi) to make any filings, reports, notices, applica-
tions, registrations with, and to seek any consents or
authorizations from the Securities and Exchange Commission
and any state securities authority on behalf of the Trust as
may be necessary or advisable to comply with any federal or
state securities or reporting requirements; and
(vii) to delegate certain of its servicing, collection,
enforcement and administrative duties hereunder with respect
to the Accounts and the Receivables to any Person who is an
Eligible Servicer and who agrees to conduct such duties in
accordance with the Credit Card Guidelines, Cardholder
Agreements, Revolving Line of Credit Agreements and this
Pooling Agreement (any such delegation to be terminable
promptly upon the occurrence of a Servicer Default);
provided, however, that the Master Servicer shall notify the
Trustee, each Rating Agency and any Credit Enhancers in writing
in advance of any proposed delegation of a material duty made
after the date of this Pooling Agreement and that no such
delegation that could have a material adverse effect on the
interests of any Credit Enhancer may be made without the prior
written consent of such Credit Enhancer; and provided, further,
that no such delegation will relieve the Master Servicer of its
liability and responsibility with respect to such duties and that
the Ratings Effect (as evidenced by written notice from each
Rating Agency and each Credit Enhancer) shall have been satisfied
with respect to any such delegation. The Trustee shall furnish
the Master Servicer with any powers of attorney and other
documents reasonably necessary or appropriate to enable the
Master Servicer to carry out its servicing and administrative
duties hereunder.
(c) The Master Servicer may, subject to the provisions of
Section 8.07, enter into Subservicing Agreements with one or more
Subservicers who are Eligible Servicers for the servicing and
administration of some or all of the Accounts and Receivables.
The Master Servicer shall notify each Rating Agency promptly if a
Subservicer is hired. References in the Agreement to actions
taken or to be taken by the Master Servicer in servicing the
Accounts and Receivables include actions taken or to be taken by
a Subservicer on behalf of the Master Servicer. Each
Subservicing Agreement will be upon such terms and conditions as
are not inconsistent with this Pooling Agreement and as the
Master Servicer and the Subservicer have agreed with the consent
of each Credit Enhancer. With the approval of the Master
Servicer and, if such delegation is of a material duty, upon
notice given to each Credit Enhancer and Rating Agency, and, if
such delegation could have a material adverse affect on any
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Credit Enhancer, upon receipt of prior written consent from such
Credit Enhancer, a Subservicer may delegate its servicing
obligations to third-party servicers, but such Subservicer will
remain obligated under the related Subservicing Agreement. The
Master Servicer and a Subservicer may enter into amendments
thereto or different forms of Subservicing Agreements. The form
attached as an Exhibit hereto is merely provided for information
and shall not be deemed to limit in any respect the discretion of
the Master Servicer to modify or enter into different
Subservicing Agreements; provided, however, that any such
amendments or different forms shall be consistent with and not
violate the provisions of this Pooling Agreement or materially
adversely affect the rights of the Beneficiaries hereunder; and
provided further that the Master Servicer hereby agrees that it
will not terminate any Subservicing Agreement that is in effect
as of the first Closing Date without the prior written consent of
the Trustee and that it will terminate any Subservicing Agreement
at the direction of the Trustee following the occurrence of any
material breach by the related Subservicer thereof or following
any Servicer Default that results in a Service Transfer.
The Master Servicer shall be entitled to terminate any
Subservicing Agreement that may exist in accordance with the
terms and conditions of such Subservicing Agreement and without
any limitation by virtue of this Pooling Agreement; provided,
however, that in the event of termination of any Subservicing
Agreement by the Master Servicer or the related Subservicer, the
Master Servicer shall either act directly as servicer of the
related Accounts and Receivables or enter into a Subservicing
Agreement with a successor Subservicer approved by each Credit
Enhancer which will be bound by the terms of the related
Subservicing Agreement.
Notwithstanding any Subservicing Agreement, any of the
provisions of this Pooling Agreement relating to agreements or
arrangements between the Master Servicer or a Subservicer or
reference to actions taken through such Persons or otherwise, the
Master Servicer shall remain obligated and liable to the Trustee
and Certificateholders for the servicing and administering of the
Accounts and Receivables in accordance with the provisions of
this Pooling Agreement without diminution of such obligation or
liability by virtue of such Subservicing Agreements or
arrangements or by virtue of indemnification from a Subservicer
and to the same extent and under the same terms and conditions as
if the Master Servicer alone were servicing and administering the
Accounts and Receivables. The Master Servicer shall be entitled
to enter into any agreement with a Subservicer for
indemnification of the Master Servicer and nothing contained in
this Pooling Agreement shall be deemed to limit or modify such
indemnification.
Any Subservicing Agreement that may be entered into and any
other transactions or servicing arrangements relating to any
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Accounts or Receivables involving a Subservicer or other
Affiliate of the Master Servicer in its capacity as such and not
as an originator shall be deemed to be between the Subservicer or
other Affiliate of the Master Servicer, as the case may be, and
the Master Servicer alone, and the Trustee and the
Certificateholders shall not be deemed parties thereto and shall
have no claims, rights, obligations, duties or liabilities with
respect to the Subservicer except as set forth in the immediately
succeeding paragraph; provided that each Credit Enhancer may rely
upon the representations and warranties of the Subservicer
contained therein.
In the event the Master Servicer shall for any reason no
longer be the Master Servicer (including, but not limited to, by
reason of a Servicer Default), the Trustee or its designee may,
at the sole discretion of the Trustee, thereupon assume all of
the rights and obligations of such Master Servicer under each
Subservicing Agreement selected by the Trustee in its sole
discretion. In such event, the Trustee, its designee or the
successor servicer for the Trustee shall be deemed to have
assumed all of the Master Servicer's interest therein and to have
replaced the Master Servicer as a party to each such Subservicing
Agreement to the same extent as if such Subservicing Agreement
had been assigned to the assuming party except that the Master
Servicer shall not thereby be relieved of any liability or
obligations under the Subservicing Agreement. The Master
Servicer shall, upon request of the Trustee but at the expense of
the Master Servicer, deliver to the assuming party all documents
and records relating to each such Subservicing Agreement and the
Accounts and Receivables then being serviced and an accounting of
amounts collected and held by it and otherwise use its best
efforts to effect the orderly and efficient transfer of the
Subservicing Agreement to the assuming party.
In those cases where a Subservicer is servicing one or more
Accounts and Receivables pursuant to a Subservicing Agreement,
the Master Servicer shall cause the Subservicer to remit to the
Master Servicer, for deposit in accordance with this Pooling
Agreement, on a daily basis, within two Business Days after
receipt by the Subservicer, all payments made on or in respect of
the Accounts or Receivables received by the Subservicer.
(d) In the event that the Seller is unable for any reason
to transfer Receivables to the Trust in accordance with the
provisions of this Pooling Agreement (including by reason of the
application of the provisions of Section 9.02 or any court of
competent jurisdiction ordering that the Seller not transfer any
additional Principal Receivables to the Trust) then, in any such
event, the Master Servicer agrees (i) to give prompt written
notice thereof to the Trustee, the Master Servicer, each Agent,
each Credit Enhancer and each Rating Agency, (ii) that it shall
in any such event allocate after the occurrence of such event,
Collections of Principal Receivables with respect to such Account
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and all amounts which would have constituted Collections of
Principal Receivables but for the Seller's inability to transfer
such Receivables (up to an aggregate amount equal to the
aggregate amount of Principal Receivables in the Trust as of such
date) as Collections of Principal Receivables in accordance with
Section 2.06(d) and Article Four, and (iii) for so long as all
Collections of Principal Receivables and all amounts which would
have constituted Collections of Principal Receivables are
allocated and applied in accordance with clauses (i) and (ii)
above, Principal Receivables and all amounts which would have
constituted Principal Receivables but for the Seller's inability
to transfer Principal Receivables to the Trust that are written
off as uncollectible in accordance with this Pooling Agreement
shall continue to be allocated in accordance with Article Four
and all amounts which would have constituted Principal
Receivables but for the Seller's inability to transfer Principal
Receivables to the Trust shall be deemed to be Principal
Receivables for the purpose of calculating the applicable
Floating Allocation Percentages and Principal Allocation
Percentages and the Aggregate Principal Receivables Amount. If
the Master Servicer is unable pursuant to any Requirement of Law
to allocate payments on the Accounts as described above, the
Master Servicer agrees that it shall in any such event allocate,
after the occurrence of such event, payments on each Account with
respect to Principal Receivables of such Account first to the
oldest Principal Receivable in such Account and to have such
payments applied as Collections of Principal Receivables in
accordance with Articles Four and Five. The parties hereto agree
that Finance Charge Receivables, whenever created, accrued in
respect of Principal Receivables which have been conveyed to the
Trust shall continue to be a part of the Trust notwithstanding
any cessation of the transfer of additional Principal Receivables
to the Trust and Collections of Finance Charge Receivables with
respect thereto shall continue to be allocated and paid in
accordance with the terms of this Pooling Agreement.
(e) In the event that pursuant to Section 2.04(b), the
Seller accepts reassignment of an Ineligible Receivable as a
result of a breach of the representations and warranties in
Section 2.04(a) relating to such Receivable, then, in any such
event, the Master Servicer agrees to account for payments
received with respect to such Ineligible Receivable separately
from its accounting for Receivables retained by the Trust. If
payments received from or on behalf of an Obligor are not
specifically applicable either to an Ineligible Receivable of
such Obligor reassigned to the Seller or to Receivables of such
Obligor retained in the Trust, then the Master Servicer agrees to
allocate payments proportionately, as set forth in Section
2.06(d), and the portion allocable to any Principal Receivables
or Finance Charge Receivables retained in the Trust shall be
treated as Collections of Principal Receivables and Finance
Charge Receivables, respectively, and deposited in accordance
with the provisions of Articles Four and Five and the related
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Supplements.
(f) The Master Servicer shall not, and any Successor Master
Servicer shall not be obligated to, use separate servicing
procedures, offices, employees or accounts for servicing the
Receivables from the procedures, offices, employees and accounts
used by the Master Servicer or such Successor Master Servicer in
connection with servicing other credit card and unsecured
revolving line of credit receivables.
(g) The Master Servicer and any Successor Master Servicer
shall maintain fidelity bond coverage insuring against losses
through wrongdoing of its officers and employees who are involved
in the servicing of credit card receivables covering such actions
and in such amounts as the Master Servicer believes to be
reasonable from time to time.
(h) The Master Servicer and any Successor Master Servicer
shall take no action to cause any Receivable to be evidenced by
any "instrument" or "chattel paper" (each as defined in the South
Carolina UCC), or to be anything other than an "account" or a
"general intangible" (each as defined in Section 9-106 of the
South Carolina UCC).
(i) The Master Servicer or any Successor Master Servicer
shall, before the expiration of any financing statement filed
pursuant to this Pooling Agreement or any continuation thereof,
(i) prepare a continuation statement with respect thereto meeting
the requirements of applicable state law, (ii) direct the Trustee
to sign such continuation statement, (iii) upon the Trustee's
having signed and returned such continuation statement to the
Master Servicer, record and file, at its own expense, such
continuation statement in the appropriate jurisdiction and
(iv) deliver a file-stamped copy of such continuation statement
to the Trustee.
(j) The Master Servicer shall comply with and perform its
servicing obligations with respect to the Accounts and
Receivables in accordance with the related Cardholder Agreements,
Cardholder Guidelines, Revolving Line of Credit Agreements,
similar guidelines with respect to the servicing of revolving
lines of credit similar to the Revolving Line of Credit Accounts
and all applicable rules and regulations of VISA (register mark) and
MasterCard (register mark) except insofar as any failure to comply or perform
would not materially and adversely affect the rights of the Trust or any of
the Beneficiaries.
Section 3.02. Servicing Compensation.
(a) As compensation for its servicing activities hereunder
and reimbursement for its expenses as set forth in Section
3.02(b), the Master Servicer shall be entitled to receive the
Servicing Fee on each Distribution Date on or prior to the Trust
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Termination Date, payable in arrears. The Servicing Fee shall be
payable to the Master Servicer from the Trust Assets solely to
the extent amounts are available for payment in accordance with
this Pooling Agreement and the Supplements. As additional
servicing compensation, the Master Servicer will be entitled to
retain all collections in respect of Interchange. The portion of
the Servicing Fee with respect to any Monthly Period not
allocated to the Certificateholders' Interest, if any, shall be
automatically retained by the Master Servicer from amounts
representing the Seller Percentage of Collections to the extent
such Seller Collections exceed the aggregate of all such amounts
allocable or distributable to any Series or Class or required to
be deposited into the Excess Funding Account or any Series
Account on such Distribution Date or, to the extent such amounts
have been deposited into the Collection Account, distributed by
the Trustee from the Collection Account to the Master Servicer on
each Distribution Date. In no event shall the Trust, the
Trustee, the Investor Certificateholders of any Series or any
Credit Enhancer be liable for any portion of the Seller's
Servicing Fee with respect to any Monthly Period.
(b) The Master Servicer's expenses include the amounts due
to the Trustee pursuant to Section 11.05 and the reasonable fees
and disbursements of independent accountants and all other
expenses incurred by the Master Servicer in connection with its
activities under this Pooling Agreement, and including all other
fees and expenses of the Trust not expressly stated herein to be
for the account of the Certificateholders but not including any
federal, state or local income and franchise taxes, if any, of
the Trust or the Certificateholders. The Master Servicer shall
be required to pay such expenses for its own account, and shall
not be entitled to any payment therefor other than the Servicing
Fee. The Master Servicer will be solely responsible for all fees
and expenses incurred by or on behalf of the Master Servicer in
connection herewith and the Master Servicer will not be entitled
to any fee or other payment from, or claim on, any of the Trust
Assets other than the Servicing Fee.
Section 3.03. Representations, Warranties and Covenants of
the Master Servicer.
(a) The Bank, as Master Servicer, hereby makes, and any
Successor Master Servicer by accepting its appointment hereunder
shall make, on each Closing Date with respect to the related
Series and on the date of any such appointment, the following
representations, warranties and covenants, on which the Trustee
has relied in accepting the Receivables in trust and in
authenticating the Certificates of such Series (the term Master
Servicer as used in this Section also refers to any Successor
Master Servicer):
(i) Organization and Good Standing. The Master
Servicer is a state-chartered bank or other corporation duly
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organized, validly existing and in good standing under the
applicable laws of the state of its charter or incorporation
and has, in all material respects, full corporate power,
authority and legal rights to own its properties and conduct
its receivable servicing business as such properties are
presently owned and as such business is presently conducted,
and to execute, deliver and perform its obligations under
this Pooling Agreement and the applicable Supplement.
(ii) Due Qualification. The Master Servicer is duly
qualified to do business and is in good standing as a
foreign corporation (or is exempt from such requirements),
and has obtained all necessary licenses and approvals, in
each jurisdiction in which the servicing of the Receivables
as required by this Pooling Agreement requires such
qualification except where the failure to so qualify or be
in good standing or obtain licenses or approvals would not
have a material adverse effect on the enforceability of the
Receivables or its ability to perform its obligations
hereunder. If the Master Servicer shall be required by any
Requirement of Law to so qualify or register or obtain such
license or approval, then it shall do so.
(iii) Due Authorization. The execution, delivery and
performance of this Pooling Agreement and the applicable
Supplement have been duly authorized by the Master Servicer
by all necessary corporate action on the part of the Master
Servicer and each of this Pooling Agreement and each
Supplement will remain, from the time of its execution, an
official record of the Master Servicer.
(iv) Binding Obligation. This Pooling Agreement and
the applicable Supplement constitutes a legal, valid and
binding obligation of the Master Servicer, enforceable
against the Master Servicer in accordance with its terms,
except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereinafter in effect, affecting the
enforcement of creditors' rights in general or the rights of
creditors of depository institutions the accounts of which
are insured by the FDIC and except as such enforceability
may be limited by general principles of equity (whether
considered in a proceeding at law or in equity) and the
availability of equitable remedies.
(v) No Violation. The execution and delivery of this
Pooling Agreement and the applicable Supplement by the
Master Servicer, the performance of the transactions
contemplated hereby and thereby and the fulfillment of the
terms hereof and thereof applicable to such party will not
conflict with, violate, result in any breach of any of the
material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a material default
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under, any Requirement of Law applicable to the Master
Servicer or any indenture, contract, agreement, mortgage,
deed of trust or other instrument to which the Master
Servicer is a party or by which it is bound except to the
extent that such conflict, breach or default will not have a
material adverse effect on the Master Servicer's ability to
perform its obligations hereunder and thereunder.
(vi) No Proceedings. There are no proceedings or
investigations pending, or to the best knowledge of the
Master Servicer, threatened against the Master Servicer
before any Governmental Authority (A) seeking to prevent the
issuance of the Certificates or the consummation of any of
the transactions contemplated by this Pooling Agreement and
the applicable Supplement, (B) seeking any determination or
ruling that, in the reasonable judgment of the Master
Servicer, would materially and adversely affect the
performance by the Master Servicer of its obligations under
this Pooling Agreement and the applicable Supplement, or (C)
seeking any determination or ruling that would materially
and adversely affect the validity or enforceability of this
Pooling Agreement and the applicable Supplement.
(vii) Compliance with Requirements of Law. The Master
Servicer shall duly satisfy all obligations on its part to
be fulfilled under or in connection with the Receivables or
the Accounts, will maintain in effect all qualifications
required under Requirements of Law in order to service
properly the Receivables and the Accounts and will comply in
all material respects with all Requirements of Law in
connection with servicing the Receivables and the Accounts
the failure to comply with which would have a material
adverse effect on the interests of the Beneficiaries.
(viii) No Rescission or Cancellation. The Master
Servicer shall not reschedule, revise, defer, cancel or
settle payments due on any Receivable except in the ordinary
course of its business and in accordance with the Cardholder
Agreements and Cardholder Guidelines, in the case of the
credit card Accounts, or the Revolving Line of Credit
Agreements and the Master Servicer's customary and usual
servicing procedures for servicing unsecured revolving line
of credit receivables comparable to the Receivables in the
Revolving Line of Credit Accounts, in the case of the
Receivables in the Revolving Line of Credit Accounts.
(ix) Protection of Beneficiaries' Rights. The Master
Servicer shall take no action, nor omit to take any action,
which would materially impair the rights of Beneficiaries in
the Receivables, except as ordered by a court of competent
jurisdiction or other Governmental Authority or in
accordance with the Cardholder Guidelines, in the case of
the credit card Accounts, and the Master Servicer's
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customary and usual servicing procedures for servicing
unsecured revolving line of credit receivables comparable to
the Receivables in the Revolving Line of Credit Accounts, in
the case of the Receivables in the Revolving Line of Credit
Accounts.
(x) Receivables not to be Evidenced by Promissory
Notes. Except in connection with its enforcement or
collection of an Account, the Master Servicer will take no
action to cause any Receivable to be evidenced by "chattel
paper" or any "instrument" (as defined in Section 9-306 of
the South Carolina UCC) or to be anything other than an
"account" or "general intangible" (as defined in Section 9-
306 of the South Carolina UCC).
(xi) All Consents Obtained. All approvals, authoriza-
tions, consents, orders or other actions of any Person or of
any governmental body or official required in connection
with the execution and delivery by the Master Servicer of
this Pooling Agreement and any applicable Supplement, the
performance by the Master Servicer of the transactions
contemplated and the fulfillment of the terms hereof and
thereof, have been obtained.
(xii) Negative Pledge. Except for the conveyances
under the Seller Assignments and under this Pooling
Agreement, the Master Servicer will not sell, pledge, assign
or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any Lien on, any Receivable sold
and assigned to the Trust, whether now existing or hereafter
created, or any interest therein, and the Master Servicer
shall defend the right, title and interest of the Trust in,
to and under any Receivable sold and assigned to the Trust,
whether now existing or hereafter created, against all
claims of third parties claiming through or under the Master
Servicer.
(xiii) Reinstatement of Charging Privileges. The Master
Servicer hereby covenants that it will not reinstate the
charging privileges of any Obligor with respect to an
Account that was an Eligible Account the Receivables of
which had been charged off at the time such Account was
designated as an Account.
(xiv) Increase of Credit Limit. The Master Servicer
hereby covenants that it will not increase the credit limit
on any Account to an amount greater than $50,000 and that it
will not increase the credit limit on any Account to an
amount greater than $25,000 if as a result of any such
increase the aggregate number of Accounts that have credit
limits in excess of $25,000 (but less than $50,000) will
exceed 0.25% of the aggregate number of Accounts, each as of
the date of such increase.
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The representations and warranties set forth in this Section
shall survive the transfer and assignment of the Receivables to
the Trust and the issuance of the Certificates. Upon discovery
by the Seller, the Master Servicer, any Credit Enhancer or the
Trustee of a breach of any of the representations and warranties
set forth in this Section, the party discovering such breach
shall give prompt written notice to the other parties and to each
other Credit Enhancer.
(b) Purchase. In the event the Master Servicer receives
written notice from the Seller, the Trustee or any Credit
Enhancer of a material breach of any covenant under Section
3.03(a)(vii), (viii), (ix), (x) or (xii) which has not been cured
within 60 days and has a material adverse effect on the interest
of the Certificateholders or any Credit Enhancer in any
Receivable or Account, then, unless an Insolvency Event has
occurred, the Master Servicer shall purchase such Receivable or,
if such non-compliance is with respect to any Account, all
Receivables in such Account. If the Bank is the Master Servicer
on the date of such purchase, the Bank shall accept reassignment
of the related Receivables as if each were an Ineligible
Receivable in accordance with Article Two. If the Bank is not
the Master Servicer on the date of such purchase, the Master
Servicer shall deposit into the Collection Account the sum of,
for each Series, (i) an amount equal to the product of the
related Floating Allocation Percentage and the amount of each
Finance Charge Receivable so transferred, (ii) an amount equal to
the product of the related Principal Allocation Percentage and
the amount of each Principal Receivable so transferred and
(iii) an amount equal to the sum of the products of each such
Receivable and the applicable Seller Percentage, to be released
to the Holder of the Seller Certificate subject to the
limitations set forth in Articles Two, Four and Five with respect
to the release of funds to the Seller. Each such deposit into
the Collection Account shall be allocated to the Investor
Certificateholders of each Series or the Seller Interest in the
manner specified in Article Four, and distributed pursuant to
Article Five, if applicable, on the Distribution Date relating to
the Monthly Period in which such deposit is made.
(c) Payment of Purchase Price, Etc. Upon each payment by
the Master Servicer of the Purchase Price for the Receivables to
be purchased by the Master Servicer from the Trust pursuant to
Section 3.03(b), the Trust shall automatically and without
further action be deemed to transfer, assign, set-over and
otherwise convey to the Master Servicer, without recourse,
representation or warranty, all right, title and interest of the
Trust in and to such Receivables, all related Collateral Security
and all proceeds thereof. The Trustee shall execute such
documents and instruments of transfer or assignment and take such
other actions as shall be reasonably requested by the Master
Servicer to effect the conveyance of any such Receivables
pursuant to this Section. The obligation of the Master Servicer
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to purchase such Receivables, and to make the deposits required
to be made as provided in Section 3.03(b), shall constitute the
sole remedy respecting the event giving rise to such obligation
available to the Beneficiaries or the Trustee on behalf of the
Certificateholders except as provided in Section 8.04.
Section 3.04. Reports and Records for the Trustee.
(a) Daily Reports. The Master Servicer, with prior written
notice from the Trustee, shall prepare and make available at the
office of the Master Servicer for inspection by the Trustee on
any Business Day requested by the Trustee a record setting forth
(i) the aggregate amount of Collections processed by the Master
Servicer on the preceding Business Day and the amount of
Collections so processed with respect to each Account and
(ii) the aggregate amount of Receivables as of the close of
business on the preceding Business Day and the aggregate amount
of Receivables in each Account. The Master Servicer shall, at
all times, maintain its computer files with respect to the
Accounts in such a manner so that the Accounts may be
specifically identified and shall make available to the Trustee
at the office of the Master Servicer on any Business Day during
normal business hours any computer programs necessary to make
such identification.
(b) Distribution Date Statements. On each Determination
Date, with respect to each outstanding Series, the Master
Servicer shall deliver to each Credit Enhancer, each Agent and
the Trustee a Distribution Date Statement for the related
Distribution Date substantially in the form attached as an
exhibit to the related Supplement.
(c) Transferred Accounts. The Master Servicer covenants
and agrees hereby to deliver to the Trustee, within a reasonable
time period after any Transferred Account is created, but in any
event not later than ten days after the end of the Monthly Period
during which the Transferred Account is created, a notice
specifying the new account number for any Transferred Account and
the account number of the replaced account.
Section 3.05. Annual Servicer's Certificate and Report.
(a) The Master Servicer will deliver to the Trustee, the
Seller, each Agent, each Rating Agency and each Credit Enhancer
on or before March 31 of each calendar year, beginning with March
31, 1996, an Officer's Certificate substantially in the form of
Exhibit C hereto stating that (i) a review of the activities of
the Master Servicer during the preceding calendar year and of its
performance under this Pooling Agreement was made under the
supervision of the officer signing such certificate and (ii) to
the best of such officer's knowledge, based on such review, the
Master Servicer has performed in all material respects its
obligations under this Pooling Agreement throughout such year,
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or, if there has been a material default in the performance of
any such obligation, specifying each such default known to such
officer and the nature and status thereof. A copy of such
certificate may be obtained by any Certificateholder by a request
in writing to the Trustee addressed to the Corporate Trust
Office.
(b) Within a reasonable period of time after the end of
each calendar year, but not later than the earlier to occur of
April 1 or the latest date permitted by law, the Trustee will
mail to each Person who at any time during the preceding calendar
year was a Certificateholder of record a statement prepared by
the Master Servicer containing the information required to be
contained in the regular Distribution Date Statement to such
Certificateholders aggregated for the preceding calendar year or
the applicable portion thereof during which such person was a
Certificateholder, together with such other information
(consistent with the tax treatment of such Certificates) as is
required by law and the Trustee or the Master Servicer deems
necessary or desirable to enable the related Certificateholders
to prepare their federal income tax returns. In satisfaction of
the provisions of Section 12.02, the Trustee will mail a report
to each related Investor Certificateholder of record immediately
prior to the final distribution to the Investor Certificate-
holders of any Series no later than 60 days after the date of
such final distribution that aggregates such information for the
portion of the calendar year during which such final distribution
is made that terminates on the date of such final distribution.
Section 3.06. Annual Independent Public Accountants'
Servicing Report.
(a) The Master Servicer shall cause a firm of nationally
recognized independent certified public accountants, who may also
render other services to the Master Servicer or to the Seller, to
deliver to the Trustee, the Seller, each Agent, each Rating
Agency and each Credit Enhancer on or before March 31 of each
year, beginning with March 31, 1996, a report addressed to the
Board of Directors of the Master Servicer and to the Trustee, to
the effect that such firm has performed certain agreed upon
procedures on management's assertion that the mathematical
calculations of each amount set forth in the monthly certificates
forwarded by the Master Servicer pursuant to Section 3.04(b)
during the period covered by such report (which shall be the
period from January 1 of the preceding calendar year to and
including December 31 of such calendar year, or for the initial
period, from the Closing Date until December 31, 1995) were
correctly made based on the information contained in such
reports, and, for two randomly selected Distribution Date
Statements provided during such calendar year, the Master
Servicer's computer records which were the source of such
information, and will state the results of its application of
such agreed upon procedures to such assertion.
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(b) The Master Servicer shall cause a firm of nationally
recognized independent certified public accountants, who may also
render other services to the Master Servicer or to the Seller, to
deliver to the Trustee, each Rating Agency, each Agent and each
Credit Enhancer on or before March 31 of each year, beginning
March 31, 1996, a report addressed to the Board of Directors of
the Master Servicer and to the Trustee, to the effect that such
firm has performed certain agreed upon procedures on management's
assertion that the servicing procedures performed by the Master
Servicer (excluding any procedures performed by the Master
Servicer's third party agents), including, without limitation,
the allocation of collections, were conducted in compliance with
Articles Four and Five of this Pooling Agreement and the
provisions of the related Supplement, and will state the results
of its application of such agreed upon procedures to such
assertion.
(c) Unless otherwise provided with respect to any Series in
the related Supplement, a copy of any report delivered pursuant
to this Section may be obtained by any Certificateholder by a
request in writing to the Trustee addressed to the Corporate
Trust Office.
Section 3.07. Tax Treatment. The Seller has entered into
this Pooling Agreement and, except as otherwise provided in the
related Supplement and in the related Certificates, each Class of
Rated Certificates has been (or will be) issued with the
intention that each such Class of Rated Certificates will qualify
under applicable tax law as indebtedness of the Bank secured by
the Receivables. The Seller, each Beneficiary and each
Certificateholder and Certificate Owner by the acceptance of its
Certificate or Book-Entry Certificate, as applicable, agrees to
treat and to take no action inconsistent with the treatment of
each such Class of Certificates as designated (or beneficial
interest therein) as indebtedness of the Bank secured by the
Receivables for United States federal, state, local and non-
United States income and franchise taxes and any other taxes
imposed on or measured by income. Each Certificateholder agrees
that it will cause any Certificate Owner acquiring an interest in
such Certificate so designated as indebtedness through it to
comply with this Pooling Agreement as to treatment as
indebtedness under applicable tax law, as described in this
Section.
Section 3.08. Notices to the Bank. In the event the Bank
is no longer acting as Master Servicer, any Successor Master
Servicer appointed pursuant to Section 8.09 and 10.02 shall
deliver or make available to the Bank, as the case may be, each
certificate and report required to be prepared, forwarded or
delivered thereafter pursuant to Section 3.04, 3.05 or 3.06.
Section 3.09. Reports to the Commission. From and after
the registration or public offering of any Class or Series, the
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Master Servicer shall, on behalf of the trust, cause to be filed
with the Commission any periodic reports required to be filed
under the provisions of the Exchange Act and the rules and
regulations of the Commission thereunder. The Bank, if the Bank
is not the Master Servicer, shall, at the expense of the Master
Servicer, cooperate with any reasonable request of the Master
Servicer in connection with such filings.
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ARTICLE FOUR
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.01. Rights of Certificateholders. The Investor
Certificates shall represent fractional undivided interests in
the Trust, which, with respect to each Series, shall consist of
the right to receive, to the extent necessary to make the
required payments with respect to the Investor Certificates of
such Series at the times and in the amounts specified in the
related Supplement, the portion of Collections allocable to
Investor Certificateholders of such Series pursuant to this
Pooling Agreement and such Supplement, funds on deposit in the
Collection Account and the Excess Funding Account allocable to
Investor Certificateholders of such Series pursuant to this
Pooling Agreement and such Supplement, funds on deposit in any
related Series Account and funds available to such Investor
Certificateholders pursuant to any related Credit Enhancement
included in the Trust Assets (collectively, with respect to all
Series, the "Certificateholders' Interest"), it being understood
that the Investor Certificates of any Series or Class shall not
represent any interest in any Series Account or Credit
Enhancement issued or established for the exclusive benefit of
any other Series or Class. The Seller Certificate shall
represent the ownership interest in the remainder of the Trust
Assets not allocated to the Certificateholders' Interest pursuant
to this Pooling Agreement or any Supplement, including the right
to receive the Collections with respect to the Receivables and
other amounts at the times and in the amounts specified in this
Pooling Agreement or in any Supplement to be paid to the Holder
of the Seller Certificate (the "Seller Interest"); provided,
however, that the Seller Certificate shall not represent any
interest in the Collection Account, the Excess Funding Account,
any Series Account or any Credit Enhancement, except as
specifically provided in this Pooling Agreement, any Supplement
or any Credit Enhancement Agreement.
Section 4.02. Establishment of Accounts.
(a) The Collection Account. The Master Servicer, for the
benefit of the Certificateholders and the other Beneficiaries,
shall cause to be established and maintained in the name of the
Trustee on behalf of the Trust a non-interest bearing segregated
account designated as the Collection Account and bearing a
designation clearly indicating that the funds deposited therein
are held for the benefit of the Certificateholders and the other
Beneficiaries with a Qualified Institution (the "Collection
Account"). The Trustee shall possess all right, title and
interest in all funds from time to time on deposit in, and all
Eligible Investments credited to, the Collection Account and in
all proceeds thereof. Except as specifically set forth herein,
the Collection Account shall be under the sole dominion and
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control of the Trustee for the benefit of the Certificateholders
and the other Beneficiaries. If, at any time, the Collection
Account ceases to have any of the characteristics identified
above, the Master Servicer, on behalf of the Trustee, shall,
within ten Business Days, establish a different account having
each such characteristic, instruct the Trustee to transfer any
cash and/or any Eligible Investments then held in (or in respect
of) the Collection Account to such substitute account and, from
the date any such substitute account is established, such account
shall be the Collection Account.
The Supplement for any Series may require the Trustee to
establish and maintain a Collection Subaccount for a Series.
Funds on deposit in the Collection Subaccount with respect to any
Series shall be for the exclusive benefit of the Investor
Certificateholders of such Series and any related Credit
Enhancer. The funds on deposit in each Collection Subaccount
shall be invested in the manner provided in the related
Supplement, and any earnings on such investments shall be applied
as provided in such Supplement. The Trustee at all times shall
maintain accurate records reflecting each transaction in the
Collection Account and Collection Subaccount, and shall make such
records available to the Master Servicer upon the Master
Servicer's request.
Pursuant to the authority granted to it pursuant to Section
3.01, the Master Servicer shall have the power, revocable by the
Trustee, to direct the Trustee to withdraw funds from the
Collection Account or any Collection Subaccount for the purposes
of carrying out its duties hereunder. Other than as Holder of
the Seller Certificate, neither the Seller nor any Person or
entity claiming by, through or under the Seller, shall have any
right, title or interest in, or any right to withdraw any amount
from, the Collection Account or Collection Subaccount.
(b) Reserve Funds. Unless otherwise specified in the
related Supplement, the Trustee, for the benefit of the Holders
of one or more Series or Classes of related Investor Certificates
and, if so specified in the related Supplement, one or more
related Credit Enhancers, shall establish and maintain in the
State of New York and in the name of the Trust, a non-interest
bearing segregated trust account for each Series (it being
understood that, if so provided in each related Supplement, such
account may benefit more than one Series), bearing a designation
clearly indicating that the funds therein are being held for the
benefit of such Investor Certificateholders (and related Credit
Enhancers, if applicable), with a Qualified Institution (each, a
"Reserve Fund"). The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in, and all
Eligible Investments credited to, the Reserve Funds and in all
proceeds thereof. The Reserve Funds shall be under the sole
dominion of the Trustee. Each Reserve Fund and the funds held
therein or credited thereto shall be held for the exclusive
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benefit of the Holders of such Investor Certificates (and related
Credit Enhancers, if applicable). Pursuant to the authority
granted to it hereunder, the Master Servicer shall have the
power, revocable by the Trustee, to instruct the Trustee to
withdraw funds from the Reserve Funds for the purpose of carrying
out the Master Servicer's duties hereunder. The Trustee at all
times shall maintain accurate records reflecting each transaction
in each Reserve Fund and funds held therein or credited thereto
shall at all times be held in trust for the benefit of the
Holders of such Series or Classes (and related Credit Enhancers,
if applicable). Each Reserve Fund will be established with an
initial deposit of immediately available funds by the Seller in
an amount specified in the related Supplement, and thereafter
will be funded as set forth in Article Five and in the related
Supplement.
(c) Excess Funding Account. The Trustee, for the benefit
of the Investor Certificateholders and any Credit Enhancer (if so
provided in the related Supplement), shall establish in New York
and in the name of the Trust, a non-interest bearing segregated
trust account bearing a designation clearly indicating that the
funds therein are being held for the benefit of the Investor
Certificateholders, and, as such interest are subordinated to the
interests of the Investor Certificateholders, any Credit Enhancer
and the Holder of the Seller Certificate, with a Qualified
Institution (the "Excess Funding Account"). The Trustee shall
possess all right, title and interest in all funds on deposit
from time to time in, and all Eligible Investments credited to,
the Excess Funding Account and in all proceeds thereof. The
Excess Funding Account shall be under the sole dominion of the
Trustee. The Excess Funding Account and the funds held therein
or credited thereto shall be for the benefit of the Investor
Certificateholders and, as such interests are subordinated to the
interests of the Investor Certificateholders, any Credit Enhancer
and the Holder of the Seller Certificate. Pursuant to the
authority granted to it hereunder, the Master Servicer shall have
the power, revocable by the Trustee, to instruct the Trustee to
withdraw funds from the Excess Funding Account for the purpose of
carrying out the Master Servicer's duties hereunder and, in the
case of any Series of Variable Funding Certificates, for the
purpose of making optional distributions in repayment of Advances
as set forth in the related Supplement. The Trustee at all time
shall maintain accurate records reflecting each transaction in
each Excess Funding Account.
The Excess Funding Account will be funded by the deposit
therein (i) by the Master Servicer on each Business Day of the
sum of all amounts received as Collections of Principal
Receivables allocable to the Seller's Interest or representing
Shared Excess Principal Collections in excess of the aggregate
amount of Principal Shortfalls with respect to each Group and
that otherwise could be made available to or distributed to the
holder of the Seller Certificate pursuant to the provisions of
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Section 4.04(a) but that are not so distributable pursuant to the
proviso in Section 4.04(a)(ii) and the provisions of Section
4.03(d) and (ii) by the Trustee on each Distribution Date of an
amount, up to the Excess Funding Amount, from (a) amounts
constituting Excess Spread and Shared Excess Finance Charge
Collections in excess of the aggregate of Interest Shortfalls for
each Group to the extent set forth in each Supplement, (b)
amounts constituting Collections of Principal Receivables
allocated to any Series or Class to the extent set forth in each
Supplement and (c) any amounts described in clause (i) that have
been deposited in the Collection Account prior to such
Distribution Date.
In connection with the conveyance to the Trust of
Receivables in Additional Accounts on any Business Day (whether
in connection with the conveyance to the Trust of Receivables in
Additional Accounts or growth in the Aggregate Principal
Receivables Amount), funds will be withdrawn from the Excess
Funding Account and distributed to the Holder of the Seller
Certificate but not in excess of the lesser of (i) the amount by
which the Seller Amount exceeds the Required Seller Amount or
(ii) the amount by which the Aggregate Principal Receivables
Amount exceeds the Required Principal Balance. On any
Distribution Date, subject to the terms and conditions of the
related Supplement, the Seller may direct the Trustee to withdraw
funds from the Excess Funding Account to be used to make optional
payments of principal to the related Variable Funding
Certificateholders in repayment of outstanding Advances. In
addition, on any Distribution Date, subject to the terms and
conditions of the related Supplement, the Trustee may withdraw
funds from the Excess Funding Account to complete certain
distributions to the Investor Certificateholders of any Series.
On the Trust Termination Date, the Trustee will terminate the
Excess Funding Account and release any amounts remaining on
deposit therein (after making all other required withdrawals
therefrom on such date) first to the Credit Enhancers on a pro
rata basis, based on their respective Unreimbursed Credit
Enhancer Amounts and the remainder, if any, to the Holder of the
Seller Certificate.
(d) Administration of Accounts. Funds on deposit in the
accounts established under Section 4.02 may at all times be
invested by the Trustee, at the direction of the Seller, in
Eligible Investments. All Eligible Investments shall be held by
the Trustee for the benefit of the Certificateholders and the
other Beneficiaries. Any such investment shall mature, and such
funds shall be available for withdrawal, on or prior to the close
of business on the Deposit Date with respect to the Distribution
Date relating to the Monthly Period during which the Master
Servicer receives such amounts (or on or before 10:00 a.m., New
York City time, on such Distribution Date in the case of Eligible
Investments in respect of which the Trustee is the obligor). As
of 10:00 a.m., New York City time, on each Distribution Date, all
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interest and other investment earnings (net of losses thereon and
investment expenses attributable thereto) on funds on deposit in
the accounts established under Section 4.02 and all funds held
therein shall be credited to the related account or otherwise
made available to be applied as set forth in Articles Four and
Five. The Trustee shall maintain for the benefit of the
Certificateholders and the other Beneficiaries possession of the
negotiable instruments or securities, if any, evidencing such
Eligible Investments. No Eligible Investment shall be disposed
of prior to its maturity; provided, however, that the Trustee may
sell, liquidate or dispose of an Eligible Investment before its
maturity, if so directed by the Master Servicer, the Master
Servicer having reasonably determined that the interests of the
Investor Certificateholders may be adversely affected if such
Eligible Investment is held to its maturity and having the
consent of each Credit Enhancer, or, with respect to an Eligible
Investment with respect to amounts on deposit in or credited to a
Series Account, the related Credit Enhancer. Unless the Trustee
is so directed by the Master Servicer, funds deposited in the
accounts established under Section 4.02 on a Deposit Date with
respect to the succeeding Distribution Date are not required to
be invested overnight. All Investment Proceeds with respect to
amounts deposited in or credited to the Collection Account or the
Excess Funding Account during any Monthly Period shall be treated
as Collections of Finance Charge Receivables received as of the
last day of the related Monthly Period, except as otherwise
specified in any Supplement, and shall be deposited into the
Collection Account no later than the related Deposit Date.
Schedule 2, which is hereby incorporated into and made part
of this Pooling Agreement, identifies each such account by
setting forth the account number of such account, the account
designation of such account and the name of the institution with
which such account has been established. If a substitute
Collection Account is established pursuant to this Section, the
Master Servicer shall provide to the Trustee an amended Schedule
2, setting forth the relevant information for such substitute
Collection Account. The Trustee shall maintain and amend
Schedule 2 with respect to each of the other accounts established
pursuant to Section 4.02, and shall provide to the Seller and the
Master Servicer an amended Schedule 2 within five Business Days
of each amendment thereof.
The Master Servicer agrees that, except as expressly
provided in this Agreement, it shall have no right of setoff or
banker's lien against, and no right to otherwise deduct from, any
funds held in the Collection Account, the Excess Funding Account
or any Series Account for any amount owed to it by the Trust, the
Trustee, the Seller, any Certificateholder or any Credit
Enhancer. The Trustee agrees that, except as expressly provided
in this Agreement, it shall have no right of setoff or banker's
lien against, and no right to otherwise deduct from, any funds
held in the Collection Account, the Excess Funding Account or any
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Series Account for any amount owned to it by the Trust, the
Master Servicer, the Seller, any Certificateholder or any Credit
Enhancer.
Section 4.03. Allocations and Applications of Collections
and Other Funds.
(a) Except as otherwise provided in Section 4.03(b), the
Master Servicer shall deposit Collections into the Collection
Account as promptly as possible after receipt of such
Collections, but in no event later than the second Business Day
after such receipt. In the event of the insolvency of the Master
Servicer, then, immediately upon the occurrence of such event and
thereafter, the Master Servicer shall deposit all Collections
into the substitute Collection Account which shall be established
and maintained with a Qualified Institution other than the Master
Servicer in accordance with Section 4.02(a), and in no such event
shall the Master Servicer deposit any Collections thereafter into
any account established, held or maintained with the Master
Servicer.
Collections of Receivables with respect to any Monthly
Period will be allocated by the Servicer first to annual
membership fees and other fees billed during the preceding
Monthly Period, second to Finance Charge Receivables, to the
extent of Finance Charge Receivables billed during the preceding
monthly period, and then to Principal Receivables.
The Master Servicer, and the Trustee on the instructions of
the Master Servicer, shall allocate Collections to each Series of
Investor Certificates and to the Seller Certificate in accordance
with this Article Four and shall make required deposits into or
(in the case of the Trustee only) required withdrawals from the
Collection Account, the Excess Funding Account and any Reserve
Fund or other Series Account, or pay such amounts to the Holder
of the Seller Certificate in accordance with Articles Four and
Five, in each case as modified by any related Supplement. The
Master Servicer shall make such deposits or payments on the date
indicated therein by wire transfer or as otherwise provided in
the Supplement for any Series with respect to such Series.
The Master Servicer need not deposit Collections into or
cause the Trustee to withdraw funds from the Collection Account
or any Collection Subaccount, or cause the Trustee to transfer
funds from the Collection Account to the Excess Funding Account,
any Reserve Fund or other Series Account, or make payments to the
Holder of the Seller Certificate, prior to the close of business
on the day any Collections are to be deposited in the Collection
Account as provided in Articles Four and Five, and may make such
deposits, payments and withdrawals on such date in an amount
equal to the net amount of such deposits, payments and
withdrawals which would have been made but for the provisions of
this Section and Section 4.03(b).
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(b)(i) Subject to the limitations set forth in the next
paragraph, Section 4.03(d) and the proviso in Section
4.04(a)(ii), but notwithstanding anything else in this Pooling
Agreement to the contrary, with respect to any Monthly Period,
the Master Servicer will only be required to deposit Collections
into the Collection Account up to the aggregate amount of
Collections necessary to ensure that (A) all required
distributions to all Holders of Investor Certificates and each
Credit Enhancer and (B) all required deposits into the Excess
Funding Account or any Series Account can be made from such
Collections (giving pro forma effect to the allocation of such
Collections among each Series and Class and the Seller Interest
and the provisions of Articles Four and Five and in each
Supplement) on the related Distribution Date pursuant to the
terms of each Supplement or Credit Enhancement Agreement Date,
and (ii) if at any time prior to such Distribution Date the
amount of Collections deposited in the Collection Account with
respect to the related Monthly Period exceeds the amount required
to be deposited pursuant to clause (i) above, the Master Servicer
will be permitted, upon delivery of the Distribution Date
Statement to the Trustee and the Credit Enhancer, whether on or
before the Determination Date, to direct the Trustee to release
all or part of such excess from the Collection Account to the
Holder of the Seller Certificate or to the Master Servicer, as
appropriate.
In addition, notwithstanding the foregoing, on any date on
which Collections are received, the Master Servicer may
distribute (or make available) directly to the Holder of the
Seller Certificate: (i) an amount equal to the portion of the
Seller Percentage of Collections of Finance Charge Receivables
that the Master Servicer has determined represents Excess Spread
not required to complete any required deposits or distributions
(including in respect of Interest Shortfalls for any Series in a
Group) on the related Distribution Date; and (ii) if (a) the
Seller Amount at least equals the Required Seller Amount on such
date and (b) the Aggregate Principal Receivables Amount at least
equals the Required Principal Balance on such date, an amount
equal to the sum of (i) Collections of Principal Receivables
allocable to the Seller Interest and (ii) Shared Principal
Collections that will not be required to be distributed in
respect of Principal Shortfalls for any Series in a Group on the
related Distribution Date; provided, however, that such amounts
may be withheld or paid to the Holder of the Seller Certificate
during any Monthly Period only after the amount described in
clause (i) of the preceding paragraph has been deposited in the
Collection Account, the Excess Funding Account or any applicable
Series Account from such Collections and has delivered the
Distribution Date Statement specified in the preceding paragraph.
(c) General Allocations to Investor Certificates. Except
as otherwise provided herein or in the related Supplement the
Master Servicer will allocate, on a daily basis and subject to
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readjustment upon receipt of notice from the Seller as to
Advances to be required on the Distribution Date occurring during
such Monthly Period, the following amounts with respect to each
Series during any Monthly Period: (i) the related Floating
Allocation Percentage of Collections of Finance Charge
Receivables, Investment Proceeds, Recoveries and Defaulted
Amounts; (ii) the related Principal Allocation Percentage of
Collections of Principal Receivables; and (iii) any portion of
Interchange or Servicing Fee otherwise available to the Master
Servicer but identified in or pursuant to the related Supplement
as being included in Collections for such Series. Subject to
Sections 4.03(e), 4.04 and 4.05, amounts not allocated to the
Certificateholders' Interest of any Series will be allocated to
the Seller Interest.
(d) General Allocations to Seller Certificate. Throughout
the existence of the Trust, unless otherwise stated in any
Supplement, the Servicer shall allocate to the Holder of the
Seller Certificate an amount equal to the product of (i) the
applicable Seller Percentage and (ii) the aggregate amount of
Collections in respect of each Monthly Period. If in accordance
with Sections 4.02 and 4.03(b) any such amounts are to be made
directly available to the Holder of the Seller Certificate, the
Master Servicer shall be entitled to deduct from such amounts and
retain an amount equal to the unpaid portion of any Seller
Servicing Fee then due and payable. If, on any Business Day
either (i) the Seller Amount is less than the Required Seller
Amount, or (ii) the Aggregate Principal Receivables Amount is
less than the Required Principal Balance, then the Master
Servicer will not distribute to the Seller any Collections of
Principal Receivables that otherwise would be distributable to
the Seller but will instead deposit such amounts, up to the
Excess Funding Amount, into the Excess Funding Account.
(e) Adjustments. If the Master Servicer adjusts downward
the amount of any Principal Receivable because of a rebate,
refund, credit adjustment or billing error to an Obligor, because
such Receivable was created in respect of merchandise which was
refused or returned by an Obligor, because it is discovered that
such Principal Receivable was created through a fraudulent
transaction or counterfeit charge or for any other reason except
payment by or on behalf of the Obligor or treatment as a
Defaulted Amount, then, in any such case, the Aggregate Principal
Receivables Amount will be automatically reduced by the amount of
such Adjustment. Except to the extent that any Series is
allocated a portion of such reduction pursuant to the related
Supplement, the Seller Interest will be reduced by the aggregate
amount of such Adjustments. Furthermore, if following such a
reduction either (i) the Seller Amount would be less than the
Required Seller Amount or (ii) the Aggregate Principal
Receivables Amount would be less than the Required Principal
Balance on the date of such adjustment (after giving effect to
any required adjustments to the Invested Amounts of any Series),
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then, unless an Insolvency Event has occurred, the Seller shall
be required to transfer an amount equal to the greater of any
deficiency described in clause (i) or (ii) above (the "Adjustment
Payment") to the Trustee for deposit into the Excess Funding
Account on the day of such adjustment.
(f) If (i) the Master Servicer makes a deposit into the
Collection Account in respect of a Collection of a Receivable and
such Collection was received by the Master Servicer in the form
of a check which is not honored for any reason or (ii) the Master
Servicer makes a mistake with respect to the amount of any
Collection and deposits an amount that is less than or more than
the actual amount of such Collection, the Master Servicer shall
appropriately adjust the amount subsequently deposited into the
Collection Account to reflect such dishonored check or mistake.
Any Receivable in respect of which a dishonored check is received
shall be deemed not to have been paid.
Section 4.04. Shared Excess Principal Collections.
(a) On each Distribution Date,
(i) the Master Servicer shall allocate Shared Excess
Principal Collections to each Series within a Group, pro
rata, in proportion to the Principal Shortfalls, if any,
with respect to each such Series; and
(ii) the Master Servicer shall withdraw from the
Collection Account and pay to the Holder of the Seller
Certificate an amount equal to the excess, if any, of
(A) the amount of Shared Excess Principal Collections for
such Group and such Distribution Date over (B) the aggregate
amount of Principal Shortfalls for all outstanding Series in
such Group for such Distribution Date; provided, however,
that such amounts shall be paid to the Seller only if and to
the extent that, as of such Distribution Date, (i) the
Seller Amount exceeds the Required Seller Amount and (ii)
the Aggregate Principal Receivables Amount exceeds the
Required Principal Balance (each determined after giving
effect to all required allocations, deposits, withdrawals
and distributions on such Distribution Date) and only after
any distributions in respect of amounts owing to a Credit
Enhancer specified in the related Supplement for each Series
in such Group have been made.
(b) On each Distribution Date on which Collections of
Principal Receivables allocable to the Seller Interest and Shared
Excess Principal Collections in excess of the aggregate amount of
Principal Shortfalls for any Group are not distributed to the
Holder of the Seller Certificate, all such amounts shall be
deposited into the Excess Funding Account until such time as
(i) either (A) the Seller Amount exceeds the Required Seller
Amount or (B) the Aggregate Principal Receivables Amount exceeds
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the Required Principal Balance, at which time an amount equal to
the lesser of the excess amounts described in clauses (A) and (B)
above will be distributed to the Holder of the Seller Certificate
or (ii) an Amortization Period commences with respect to any
Series, from and after which time such amounts may be made
available to make payments of principal on the related Investor
Certificates or certain other distributions as set forth in the
related Supplements.
Section 4.05. Shared Excess Finance Charge Collections. On
each Distribution Date (i) the Master Servicer shall allocate
Shared Excess Finance Charge Collections with respect to a Group
to each Series in such Group, pro rata, in proportion to the
Interest Shortfalls, if any, with respect to each such Series and
(ii) the Master Servicer shall instruct the Trustee to withdraw
from the Collection Account and pay to the Holder of the Seller
Certificate an amount equal to the excess, if any, of Shared
Excess Finance Charge Collections for such Group on such
Distribution Date over the aggregate amount of Interest
Shortfalls for all outstanding Series in such Group for such
Distribution Date; provided, however, that the sharing of Excess
Finance Charge Collections among Series in a Group will continue
only until such time, if any, at which the Seller shall deliver
to the Trustee an Officer's Certificate to the effect that, in
the reasonable belief of the Seller, the continued sharing of
Excess Finance Charge Collections among Series in any Group would
have adverse regulatory implications with respect to the Seller.
Following the delivery by the Seller of such an Officer's
Certificate to the Trustee there will not be any further sharing
of Excess Finance Charge Collections among Series in any Group.
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ARTICLE FIVE
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
Section 5.01. Distributions and Reports to Certificate-
holders. Distributions shall be made to, and reports shall be
provided to, Certificateholders as set forth in the applicable
Supplement.
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ARTICLE SIX
THE CERTIFICATES
Section 6.01. The Certificates. The Investor Certificates
of any Series or Class (other than Variable Funding Certificates)
may be issued as Bearer Certificates or Registered Certificates
and shall be substantially in the form of the exhibits with
respect thereto attached to the applicable Supplement and shall
upon issue, be executed, authenticated and delivered as provided
in Section 6.02. Each Series of Variable Funding Certificates
shall be issued in fully registered form, and shall be
substantially in the form of the related exhibit attached to the
related Supplement. Upon issue, the Variable Funding
Certificates shall be executed, authenticated and delivered as
provided in Section 6.02. The Seller Certificate will be issued
as a single certificate representing the entire Seller Interest,
in fully registered form, substantially in the form of Exhibit A
hereto. Upon issue, the Seller Certificate shall be executed,
authenticated and delivered by the Trustee as provided in Section
6.02. Except as otherwise provided in any Supplement, Bearer
Certificates shall be issued in minimum denominations of $100,000
and Registered Certificates shall be issued in minimum denomina-
tions of $100,000 and in integral multiples of $1,000 in excess
thereof. If specified in any Supplement, the Investor
Certificates of any Series or Class shall be issued upon initial
issuance as a single certificate evidencing the aggregate
original principal amount of such Series or Class as described in
Section 6.11. The Seller Certificate shall be a single
certificate. Each Certificate shall be executed by manual or
facsimile signature by a Responsible Officer of the Trustee on
behalf of the Seller. Certificates bearing the manual or
facsimile signature of the individual who was, at the time when
such signature was affixed, authorized to sign on behalf of the
Trustee shall not be rendered invalid, notwithstanding that such
individual ceased to be so authorized prior to the authentication
and delivery of such Certificates or does not hold such office at
the date of such Certificates. No Certificates shall be entitled
to any benefit under this Pooling Agreement, or be valid for any
purpose, unless there appears on such Certificate a certificate
of authentication substantially in the form provided for herein
executed by or on behalf of the Trustee by the manual signature
of a duly authorized signatory, and such certificate of
authentication upon any Certificate shall be conclusive evidence,
and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. Bearer Certificates shall
be dated the related Closing Date. All Registered Certificates
shall be dated the date of their authentication.
Section 6.02. Authentication of Certificates. The Trustee
shall authenticate and deliver the Investor Certificates of each
Series and Class that are issued upon original issuance to or
upon the written order of the Seller against payment to the
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Seller of the purchase price therefor. The Trustee shall
authenticate and deliver the Seller Certificate to the Seller
simultaneously with its delivery of the Investor Certificates of
the first Series to be issued hereunder. If specified in the
related Supplement for any Series or Class, the Trustee shall
authenticate and deliver outside the United States the Global
Certificate that is issued upon original issuance of such Series
or Class.
Section 6.03. New Issuances.
(a) The Seller may from time to time after the first
Closing Date direct the Trustee, on behalf of the Trust, to issue
one or more new Series of Investor Certificates pursuant to a
Supplement. The Investor Certificates of all outstanding Series
shall be equally and ratably entitled as provided herein to the
benefits of this Pooling Agreement without preference, priority
or distinction, all in accordance with the terms and provisions
of this Pooling Agreement and the applicable Supplement except,
with respect to the subordination of any Series or Class, as
provided in the related Supplement.
(b) On or before the related Closing Date for any Series
issued after the first Closing Date, the parties hereto will
execute and deliver a Supplement which will specify the Principal
Terms of such new Series. The terms of such Supplement may
modify or amend the terms of this Pooling Agreement solely as
applied to such new Series. The obligation of the Trustee to
issue the Investor Certificates of such new Series and to execute
and deliver the related Supplement is subject to the satisfaction
of the following conditions:
(i) on or before the fifth Business Day immediately
preceding the related Series Issuance Date, the Seller shall
have given the Trustee, the Master Servicer, each Rating
Agency and any Credit Enhancer written notice of such
issuance which notice shall specify: (A) the name or
designation of the Series; (B) the related Invested Amount
as of the related Closing Date (or method for calculating
such amount); (C) the related Certificate Rate or rates (or
method of calculating any such rate); and (D) each related
Credit Enhancer, if any, which is expected to provide credit
support with respect to such Series or any Class within such
Series.
(ii) the Seller shall have delivered to the Trustee the
related Supplement specifying the Principal Terms of such
Series, in form satisfactory to the Trustee, executed by
each party hereto and thereto other than the Trustee;
(iii) the Seller shall have delivered to the Trustee and
each Credit Enhancer a Tax Opinion, dated the related Series
Issuance Date, with respect to such issuance;
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(iv) the Seller shall have delivered to the Trustee any
related Credit Enhancement Agreement executed by each of the
parties thereto, other than the Trustee;
(v) the Seller shall have delivered to the Trustee a
written confirmation from each Rating Agency that such new
issuance will not result in a Ratings Effect and the written
consent to such issuance from each Credit Enhancer;
(vi) the Seller shall have delivered or caused to be
delivered to the Trustee the Seller Certificate (if the
Seller Certificate is to be amended in connection with the
issuance of such new Series) and the Certificates of any
other Series to be exchanged in connection with the issuance
of such new Series;
(vii) such issuance will not result in the occurrence of
a Pay Out Event and the Seller shall have delivered to the
Trustee and any Credit Enhancer an Officer's Certificate,
dated the related Series Issuance Date, to the effect that
the Seller reasonably believes that such issuance will not
result in the occurrence of a Pay Out Event at some time in
the future; and
(viii) the Seller shall have delivered to the Trustee an
Opinion of Counsel, dated the Series Issuance Date, to the
effect that the issuance of the Certificates of such Series
(A) either need not be registered under the Securities Act
and will not result in the requirement that any other Series
of Certificates not registered under the Securities Act be
so registered or, if the Seller has elected, in its sole
discretion, to register the issuances of such Certificates
under the Securities Act that such registration will have
met all of the applicable requirements under the Securities
Act, (B) will not result in the Trust or the Seller becoming
subject to registration as an investment company under the
Investment Company Act and (C) if this Pooling Agreement has
not previously been qualified under the Trust Indenture Act,
will not require this Pooling Agreement to be qualified
under the Trust Indenture Act.
Upon satisfaction of such conditions and any additional
conditions specified in the related Supplement, the Trustee shall
execute the related Supplement and the Seller shall deliver to
the Trustee the Investor Certificates of such Series for
execution and authentication by the Trustee on behalf of the
Seller.
Section 6.04. Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall cause to be kept at the office or
agency to be maintained in accordance with the provisions of
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Section 11.16 a register (the "Certificate Register") in which,
subject to such reasonable regulations as it may prescribe, a
transfer agent and registrar (the "Transfer Agent and Registrar")
shall provide for the registration of the Registered Certificates
and of transfers, pledges and exchanges of such Certificates as
herein provided. The Transfer Agent and Registrar shall
initially be the Trustee and any co-transfer agent and co-
registrar chosen by the Seller and acceptable to the Trustee
(including, if and for so long as any Series or Class is listed
on the Luxembourg Stock Exchange and such exchange shall so
require, a co-transfer agent and co-registrar in Luxembourg). So
long as (i) the Trustee does not have an office in New York City
and (ii) any Investor Certificates are outstanding, the Seller
shall maintain a co-transfer agent and co-registrar in New York
City. Any reference in this Pooling Agreement to the Transfer
Agent and Registrar shall include any co-transfer agent and co-
registrar unless the context requires otherwise.
The Trustee may revoke such appointment and remove any
Transfer Agent and Registrar if the Trustee determines in its
sole discretion that such Transfer Agent and Registrar has failed
to perform its obligations under this agreement in any material
respect. Any Transfer Agent and Registrar shall be permitted to
resign as Transfer Agent and Registrar upon 30 days' notice to
the Seller, the Master Servicer and the Trustee; provided,
however, that such resignation shall not be effective, and such
Transfer Agent and Registrar shall continue to perform its duties
as Transfer Agent and Registrar, until the Trustee has appointed
a Successor Transfer Agent and Registrar acceptable to the
Seller.
Subject to Section 6.04(c), upon surrender for registration
of transfer of any Registered Certificate at any office or agency
of the Transfer Agent and Registrar maintained for such purpose,
one or more new Registered Certificates (of the same Series and
Class) in authorized denominations of like aggregate fractional
undivided interests in the Certificateholders' Interest shall be
executed, authenticated and delivered, in the name of the
designated transferee or transferees.
At the option of a Registered Certificateholder, Registered
Certificates (of the same Series and Class) may be exchanged for
other Registered Certificates of authorized denominations of like
aggregate fractional undivided interests in the Certificate-
holders' Interest (subject to the limitations herein regarding
minimum denominations), upon surrender of the Registered
Certificates to be exchanged at any such office or agency.
Registered Certificates, including Registered Certificates
received in exchange for Bearer Certificates, may not be
exchanged for Bearer Certificates. At the option of the Holder
of a Bearer Certificate, subject to applicable laws and
regulations, Bearer Certificates may be exchanged for other
Bearer Certificates or Registered Certificates (of the same
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Series and Class) of authorized denominations of like aggregate
fractional undivided interests in the Certificateholders'
Interest (subject to the limitations herein regarding minimum
denominations), upon surrender of the Bearer Certificates to be
exchanged at an office or agency of the Transfer Agent and
Registrar located outside the United States. Each Bearer
Certificate surrendered pursuant to this Section shall have
attached thereto all unmatured Coupons; provided, that any Bearer
Certificate, so surrendered after the close of business on the
Record Date preceding the relevant payment date or distribution
date after the expected final payment date specified in the
related Supplement need not have attached the Coupon relating to
such payment date or distribution date.
The preceding provisions of this Section notwithstanding,
the Trustee or the Transfer Agent and Registrar, as the case may
be, shall not be required to register the transfer of or exchange
any Certificate for a period of 15 days preceding the due date
for any payment with respect to the Certificate.
Whenever any Investor Certificates are so surrendered for
exchange, the Trustee shall execute, on behalf of the Trust, and
authenticate and the Transfer Agent and Registrar shall deliver
(in the case of Bearer Certificates, outside the United States)
the Investor Certificates which the Certificateholder making the
exchange is entitled to receive. Every Investor Certificate
presented or surrendered for registration of transfer or exchange
shall be accompanied by a written instrument of transfer in a
form satisfactory to the Trustee or the Transfer Agent and
Registrar duly executed by the Certificateholder or the
attorney-in-fact thereof duly authorized in a signed writing.
Unless otherwise provided in the related Supplement, no
service charge shall be made for any registration of transfer or
exchange of Investor Certificates, but the Transfer Agent and
Registrar may require payment of a sum sufficient to cover any
tax or governmental charge that may be imposed in connection with
any such transfer or exchange.
All Investor Certificates (together with any Coupons)
surrendered for registration of transfer and exchange or for
payment shall be canceled and disposed of in a manner
satisfactory to the Trustee. The Trustee shall cancel and
destroy any Global Certificate upon its exchange in full for
Definitive Euro-Certificates and shall deliver a certificate of
destruction to the Seller. Such certificate shall also state
that a certificate or certificates of a Foreign Clearing Agency
to the effect referred to in Section 6.11 was received with
respect to each portion of the Global Certificate exchanged for
Definitive Euro-Certificates.
The Seller and Master Servicer shall deliver to the Trustee
Bearer Certificates and Registered Certificates in such amounts
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and at such times as are necessary to enable the Trustee to
fulfill its responsibilities under this Pooling Agreement and the
Certificates.
(b) The Transfer Agent and Registrar will maintain, at its
expense, in the Borough of Manhattan, The City of New York, an
office or agency where Investor Certificates may be surrendered
for registration of transfer or exchange (except that Bearer
Certificates may not be surrendered for exchange at any such
office or agency in the United States).
(c) Notwithstanding anything herein to the contrary, the
Seller Certificate (or any interest therein) may only be
transferred to a successor to the Seller pursuant to Section 7.04
or in connection with a New Issuance pursuant to Section 6.03.
(d)(i) Registration of transfer of Investor Certificates
containing a legend to the effect set forth on Exhibit D-1 hereto
shall be effected only if such transfer is made pursuant to an
effective registration statement under the Securities Act, or is
exempt from the registration requirements under the Securities
Act pursuant to Rule 144A promulgated thereunder and, except as
otherwise provided in Section 6.04(d)(ii), is not a Benefit Plan.
Alternative legends may be used if so provided in the related
Supplement. In the event that registration of a transfer is to
be made in reliance upon an exemption from the registration
requirements under the Securities Act, the transferor or the
transferee shall deliver, at its expense, to the Seller, the
Master Servicer and the Trustee, an investment letter from the
transferee, substantially in the form attached to the applicable
Supplement, and no registration of transfer shall be made until
such letter is so delivered.
Investor Certificates issued upon registration or transfer
of, or Investor Certificates issued in exchange for, Investor
Certificates bearing the legend referred to above shall also bear
such legend, or such other legend as is specified in the related
Supplement, unless each of the Seller, the Master Servicer, the
Trustee and the Transfer Agent and Registrar receive an Opinion
of Counsel, satisfactory to each of them, to the effect that such
legend may be removed.
Whenever an Investor Certificate containing the legend
referred to above is presented to the Transfer Agent and
Registrar for registration of transfer, the Transfer Agent and
Registrar shall promptly seek written instructions from the
Master Servicer regarding such transfer and shall be entitled to
receive and conclusively rely upon instructions signed by a
Servicing Officer prior to registering any such transfer. The
Seller hereby agrees to indemnify the Transfer Agent and
Registrar and the Trustee and to hold each of them harmless
against any loss, liability or expense incurred without
negligence or bad faith on their part arising out of or in
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connection with actions taken or omitted by them in relation to
any such instructions furnished pursuant to this clause.
(ii) ERISA Restrictions. (A) With respect to any
Investor Certificate that is a Book-Entry Certificate, every
Certificate Owner with respect thereto is deemed to represent and
warrant, by its acceptance thereof or any beneficial interest
therein, that it is neither a Benefit Plan or acting on behalf of
a Benefit Plan nor using the assets of a Benefit Plan to purchase
and hold such Certificate.
(B) Each Investor Certificate that is not a Book-Entry
Certificate (including each physical certificate representing the
Book-Entry Certificates of any Series or Class) shall contain the
legend set forth in Exhibit D-2. Registration of transfer or
exchange of each such Certificate will be effected only if the
proposed transferee provides either: (1) a representation letter
to the Trustee, Registrar and Transfer Agent and the Master
Servicer to the effect that the proposed transferee is neither a
Benefit Plan or acting on behalf of a Benefit Plan nor using the
assets of a Benefit Plan to purchase and hold such Certificate or
(2) if the proposed transferee is a Benefit Plan or acting on
behalf of a Benefit Plan nor using the assets of a Benefit Plan
to purchase and hold such Certificate, an Opinion of Counsel, in
form and substance satisfactory to the Trustee, Transfer Agent
and Registrar and the Master Servicer, to the effect that such
purchase and holding of such Certificate will not result in the
Trust Assets being deemed to be "plan assets" (as such term is
defined under ERISA), will not subject the Trust Assets to the
prohibited transaction provisions of ERISA and the Code and will
not subject the Trustee, the Transfer Agent and Registrar or the
Master Servicer to any obligation in addition to those already
undertaken hereunder or under any Supplement. In no event,
however, will the Transfer Agent and Registrar permit the
transfer of any such Certificate if, by reason of such transfer,
25% or more of the value of any Class or Series will be held by
Benefit Plans.
If, however, the Person acquiring the Investor Certificates
is a Benefit Plan or acting on behalf of a Benefit Plan or using
the assets of any Benefit Plan to purchase and hold such Investor
Certificates, such transfer may be made to such Person if the
Person provides an Opinion of Counsel, in form and content
satisfactory to the Trustee and Transfer Agent and Registrar, to
the effect that the purchase or holding of such Investor
Certificates will not result in the assets of the Trust being
deemed to be "plan assets" (as such term is defined under ERISA),
will not subject the assets of the Trust to the prohibited
transaction provisions of ERISA and the Code, and will not
subject the Trustee, the Master Servicer or the Transfer Agent
and Registrar to any obligation in addition to those already
expressly undertaken in this Pooling Agreement, the applicable
Supplement and, in the case of Variable Funding Certificates the
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Agreement pursuant to which such Investor Certificates are sold
to the related Holder. By acquiring any interest in a Book-Entry
Certificate, a Certificate Owner shall be deemed to have
represented and warranted that it is not a Benefit Plan.
Section 6.05. Mutilated, Destroyed, Lost or Stolen
Certificates. If (i) any mutilated Certificate (together, in the
case of Bearer Certificates, with all unmatured Coupons (if any)
appertaining thereto) is surrendered to the Transfer Agent and
Registrar, or the Transfer Agent and Registrar receives evidence
to its satisfaction of the destruction, loss or theft of any
Certificate and (ii) there is delivered to the Transfer Agent and
Registrar and the Trustee such security or indemnity as may be
required by them to save each of them harmless, then, in the
absence of notice to the Trustee that such Certificate has been
acquired by a bona fide purchaser, the Trustee shall execute, on
behalf of the Seller, and authenticate, and the Transfer Agent
and Registrar shall deliver (in the case of Bearer Certificates,
outside the United States), in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and aggregate fractional undivided
interest. In connection with the issuance of any new Certificate
under this Section, the Trustee or the Transfer Agent and
Registrar may require the payment by the Certificateholder of a
sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee and Transfer
Agent and Registrar) connected therewith. Any duplicate
Certificate issued pursuant to this Section shall constitute
complete and indefeasible evidence of ownership in the Trust, as
if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 6.06. Persons Deemed Owners. The Trustee, each
Credit Enhancer, the Transfer Agent and Registrar and any of
their respective agents may (i) prior to due presentation of a
Certificate for registration of transfer, treat the Person or
Persons in whose name any Certificate is registered as the owner
of such Certificate for the purpose of receiving distributions
pursuant to the terms of the applicable Supplement and for all
other purposes whatsoever and (ii) treat the bearer of a Bearer
Certificate or Coupon as the owner of such Bearer Certificate or
Coupon for the purpose of receiving distributions pursuant to the
terms of the applicable Supplement and for all other purposes
whatsoever; and, in any such case, neither the Trustee, any
Credit Enhancer, the Transfer Agent and Registrar nor any of
their respective agents shall be affected by any notice to the
contrary. Notwithstanding the foregoing, in determining whether
the Holders of the requisite Certificates have given any request,
demand, authorization, direction, notice, consent or waiver
hereunder, Certificates owned by the Seller, or any Affiliate
thereof, shall be disregarded and deemed not to be outstanding
(and the Invested Amount represented thereby shall be deducted
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from the Aggregate Invested Amount or Aggregate Principal
Receivables Amount used for calculating whether the requisite
Holders have given such request, demand, authorization,
direction, notice, consent or waiver), except that, in
determining whether the Trustee shall be protected in relying
upon any such request, demand, authorization, direction, notice,
consent or waiver, only Certificates which a Responsible Officer
of the Trustee knows to be so owned shall be so disregarded.
Certificates so owned which have been pledged in good faith shall
not be disregarded and may be regarded as outstanding if the
pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Certificates and
that the pledgee is not the Seller or any Affiliate thereof.
Section 6.07. Access to List of Registered Certificate-
holders' Names and Addresses. The Trustee will furnish or cause
to be furnished by the Transfer Agent and Registrar to the Master
Servicer, within five Business Days after receipt by the Trustee
of a request therefor, a list in such form as the Master Servicer
may reasonably require, of the names and addresses of the
Registered Certificateholders. The Trustee will furnish or cause
to be furnished by the Transfer Agent and Registrar to any Credit
Enhancer or any Holder of an Investor Certificate within five
Business Days after receipt by the Trustee of a request therefor
from such Credit Enhancer or Holder a list in such form as such
Credit Enhancer or Holder may reasonably require, of the names
and addresses of the Registered Certificateholders as of the most
recent Record Date.
Every Registered Certificateholder, by receiving and holding
a Registered Certificate, agrees with the Trustee that neither
the Trustee or the Transfer Agent and Registrar, nor any of their
respective agents, shall be held accountable by reason of the
disclosure of any such information as to the names and addresses
of the Registered Certificateholders hereunder, regardless of the
sources from which such information was derived.
Section 6.08. Book-Entry Certificates. Unless otherwise
specified in the related Supplement for any Series or Class
(other than any Series of Variable Funding Certificates), the
Investor Certificates, upon original issuance, shall be issued in
the form of one or more typewritten Investor Certificates
representing the Book-Entry Certificates, to be delivered to the
Depository, by, or on behalf of, the Seller. Such Investor
Certificates shall initially be registered on the Certificate
Register in the name of the Depository or its nominee, and no
Certificate Owner will receive a Definitive Certificate
representing such Certificate Owner's interest in the Investor
Certificates, except as provided in Section 6.10. Unless and
until Definitive Certificates have been issued to the applicable
Certificate Owners pursuant to Section 6.10 or as otherwise
specified in any such Supplement:
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(i) the provisions of this Section shall be in full
force and effect;
(ii) the Seller, the Master Servicer and the Trustee
may deal with the Depository and the Depository Participants
for all purposes (including the making of distributions) as
the authorized representatives of the respective Certificate
Owners;
(iii) to the extent that the provisions of this Section
conflict with any other provisions of this Pooling
Agreement, the provisions of this Section shall control; and
(iv) the rights of the respective Certificate Owners
shall be exercised only through the Depository and the
Depository Participants and shall be limited to those
established by law and agreements between such Certificate
Owners and the Depository and/or the Depository
Participants; pursuant to the Depository Agreement, unless
and until Definitive Certificates are issued pursuant to
Section 6.10, the Depository will make book-entry transfers
among the Depository Participants and receive and transmit
distributions of principal and interest on the related
Investor Certificates to such Depository Participants.
For purposes of any provision of this Pooling Agreement
requiring or permitting actions with the consent of, or at the
direction of, Certificateholders evidencing a specified
percentage of the related Invested Amount or of the Aggregate
Invested Amount, such direction or consent may be given by
Certificate Owners (acting through the Depository and the
Depository Participants) owning Investor Certificates evidencing
the requisite percentage of the principal amount of Investor
Certificates.
Section 6.09. Notices to Depository. Whenever any notice
or other communication is required to be given to Certificate-
holders of any Series or Class with respect to which Book-Entry
Certificates have been issued, unless and until Definitive
Certificates shall have been issued to the related Certificate
Owners, the Trustee shall give all such notices and
communications to the related Depository.
Section 6.10. Definitive Certificates. If Book-Entry
Certificates have been issued with respect to any Series or Class
and (i) the Seller and Master Servicer advises the Trustee that
the Depository is no longer willing or able to discharge properly
its responsibilities under the Depository Agreement with respect
to such Series or Class and the Trustee and the Seller are unable
to locate a qualified successor, (ii) the Seller, at its option,
advises the Trustee that it elects to terminate the book-entry
system with respect to such Series or Class through the
Depository or (c) after the occurrence of a Servicer Default,
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Certificate Owners of such Series or Class evidencing not less
than 50% of the related Invested Amount advise the Trustee and
the Depository through the Depository Participants that the
continuation of a book-entry system with respect to the Investor
Certificates of such Series or Class through the Depository is no
longer in the best interests of the Certificate Owners with
respect to such Certificates, then the Trustee shall notify all
Certificate Owners of such Certificates, through the Depository,
of the occurrence of any such event and of the availability of
Definitive Certificates to Certificate Owners requesting the
same. Upon surrender to the Trustee of any such Certificates by
the Depository, accompanied by registration instructions from the
Depository for registration, a Responsible Officer of the Trustee
shall execute, on behalf of the Seller, and authenticate and
deliver such Definitive Certificates. Neither the Seller nor the
Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected
in relying on, such instructions. Upon the issuance of such
Definitive Certificates all references herein to obligations
imposed upon or to be performed by the Depository shall be deemed
to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Definitive Certificates and the
Trustee shall recognize the Holders of such Definitive
Certificates as Certificateholders hereunder.
Section 6.11. Global Certificate; Exchange Date.
(a) If so specified in the related Supplement for any
Series or Class, the Investor Certificates will initially be
issued in the form of a Global Certificate in the denomination of
the entire aggregate principal amount of such Series or Class and
substantially in the form set forth in the exhibit with respect
thereto attached to the related Supplement. The Global
Certificate will be executed by a Responsible Officer of the
Trustee, on behalf of the Seller, and authenticated by the
Trustee upon the same conditions, in substantially the same
manner and with the same effect as the Definitive Certificates.
The Global Certificate may be exchanged as described below for
Definitive Euro-Certificates.
(b) The Manager shall, upon its determination of the date
of completion of the distribution of the Investor Certificates of
such Series or Class, so advise the Trustee, the Seller and
Master Servicer, the Common Depositary and each Foreign Clearing
Agency forthwith. Without unnecessary delay, but in any event
not prior to the Exchange Date, the Seller and Master Servicer
will deliver to the Trustee at its London office or its
designated agent outside the United States definitive Bearer
Certificates in an aggregate principal amount equal to the entire
aggregate principal amount of such Series or Class. All Bearer
Certificates so issued and delivered will have Coupons attached.
The Global Certificate may be exchanged for an equal aggregate
principal amount of Definitive Euro-Certificates only on or after
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the Exchange Date. A United States institutional investor may
exchange the portion of the Global Certificate beneficially owned
by it only for an equal aggregate principal amount of Registered
Certificates bearing the applicable legend set forth in the form
of Registered Certificate attached to the related Supplement and
having a minimum denomination of $500,000, which may be in
temporary form if the Seller so elects. The Seller may waive the
$500,000 minimum denomination requirement if it so elects. Upon
any demand for exchange for Definitive Euro-Certificates in
accordance with Section 6.11(b), the Seller shall cause the
Trustee to authenticate and deliver the Definitive
Euro-Certificates to the Holder (i) outside the United States, in
the case of Bearer Certificates, and (ii) according to the
instructions of the Holder, in the case of Registered
Certificates, but in either case only upon presentation to the
Trustee of a written statement substantially in the form of
Exhibit K-1 hereto with respect to the Global Certificate or
portion thereof being exchanged, signed by a Foreign Clearing
Agency and dated the Exchange Date or a subsequent date, to the
effect that it has received in writing or by tested telex a
certification substantially in the form of (i) in the case of
beneficial ownership of the Global Certificate or a portion
thereof being exchanged by a United States institutional investor
pursuant to the second preceding sentence, the certificate in the
form of Exhibit K-2 hereof signed by the Manager which sold the
relevant Certificates or (ii) in all other cases, the certificate
in the form of Exhibit K-3 hereto, the certificate referred to in
this clause (ii) being dated on the earlier of the first actual
payment of interest in respect of such Certificates and the date
of the delivery of such Certificate in definitive form. Upon
receipt of such certification, the Trustee shall cause the Global
Certificate to be endorsed in accordance with Section 6.11(d).
Any Exchange as provided in this Section shall be made free of
charge to the Holders and the beneficial owners of the Global
Certificate and to the beneficial owners of the Definitive
Euro-Certificates issued in exchange, except that a Person
receiving Definitive Euro-Certificates must bear the cost of
insurance, postage, transportation and the like in the event that
such person does not receive such Definitive Euro-Certificates in
person at the offices of a Foreign Clearing Agency.
(c) The delivery to the Trustee by a Foreign Clearing
Agency of any written statement referred to above may be relied
upon by the Seller and the Trustee as conclusive evidence that a
corresponding certification or certifications has or have been
delivered to such Foreign Clearing Agency pursuant to this
Pooling Agreement.
(d) Upon any such exchange of all or a portion of the
Global Certificate for a Definitive Euro-Certificate or
Certificates, such Global Certificate shall be endorsed by or on
behalf of the Trustee to reflect the reduction of its principal
amount by an amount equal to the aggregate principal amount of
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such Definitive Euro-Certificate or Certificates. Until so
exchanged in full, such Global Certificate shall in all respects
be entitled to the same benefits under this Pooling Agreement as
Definitive Euro-Certificates authenticated and delivered
hereunder except that the beneficial owners of such Global
Certificate shall not be entitled to receive payments of interest
on the Certificates until they have exchanged their beneficial
interests in such Global Certificate for Definitive
Euro-Certificates.
Section 6.12. Meetings of Certificateholders.
(a) If at the time any Bearer Certificates are issued and
outstanding with respect to any Series or Class to which any
meeting described below relates, the Master Servicer or the
Trustee may at any time call a meeting of Certificateholders of
any Series or Class or of all Series, to be held at such time and
at such place as the Master Servicer or the Trustee, as the case
may be, shall determine, for the purpose of approving a
modification of or amendment to, or obtaining a waiver of any
covenant or condition set forth in, this Pooling Agreement, any
Supplement or the Investor Certificates or of taking any other
action permitted to be taken by Certificateholders hereunder or
under any Supplement. Notice of any meeting of Certificate-
holders, setting forth the time and place of such meeting and in
general terms the action proposed to be taken at such meeting,
shall be given in accordance with Section 13.06, the first
mailing and publication to be not less than 20 nor more than 180
days prior to the date fixed for the meeting. To be entitled to
vote at any meeting of Certificateholders a person shall be (i) a
Holder of one or more Investor Certificates of the applicable
Series or Class or (ii) a person appointed by an instrument in
writing as proxy by the Holder of one or more such Investor
Certificates. The only Persons who shall be entitled to be
present or to speak at any meeting of Certificateholders shall be
the persons entitled to vote at such meeting and their counsel
and any representatives of the Seller, the Master Servicer and
the Trustee and their respective counsel.
(b) At a meeting of Certificateholders, Persons entitled to
vote Investor Certificates evidencing a majority of the Invested
Amount of the applicable Series or Class or the Aggregate
Invested Amount, as the case may be, shall constitute a quorum.
No business shall be transacted in the absence of a quorum,
unless a quorum is present when the meeting is called to order.
In the absence of a quorum at any such meeting, the meeting may
be adjourned for a period of not less than ten days; in the
absence of a quorum at any such adjourned meeting, such adjourned
meeting may be further adjourned for a period of not less than
ten days; at the reconvening of any meeting further adjourned for
lack of a quorum, the Persons entitled to vote Investor
Certificates evidencing at least 25% of the Invested Amount of
the applicable Series or Class or the Aggregate Invested Amount,
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as the case may be, shall constitute a quorum for the taking of
any action set forth in the notice of the original meeting.
Notice of the reconvening of any adjourned meeting shall be given
as provided above except that such notice must be given not less
than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage of the
Invested Amount of the relevant Investor Certificates or the
Aggregate Invested Amount, as the case may be, which shall
constitute a quorum.
(c) Any Certificateholder who has executed an instrument in
writing appointing a Person as proxy shall be deemed to be
present for the purposes of determining a quorum and be deemed to
have voted; provided, that such Certificateholder shall be
considered as present or voting only with respect to the matters
covered by such instrument in writing. Subject to the provisions
of Section 13.01, any resolution passed or decision taken at any
meeting of Certificateholders duly held in accordance with this
Section shall be binding on all Certificateholders whether or not
present or represented at the meeting.
(d) The holding of Bearer Certificates shall be proved by
the production of such Bearer Certificates or by a certificate,
satisfactory to the Master Servicer or the Trustee executed by
any bank, trust company or recognized securities dealer, wherever
situated, satisfactory to the Master Servicer or the Trustee.
Each such certificate shall be dated and shall state that on the
date thereof a Bearer Certificate bearing a specified serial
number was deposited with or exhibited to such bank, trust
company or recognized securities dealer by the person named in
such certificate. Any such certificate may be issued in respect
of one or more Bearer Certificates specified therein. The
holding by the person named in any such certificate of any Bearer
Certificate specified therein shall be presumed to continue for a
period of one year from the date of such certificate unless at
the time of any determination of such holding (i) another
certificate bearing a later date issued in respect of the same
Bearer Certificate shall be produced, (ii) the Bearer Certificate
specified in such certificate shall be produced by some other
Person or (iii) the Bearer Certificate specified in such
certificate shall have ceased to be outstanding. The appointment
of any proxy shall be proved by having the signature of the
person executing the proxy guaranteed by any bank, trust company
or recognized securities dealer satisfactory to the Master
Servicer or the Trustee.
(e) The Trustee shall appoint a temporary chairman of the
meeting. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the holders of Investor
Certificates evidencing a majority of the Invested Amount of the
related Investor Certificates or the Aggregate Invested Amount,
as the case may be, represented at the meeting. No vote shall be
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cast or counted at any meeting in respect of any Investors
Certificate challenged as not outstanding and ruled by the
chairman of the meeting to be not outstanding. The chairman of
the meeting shall have no right to vote except as a Certificate-
holder or proxy. Any meeting of Certificateholders duly called
at which a quorum is present may be adjourned from time to time,
and the meeting may be held as so adjourned without further
notice.
(f) The vote upon any resolution submitted to any meeting
of Certificateholders shall be by written ballot on which shall
be subscribed the signatures of Certificateholders or proxies and
on which shall be inscribed the serial number or numbers of the
Investor Certificates held or represented by them. The permanent
chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the
meeting their verified written reports in duplicate of all votes
cast at the meeting. A record in duplicate of the proceedings of
each meeting of Certificateholders shall be prepared by the
secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more
persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was published
as provided above. The record shall be signed and verified by
the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Master Servicer and the
other to the Trustee to be preserved by the Trustee, the latter
to have attached thereto the ballots voted at the meeting. Any
record so signed and verified shall be conclusive evidence of the
matters therein stated.
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ARTICLE SEVEN
OTHER MATTERS RELATING
TO THE SELLER
Section 7.01. Liability of the Seller. The Seller shall be
liable for all obligations, covenants, representations and
warranties of the Seller arising under or related to this Pooling
Agreement. Except as provided in the preceding sentence, the
Seller shall be liable only to the extent of the obligations
specifically undertaken by it in its capacity as Seller
hereunder.
Section 7.02. Limitation on Liability of the Seller.
Subject to Sections 7.01 and 7.03, neither the Seller nor any of
its directors, officers, employees, affiliates, stockholders,
agents, representatives or advisors shall be under any liability
to the Trust, the Trustee, the Master Servicer, the Certificate-
holders, any Credit Enhancer or any other Person for any action
taken or for refraining from the taking of any action in the
capacity as Seller pursuant to this Pooling Agreement whether
arising from express or implied duties under this Pooling
Agreement; provided, however, that this provision shall not
protect the Seller or any such Person against any liability which
would otherwise be imposed by reason of willful misfeasance, bad
faith or negligence in the performance of duties or by reason of
reckless disregard of obligations and duties hereunder. The
Seller and any director, officer, employee, affiliate,
stockholder, agent, representative or advisor of the Seller may
rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any
matters arising hereunder. The Seller shall not be under any
obligation to appear in, prosecute or defend any legal action
which is not incidental to its obligations hereunder which in its
reasonable opinion may involve it in any expense or liability.
Section 7.03. Seller Indemnification of the Trust and the
Trustee. The Seller shall indemnify and hold harmless the Trust,
for the benefit of the Certificateholders and the other
Beneficiaries, and the Trustee, from and against any loss,
liability, reasonable expense, damage or injury suffered or
sustained by reason of any acts, omissions or alleged acts or
omissions arising out of or based upon the arrangement created by
this Pooling Agreement, including any judgment, general
settlement, reasonable attorneys' fees and other costs and
expenses incurred by the Trustee in connection with the defense
of any actual or threatened action, proceeding or claim (but
excluding losses on Receivables and amounts due with respect
thereto); provided, however, that the Seller shall not indemnify
the Trust or the Trustee or any officer, director, employee or
agent of the Trustee if such actual or threatened action,
proceeding or claim arose out of, or is caused by, fraud,
negligence or willful misconduct by the Trustee; and provided,
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further, that the Seller shall not be liable, directly or
indirectly, for or in respect of any indebtedness or obligation
evidenced or created by any Certificate, recourse as to which is
limited solely to the assets of the Trust allocated for payment
thereof as provided in this Pooling Agreement and any applicable
Supplement; and provided, further, that the Seller shall not
indemnify the Trust, the Trustee or the Certificateholders or any
other Beneficiaries for any liabilities, costs or expenses of the
Trust with respect to any action taken by the Trustee at the
request of any such Certificateholders or other Beneficiaries to
the extent the Trustee is fully indemnified by such Certificate-
holders or other Beneficiaries with respect to such action or
with respect to any United States federal, state, local or non-
United States income or franchise taxes (or any interest or
penalties with respect thereto) required to be paid by the Trust
or any Certificateholder or other Beneficiary in connection
herewith to any taxing authority. Such indemnification shall not
be payable from the Trust Assets. The indemnification under this
Article Seven shall survive the termination of this Pooling
Agreement.
Section 7.04. Merger or Consolidation of, or Assumption of
the Obligations of, the Seller.
(a) The Seller shall not consolidate with or merge into any
other Person or convey or transfer all or substantially all of
its properties and assets to any Person, unless:
(i) the Person formed by such consolidation or into
which the Seller is merged or the Person to whom all or
substantially all of the properties and assets of the Seller
are transferred shall be, if the Seller is not the surviving
entity, organized and existing under the laws of the United
States or any State, and shall be a national banking
association, federal savings association, state banking
corporation, state savings association or other entity which
is not subject to the bankruptcy laws of the United States
of America and shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Trustee,
in form satisfactory to the Trustee and each Credit
Enhancer, the performance of every covenant and obligation
of the Seller, as applicable hereunder, and shall benefit
from all the rights granted to the Seller, as applicable
hereunder. To the extent that any right, covenant or
obligation of the Seller is inapplicable to the successor
entity, such successor entity shall be subject to such
covenant or obligation, or benefit from such right, as would
apply, to the extent practicable, to such successor entity.
In furtherance hereof, in applying this Section to a
successor entity, Section 9.02 shall be applied by reference
to events of involuntary liquidation, receivership or
conservatorship applicable to such successor entity and such
application shall be set forth in the Officer's Certificate
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delivered pursuant to Section 7.04(a)(ii);
(ii) the Seller shall have delivered to the Trustee,
each Agent and each Credit Enhancer (a) an Officer's
Certificate of the Seller and an Opinion of Counsel, each
stating that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this
Section and that all conditions precedent herein provided
for relating to such transaction have been complied with
and, in the case of the Opinion of Counsel, that such
supplemental agreement is legal, valid and binding with
respect to the Person described in Section 7.04(a)(i) and
(b) a Tax Opinion;
(iii) the Seller shall have delivered advance notice to
the Trustee, the Master Servicer, each Credit Enhancer, each
Agent and each Rating Agency of such consolidation, merger,
conveyance or transfer;
(iv) the Seller shall not have received written notice
from any Rating Agency or Credit Enhancer that such
consolidation, merger, conveyance or transfer will have a
Ratings Effect;
(v) the surviving entity or transferee shall have
delivered copies of UCC-1 financing statements covering the
Accounts and Receivables sufficient under the law of each
applicable jurisdiction to perfect the Trust's interest in
the Receivables; and
(vi) the Trustee shall have received an Opinion of
Counsel with respect to the matters in Section 7.04(a)(v).
(b) The obligations of the Seller hereunder shall not be
assignable nor shall any Person succeed to the obligations of the
Seller hereunder except for mergers, consolidations, assumptions
or transfers in accordance with Section 7.04(a).
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ARTICLE EIGHT
OTHER MATTERS RELATING
TO THE MASTER SERVICER
Section 8.01. Liability of the Master Servicer. The Master
Servicer shall be liable under this Article Eight only to the
extent of the obligations specifically undertaken by the Master
Servicer in its capacity as Master Servicer.
Section 8.02. Merger or Consolidation of, or Assumption of,
the Obligations of the Master Servicer. The Master Servicer
shall not consolidate with or merge into any other corporation or
convey or transfer all or substantially all its properties and
assets to any Person, unless:
(i) the Person formed by such consolidation or into
which the Master Servicer is merged or the Person to whom
all or substantially all of the properties and assets of the
Master Servicer are transferred shall be, if the Master
Servicer is not the surviving entity, either a national
banking association, federal savings association, state
banking corporation, state savings association or other
entity which is not subject to the bankruptcy laws of the
United States or a corporation organized and existing under
the laws of the United States or any State and, if the
Master Servicer is not the surviving entity, such surviving
entity shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee and each Credit Enhancer, the
performance of every covenant and obligation of the Master
Servicer, as applicable hereunder, and shall benefit from
all the rights granted to the Master Servicer, as applicable
hereunder. To the extent that any right, covenant or
obligation of the Master Servicer is inapplicable to the
successor entity, such successor entity shall be subject to
such covenant or obligation, or benefit from such right, as
would apply, to the extent practicable, to such successor
entity;
(ii) the Master Servicer shall have delivered to the
Trustee, each Agent and each Credit Enhancer (a) an
Officer's Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer
comply with this Section and that all conditions precedent
herein provided for relating to such transaction have been
complied with and, in the case of the Opinion of Counsel,
that such supplemental agreement is legal, valid and binding
with respect to the Person described in clause (i) above and
(b) a Tax Opinion;
(iii) the Master Servicer shall have delivered advance
notice to the Trustee, the Seller, each Agent, each Credit
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Enhancer and each Rating Agency of such consolidation,
merger, conveyance or transfer; and
(iv) the Seller shall have received the consent of each
Credit Enhancer and shall not have received written notice
from any Rating Agency or Credit Enhancer that such
consolidation, merger, conveyance or transfer will have a
Ratings Effect.
Section 8.03. Limitation on Liability of the Master
Servicer and Others. Except as provided in Section 8.04, neither
the Master Servicer nor any of its directors, officers,
employees, affiliates, stockholders, agents, representatives or
advisors shall be under any liability to the Trust, the Seller,
the Trustee, the Certificateholders, any Credit Enhancer or any
other Person for any action taken or for refraining from the
taking of any action in its capacity as Master Servicer pursuant
to this Pooling Agreement; provided, however, that this provision
shall not protect the Master Servicer or any such Person against
any liability which would otherwise be imposed by reason of
willful misfeasance, bad faith or negligence in the performance
of duties or by reason of reckless disregard of obligations and
duties hereunder. The Master Servicer and its director, officer,
employee, affiliates, stockholders, agent, representatives or
advisors may rely in good faith on any document of any kind prima
facie properly executed and submitted by any Person respecting
any matters arising hereunder. The Master Servicer shall not be
under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the
Accounts and Receivables in accordance with this Pooling
Agreement which in its reasonable opinion may involve it in any
expense or liability.
Section 8.04. Master Servicer Indemnification of the Trust
and the Trustee. The Master Servicer shall indemnify and hold
harmless the Trust, for the benefit of the Certificateholders and
the other Beneficiaries, and the Trustee from and against any
loss, liability, reasonable expense, damage or injury suffered or
sustained by reason of any acts, omissions or alleged acts or
omissions arising out of or based upon the arrangement created by
this Pooling Agreement, including, without limitation, any
judgment, award, settlement, reasonable attorneys' fees and other
costs or expenses incurred by the Trustee in connection with the
defense of any actual or threatened action, proceeding or claim
(but excluding any losses on Receivables and amounts due with
respect thereto); provided, however, that the Master Servicer
shall not indemnify or hold harmless the Trust or the Trustee if
such actual or threatened action, proceeding or claim arose out
of or is caused by fraud, negligence or willful misconduct by the
Trustee; and provided, further, that the Master Servicer shall
not be liable, directly or indirectly, for or in respect of any
indebtedness or obligation evidenced or created by any
Certificate, recourse as to which is limited solely to the assets
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of the Trust allocated for payment thereof as provided in this
Pooling Agreement and any applicable Supplement; and provided,
further, that the Master Servicer shall not indemnify the Trust,
the Trustee or the Certificateholders or the other Beneficiaries
for any liabilities, costs or expenses of the Trust with respect
to any action taken by the Trustee at the request of the
Certificateholders or any other Beneficiaries to the extent the
Trustee is fully indemnified by such Certificateholders or other
Beneficiaries with respect to such action or with respect to any
United States federal, state, or non-United States local income
or franchise taxes (or any interest or penalties with respect
thereto) required to be paid by the Trust or the Certificate-
holders or the other Beneficiaries in connection herewith to any
taxing authority. The Master Servicer shall indemnify and hold
harmless the Trustee and its officers, directors, employees or
agents from and against any loss, liability, reasonable expense,
damage or injury suffered or sustained by reason of the
acceptance of the Trust by the Trustee, the issuance by the Trust
of the Certificates or any of the other matters contemplated
herein or in any Supplement (other than losses on Receivables and
amounts due with respect thereto); provided, however, that the
Master Servicer shall not indemnify the Trustee or its officers,
directors, employees or agents for any loss, liability, expense,
damage or injury caused by the fraud, negligence, breach of
fiduciary duty or willful misconduct of any of them. Any
indemnification under this Article Eight shall run directly to
and be enforceable by an injured party subject to the limitations
hereof and shall survive the resignation or removal of the Master
Servicer, the resignation or removal of the Trustee and/or the
termination of the Trust and shall survive the termination of
this Pooling Agreement. Any such indemnification shall not be
payable from the Trust Assets.
Section 8.05. The Master Servicer Not to Resign. The
Master Servicer shall not resign from the obligations and duties
hereby imposed on it except upon determination that (i) the
performance of its duties hereunder is no longer permissible
under applicable law and (ii) there is no reasonable action which
the Master Servicer could take to make the performance of its
duties hereunder permissible under applicable law. No such
resignation shall become effective until the Trustee or a
Successor Master Servicer shall have assumed the responsibilities
and obligations of the Master Servicer in accordance with Section
8.09 or 10.02. If the Trustee is unable within 60 days of the
date of such determination to appoint a Successor Master
Servicer, the Trustee shall serve as Successor Master Servicer
hereunder.
Section 8.06. Access to Certain Documentation and
Information Regarding the Receivables. The Master Servicer shall
provide to the Trustee access to the documentation regarding the
Accounts and the Receivables in such cases where the Trustee is
required in connection with the enforcement of the rights of the
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Certificateholders, or by applicable statutes or regulations to
review such documentation, such access being afforded without
charge but only (i) upon reasonable request, (ii) during normal
business hours, (iii) subject to the Master Servicer's normal
security and confidentiality procedures and (iv) at offices
designated by the Master Servicer. Nothing in this Section shall
derogate from the obligation of the Seller, the Trustee or the
Master Servicer to observe any applicable law prohibiting
disclosure of information regarding the Obligors and the failure
of the Master Servicer to provide access as provided in this
Section as a result of such obligation shall not constitute a
breach of this Section.
Section 8.07. Delegation of Duties. In the ordinary course
of business, the Master Servicer may at any time delegate any
duties hereunder to any Person who agrees to conduct such duties
in accordance with the Cardholder Agreements, Cardholder
Guidelines, Revolving Line of Credit Agreements, the Master
Servicer's guidelines governing the servicing of Revolving Line
of Credit Accounts and this Pooling Agreement if (as evidenced by
written notice to such effect by each Rating Agency and Credit
Enhancer) such proposed delegation will not have a Ratings Effect
(as evidenced by written notice to such effect by each Rating
Agency and Credit Enhancer). The Master Servicer shall give
prior written notice of any such delegation of a material duty to
each Rating Agency, each Agent and each Credit Enhancer. No such
delegation may be made without the prior written consent of any
Credit Enhancer on whose interests such delegation could have a
material adverse effect. No such delegation shall relieve the
Master Servicer of its liability and responsibility with respect
to such duties or shall constitute a resignation within the
meaning of Section 8.05. It is understood that Republic Services
Company performs servicing activities on behalf of the Bank with
respect to all of the Receivables in Initial Accounts, and will
be a Subservicer of the Accounts and the Receivables on the first
Closing Date and that no action on the part of the Master
Servicer under this Section is required and that no Ratings
Effect (as evidenced by written notice from each Rating Agency
and each Credit Enhancer) will occur in connection with such
servicing activities unless the Seller, the Trustee, the Master
Servicer and each Credit Enhancer receives notice to the contrary
from a Rating Agency after the date hereof.
Section 8.08. Examination of Records. The Seller and the
Master Servicer shall indicate generally in their respective
computer files or other records that the Receivables arising in
the Accounts have been conveyed to the Trust pursuant to this
Pooling Agreement for the benefit of the Beneficiaries. The
Seller or the Master Servicer shall, prior to the sale or
transfer to a third party of any credit card or unsecured
revolving line of credit receivable held in its custody, examine
its computer and other records to determine that such receivable
is not a Receivable.
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Section 8.09. Appointment of Successor Master Servicer.
The Master Servicer may appoint as a Successor Master Servicer
any direct or indirect subsidiary of CFC, at least 51% of the
capital stock and 100% of the common stock of which is owned
directly or indirectly by CFC, and which is controlled directly
or indirectly by CFC, who can make the representations,
warranties and covenants contained in Section 3.03 and who is an
Eligible Servicer. Upon its appointment, such Successor Master
Servicer shall be the successor in all respects to the Master
Servicer with respect to servicing functions under this Pooling
Agreement and shall be subject to all the responsibilities,
duties and liabilities relating thereto placed on the Master
Servicer by the terms and provisions hereof, and all references
in this Pooling Agreement to the Master Servicer shall be deemed
to refer to the Successor Master Servicer. Any Successor Master
Servicer, by its acceptance of its appointment, will
automatically agree to be bound by the terms and provisions of
each Supplement and the Related Documents. The Master Servicer
shall notify the Trustee, each Credit Enhancer and each Rating
Agency promptly upon appointing any Successor Master Servicer
pursuant to this Section.
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ARTICLE NINE
PAY OUT EVENTS
Section 9.01. Pay Out Events. If any one of the following
events shall occur:
(a) failure on the part of the Seller (i) to make any
payment or deposit within five Business Days of the date
specified for such deposit or payment herein or (ii) to
observe or perform in any material respect any other
covenants or agreements of the Seller set forth herein for a
period of 60 days after the earlier to occur of (A) written
notice thereof is received by the Seller from the Trustee,
any Rating Agency or Credit Enhancer or to the Seller and
Trustee by any Investor Certificateholder and (B) actual
knowledge thereof on the part of a responsible officer of
the Seller, which failure has a material adverse effect on
any Beneficiary and continues to materially and adversely
affect the interest of such Beneficiary for such period;
(b) any representation or warranty made by the Seller
herein or in any Supplement, or any of the information
contained in the computer file or microfiche or written list
required to be delivered by the Seller pursuant to Section
2.01, 2.05, 2.07 or 2.08, proves to have been incorrect in
any material respect when made or delivered, and such
inaccuracy continues for 60 days after the earlier to occur
of (A) written notice thereof, requiring the same to be
remedied, shall have been received by the Seller from the
Trustee, any Rating Agency or Credit Enhancer or to the
Seller and Trustee by any Investor Certificateholder, or
(B) actual knowledge thereof on the part of a Responsible
Officer of the Seller, with the result that the interests of
any Beneficiary are, and for 60 days continue to be,
materially and adversely affected, unless the Seller accepts
reassignment of all related Receivables during such period
as set forth in Section 2.03(b), 2.04(b), 2.04(c) or 2.08,
as the case may be, and makes all deposits or payments
required to be made in connection with such reassignment;
(c) an Insolvency Event with respect to the Seller
shall have occurred;
(d) the Trust shall become an "investment company"
within the meaning of the Investment Company Act;
(e) the Seller shall have failed either to make the
required designations of Additional Accounts and related
transfers of Receivables or deposits or transfers of the
amounts described in Section 2.05(a) for a period of ten
Business Days from the related Determination Date;
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(f) the Seller fails to perform in any material
respect the covenant set forth in Section 2.06(a) insofar as
such covenant relates to Liens on the Seller Interest.
(g) any Servicer Default shall occur;
(h) any claim for a required payment is made under the
related Credit Enhancement;
(i) the Seller shall voluntarily sell, pledge, assign
or transfer to any other Person, or grant, create, incur,
assume or suffer to exist any Lien (other than a Permitted
Lien) on a material portion of the Receivables and such Lien
shall not be removed or cured within five Business Days;
then, in the case of any event described in clause (a)(ii), (b),
(g) or (i) above, a Pay Out Event will be deemed to have occurred
with respect to any Series only if, after any applicable grace
period, the Trustee, each related Credit Enhancer or Holders of
Investor Certificates evidencing undivided interests aggregating
more than 50% of the related Invested Amount of such Series (or
if such Series is comprised of multiple Classes, 50% of the
Invested Amount represented by each Class), by written notice to
the Seller and the Master Servicer (and to the Trustee if given
by such Certificateholders) declare that a Pay Out Event has
occurred with respect to such Series as of the date of such
notice. In the case of any event described in clause a(i), (c),
(d), (e) or (f) a Pay Out Event with respect to all outstanding
Series, and in the case of any event described in clause (h), or
any additional Pay Out Event specified in the related Supplement,
a Pay Out Event with respect only to the affected Series will be
deemed to have occurred without any notice or other action on the
part of the Trustee, any Credit Enhancer or such Holders,
immediately upon the occurrence of such event.
Section 9.02. Additional Rights Upon the Occurrence of
Certain Events.
(a) If an Insolvency Event occurs with respect to the
Seller or the Seller violates the provisions of Section 2.06(a)
relating to Liens on the Seller Interest, the Seller shall on the
date such Insolvency Event or violation occurs (the "Appointment
Date") immediately cease to transfer Receivables to the Trust and
shall promptly give notice to the Trustee of such Insolvency
Event or violation. Notwithstanding any cessation of the
transfer to the Trust of additional Receivables, Receivables
transferred to the Trust prior to the Appointment Date and
Collections in respect of such Receivables whenever created or
accrued in respect of such Receivables, shall continue to be a
part of the Trust. Within 15 days of the Appointment Date, the
Trustee shall (i) publish a notice in an Authorized Newspaper
that an Insolvency Event or violation has occurred and that the
Trustee intends to sell, dispose of or otherwise liquidate the
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Receivables on commercially reasonable terms and in a
commercially reasonable manner and (ii) give notice to each
Credit Enhancer and Investor Certificateholders of record
describing the provisions of this Section and requesting
instructions from such Holders. Unless the Trustee shall have
received instructions within 90 days from the date notice
pursuant to clause (ii) above is first given from (A) Holders of
Investor Certificates evidencing more than 50% of the aggregate
unpaid principal amount of each Series or the sum of the unpaid
principal balances of each Rated Class within a Series, or (B) so
long as no Credit Enhancer Default has occurred with respect
thereto, from any Credit Enhancer, to the effect that such
Beneficiary or Beneficiaries disapprove of the liquidation of the
Receivables and wish to continue having Principal Receivables
transferred to the Trust as before such Insolvency Event or
violation, then the Trustee shall promptly sell, dispose of or
otherwise liquidate the Receivables, or cause to be sold,
disposed of or otherwise liquidated, in a commercially reasonable
manner and on commercially reasonable terms, which shall include
the solicitation of competitive bids; provided that if such sale,
disposition or liquidation is being made solely on account of the
Seller's violation of Section 2.06(a), then the Trustee shall
effect such sale, disposition or liquidation, only if the net
proceeds of such sale, disposition or liquidation, applied in
accordance with Section 9.02(b), will be sufficient to pay
accrued interest on each Series of Certificates plus the
outstanding principal balance of each Series or Class of
Certificates. The Trustee shall promptly notify each Credit
Enhancer upon receiving an offer for the Receivables. The
Trustee may obtain and conclusively rely upon a prior
determination from any applicable conservator, receiver or
liquidator that the terms and manner of any proposed sale,
disposition or liquidation are commercially reasonable. The
provisions of Section 9.01 and this Section shall not be deemed
to be mutually exclusive.
(b) All Trust Liquidation Proceeds shall be immediately
deposited in the Collection Account. The Trustee shall determine
conclusively the amount of the Trust Liquidation Proceeds which
are deemed to be in respect of Finance Charge Receivables and
Principal Receivables. The Trust Liquidation Proceeds shall be
allocated and distributed in accordance with Articles Four and
Five and the terms of each Supplement, and the Trust shall
terminate upon the completion of such distributions and the
distribution of all amounts in the Collection Account, Excess
Funding Account and each Series Account in accordance with
Articles Four and Five and the provisions of each Supplement.
(c) So long as no Credit Enhancer Default has occurred and
is continuing, any Credit Enhancer so designated pursuant to the
Supplement for any Series shall have the right to request that,
in lieu of a distribution of Trust Liquidation Proceeds and other
funds pursuant to clause (b) above, prior to any sale required
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pursuant to clause (a) above, it or its designee (including any
liquidating or grantor trust designated by it) be assigned by the
Trustee a randomly selected portion of the Receivables with an
aggregate face amount equal to the product of (i) the aggregate
face amount of Receivables in the Trust on the Appointment Date
and (ii) the Floating Allocation Percentage with respect to such
Series on the Appointment Date, together with the portion
specified in the related Supplement of any funds on deposit in
the Collection Account, the Excess Funding Account and any Series
Account for such Series. Any such request shall be made in
writing to the Trustee and must be received by the Trustee within
10 days from the date such Credit Enhancer receives notice of an
accepted offer for the Receivables from the Trustee. The Trustee
agrees to do and perform any reasonable acts and to execute any
further instruments reasonably requested by such Credit Enhancer
to effect any such assignment at the expense of such Credit
Enhancer.
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ARTICLE TEN
SERVICER DEFAULTS
Section 10.01. Servicer Defaults.
(a) "Servicer Default" will mean any of the following
events:
(i) failure by the Master Servicer to make any
payment, transfer or deposit, to deliver to the Trustee or
any Credit Enhancer any Distribution Date Report on a
Determination Date, or to give instructions to the Trustee
to make any payments, transfers or deposits, within five
Business Days of the date on which the Master Servicer is
required to do so pursuant to this Pooling Agreement or any
Supplement;
(ii) failure on the part of the Master Servicer duly to
observe or perform in any respect any other covenants or
agreements of the Master Servicer hereunder, which failure
has a material adverse effect on the interests of any
Beneficiary, continues unremedied for a period of 60 days
after the earlier of (A) written notice thereof from the
Trustee, any Credit Enhancer or Investor Certificateholders
holding 10% of the Aggregate Invested Amount (or, with
respect to any such failure that does not relate to all
Series, 10% of the sum of the Invested Amounts of each
affected Series) and (B) actual knowledge thereof on the
part of a responsible officer of the Master Servicer, or the
assignment or delegation by the Master Servicer of its
duties hereunder other than pursuant to the terms hereof;
(iii) any representation, warranty or certification made
by the Master Servicer hereunder or under any Supplement, or
in any certificate delivered pursuant hereto or thereto,
proves to have been incorrect when made, and such inaccuracy
has a material adverse effect on the interests of any
Beneficiary and continues to be incorrect in any material
respect for a period of 60 days after the earlier of
(A) written notice thereof from the Trustee, any Credit
Enhancer or Investor Certificateholders holding 10% of the
Aggregate Invested Amount (or, with respect to any such
representation or warranty that does not relate to all
Series, 10% of the sum of the Invested Amounts of each
affected Series) and (B) actual knowledge thereof on the
part of a responsible officer of the Master Servicer;
(iv) an Insolvency Event shall occur with respect to
the Master Servicer; or
(v) a termination notice shall be given based on an
alleged breach or violation of the terms of the Subservicing
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Agreement that is in effect prior to the first Closing Date
or, if any other termination notice shall be given, and no
Eligible Servicer has been found and has agreed to serve as
Subservicer thereunder at least 90 days prior to the
effective date specified in such termination notice.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in clause (i) above for a period of five
Business Days, or referred to under clause (ii) or (iii) for a
period of 60 days, shall not constitute a Servicer Default until
the expiration of an additional five Business Days or 60 days,
respectively, if such delay or failure could not be prevented by
the exercise of reasonable diligence by the Master Servicer and
such delay or failure was caused by an act of God, or the public
enemy, acts of declared or undeclared war, public disorder,
rebellion or sabotage, epidemics, landslides, lightning, fire,
hurricanes, tornadoes, earthquakes, floods or similar causes.
Upon the occurrence of any such event, the Master Servicer shall
not be relieved from using its best efforts to perform its
obligations hereunder in a timely manner in accordance with the
terms hereof. In any such event, however, the Master Servicer
immediately shall provide the Trustee, the Seller, each Credit
Enhancer and each Registered Certificateholder notice of such
failure or delay by it, together with a description of the cause
of such failure or delay and its efforts so to perform its
obligations.
(b) In the event of any Servicer Default that remains
unremedied as set forth in this Section, either the Trustee, any
Credit Enhancer or Investor Certificateholders representing
undivided interests aggregating at least 50% of the Aggregate
Invested Amount, by written notice (a "Termination Notice") to
the Master Servicer (and to the Trustee and each Credit Enhancer,
if given by such Investor Certificateholders), may terminate all,
but not less than all, of the rights and obligations of the
Master Servicer as Master Servicer hereunder (other than such
rights and obligations as have accrued prior to the date of such
notice) and in and to the Receivables and the proceeds thereof
and with respect to the Collection Account, any related
Collections Subaccount the Excess Funding Account and any Series
Account.
After receipt by the Master Servicer of a Termination
Notice, and on the date that a Successor Master Servicer shall
have been appointed by the Trustee pursuant to Section 10.02, all
authority and power of the Master Servicer under this Pooling
Agreement shall pass to and be vested in such Successor Master
Servicer (a "Service Transfer") and, without limitation, the
Trustee is hereby authorized and empowered (upon the failure of
the Master Servicer to cooperate) to execute and deliver, on
behalf of the Master Servicer, as attorney-in-fact or otherwise,
all documents and other instruments upon the failure of the
Master Servicer to execute or deliver such documents or
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instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such Service
Transfer; provided, however, that in no event shall the Master
Servicer incur any liability for any such action taken by the
Trustee. The Master Servicer agrees to cooperate with the
Trustee and such Successor Master Servicer in effecting the
termination of the responsibilities and rights of the Master
Servicer to conduct servicing hereunder, including the transfer
to such Successor Master Servicer of all authority of the Master
Servicer to service the Receivables provided for under this
Pooling Agreement, including all authority over all Collections
which shall on the date of transfer be held by the Master
Servicer for deposit, or which have been deposited by the Master
Servicer, in the Collection Account, or which shall thereafter be
received with respect to the Receivables, and in assisting the
Successor Master Servicer. The Master Servicer shall promptly
transfer its electronic records relating to the Receivables to
the Successor Master Servicer in such electronic form as the
Successor Master Servicer may reasonably request and shall
promptly transfer to the Successor Master Servicer all other
records, correspondence and documents necessary for the continued
servicing of the Receivables in the manner and at such times as
the Successor Master Servicer shall reasonably request. To the
extent that compliance with this Section shall require the Master
Servicer to disclose to the Successor Master Servicer information
of any kind which the Master Servicer reasonably deems to be
confidential, the Successor Master Servicer shall be required to
enter into such customary licensing and confidentiality
agreements as the Master Servicer shall deem necessary to protect
its interest.
Section 10.02. Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Master Servicer of a
Termination Notice pursuant to Section 10.01, the Master Servicer
shall continue to perform all servicing functions under this
Pooling Agreement until the date specified in the Termination
Notice or otherwise specified by the Trustee in writing or, if no
such date is specified in such Termination Notice, or otherwise
specified by the Trustee, until a date mutually agreed upon by
the Master Servicer and Trustee. The Trustee shall as promptly
as possible after the giving of a Termination Notice appoint an
Eligible Servicer as a successor servicer (the "Successor Master
Servicer"), subject to the consent of each Credit Enhancer, and
such Successor Master Servicer shall accept its appointment by a
written assumption of this Pooling Agreement and each Supplement
in a form acceptable to the Trustee. In the event that a
Successor Master Servicer has not been appointed or has not
accepted its appointment at the time when the Master Servicer
ceases to act as Master Servicer, the Trustee without further
action shall automatically be appointed the Successor Master
Servicer. The Trustee may delegate any of its servicing
obligations to an Affiliate or agent in accordance with Section
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3.01 and 8.07. Notwithstanding the above, the Trustee shall, but
only if it is legally unable to act as Successor Master Servicer,
petition a court of competent jurisdiction to appoint any
established institution having a net worth of not less than
$50,000,000 and whose regular business includes the servicing of
VISA (register mark) and MasterCard (register mark) credit card receivables as
the Successor Master Servicer hereunder. The Trustee shall immediately give
notice to the Seller, each Rating Agency, Credit Enhancer, each
Agent and Registered Certificateholder upon the appointment of a
Successor Master Servicer or its assumption of such obligations.
(b) Upon its appointment, the Successor Master Servicer
shall be the successor in all respects to the Master Servicer
with respect to servicing functions under this Pooling Agreement
and shall be subject to all the responsibilities, duties and
liabilities relating thereto placed on the Master Servicer by the
terms and provisions hereof (except that the Successor Master
Servicer shall not be liable for any liabilities incurred by the
predecessor Master Servicer), and all references in this Pooling
Agreement to the Master Servicer shall be deemed to refer to the
Successor Master Servicer. Any Successor Master Servicer, by its
acceptance of its appointment, will automatically agree to be
bound by the terms and provisions of each Supplement and any
Credit Enhancement Agreement.
(c) In connection with any Termination Notice, the Trustee
will review any bids which it obtains from Eligible Servicers and
shall be permitted to appoint any Eligible Servicer submitting
such a bid as a Successor Master Servicer for servicing
compensation not in excess of the Servicing Fee (provided that if
all such bids exceed the Servicing Fee the Seller shall pay when
due the amount of any compensation in excess of the Servicing Fee
from Collections allocable to the Seller Interest and otherwise
distributable to the Holder of the Seller Certificate); provided,
however, that (i) the Seller shall be responsible for payment of
the Seller's Servicing Fee as determined pursuant to this Pooling
Agreement and all other amounts in excess of the Investors'
Servicing Fee (which excess shall be distributed or made
available to the Master Servicer from Collections allocable to
the Seller Interest and otherwise distributable to the Holder of
the Seller Certificate and (ii) no such servicing compensation
shall be paid out of Collections allocable to any Series in
excess of the related Monthly Servicing Fee; and provided,
further, that if the Trustee is unable to obtain any bids from
Eligible Servicers and the Master Servicer delivers an Officer's
Certificate to the effect that it cannot in good faith cure the
Servicer Default which gave rise to a Service Transfer, and if
the Trustee is legally unable to act as Successor Master
Servicer, then the Trustee shall give the Seller the right to
purchase the Certificateholders' Interest at a price equal to the
sum of the Repurchase Prices specified for the repurchase of each
Series in the related Supplement, plus the aggregate amount of
Unreimbursed Credit Enhancer Amounts. By its acceptance of the
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Seller Certificate, the Holder of the Seller Certificate hereby
agrees that if the Bank is terminated as Master Servicer
hereunder, the portion of Collections to be paid to the Holder of
the Seller Certificate will be reduced as specified in clause (i)
above.
(d) All authority and power granted to the Successor Master
Servicer under this Pooling Agreement shall automatically cease
and terminate upon termination of the Trust pursuant to Section
12.01, and shall pass to and be vested in the Seller and, without
limitation, the Seller is hereby authorized and empowered to
execute and deliver, on behalf of the Successor Master Servicer,
as attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer
of servicing rights. The Successor Master Servicer agrees to
cooperate with the Seller in effecting the termination of the
responsibilities and rights of the Successor Master Servicer to
conduct servicing of the Receivables. The Successor Master
Servicer shall transfer its electronic records relating to the
Accounts and the Receivables to the Seller in such electronic
form as the Seller may reasonably request and shall transfer all
other records, correspondence and documents to the Seller in the
manner and at such times as the Seller shall reasonably request.
To the extent that compliance with this Section shall require the
Successor Master Servicer to disclose to the Seller information
of any kind which the Successor Master Servicer deems to be
confidential, the Seller shall be required to enter into such
customary licensing and confidentiality agreements as the
Successor Master Servicer shall deem necessary to protect its
interests.
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ARTICLE ELEVEN
THE TRUSTEE
Section 11.01. Duties of Trustee.
(a) The Trustee, prior to the occurrence of any Servicer
Default of which a Responsible Officer has knowledge and after
the curing of all Servicer Defaults which may have occurred,
undertakes to perform such duties and only such duties as are
specifically set forth in this Pooling Agreement. If, to the
knowledge of a Responsible Officer, a Servicer Default has
occurred (and such Servicer Default has not been cured or
waived), the Trustee shall exercise such of the rights and powers
vested in it by this Pooling Agreement, and use the same degree
of care and skill in their exercise, as a prudent man would
exercise or use under the circumstances in the conduct of his own
affairs; provided, however, that if the Trustee shall assume the
duties of the Master Servicer pursuant to Section 8.05 or 10.02,
the Trustee, in performing such duties, shall use the degree of
skill and attention customarily exercised by a servicer with
respect to comparable credit card receivables that it services
for itself or others.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Trustee which are specifically
required to be furnished pursuant to any provision of this
Pooling Agreement, shall examine them to determine whether they
substantially conform to the requirements of this Pooling
Agreement.
(c) Subject to Section 11.01(a), no provision of this
Pooling Agreement shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Pooling
Agreement, the Trustee shall not be liable except for the
performance of such duties and obligations as shall be
specifically set forth in this Pooling Agreement, no implied
covenants or obligations shall be read into this Pooling
Agreement against the Trustee, the permissive right of the
Trustee to do things numerated in this Pooling Agreement
shall not be construed as a duty and, in the absence of bad
faith on the part of the Trustee, or manifest error, the
Trustee may conclusively rely on the truth of the statements
and the correctness of the opinions expressed upon any
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Pooling Agreement;
(ii) the Trustee shall not be personally liable for an
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error of judgment made in good faith by a Responsible
Officer, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts or performing
its duties in accordance with the terms of this Pooling
Agreement and any Supplement;
(iii) the Trustee shall not be charged with knowledge of
any Servicer Default or the failure by the Master Servicer
to comply with the obligations of the Master Servicer
referred to in Sections 10.01(a), unless a Responsible
Officer obtains actual knowledge of such failure;
(iv) the Trustee shall not be charged with knowledge of
a Pay Out Event unless a Responsible Officer obtains actual
knowledge thereof; and
(v) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with the direction of the
Holders of Certificates of the required percentage of the
Invested Amount of any Series or of the Aggregate Invested
Amount for all Series relating to the time, method and place
of conducting any proceeding for any remedy available to the
Trustee with respect to such Series, or exercising any trust
or power conferred upon the Trustee with respect to such
Series, under this Pooling Agreement.
(d) The Trustee shall not be required to expend or risk its
own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of
any of its rights or powers, if there shall be reasonable grounds
for believing that the repayment of such funds or adequate
indemnity against such risk or liability shall not be reasonably
assured to it, and none of the provisions contained in this
Pooling Agreement shall in any event require the Trustee to
perform, or be responsible for the manner of performance of, any
obligations of the Master Servicer under this Pooling Agreement
except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and
privileges of, the Master Servicer in accordance with the terms
of this Pooling Agreement.
(e) All information obtained by the Trustee regarding the
Obligors and the Receivables, whether upon the exercise of its
rights under this Pooling Agreement or otherwise, shall be
maintained by the Trustee in confidence and shall not be
disclosed to any other person, unless such disclosure is required
by any applicable law or regulation.
(f) Except as expressly provided in this Pooling Agreement,
the Trustee shall have no power to vary the corpus of the Trust
including the power to (i) accept any substitute obligation for a
Receivable initially assigned to the Trust under Section 2.01 or
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2.05, (ii) add any other investment, obligation or security to
the Trust or (iii) withdraw from the Trust any Receivables.
(g) If, to the knowledge of a Responsible Officer, the
Transfer Agent and Registrar shall fail to perform any
obligation, duty or agreement in the manner or on the day
required to be performed by the Transfer Agent and Registrar
under this Pooling Agreement, the Trustee shall be obligated
promptly upon the knowledge of a Responsible Officer to perform
such obligation, duty or agreement in the manner so required.
(h) If the Seller has agreed to transfer any of its credit
card receivables (other than the Receivables) to another Person,
then upon the written request of the Seller, the Trustee, on
behalf of the Trust, will enter into such intercreditor
agreements with the transferee of such receivables as may be
prepared by the Seller or transferee and as are customary and
necessary to identify separately the rights, if any, of the Trust
and such other Person in the Seller's credit card receivables;
provided, however, that the Trustee shall not be required to
enter into any intercreditor agreement which could, in the
opinion of the Trustee, have a material adverse effect on the
interests of any Beneficiary and, upon the request of the
Trustee, the Seller will deliver an Opinion of Counsel on any
matters relating to such intercreditor agreement reasonably
requested by the Trustee.
Section 11.02. Certain Matters Affecting the Trustee.
Except as otherwise provided in Section 11.01:
(a) the Trustee may rely on and shall be protected in
acting on, or in refraining from acting in accordance with,
any Seller Assignment, resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement,
instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed
by it to be genuine and to have been signed or presented to
it pursuant to this Pooling Agreement by the proper party or
parties; provided, however, that if the Bank is not the
Master Servicer at the time it receives any such paper or
document, the Trustee shall provide a copy thereof to the
Bank;
(b) the Trustee may consult with counsel and any
Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or
omitted by it under this Pooling Agreement or any Supplement
in good faith and in accordance with such counsel's advice
or Opinion of Counsel;
(c) the Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by this
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Pooling Agreement, any Supplement or any Related Document,
or to institute, conduct or defend any litigation under this
Pooling Agreement or any Supplement or in relation to this
Pooling Agreement or any Supplement, at the request, order
or direction of any Certificateholder or Credit Enhancer
pursuant to the provisions of this Pooling Agreement or any
Supplement, unless the related Investor Certificateholders
or such Credit Enhancer shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby;
nothing contained in this Pooling Agreement or any
Supplement shall relieve the Trustee of its obligation, upon
the occurrence of any Servicer Default (which has not been
cured or waived), to exercise such of the rights and powers
vested in it by this Pooling Agreement and any Credit
Enhancement Agreement, and to use the same degree of care
and skill in its exercise as a prudent person would exercise
or use under the circumstances in the conduct of his own
affairs;
(d) the Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or
rights or powers conferred upon it by this Pooling
Agreement, any Supplement or any Credit Enhancement
Agreement;
(e) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion,
report, notice, request, consent, order, approval, bond or
other paper or document unless requested in writing to do so
by Holders of Investor Certificates evidencing at least 25%
of the Aggregate Invested Amount (or, with respect to any
such matter that does not relate to all Series, 25% of the
aggregate of the Class Invested Amounts of each Class of
Investor Certificates of each affected Series) or, if no
Credit Enhancer Default has occurred and is continuing, any
Credit Enhancer or any related Credit Enhancer, as the case
may be;
(f) the Trustee may execute any of the trusts or
powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys or a
custodian;
(g) except as may be required by Section 11.01(a) or
11.02(e), the Trustee shall not be required to make any
initial or periodic examination of any documents or records
related to the Receivables or the Accounts for the purpose
of establishing the presence or absence of defects, the
compliance by the Seller or the Master Servicer with its
respective representations and warranties or for any other
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purpose; and
(h) whenever in the administration of this Pooling
Agreement the Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or
omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's
Certificate.
Section 11.03. Trustee Not Liable for Certificates or
Receivables. Except as set forth in Section 11.15, the Trustee
makes no representations as to the validity or sufficiency of
this Pooling Agreement or of the Certificates (other than the
certificate of authentication on the Certificates) or of any
Receivable or related document or any security interest of the
Trust therein. The Trustee shall not be accountable for the use
or application by the Seller of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of
any funds paid to the Seller in respect of the Receivables or
deposited in or withdrawn from the Collection Account or any
Series Account. The Trustee shall have no responsibility for
filing any financing or continuation statement in any public
office at any time or to otherwise perfect or maintain the
perfection of any security interest or Lien granted to it
hereunder (unless the Trustee shall have become the Successor
Master Servicer) or to prepare or file any Commission filing for
the Trust or to record this Pooling Agreement or any Supplement,
provided, however, that the Trustee, at the direction of the
Master Servicer, shall sign financing statements and continuation
statements prepared by the Master Servicer pursuant to Sections
3.02, 13.02 and 13.10.
Section 11.04. Trustee May Own Certificates. The Trustee
in its individual or any other capacity may become the owner or
pledgee of Investor Certificates and may deal with the Seller,
the Master Servicer and any Credit Enhancer with the same rights
as it would have if it were not the Trustee. The Trustee in its
capacity as Trustee shall exercise its duties and
responsibilities hereunder independent of and without reference
to its investment, if any, in Certificates.
Section 11.05. Trustee's Fees and Expenses. The Master
Servicer covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to receive, reasonable
compensation (which shall not be limited by any provision of law
in regard to the compensation of a trustee of an express trust)
for all services rendered by the Trustee in the execution of the
trusts hereby created and in the exercise and performance of any
of the powers and duties hereunder of the Trustee, and, subject
to Sections 3.02 and 8.04, the Master Servicer will pay or
reimburse the Trustee (without reimbursement from the Collection
Account or any Series Account) upon its request for all
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reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any of the provisions of this
Pooling Agreement (including the reasonable compensation and the
expenses and disbursements of its counsel and of all individuals
not regularly in its employ) incurred or made by the Trustee in
defense of any action brought against it in connection with the
Agreement except any such expense, disbursement or advance as may
arise from its negligence, willful misconduct, breach of
fiduciary duty or bad faith and except as provided in the second
following sentence. The Master Servicer's covenants to pay the
expenses, disbursements and advances provided for in the
preceding sentence shall survive the termination of this Pooling
Agreement. The Master Servicer hereby agrees that, from and
after the occurrence of a Pay Out Event, it shall pay the
Trustee's fees and expenses, prior to retaining for itself any
portion thereof, from all amounts available to or distributable
to the Master Servicer as servicing compensation from Trust
Assets. If the Trustee is appointed Successor Master Servicer
pursuant to Section 10.02, the provisions of this Section shall
not apply to expenses, disbursements and advances made or
incurred by the Trustee in its capacity as Successor Master
Servicer, which shall be covered out of the Servicing Fee;
provided, however, if such expenses, disbursements and advances
incurred by the Trustee are in amount in excess of the Servicing
Fee, such excess amount shall be paid in full to the Trustee by
the Bank. To the extent, if any, that any federal, state or
local taxes (including income and franchise taxes) are payable by
the Trust, such taxes shall not be payable out of the personal
assets of the Trustee, and the Master Servicer shall not be
obligated to pay the amount of any such tax.
Section 11.06. Eligibility Requirements for Trustee. The
Trustee and any successor Trustee appointed hereunder shall at
all times be a corporation organized and doing business under the
laws of the United States or any State, authorized under such
laws to exercise corporate trust powers, reasonably acceptable to
each Credit Enhancer as evidenced by such Credit Enhancer's
delivery of written consent to the appointment thereof, and, if
so specified in the related Supplement, reasonably acceptable to
the related Agent or the related Majority Holders, having a long-
term unsecured debt rating of at least Baa2 by Moody's and BBB by
Standard & Poor's (so long as Moody's and Standard & Poor's are
Rating Agencies), having a combined capital and surplus of at
least $100,000,000 and subject to supervision or examination by
federal or state authority. If the Trustee publishes reports of
condition at least annually, pursuant to law or to the
requirements of the aforesaid supervising or examining authority,
then, for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this
Section, the Trustee shall resign immediately in the manner and
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with the effect specified in Section 11.07.
Section 11.07. Resignation or Removal of Trustee.
(a) The Trustee may at any time resign and be discharged
from the trust hereby created by giving written notice thereof to
the Seller, the Master Servicer, each Agent, each Credit Enhancer
and, if so specified in the related Supplement, the related Agent
or the Majority Holders. Upon receiving such notice of
resignation, the Master Servicer shall promptly appoint a
successor Trustee meeting the requirement of Section 11.06 by
written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Trustee and one copy to the
successor Trustee. If no successor Trustee shall have been so
appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment
of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible
in accordance with Section 11.06 and shall fail to resign after
written request therefor by the Master Servicer, or if at any
time the Trustee shall be legally unable to act, or shall be
adjudged a bankrupt or insolvent, or if a receiver of the Trustee
or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
liquidation, or if the Trustee fails to perform its duties
hereunder or under any Supplement then the Master Servicer may
remove the Trustee, and, if so indicated in the related
Supplement, shall do so at the direction of any related Credit
Enhancer or the related Majority Holders. If the Master Servicer
shall remove the Trustee under the authority of the immediately
preceding sentence, the Master Servicer shall promptly appoint a
successor Trustee (subject to the provisions of Section 11.06) by
written instrument, in duplicate, one copy of which instrument
shall be delivered to the Trustee so removed and one copy to the
successor Trustee.
(c) Any resignation or removal of the Trustee and
appointment of a successor Trustee pursuant to this Section shall
not become effective until acceptance of appointment by the
successor Trustee as provided in Section 11.08 and any liability
of the Trustee arising hereunder shall survive such appointment
of a successor Trustee.
Section 11.08. Successor Trustee.
(a) Any successor Trustee appointed as provided in Section
11.07 shall execute, acknowledge and deliver to the Seller, the
Master Servicer, each Credit Enhancer, each Agent and to its
predecessor Trustee an instrument accepting such appointment
under this Pooling Agreement, and thereupon the resignation or
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removal of the predecessor Trustee shall become effective and
such successor Trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor under this
Pooling Agreement, with like effect as if originally named as
Trustee. The predecessor Trustee shall deliver to the successor
Trustee all documents or copies thereof, at the expense of the
Master Servicer, and statements held by it hereunder, and the
Seller, the Master Servicer and the predecessor Trustee shall
execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and
confirming in the successor Trustee all such rights, power,
duties and obligations. The Master Servicer shall immediately
give notice to each Rating Agency, each Credit Enhancer and the
Certificateholders of the appointment of a successor Trustee.
(b) No successor Trustee shall accept appointment as
provided in this Section unless at the time of such acceptance
such successor Trustee shall be eligible under the provisions of
Section 11.06.
(c) Upon acceptance of appointment by a successor Trustee
as provided in this Section, such successor Trustee shall mail
notice of such succession hereunder to each Rating Agency, Credit
Enhancer and Registered Certificateholder.
Section 11.09. Merger or Consolidation of Trustee. Any
Person into which the Trustee may be merged or converted or with
which it may be consolidated, or any Person resulting from any
merger, conversion or consolidation to which the Trustee shall be
a party, or any Person succeeding to all or substantially all of
the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such Person shall be
eligible pursuant to Section 11.06, without the execution or
filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
Notice of any such merger or consolidation shall be given by the
Trustee to each Rating Agency, Credit Enhancer and Registered
Certificateholder.
Section 11.10. Appointment of Co-Trustee or Separate
Trustee.
(a) Notwithstanding any other provisions of this Pooling
Agreement, for the purpose of meeting any legal requirements of
any jurisdiction in which any part of the Trust may at the time
be located, the Trustee shall have the power and may execute and
deliver all instruments to appoint one or more Persons to act as
a co-trustee or co-trustees, or separate trustee or separate
trustees, of all or any part of the Trust, and to vest in such
Person or Persons, in such capacity and for the benefit of the
Beneficiaries, such title to the Trust, or any part thereof, and,
subject to the other provisions of this Section, such powers,
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duties, obligations, rights and trusts as the Trustee may
consider necessary or desirable. No co-trustee or separate
trustee hereunder shall be required to meet the terms of
eligibility as a successor Trustee pursuant to Section 11.06 and
no notice to Rating Agencies, Credit Enhancers or Certificate-
holders of the appointment of any co-trustee or separate trustee
shall be required under Section 11.08.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the
following provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and
such separate trustee or co-trustee jointly (it being
understood that such separate trustee or co-trustee is not
authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be
performed (whether as Trustee or as Successor Master
Servicer), the Trustee shall be incompetent or unqualified
to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of
title to the Trust or any portion thereof in any such
jurisdiction) shall be exercised and performed singly by
such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no separate trustee or co-trustee hereunder shall
be personally liable by reason of any act or omission of any
other separate trustee or co-trustee hereunder, and the
Trustee shall not be liable by reason of any act or omission
of any separate trustee or co-trustee hereunder unless the
Trustee acted negligently or in bad faith in appointing such
separate trustee or co-trustee; and
(iii) the Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to
each of them. Every instrument appointing any separate trustee
or co-trustee shall refer to this Pooling Agreement and the
conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument
of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this
Pooling Agreement, specifically including every provision of this
Pooling Agreement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every
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such instrument shall be filed with the Trustee and a copy
thereof given to the Master Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee its agent or attorney-in-fact, with full
power and authority, to the extent not prohibited by law, to do
any lawful act under or in respect of this Pooling Agreement on
its behalf and in its name. If any separate trustee or
co-trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the
extent permitted by law, without the appointment of a new or
successor Trustee. Notwithstanding anything to the contrary in
this Pooling Agreement, the appointment of any separate trustee
or co-trustee shall not relieve the Trustee of any of its
obligations and duties under this Pooling Agreement not delegated
to such Co-trustee or separate trustee because of any conflict of
interest concerns.
Section 11.11. Tax Returns. In the event the Trust shall
be required to execute or file tax returns, the Master Servicer
shall, at its expense, prepare, or cause to be prepared, and
shall deliver, or cause to be delivered, to the Trustee no later
than five days immediately preceding any applicable due date, and
the Trustee shall promptly execute and/or file any tax returns to
be filed by the Trust. The Trustee is hereby authorized to sign
any such return on behalf of the Trust. The Master Servicer in
accordance with the terms of the Supplements shall also prepare
or shall cause to be prepared all tax information required by law
to be distributed to the Certificateholders and shall deliver
such information to the Trustee at least five days prior to the
date it is required by law to be distributed to Certificate-
holders. The Trustee will distribute, or cause to be
distributed, such information to the Certificateholders. The
Master Servicer, upon request, will furnish the Trustee with all
such information known to the Master Servicer as may be
reasonably required in connection with the preparation of all tax
returns of the Trust or in connection with the distribution of
tax information to the Certificateholders. The Trustee, upon
request, will furnish the Master Servicer with all such
information known to the Trustee as may be reasonably required in
connection with the preparation of all tax returns of the Trust
and shall, upon request, execute such returns. In no event shall
the Trustee or the Master Servicer be liable for any liabilities,
costs or expenses of the Trust, the Certificateholders or the
Certificate Owners arising under any tax law, including without
limitation federal, state, local or foreign income or excise
taxes or any other tax imposed on or measured by income (or any
interest or penalty or addition with respect thereto or arising
from a failure to comply therewith).
Section 11.12. Trustee May Enforce Claims Without
Possession of Certificates. All rights of action and claims
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under this Pooling Agreement or the Certificates may be
prosecuted and enforced by the Trustee without the possession of
any of the Certificates or the production thereof in any
proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee. Any
recovery of judgment shall, after provision for the payment of
the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, be for the ratable
benefit of any Series or Class of Certificateholders in respect
of which such judgment has been obtained.
Section 11.13. Suits for Enforcement. If a Servicer
Default of which a Responsible Officer of the Trustee has actual
knowledge shall occur and be continuing, the Trustee, in its
discretion may, subject to the provisions of Section 10.01,
proceed to protect and enforce its rights and the rights of any
Beneficiary under this Pooling Agreement by suit, action or
proceeding in equity or at law or otherwise, whether for the
specific performance of any covenant or agreement contained in
this Pooling Agreement or any Supplement or in aid of the
execution of any power granted in this Pooling Agreement or any
Supplement or for the enforcement of any other legal, equitable
or other remedy as the Trustee, being advised by counsel, shall
deem most effectual to protect and enforce any of the rights of
the Trustee or any affected Series of Certificateholders.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any
Certificateholder any plan of reorganization, arrangement,
adjustment or composition affecting the Certificates or the
rights of any Holder, or authorize the Trustee to vote in respect
of the claim of any Certificateholder in any such proceeding.
Section 11.14. Rights of Certificateholder to Direct
Trustee. Except as otherwise provided in the related Supplement,
Holders of Investor Certificates evidencing more than 50% of the
Aggregate Invested Amount (or, with respect to any remedy, trust
or power that does not relate to all Series, 50% of the related
Invested Amounts of the Investor Certificates of all Series to
which such remedy, trust or power relates) or such greater
percentage as is specified herein or in the related Supplement,
shall have the right to direct the time, method, and place of
conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that, subject to Section 11.01, the
Trustee shall have the right to decline to follow any such
direction if the Trustee being advised by counsel determines that
the action so directed may not lawfully be taken, or if the
Trustee in good faith shall, by a Responsible Officer or
Responsible Officers, determine that the proceedings so directed
would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Certificateholders not parties to
such direction; and provided further that nothing in this Pooling
Agreement shall impair the right of the Trustee to take any
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action deemed proper by the Trustee and which is not inconsistent
with such direction of such Holders.
Section 11.15. Representations and Warranties of Trustee.
The Trustee represents and warrants that:
(i) the Trustee is a banking corporation organized,
validly existing and in good standing under the laws of the
United States.
(ii) the Trustee has full power, authority and right to
execute, deliver and perform this Pooling Agreement and each
Supplement, and has taken all necessary action to authorize
the execution, delivery and performance by it of this
Pooling Agreement and each Supplement; and
(iii) this Pooling Agreement and each Supplement has
been, or will be, as applicable, duly executed and delivered
by the Trustee.
Section 11.16. Maintenance of Office or Agency. The
Trustee will maintain at its expense in the Borough of Manhattan,
The City of New York, an office or offices or agency or agencies
where notices and demands to or upon the Trustee in respect of
the Certificates and this Pooling Agreement may be served. The
Trustee initially designates its office at One Chase Manhattan
Plaza, New York, New York as its office for such purposes in New
York. The Trustee will give prompt written notice to the Seller,
the Master Servicer, each Credit Enhancer and to the
Certificateholders of any change in the location of the
Certificate Register or any such office or agency.
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ARTICLE TWELVE
TERMINATION
Section 12.01. Termination of Trust. The Trust and the
respective obligations and responsibilities of the Seller, the
Master Servicer and the Trustee created hereby (other than the
obligation of the Trustee to make payments to Certificateholders
and Credit Enhancers as hereafter set forth) shall terminate,
except with respect to the duties described in Sections 7.03,
8.04, 11.05 and 12.02(b), on the Trust Termination Date. The
Master Servicer will give each Rating Agency prompt notice of the
termination of the Trust.
Section 12.02. Final Distribution.
(a) The Master Servicer shall give the Trustee and each
Credit Enhancer at least 30 days' prior notice of the
Distribution Date on which the respective Certificateholders of
any Series or Class may surrender their respective Certificates
for payment of the final distribution on and cancellation of such
Certificates (or, in the event of a final distribution resulting
from the application of Section 2.03(b), 9.02 or 10.02, notice of
such Distribution Date promptly after the Master Servicer has
determined that a final distribution will occur, if such
determination is made less than 30 days prior to such
Distribution Date). Such notice shall be accompanied by an
Officer's Certificate setting forth the information specified in
Section 3.05(b) covering the period during the then-current
calendar year through the date of such notice. Not later than
the related Record Date for the Distribution Date for which the
final distribution in respect of such Series or Class is payable,
the Trustee shall provide notice to the related Certificate-
holders and each related Credit Enhancer specifying (i) the
Distribution Date upon which final payment of such Series or
Class will be made upon presentation and surrender of the related
Certificates at the office or offices therein designated, (ii)
the amount of any such final payment and (iii) that the Record
Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and
surrender of the related Certificates at the office or offices
therein specified (which, in the case of Bearer Certificate,
shall be outside the United States). The Trustee shall give such
notice to the Transfer Agent and Registrar and each Rating Agency
at the time such notice is given to the related Certificate-
holders.
(b) Notwithstanding a final distribution to the
Certificateholders of any Series or Class or the termination of
the Trust, except as otherwise provided in this subsection (b),
all funds then on deposit in the Collection Account, any related
Collection Subaccount, the Excess Funding Account and any Series
Account allocable to such Certificateholders shall continue to be
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held in trust for the benefit of such Certificateholders, and the
Trustee shall pay such funds to such Certificateholders upon
surrender of the related Certificates (and any excess shall be
paid to the related Credit Enhancer in satisfaction of any
Unreimbursed Credit Enhancer Amounts or otherwise in accordance
with the terms of any related Credit Enhancement Agreement or
released to the Holder of the Seller Certificate). In the event
that all such Certificateholders shall not surrender their
Certificates for cancellation within six months after the date
specified in the notice from the Trustee described in
Section 12.02(a), the Trustee shall give a second notice to the
remaining such Certificateholders to surrender their Certificates
for cancellation and receive the final distribution with respect
thereto (which surrender and payment, in the case of Bearer
Certificates, shall be outside the United States). If within one
year after the second notice all such Certificates shall not have
been surrendered for cancellation, the Trustee may take
appropriate steps, or may appoint an agent to take appropriate
steps, to contact the remaining such Certificateholders
concerning surrender of their Certificates, and the cost thereof
shall be paid out of the funds in the Collection Account, any
related Collection Subaccount, the Excess Funding Account or, if
applicable, any Series Account held for the benefit of such
Certificateholders. The Trustee shall pay to each Credit
Enhancer, pro rata on the basis of the related Unreimbursed
Credit Enhancer Amounts, any monies held by it for the payment of
principal or interest that remain unclaimed for two years, and
shall release any remaining amounts thereof to the Holder of the
Seller Certificate. After payment to the Seller, Certificate-
holders entitled to the money must look to the Seller for payment
as general creditors unless an applicable abandoned property law
designates another Person. All Certificates surrendered for
payment of the final distribution with respect to such
Certificates and cancellation shall be canceled by the Transfer
Agent and Registrar and be disposed of in a manner satisfactory
to the Trustee.
(c) All principal or interest with respect to any Series or
Class of Investor Certificates shall be due and payable no later
than the Series Termination Date with respect to such Series.
Unless otherwise provided in a Supplement, in the event that the
Invested Amount or outstanding principal balance of any Series or
Class is greater than zero on the Determination Date preceding
the related Series Termination Date (after giving pro forma
effect to all allocations, distributions, deposits and
withdrawals and distributions otherwise to be made on such Series
Termination Date), the Trustee will on such Determination Date
give each related Credit Enhancer notice by facsimile
transmission of such fact and, unless otherwise directed in
writing by any related Credit Enhancer on or before such Series
Termination Date, use its best efforts to sell or cause to be
sold on or before such Series Termination Date Principal
Receivables together with the related Finance Charge Receivables
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(or interests therein) in an amount up to 110% of each related
Invested Amount or outstanding principal balance as of the close
of business on such Determination Date (not to exceed the related
Principal Allocation Percentage of the Aggregate Principal
Receivables Amount), and shall apply the proceeds to the extent
necessary to pay the related Certificateholders in full. The net
proceeds (the "Termination Proceeds") of such sale immediately
shall be deposited into the Collection Account for the benefit of
the related Certificateholders. The Termination Proceeds shall
be allocated and distributed in accordance with the terms of the
related Supplement. To the extent that such Termination Proceeds
will be inadequate to pay in full the Investor Certificates on
the Series Termination Date), to the extent set forth in the
related Supplement, amounts will be drawn under any related
Credit Enhancement, up to the amount of such deficiency, and
distributed to the related Certificateholders. Any proceeds in
excess of the foregoing payment amounts will be distributed in
accordance with the related Supplement.
Section 12.03. Seller's Termination Rights. Upon the
termination of the Trust pursuant to Section 12.01 and the
surrender of the Seller Certificate, the Trustee shall sell,
assign and convey to the Seller or its designee, without
recourse, representation or warranty, all right, title and
interest of the Trust in the Receivables, whether then existing
or thereafter created, all Collateral Security with respect
thereto, all monies due or to become due and all amounts received
with respect thereto and all proceeds thereof, except for amounts
held by the Trustee pursuant to Section 12.02(b), and all of the
Seller's rights, remedies, powers and privileges with respect to
such Receivables under any Related Document. The Trustee shall
execute and deliver such instruments of transfer and assignment,
in each case without recourse, as shall be reasonably requested
by the Seller to vest in the Seller or its designee all right,
title and interest which the Trust had in all such property.
Section 12.04. Optional Purchase.
(a) If so provided in any Supplement, the Seller may, but
shall not be obligated to, repurchase the Investor Certificates
of the related Series by causing a final distribution to be made
in respect of the related Series on a Distribution Date specified
in such Supplement by depositing into the Collection Account or
the specified Series Account, not later than the Deposit Date
preceding such Distribution Date, for application in accordance
with Section 12.03, the amount specified in such Supplement;
provided, however, that unless the short-term deposits or
obligations of the Seller are rated at the time of such purchase
of Receivables at least P-2 or A-2, respectively, by Moody's or
Standard & Poor's (or, if neither such deposits nor such
obligations of the Seller are rated by Moody's or Standard &
Poor's, and CFC is the direct or indirect holding company of the
Seller, the long-term senior debt obligations of CFC are rated at
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least Baa2 by Moody's), no such event shall occur unless the
Seller shall deliver an Opinion of Counsel to the Trustee and
each Credit Enhancer reasonably acceptable to each of them that
such deposit would not constitute a fraudulent conveyance or a
voidable preference.
(b) The amount deposited pursuant to Section 12.04(a) shall
be paid to the Investor Certificateholders of the related Series
pursuant to Section 12.02 on the related Distribution Date
following the date of such deposit. All Certificates of a Series
which are purchased by the Seller pursuant to Section 12.04(a)
shall be delivered by the Seller upon such purchase to, and be
canceled by, the Transfer Agent and Registrar and be disposed of
in a manner satisfactory to the Trustee and the Seller. The
Certificateholders' Interest of each Series which is purchased by
the Seller pursuant to Section 12.04(a) shall, for the purposes
of the definition of "Seller Interest," be deemed to be equal to
zero on the Distribution Date following the making of the
deposit, and the Seller Interest shall thereupon be deemed to
have been increased thereby.
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ARTICLE THIRTEEN
MISCELLANEOUS PROVISIONS
Section 13.01. Amendment.
(a) This Pooling Agreement or any Supplement, respectively,
may be amended from time to time by the Seller, the Master
Servicer and the Trustee, with the consent of each Credit
Enhancer or each related Credit Enhancer, as the case may be,
without the consent of any Certificateholder, provided that such
action shall not (i) result in a Ratings Effect (as evidenced by
written notice to such effect to the Trustee from each Rating
Agency and each Credit Enhancer) and (ii) as evidenced by an
Opinion of Counsel delivered by the Seller to the Trustee and
each Credit Enhancer, or each related Credit Enhancer, as the
case may be, adversely affect in any material respect the
interests of any Beneficiary and written notice thereof shall
have provided to each. Notwithstanding anything contained herein
to the contrary, the Trustee, with the consent of any Credit
Enhancer, may at any time and from time to time amend, modify or
supplement the form of Distribution Date Statement.
(b) This Pooling Agreement or any Supplement, respectively,
may also be amended from time to time by the Seller, the Master
Servicer and the Trustee, with the consent of (i) the Holders of
Investor Certificates evidencing not less than 50% of the
Aggregate Invested Amount, or of the sum of Invested Amounts or
Class Invested Amounts of each Series or Class of Investor
Certificates of all adversely affected Series, as the case may
be, and (ii) each Credit Enhancer or each related Credit
Enhancer, as the case may be, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the
provisions of this Pooling Agreement or any Supplement or of
modifying in any manner the rights of such Certificateholders;
provided, however, that no such amendment shall, without the
consent of all adversely affected Investor Certificateholders and
Credit Enhancers:
(i) reduce in any manner the amount of or delay the
timing of any distributions to be made to Certificate-
holders, deposits of amounts to be so distributed or the
amount available under any Credit Enhancement;
(ii) change the definition of or the manner of
calculating the Certificateholder's Interest of any Series;
(iii) reduce the amount available under any Credit
Enhancement; or
(iv) reduce the aforesaid percentage required to
consent to any such amendment.
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Any amendment described in clauses (i) through (iv) above shall
be deemed to adversely affect all outstanding Series and each
Credit Enhancer other than any Series or Credit Enhancer
specified in an Opinion of Counsel delivered by the Master
Servicer to the Trustee and each such Credit Enhancer to the
effect that such action will not adversely effect in any material
respect the interests of the related Investor Certificateholder
and such Credit Enhancer. The Trustee may, but shall not be
obligated to, enter into any amendment which affects the
Trustee's rights, duties or immunities under this Pooling
Agreement or any Supplement or otherwise.
(c) Promptly after the execution of any such amendment or
consent (other than an amendment pursuant to Section 13.01(a)),
the Trustee shall furnish notification of the substance of such
amendment to each affected Certificateholder, each related Agent
and each related Rating Agency and the Master Servicer shall
furnish a copy of each such amendment as executed to each Credit
Enhancer or each related Credit Enhancer, as the case may be.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section to approve the particular
form of any proposed amendment, but it shall be sufficient if
such consent shall approve the substance thereof. The manner of
obtaining such consents and of evidencing the authorization of
the execution thereof by Certificateholders shall be subject to
such reasonable requirements as the Trustee may prescribe.
(e) Notwithstanding anything in this Section to the
contrary, no amendment may be made to this Pooling Agreement
which would adversely affect in any material respect the
interests of any Credit Enhancer without the consent of such
Credit Enhancer.
(f) Any Supplement executed in accordance with the
provisions of Section 6.03 and any amendments regarding the
addition to or removal of Receivables from the Trust as provided
in Article Two or Article Eight, executed in accordance with the
provisions hereof, shall not be considered an amendment to this
Pooling Agreement for the purposes of this Section.
(g) The Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Trustee's rights,
duties or immunities under this Agreement or otherwise.
(h) The Trustee may request an Opinion of Counsel from the
Seller or Master Servicer to the effect that any proposed
amendment complies with all requirements of this Agreement,
substantially in the form of Exhibit F-2.
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Section 13.02. Protection of Right, Title and Interest to
Trust.
(a) The Master Servicer shall cause this Pooling Agreement,
all amendments hereto and all financing statements and
continuation statements and any other necessary documents
covering the Certificateholders' Interest and the Trustee's
right, title, and interest in and to the Trust to be promptly
recorded, registered and filed, and at all times to be kept
recorded, registered and filed, all in such manner and in such
places as may be required by law fully to preserve and protect
the right, title and interest of the Certificateholders, each
Credit Enhancer and the Trustee hereunder to all property
comprising the Trust. The Master Servicer shall deliver to the
Trustee file-stamped copies of, or filing receipts for, any
document recorded, registered or filed as provided above, as soon
as available following such recording, registration or filing.
The Seller and Master Servicer shall cooperate fully with the
Master Servicer in connection with the obligations set forth
above and will execute any and all documents reasonably required
to fulfill the intent of this Section.
(b) Within 30 days after the Seller or the Master Servicer
makes any change in its name, identity or corporate structure
which would make any financing statement or continuation
statement filed in accordance with Section 13.02(a) seriously
misleading within the meaning of Section 9-402(7) of the South
Carolina UCC, the Seller and Master Servicer shall give the
Trustee and each Credit Enhancer notice of any such change and
shall file such financing statements or amendments as may be
necessary to continue the perfection of the Trust's security
interest in the Receivables and the proceeds thereof.
(c) The Seller and the Master Servicer will give the
Trustee and each Credit Enhancer prompt written notice of any
relocation of any office from which it services Receivables or
keeps records concerning the Receivables or of its principal
executive office and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any
amendment of any previously filed financing or continuation
statement or of any new financing statement, and shall file such
financing statements or amendments as may be necessary to perfect
or to continue the perfection of the Trust's ownership interest
or security interest in the Receivables and the proceeds thereof.
In connection with giving notice of relocation of any office from
which Receivables are serviced or where records concerning the
Receivables are kept, the Seller or the Master Servicer, as the
case may be, will amend Schedule 3 hereto. The Seller and the
Master Servicer shall at all times maintain each office from
which it services Receivables and its principal executive office
within the United States.
(d) The Master Servicer will deliver to the Trustee and
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each Credit Enhancer, on March 31 of each year, beginning with
March 31, 1996, and upon the execution and delivery of each
amendment of this Pooling Agreement or any Supplement, an Opinion
of Counsel to the effect specified in Exhibit F-3.
Section 13.03. Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Certificateholder shall
not operate to terminate this Pooling Agreement or the Trust, nor
shall such death or incapacity entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take
any action or commence any proceeding in any court for a
partition or winding-up of the Trust, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any
of them.
(b) No Investor Certificateholder shall have any right to
vote (except as expressly provided in this Pooling Agreement) or
in any manner otherwise control the operation and management of
the Trust, or the obligations of the parties hereto, nor shall
anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Investor
Certificateholders (other than Investor Certificateholders
holding Certificates of a subordinated Series or Class) from time
to time as partners or members of an association, nor shall any
Investor Certificateholder be under any liability to any third
person by reason of any action taken by the parties to this
Pooling Agreement pursuant to any provision hereof.
(c) No Investor Certificateholder shall have any right by
virtue of any provisions of this Pooling Agreement to institute
any suit, action or proceeding in equity or at law upon or under
or with respect to this Pooling Agreement, unless (i) the Holders
of Investor Certificates evidencing more than 50% of the
Aggregate Invested Amount of all Investor Certificates (or, with
respect to any such action, suit or proceeding that does not
relate to all Series, 50% of the aggregate of the related
Invested Amounts of all Series to which such action, suit or
proceeding relates) shall have made a request to the Trustee to
institute such action, suit or proceeding in its own name as
Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as the Trustee may require against the
costs, expenses and liabilities to be incurred therein or
thereby, (ii) the Trustee, for 60 days after such request and
offer of indemnity, shall have neglected or refused to institute
any such action, suit or proceeding and (iii) unless a Credit
Enhancer Default has occurred and is continuing with respect to
such Credit Enhancer, each Credit Enhancer shall have consented
thereto.
It is understood and intended, and expressly covenanted by
each Certificateholder with every other Certificateholder and the
Trustee, that no one or more Certificateholders shall have any
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right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Pooling Agreement to affect,
disturb or prejudice the rights of the Holders of any other of
the Certificates, or to obtain or seek to obtain priority over or
preference to any other such Certificateholder, or to enforce any
right under this Pooling Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all
Certificateholders except as otherwise expressly provided in this
Pooling Agreement. For the protection and enforcement of the
provisions of this Section, each and every Certificateholder and
the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Section 13.04. No Petition. The Master Servicer and the
Trustee, by entering into this Pooling Agreement, each Holder of
an Investor Certificate, by accepting an Investor Certificate (or
a beneficial interest therein), and any Successor Master Servicer
and each other Beneficiary, by accepting the benefits of this
Pooling Agreement, hereby covenants and agrees that they will not
at any time institute against the Seller or CFC any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal
or state bankruptcy or similar law.
Section 13.05. GOVERNING LAW. THIS POOLING AGREEMENT SHALL
BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND
THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 13.06. Notices.
(a) All demands, notices, instructions, directions and
communications (collectively, "Notices") under this Pooling
Agreement shall be in writing (including telegraphic, telecopy,
telex or cable communication) and shall be deemed to have been
duly given if personally delivered or mailed by registered mail,
return receipt requested, or telegraphed, telecopied, telexed,
cabled or delivered, to:
(i) in the case of the Bank: 102 South Main Street,
Greenville, South Carolina 29601; Attention:_____________
(facsimile (803) 239-4605);
(ii) in the case of the Trustee, 4 Chase MetroTech
Center, Brooklyn, New York 11245; Attention: Institutional
Trust Group (facsimile (718) 242-7290);
(iii) in the case of any Rating Agency, at the address
set forth in the definition corresponding to the name
thereof;
(iv) in the case of any Credit Enhancer, at the address
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set forth in the related Supplement; and
(v) in the case of any Agent, at the address set forth
in the related Supplement;
or, at such other address as shall be designated by such Person
in a written notice to each party.
(b) Any Notice required or permitted to be given to a
Holder of Registered Certificates shall be given by first-class
mail, postage prepaid, at the address of such Holder as shown in
the Certificate Register. No Notice shall be required to be
mailed to a Holder of Bearer Certificates or Coupons, but shall
be given as provided below. Any Notice so mailed within the time
prescribed in this Pooling Agreement shall be conclusively
presumed to have been duly given, whether or not the Certificate-
holder actually receives such Notice. In addition, in the case
of any Series or Class with respect to which any Bearer
Certificates are outstanding, any Notice required or permitted to
be given to Certificateholders of such Series or Class shall be
published in an Authorized Newspaper within the time period
prescribed in this Pooling Agreement.
Section 13.07. Severability of Provisions. If any one or
more of the covenants, agreements, provisions or terms of this
Pooling Agreement shall for any reason whatsoever be held
invalid, then such covenants, agreements, provisions or terms
shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Pooling Agreement and
shall in no way affect the validity or enforceability of the
other provisions of this Pooling Agreement or of the Certificates
or rights of the Certificateholders or any Credit Enhancer.
Section 13.08. Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Sections 3.01
and 8.02, this Pooling Agreement may not be assigned by the
Master Servicer.
Section 13.09. Certificates Nonassessable and Fully Paid.
It is the intention of the parties to this Pooling Agreement that
the Certificateholders shall not be personally liable for
obligations of the Trust, that the interests in the Trust
represented by the Investor Certificates shall be nonassessable
for any losses or expenses of the Trust or for any reason
whatsoever and that Investor Certificates upon authentication
thereof by the Trustee in accordance with the terms hereof are
and shall be deemed fully paid.
Section 13.10. Further Assurances. Each of the Seller, the
Master Servicer and the Trustee agrees to do and perform, from
time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by one or more of
the other parties hereto more fully to effect the purposes of
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this Pooling Agreement, including the execution of any financing
statements or continuation statements relating to the Receivables
for filing under the provisions of the UCC of any applicable
jurisdiction.
Section 13.11. No Waiver; Cumulative Remedies. No failure
to exercise and no delay in exercising, on the part of the
Trustee, the Certificateholders, the Seller, the Master Servicer
or any Credit Enhancer, as the case may be, any right, remedy,
power or privilege under this Pooling Agreement shall operate as
a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege under this Pooling Agreement
preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights,
remedies, powers and privileges provided under this Pooling
Agreement are cumulative and not exhaustive of any rights,
remedies, powers and privileges provided by law.
Section 13.12. Counterparts. This Pooling Agreement may be
executed in two or more counterparts (and by different parties on
separate counterparts), each of which shall be an original, but
all of which together shall constitute one and the same
instrument.
Section 13.13. Third-Party Beneficiaries. This Pooling
Agreement will inure to the benefit of and be binding upon the
parties hereto, the Certificateholders and the other
Beneficiaries and their respective successors and permitted
assigns. Except as otherwise expressly provided in this Pooling
Agreement, no other Person will have any right or obligation
hereunder.
Section 13.14. Actions by Certificateholders. Any request,
demand, authorization, direction, notice, consent, waiver or
other act by a Certificateholder shall bind such Certificate-
holder and every subsequent Holder of any Certificate issued upon
the registration of transfer of the Certificates of such
Certificateholder or in exchange therefor or in lieu thereof in
respect of anything done or omitted to be done by the Trustee or
the Master Servicer in reliance thereon, whether or not notation
of such action is made upon any such Certificate.
[Section 13.15. Rule 144A Information. For so long as any
of the Investor Certificates of any Series or Class are
"restricted securities" within the meaning of Rule 144(a)(3)
under the Securities Act, each of the Seller, the Master
Servicer, the Trustee and each Credit Enhancer agrees to
cooperate with each other to provide to any Certificateholders of
such Series or Class and to any prospective purchaser of Investor
Certificates designated by such Certificateholder, upon the
request of such Certificateholder or prospective purchaser, any
information required to be provided to such holder or prospective
purchaser to satisfy the condition set forth in Rule 144A(d)(4)
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under the Securities Act.]
Section 13.16. Merger and Integration. Except as
specifically stated otherwise herein, this Pooling Agreement sets
forth the entire understanding of the parties relating to the
subject matter hereof, and all prior understandings, written or
oral, are superseded by this Pooling Agreement. This Pooling
Agreement may not be modified, amended, waived or supplemented
except as provided herein.
Section 13.17. Headings. The headings herein are for
purposes of reference only and shall not otherwise affect the
meaning or interpretation or any provision hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Pooling and Servicing Agreement to be duly executed by their
respective officers as of the day and year first above written.
CAROLINA FIRST BANK,
as Seller and Master Servicer
By:
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.
as Trustee
By:
Name:
Title:
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EXHIBIT A
FORM OF SELLER CERTIFICATE
THIS CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED OTHER THAN
AS SET FORTH IN SECTION 6.04 OF THE POOLING AGREEMENT IN
CONNECTION WITH TRANSFERS TO A SUCCESSOR TO THE SELLER, AS
DESCRIBED IN SECTIONS 7.04 OF THE POOLING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS IN
RELIANCE ON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH
STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS
CERTIFICATE MAY BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS
MADE IN ACCORDANCE WITH SECTION 6.04 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN AND (B) IS MADE (I) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (II)
TO THE BANK OR (III) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT AND THAT IS AWARE THAT THE
RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A.
NEITHER THE BANK NOR THE TRUSTEE WILL BE OBLIGATED TO REGISTER
THIS CERTIFICATE UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS. IN THE EVENT THAT THE TRANSFER OF THIS
CERTIFICATE IS TO BE MADE, EITHER (A) AN OPINION OF COUNSEL OR
(B) A REPRESENTATION LETTER FROM THE PROSPECTIVE INVESTOR, IN
BOTH CASES IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND
THE BANK, ARE REQUIRED TO BE DELIVERED TO THE TRUSTEE AND THE
BANK, TO THE EFFECT THAT SUCH TRANSFER MAY BE MADE WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS. THIS CERTIFICATE WILL BE ELIGIBLE FOR PURCHASE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS THE TRUSTEE AND THE BANK SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE, TO
THE EFFECT THAT (A) SUCH TRANSFEREE WILL NOT ACQUIRE THIS
CERTIFICATE WITH THE ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A BENEFIT PLAN
DESCRIBED IN SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A "BENEFIT PLAN INVESTOR" (AS
SUCH TERM IS DEFINED UNDER THE DEPARTMENT OF LABOR REGULATIONS
PROMULGATED UNDER ERISA) OR (B) THAT SUCH TRANSFEREE IS A BENEFIT
PLAN OR IS ACQUIRING THIS CERTIFICATE WITH THE ASSETS OF A
BENEFIT PLAN OR A BENEFIT PLAN INVESTOR, AND IF THE
REPRESENTATION IN (B) IS MADE, SUCH TRANSFEREE SHALL DELIVER AN
OPINION OF COUNSEL, IN FORM AND CONTENT SATISFACTORY TO THE
TRUSTEE AND BANK, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF
A-1
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THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING
DEEMED TO BE "PLAN ASSETS" (AS SUCH TERM IS DEFINED UNDER ERISA),
WILL NOT SUBJECT THE ASSETS OF THE TRUST TO THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE, AND WILL NOT
SUBJECT THE TRUSTEE, SELLER OR MASTER SERVICER TO ANY OBLIGATION
IN ADDITION TO THOSE ALREADY UNDERTAKEN IN THE POOLING AGREEMENT.
No. S-1 One Unit
CAROLINA FIRST CREDIT CARD MASTER TRUST
SELLER CERTIFICATE
THIS CERTIFICATE REPRESENTS AN INTEREST
IN CERTAIN ASSETS OF THE
CAROLINA FIRST CREDIT CARD MASTER TRUST
Evidencing an interest in a trust, the assets of which consist
primarily of receivables generated from time to time in the
ordinary course of business in a portfolio of revolving credit
card accounts and a limited number of unsecured revolving line of
credit accounts owned by Carolina First Bank, a South Carolina
state-chartered bank.
(Not an interest in or obligation of
Carolina First Bank or any
affiliate thereof)
This certifies that CAROLINA FIRST BANK (the "Bank") is the
registered owner of a fractional interest in the assets of the
CAROLINA FIRST CREDIT CARD MASTER TRUST (the "Trust") not
allocated to the Certificateholders' Interest, pursuant to the
Pooling and Servicing Agreement dated as of December 31, 1994 (as
amended and supplemented, the "Pooling Agreement"), between the
Bank, as seller and master servicer (in such capacities, the
"Seller" and the "Master Servicer", respectively) and The Chase
Manhattan Bank, N.A., as trustee (the "Trustee"). The Trust
Assets consist of (a) all of the Seller's right, title and
interest in, to and under the Receivables in each Account or
Additional Account, as the case may be, owned by the Seller at
the close of business on the Cutoff Date, in the case of the
Initial Accounts, and on the applicable Additional Cutoff Date,
in the case of Additional Accounts, and in each case all
Receivables thereafter arising in such Accounts prior to any
related Removal Date and the Trust Termination Date, and all
monies due or to become due thereon, all amounts received with
respect thereto and all related Collateral Security, (b) such
funds as from time to time are deposited in or credited to the
Collection Account, the Excess Funding Account or any Series
Account and any Investment Proceeds with respect thereto, (c) any
rights the Seller may have with respect to any Credit Enhancement
or under any Credit Enhancement Agreement and (d) all proceeds
A-2
<PAGE>
thereof (as defined in Section 9-306 of the South Carolina UCC)
of all of the foregoing (including Recoveries on the
Receivables). Although a summary of certain provisions of the
Pooling Agreement is set forth below, this Certificate does not
purport to summarize the Pooling Agreement and reference is made
to the Pooling Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds and duties
evidenced hereby and the rights, duties and obligations of the
Trustee.
This Certificate is issued under and is subject to the
terms, provisions and conditions of the Pooling Agreement, to
which Pooling Agreement, as amended and supplemented from time to
time, the Bank by virtue of the acceptance hereof assents and is
bound.
The Receivables consist of (i) amounts charged by
cardholders for merchandise and services and amounts advanced as
cash advances to cardholders or cash advances to obligors under
unsecured revolving lines of credit (the "Principal Receivables")
and (ii) all periodic finance charges and amounts charged to the
Accounts in respect of cash advance fees, annual fees, late
payment and overlimit charges, and all other fees or charges
billed to cardholders or obligors in respect of the Accounts,
excluding such charges as the related Supplement specifies shall
be treated as additional servicing compensation (the "Finance
Charge Receivables"), unless the Master Servicer waives receipt
of such additional servicing compensation at which time such
collections will be treated as collections of Finance Charge
Receivables. Certain amounts collected on Accounts that have
been charged off as uncollectible by the Master Servicer (the
"Recoveries") will also be treated as collections of Finance
Charge Receivables.
This Certificate is the Seller Certificate, which represents
the Seller's Interest in certain assets of the Trust, including
the right to receive a portion of the Collections and other
amounts at the times and in the amounts specified in the Pooling
Agreement. The aggregate interest represented by this Seller
Certificate at any time in the Receivables in the Trust shall not
exceed the Seller Interest at such time. The Seller Amount will
fluctuate as the Aggregate Principal Receivables Amount changes
from time to time. The Seller Amount will be reduced in
connection with the issuance of additional Series from time to
time and by the amount of (i) each Advance made by the Holders of
Variable Funding Certificates, (ii) such additional amounts
(proportional to the amounts of each such Advance) as are
specified in any Supplement pursuant to which a subordinated
Series or Class is issued that provides credit support for any
Series or Class of Variable Funding Certificates and (iii) the
amount of each Adjustment that is not allocated to the
certificateholders' interest of any Series.
A-3
<PAGE>
In addition to this Seller Certificate, Investor
Certificates will be issued pursuant to the Pooling Agreement,
which, in the aggregate, will represent the Certificateholders'
Interest. This Seller Certificate shall represent an interest
in the Collection Account, the Excess Funding Account and certain
Series Accounts and Credit Enhancements, which interest in each
case is subordinate to the interests of all or the related
Investor Certificateholders and Credit Enhancers, as set forth in
the Pooling Agreement.
On any date on which the Seller Amount is less than the
Required Seller Amount or on which the Aggregate Principal
Receivables Amount is less than the Required Balance, (i)
Collections of Principal Receivables allocable to the Seller
Interest or allocable to the Certificateholders' Interest of
other Series and in excess of amounts required to be distributed
thereto or deposited in the Excess Funding Account and (ii)
amounts on deposit in the Excess Funding Account in excess of the
amount required to be on deposit therein, which amounts otherwise
would be distributable to the Holder of the Seller Certificate,
will not be so distributable. In addition, Collections of
Finance Charge Receivables allocable to the Seller Interest will
be subordinated to certain payments and required deposits in
respect of each outstanding Series and Class of Investor
Certificates.
The Bank has entered into the Pooling Agreement and this
Certificate is issued with the intention that, for U.S. federal,
state, local and non-U.S. income and franchise tax purposes only,
some or all Classes of Investor Certificates (as identified in
such Investor Certificates) will qualify as indebtedness of the
Bank secured by the Trust Assets. The Bank, by entering into the
Pooling Agreement and by the acceptance of this Certificate,
agrees to treat such Investor Certificates for U.S. federal,
state, local and non-U.S. income and franchise tax purposes as
indebtedness of the Bank so secured.
Subject to certain conditions and exceptions specified in
the Pooling Agreement, the obligations created by the Pooling
Agreement and the Trust created thereby shall terminate upon the
earlier of (i) the day after the Distribution Date with respect
to which, pursuant to this Pooling Agreement, funds shall have
been deposited in the Collection Account for the payment in full
of the Investor Certificateholders of each outstanding Series in
an amount sufficient to pay in full the aggregate of the Invested
Amounts of all outstanding Series plus accrued and unpaid
interest thereon at the applicable certificate rates through such
date, or (ii) December 1, 2015.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature,
this Certificate shall not be entitled to any benefit under the
Pooling Agreement or be valid for any purpose.
A-9
<PAGE>
IN WITNESS WHEREOF, the Seller has caused this Certificate
to be executed by its officer or agent thereunto duly authorized.
CAROLINA FIRST BANK
as Seller,
Dated: ___________, ____
By: THE CHASE MANHATTAN BANK, N.A.
as Trustee
By: _____________________________
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
Dated: ____________, ____
By: _____________________________
Name:
Title:
A-5
<PAGE>
EXHIBIT B
FORM OF SELLER ASSIGNMENT
ASSIGNMENT NO. _____ OF __________ RECEIVABLES
IN ADDITIONAL ACCOUNTS
dated as of __________, ____,
between Carolina First Bank, as seller and
master servicer (in such capacities the "Seller"
and the "Master Servicer", respectively),
and The Chase Manhattan Bank, N.A., as trustee (the "Trustee"),
pursuant to the Pooling and Servicing Agreement
referred to below.
W I T N E S S E T H :
WHEREAS the Seller, the Master Servicer and the Trustee are
parties to a Pooling and Servicing Agreement dated as of
December 31, 1994 (as amended or supplemented, the "Pooling
Agreement");
WHEREAS, pursuant to the Pooling Agreement, the Seller
wishes to designate Additional Accounts to be included as
Accounts and to convey the Receivables of such Additional
Accounts, whether now existing or hereafter created, to the Trust
as part of the corpus of the Trust (as each such term is defined
in the Pooling Agreement); and
WHEREAS the Trustee is willing to accept such designation
and conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed thereto in the
Pooling Agreement.
"Addition Date" means, with respect to the Additional
Accounts designated hereby, ________________, ____.
2. Designation of Additional Accounts. The Seller hereby
delivers herewith a revised Schedule of Accounts, together with a
computer file or microfiche or written list containing a true and
complete list of all such Additional Accounts specifying for each
such Account, as of the Additional Cutoff Date, its account
number, the aggregate amount of Receivables outstanding in such
Account and the aggregate amount of Principal Receivables in such
Account.
B-1
<PAGE>
3. Conveyance of Receivables.
(a) The Seller does hereby transfer, assign, set-over and
otherwise convey, without recourse (except as expressly provided
in the Pooling Agreement), to the Trust for the benefit of the
Certificateholders and the other Beneficiaries, all its right,
title and interest in, to and under the Receivables in such
Additional Accounts and all Collateral Security with respect
thereto, owned by the Seller and existing at the close of
business on the Additional Cutoff Date and thereafter created
from time to time until the termination of the Trust, all monies
due or to become due and all amounts received with respect
thereto and all proceeds thereof (including "proceeds" as defined
in Section 9-306 of the South Carolina UCC and Recoveries). The
foregoing transfer, assignment, set-over and conveyance does not
constitute and is not intended to result in the creation or an
assumption by the Trust, the Trustee or any Beneficiary of any
obligation of the Master Servicer, the Seller, the Master
Servicer or any other Person in connection with the Accounts, the
Receivables or under any agreement or instrument relating
thereto, including any obligation to any Obligors.
(b) In connection with such sale, the Seller agrees, if
necessary, to record and file, at its own expense, a financing
statement on form UCC-l (and continuation statements when
applicable) with respect to the Receivables now existing and
hereafter created for the sale of "accounts" or "general
intangibles" (as defined in Section 9-106 of the UCC as in effect
in any state where the Seller's chief executive offices or books
and records relating to the Receivables are located) meeting the
requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect the sale and assignment
of the Receivables and the Collateral Security to the Trust, and
to deliver a file-stamped copy of such financing statements or
other evidence of such filing to the Trustee on or prior to the
Addition Date. The Trustee shall be under no obligation
whatsoever to file such financing statement, or a continuation
statement to such financing statement, or to make any other
filing under the UCC in connection with such sales.
(c) In connection with such conveyance the Seller further
agrees, at its own expense, on or prior to the Addition Date, to
indicate in its computer files as required by the Assignment
Pooling Agreement that the Receivables created in connection with
the Additional Accounts designated hereby have been sold and the
Collateral Security assigned to the Trust pursuant to this
Assignment for the benefit of the Certificateholders and the
other Beneficiaries.
4. Acceptance by Trustee. Subject to the satisfaction of
the conditions set forth in Section 6 of this Assignment, the
Trustee hereby acknowledges its acceptance, on behalf of the
B-2
<PAGE>
Trust, of all right, title and interest previously held by the
Seller to the property, now existing and hereafter created,
conveyed to the Trust pursuant to Section 3(a) of this
Assignment, and declares that it shall maintain such right, title
and interest, upon the trusts set forth in the Pooling Agreement
for the benefit of the Certificateholders and other
Beneficiaries. The Trustee further acknowledges that, prior to
or simultaneously with the execution and delivery of this
Assignment, the Seller delivered to the Trustee the computer file
or microfiche or written list relating to the Additional Accounts
described in Section 2 of this Assignment. The Trustee shall be
under no obligation whatsoever to verify the accuracy or
completeness of the information contained in such file or list.
5. Representations and Warranties of The Seller. The
Seller hereby represents and warrants to the Trustee, on behalf
of the Trust, as of the date of this Assignment and as of the
Addition Date that:
(a) Legal, Valid and Binding Obligation. This
Assignment constitutes a legal, valid and binding obligation
of the Seller, enforceable against the Seller in accordance
with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect
affecting creditors' rights in general or the rights of
creditors of depository institutions the accounts of which
are insured by the FDIC and except as such enforceability
may be limited by general principles of equity (whether
considered in a suit at law or in equity) and the
availability of equitable remedies;
(b) Organization and Good Standing. The Seller has
been duly organized and is validly existing and in good
standing as a South Carolina state-chartered bank under the
laws of the State of Delaware and has, in all material
respects, full corporate power, authority and legal right to
own its properties and conduct its business as such
properties are presently owned and such business is
presently conducted, and to execute, deliver and perform its
obligations under this Assignment;
(c) Due Qualification. The Seller is duly qualified
to do business and, where necessary, is in good standing as
a foreign corporation (or is exempt from such requirement)
and has obtained all necessary licenses and approvals in
each jurisdiction in which the conduct of its business
requires such qualification except where the failure to so
qualify or be in good standing or obtain licenses or
approvals would not have a material adverse effect on its
ability to perform its obligations hereunder;
(d) Eligible Accounts. Each Additional Account
B-3
<PAGE>
designated hereby is an Eligible Account;
(e) Selection Procedures. No selection procedures
reasonably believed by the Seller to be adverse to the
interests of the Beneficiaries were utilized in selecting
the Additional Accounts designated hereby;
(f) Insolvency. As of the Notice Date and the
Addition Date, the Seller is not insolvent nor, after giving
effect to the conveyance set forth in Section 3 of this
Assignment, will it have been made insolvent, nor is it
aware of any pending insolvency;
(g) Valid Transfer. This Assignment constitutes a
valid transfer and assignment to the Trust of all right,
title and interest of the Seller in the Receivables and any
Collateral Security and the proceeds thereof and upon the
filing of the financing statements described in Section 3 of
this Assignment with the Secretary of State of the State of
South Carolina grants to the Trust under the South Carolina
UCC a first priority perfected ownership interest in such
property, except for Liens permitted under Section 2.06(a)
of the Pooling Agreement. Except as otherwise provided in
the Pooling Agreement, neither the Seller nor any Person
claiming through or under the Seller has any claim to or
interest in the Trust Assets;
(h) Due Authorization. The execution and delivery of
this Assignment and the consummation of the transactions
provided for or contemplated by this Assignment have been
duly authorized by the Seller by all necessary corporate
action on the part of the Seller;
(i) No Conflict. The execution and delivery of this
Assignment, the performance of the transactions contemplated
by this Assignment and the fulfillment of the terms hereof,
will not conflict with, result in any breach of any of the
material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a material default
under, any indenture, contract, agreement, mortgage, deed of
trust, or other instrument to which the Seller is a party or
by which it or its properties are bound, except to the
extent that such conflict breach or default will not have a
material adverse effect on the Seller's ability to perform
its obligations hereunder and thereunder;
(j) No Violation. The execution and delivery of this
Assignment by the Seller, the performance of the
transactions contemplated by this Assignment and the
fulfillment of the terms hereof applicable to the Seller
will not conflict with or violate any material Requirements
of Law applicable to the Seller;
B-4
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(k) No Proceedings. There are no proceedings or, to
the best knowledge of the Seller, investigations pending or
threatened against the Seller before any Governmental
Authority (i) asserting the invalidity of this Assignment,
(ii) seeking to prevent the consummation of any of the
transactions contemplated by this Assignment, (iii) seeking
any determination or ruling that, in the reasonable judgment
of the Seller, would materially and adversely affect the
performance by the Seller of its obligations under this
Assignment, (iv) seeking any determination or ruling that
would materially and adversely affect the validity or
enforceability of this Assignment or (v) seeking to affect
adversely the income tax attributes of the Trust under the
United States Federal or any State income or franchise tax
systems;
(l) Record of Accounts. As of the Addition Date,
Schedule 1 to this Assignment is an accurate and complete
listing in all material respects of all the Additional
Accounts as of the Additional Cutoff Date and the
information contained therein with respect to the identity
of such Accounts and the Receivables existing thereunder is
true and correct in all material respects as of the
Additional Cutoff Date;
(m) No Liens. Each Receivable and all Collateral
Security existing on the Addition Date has been conveyed to
the Trust free and clear of any Lien, except for Liens
permitted under Section 2.06(a) of the Pooling Agreement;
(n) All Consents Required. With respect to each
Receivable and all Collateral Security existing on the
Addition Date, all consents, licenses, approvals or
authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or
given by the Seller in connection with the conveyance of
such Receivable or Collateral Security to the Trust, the
execution and delivery of this Assignment by the Seller and
the performance by the Seller of the transactions
contemplated hereby have been duly obtained, effected or
given and are in full force and effect; and
(o) Eligible Receivables. On the Additional Cutoff
Date each Receivable conveyed to the Trust as of such date
is an Eligible Receivable.
6. Conditions Precedent. The acceptance of the Trustee set
forth in Section 4 of this Assignment is subject to the
satisfaction, on or prior to the Addition Date, of the following
conditions precedent:
(a) Representations and Warranties. Each of the
representations and warranties made by the Seller in Section
B-5
<PAGE>
5 of this Assignment shall be true and correct as of the
date of this Assignment and as of the Addition Date;
(b) Pooling Agreement. Each of the conditions set
forth in Section 2.05(d) of the Pooling Agreement applicable
to the designation of the Additional Accounts to be
designated hereby shall have been satisfied; and
(c) Officer's Certificate. The Seller shall have
delivered to the Trustee an Officer's Certificate, dated the
date of this Assignment pursuant to Section 2.05(d)(viii) of
the Pooling Agreement. The Trustee may conclusively rely on
such Officer's Certificate, shall have no duty to make
inquiries with regard to the matters set forth therein and
shall incur no liability in so relying.
7. Ratification of Pooling Agreement. As supplemented by
this Assignment, the Pooling Agreement is in all respects
ratified and confirmed and the Pooling Agreement as so
supplemented by this Assignment shall be read, taken and
construed as one and the same instrument.
8. Counterparts. This Assignment may be executed in two or
more counterparts (and by different parties in separate
counterparts), each of which shall be an original but all of
which together shall constitute one and the same instrument.
9. GOVERNING LAW. THIS ASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
B-6
<PAGE>
IN WITNESS WHEREOF, the Seller and Master Servicer and the
Trustee have caused this Assignment to be duly executed and
delivered by their respective duly authorized officers as of the
day and the year first above written.
CAROLINA FIRST BANK, as Seller and
Master Servicer
By: __________________________
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By: ___________________________
Name:
Title:
B-7
<PAGE>
EXHIBIT C
FORM OF ANNUAL SERVICER'S CERTIFICATE
(As required to be delivered on or before March 31 of each
calendar year, beginning with March 31, 1996, pursuant to
Section 3.05 of the Pooling and Servicing Agreement)
The undersigned, a duly authorized representative of
Carolina First Bank (the "Bank"), pursuant to Section 3.05 of the
Pooling and Servicing Agreement dated as of December 31, 1994 (as
amended and supplemented, the "Pooling Agreement"), between the
Bank, as Seller and Master Servicer, and The Chase Manhattan
Bank, N.A., as trustee, does hereby certify that:
1. The Bank is, as of the date hereof, the Master Servicer under
the Pooling Agreement.
2. The undersigned is a Servicing Officer and is duly
authorized pursuant to the Pooling Agreement to execute and
deliver this Certificate to the Trustee, the Seller, each Agent,
each Rating Agency and each Credit Enhancer.
3. A review of the activities of the Master Servicer during
the calendar year ended December 31, ______, and of its
performance under the Pooling Agreement, was made under my
supervision.
4. Based on such review, to the best of my knowledge, the
Master Servicer has performed in all material respects its
obligations under the Pooling Agreement throughout such year and
no material default in the performance of such obligations has
occurred or is continuing except as set forth in paragraph 5
below.
5. The following is a description of each material default
in the performance of the Master Servicer's obligations under the
provisions of the Pooling Agreement known to me to have been made
by the Master Servicer during the year ended December 31, ____,
which sets forth in detail the (a) nature of each such material
default, (b) the action taken by the Master Servicer, if any, to
remedy each such material default and (c) the current status of
each such material default: If applicable, insert "None."
Capitalized terms used that are not otherwise defined shall
have the meanings ascribed thereto in the Pooling Agreement.
C-1
<PAGE>
IN WITNESS WHEREOF, the undersigned has duly executed this
Annual Servicer's Certificate this ____ day of _______________,
___.
________________________________
Name:
Title:
C-2
<PAGE>
EXHIBIT D-1
FORM OF LEGEND
THIS CERTIFICATE HAS NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS IN
RELIANCE ON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH
STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS
CERTIFICATE MAY BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS
MADE IN ACCORDANCE WITH SECTION 6.04 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN AND (B) IS MADE (I) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (II)
TO THE BANK OR (III) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT AND THAT IS AWARE THAT THE
RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A.
NEITHER THE BANK NOR THE TRUSTEE WILL BE OBLIGATED TO REGISTER
THIS CERTIFICATE UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS. IN THE EVENT THAT THE TRANSFER OF THIS
CERTIFICATE IS TO BE MADE, EITHER (A) AN OPINION OF COUNSEL OR
(B) A REPRESENTATION LETTER FROM THE PROSPECTIVE INVESTOR, IN
BOTH CASES IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND
THE BANK, ARE REQUIRED TO BE DELIVERED TO THE TRUSTEE AND THE
BANK, TO THE EFFECT THAT SUCH TRANSFER MAY BE MADE WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS. THIS CERTIFICATE WILL BE ELIGIBLE FOR PURCHASE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT.
D-1-1
<PAGE>
EXHIBIT D-2
FORM OF LEGEND
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS THE TRUSTEE AND THE BANK SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE, TO
THE EFFECT THAT (A) SUCH TRANSFEREE WILL NOT ACQUIRE THIS
CERTIFICATE WITH THE ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A BENEFIT PLAN
DESCRIBED IN SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A "BENEFIT PLAN INVESTOR" (AS
SUCH TERM IS DEFINED UNDER THE DEPARTMENT OF LABOR REGULATIONS
PROMULGATED UNDER ERISA) OR (B) THAT SUCH TRANSFEREE IS A BENEFIT
PLAN OR IS ACQUIRING THIS CERTIFICATE WITH THE ASSETS OF A
BENEFIT PLAN OR A BENEFIT PLAN INVESTOR, AND IF THE
REPRESENTATION IN (B) IS MADE, SUCH TRANSFEREE SHALL DELIVER AN
OPINION OF COUNSEL, IN FORM AND CONTENT SATISFACTORY TO THE
TRUSTEE AND BANK, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF
THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING
DEEMED TO BE "PLAN ASSETS" (AS SUCH TERM IS DEFINED UNDER ERISA),
WILL NOT SUBJECT THE ASSETS OF THE TRUST TO THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE, AND WILL NOT
SUBJECT THE TRUSTEE, SELLER OR MASTER SERVICER TO ANY OBLIGATION
IN ADDITION TO THOSE ALREADY UNDERTAKEN IN THE POOLING AGREEMENT.
D-2-1
<PAGE>
EXHIBIT E
FORM OF LETTER OF REPRESENTATIONS
E-1
<PAGE>
EXHIBIT F-1
FORM OF OPINION OF COUNSEL
IN RESPECT OF ADDITIONAL ACCOUNTS
Provisions to be Included in
Opinion of Counsel Delivered Pursuant
to Section 2.05(d)(ix)
The opinions set forth below may be subject to certain
qualifications, assumptions, limitations and exceptions taken or
made in the opinion of Seller's counsel with respect to similar
matters delivered on the Closing Date. Capitalized terms used
and not otherwise defined herein have the respective meanings
given them in the Pooling and Servicing Agreement.
1. The Assignment has been duly authorized, executed and
delivered by the Seller and constitutes the legal, valid and
binding agreement of the Seller, enforceable against the Seller
in accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights in general or the rights of creditors of
depository institutions the accounts of which are insured by the
FDIC and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity) and the availability of equitable remedies.
2. The financing statement(s) referred to in such opinion
(the "Financing Statement") is in an appropriate form for filing
in the State of South Carolina (the "State") and has been duly
filed in the appropriate filing office in the State and the fees
and document taxes, if any, payable in connection with the said
filing of the Financing Statement have been paid in full.
3. If the Assignment does not constitute a sale of the
Receivables in the Additional Accounts designated by the
Assignment, all monies due or to become due thereon, the right to
receive certain amounts paid or payable as Interchange in respect
of such Receivables (if and to the extent provided for in any
Supplement) and all proceeds (as defined in the UCC in effect in
the State) of the foregoing (including Recoveries and Adjustment
Payments on such Receivables), (A) the Pooling and Servicing
Agreement creates a valid security interest (as defined in the
UCC in effect in the State) in favor of the Trustee for the
benefit of the Beneficiaries, as their respective interests
appear in the Pooling and Servicing Agreement (including any
Supplement thereto) in such property, (B) the security interest
created under the Pooling and Servicing Agreement by the
conveyance of the Receivables in Additional Accounts designated
by the Assignment, all monies due or to become due thereon, the
right to receive certain amounts paid or payable as Interchange
F-1-1
<PAGE>
in respect of such Receivables (if and to the extent provided for
in any Supplement) and all proceeds (as defined in the UCC in
effect in the State) of the foregoing (including Recoveries and
Adjustment Payments on such Receivables) is a first priority
perfected security interest in and against such Receivables now
existing and hereafter created in the Additional Accounts
designated by the Assignment, all monies due or to become due
thereon, the right to receive certain amounts paid or payable as
Interchange in respect of such Receivables (if and to the extent
provided for in any Supplement) and all proceeds (as defined in
the UCC in effect in the State) of the foregoing (including
Recoveries and Adjustment Payments on such Receivables) and
(C) such perfection and priority of the Trustee for the benefit
of the Beneficiaries in such Receivables, all monies due or to
become due thereon, the right to receive certain amounts paid or
payable as Interchange in respect of such Receivables (if and to
the extent provided for in any Supplement) and all proceeds (as
defined in the UCC in effect in the State) of the foregoing
(including Recoveries and Adjustment Payments on such
Receivables), would not be affected by an increase or decrease in
the relative interests in the Receivables in the Additional
Accounts designated by the Assignment of the Holder of the Seller
Certificate, of the Investor Certificateholders and of any Credit
Enhancer.
In connection with the opinion set forth in this paragraph 3
relating to the priority of security interests, such counsel may
express no opinion as to the priority of any security interest
over (i) any lien, claim or other interest that arises by
operation of law and does not require any filing with the
Secretary of State of the State in order to take priority over
any security interest which is perfected by filing with the
Secretary of State of the State, and (ii) any claim or lien in
favor of any government or any agency or instrumentality thereof.
4. If the Assignment constitutes a sale of the Receivables
in the Additional Accounts designated by the Assignment, based
upon a certificate of an officer, duly authorized by the Seller
to give such certification, of the Seller that (i) the Seller
originated the Receivables in the Additional Accounts designated
by the Assignment, (ii) the Seller has not transferred any
interest in or caused any Lien to be imposed upon the Receivables
in the Additional Accounts designated by the Assignment, and
(iii) the Seller will originate all Receivables subsequently
created in the Additional Accounts designated by the Assignment,
then (A) the Trustee has acquired, or will in the case of the
Receivables hereafter created in Additional Accounts designated
by the Assignment acquire, all right, title and interest of the
Seller in and to the Receivables now existing and hereafter
created in Additional Accounts designated by the Assignment, all
monies due or to become due thereon, the right to receive certain
amounts paid or payable as Interchange in respect of such
Receivables (if and to the extent provided for in any Supplement)
F-1-2
<PAGE>
and all proceeds (as defined in the UCC in effect in the State)
of the foregoing (including Recoveries and Adjustment Payments on
such Receivables) and (B) such property will be held by the Trust
free and clear of any Lien or interest of any Person claiming
through or under the Seller, and the Trust owns such Receivables
in the Additional Accounts designated by the Assignment, all
monies due or to become due thereon, the right to receive certain
amounts paid or payable as Interchange in respect of such
Receivables (if and to the extent provided for in any Supplement)
and all proceeds (as defined in the UCC in effect in the State)
of the foregoing (including Recoveries and Adjustment Payments on
such Receivables) free of any lien or interest, in each case,
except for (x) Liens permitted under subsection 2.05(b) of the
Pooling and Servicing Agreement, (y) the interest of the Seller
as the holder of the Seller Certificate, and (z) except as
provided in any Supplement the Seller's right to receive interest
accruing on, and investment earnings in respect of, any Series
Account as provided in the Pooling and Servicing Agreement or any
Supplement.
In addition, in connection with the opinions set forth in
paragraph 3 and this paragraph 4, no opinion is expressed herein
with respect to Receivables or the proceeds thereof other than
the Receivables in the Additional Accounts designated by the
Assignment and all monies due or to become due thereon, or with
respect to the perfection or priority of security interests in
the proceeds of the Receivables in the Additional Accounts
designated by the Assignment, except to the extent such proceeds
(as defined in Section 9-306 of the UCC in effect in the State)
consist of amounts held by the Seller in accordance with the
terms of the Pooling and Servicing Agreement for less than 10
days following receipt of such proceeds by the Seller, and except
to the extent that such proceeds consist of either (i) amounts
held in an account maintained by the Trustee in the name of the
Trust in accordance with the terms of the Pooling and Servicing
Agreement, or (ii) Eligible Investments held by or on behalf of
the Trustee in accordance with the terms of the Pooling and
Servicing Agreement. Further, in connection with the opinions
set forth in paragraph 3 and this paragraph 4, no opinion is
expressed with respect to the perfection or priority of security
interests in the proceeds of the Receivables in the Additional
accounts designated by the Assignment or monies due or to become
due thereon until such proceeds are deposited in the Collection
Account in accordance with the terms of the Pooling and Servicing
Agreement. In addition, we express no opinion as to the effect
of Section 9-306(4) of the UCC in effect in the State with
respect to proceeds of the Receivables in Additional Accounts
designated by the Assignment or monies due or to become due
thereon held by the Seller upon its insolvency. Amounts held in
the Collection Account and Permitted Investments maintained or
held in accordance with the terms of the Pooling and Servicing
Agreement are "proceeds" of Receivables within the meaning of
Section 9-306 of the UCC in effect in the State.
F-1-3
<PAGE>
With respect to the opinions expressed in paragraph 3 and
this paragraph 4, we note that the effectiveness of the financing
statement will terminate (i) unless appropriate continuation
statements are filed within the period of six months prior to the
expiration of five year anniversary dates from the date of the
original filing of the financing Statement, (ii) if the Seller
changes its name, identity or corporate structure, unless new
appropriate financing statements or amendments indicating the new
name, identity or corporate structure of the Seller are properly
filed before the expiration of four months after the Seller
changes its name, identity or corporate structure, and (iii) four
months after the Seller changes its place of business or chief
executive office to a jurisdiction outside the State, unless such
security interest is perfected in such new jurisdiction within
such time. Other than as discussed in this paragraph, no action
is required to maintain the perfection, as described in
paragraph 3 and this paragraph 4, of the interests of the Trustee
on behalf of the Investor Certificateholders and any Credit
Enhancer in the Receivables in the Additional Accounts designated
by the Assignment, all monies due or to become due thereon and
all proceeds (as defined in the UCC in effect in the State) of
the foregoing.
The opinions expressed in paragraph 3 and this paragraph 4
are limited to the interests of the Investor Certificateholders
under the Pooling and Servicing Agreement and the related
Supplement. In connection with paragraph 3 and this paragraph 4,
we express no opinion as to the interests of the Seller under the
Pooling and Servicing Agreement or any Supplement. The opinions
expressed in paragraph 3 and this paragraph 4 are subject to the
interests of the Seller arising under the Pooling and Servicing
Agreement, which interests of the Seller will not detract from
the interest and priority of the interest held by the Trustee for
the benefit of the Investor Certificateholders.
5. In the course of such counsel's representation of the
Seller in connection with the matter to which this opinion
relates, and without independent investigation, under the laws of
the State, such counsel has not become aware of any right, lien
or interest which has been asserted against the Receivables in
the Additional Accounts designated by the Assignment and the
proceeds thereof, other than under the Pooling and Servicing
Agreement.
F-1-4
<PAGE>
EXHIBIT F-2
FORM OF OPINION OF COUNSEL
IN CONNECTION WITH AMENDMENTS AND SUPPLEMENTS
Provisions to be Included in
Opinion of Counsel Delivered Pursuant
to Section 13.01(h)
(a) The Amendment to the [Pooling and Servicing Agreement]
[Supplement], attached hereto as Schedule 1 (the "Amendment"),
has been duly authorized, executed and delivered by the Seller
and Master Servicer and constitutes the legal, valid and binding
agreement of the Seller and Master Servicer, enforceable in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or similar laws affecting the enforcement of
creditors' rights in general or the rights of creditors of
depository institutions the accounts of which are insured by the
FDIC and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in
equity) and the availability of equitable remedies.
(b) The Amendment has been entered into in accordance with
the terms and provisions of Section 13.01 of the Pooling and
Servicing Agreement.
(c) The Amendment will not adversely affect in any material
respect the interests of any Beneficiary.
F-2-1
<PAGE>
EXHIBIT F-3
FORM OF ANNUAL OPINION OF COUNSEL
Provisions to be Included in
Opinion of Counsel Delivered Pursuant
to Section 13.02(d)
The opinions set forth below, which are to be delivered
pursuant to subsection 13.02(d) of the Pooling and Servicing
Agreement, may be subject to certain qualifications, assumptions,
limitations and exceptions taken or made in the opinion of
counsel to the Seller with respect to similar matters delivered
on the Closing Date. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined
meanings when used herein, unless otherwise defined herein.
1. Based solely upon a certificate of an officer, duly
authorized by the Seller to give such certification, of the
Seller dated as of the date of this opinion, and without
independent investigation, (A) the Seller originated or acquired
the Receivables, (B) the Seller has not transferred any interest
in or caused any Lien to be imposed upon the Receivables, and
(C) the Seller will originate all Receivables subsequently
created in the Accounts.
2. The financing statement is in an appropriate form for
filing in the State of South Carolina (the "State") and has been
duly filed in the appropriate filing office in the state and the
fees and document taxes, if any, payable in connection with the
said filing of the financing statement have been paid in full.
3. If the Pooling and Servicing Agreement does not
constitute a sale of the Receivables, all monies due or to become
due thereon, the right to receive certain amounts paid or payable
as Interchange in respect of such Receivables (if and to the
extent provided for in any Supplement) and all proceeds (as
defined in Section 9-306 of the UCC as in effect in the State) of
the foregoing (including Recoveries and Adjustment Payments on
such Receivables), (A) the Pooling and Servicing Agreement
creates a security interest (as defined in the UCC as in effect
in the State) in favor of the Trustee for the benefit of the
Certificateholders and any Credit Enhancer, as their respective
interests appear in the Pooling and Servicing Agreement
(including any Supplement thereto), (B) the security interest
created under the Pooling and Servicing Agreement by the
conveyance of the Receivables (other than Receivables in
Additional Accounts), all monies due or to become due thereon,
the right to receive certain amounts paid or payable as
Interchange in respect of such Receivables (if and to the extent
provided for in any Supplement) and all proceeds (as defined in
Section 9-306 of the UCC as in effect in the State) of the
F-3-1
<PAGE>
foregoing (including Recoveries on such Receivables), is a first
priority perfected security interest in and against such
Receivables, all monies due or to become due thereon, the right
to receive certain amounts paid or payable as Interchange in
respect of such Receivables (if and to the extent provided for in
any Supplement) and all proceeds of the foregoing (including
Recoveries and Adjustment Payments on such Receivables), and
(C) changes under the Pooling and Servicing Agreement in the
percentage of the Receivables, related rights and the proceeds
thereof securing the Investor Certificates and any Credit
Enhancer will not affect the said perfection and priority. In
connection with the opinion set forth in paragraph 3 relating to
the priority of security interests, no opinion need be expressed
as the priority of any security interest over (i) any lien, claim
or other interest that arises by operation of law and does not
require any filing with the Secretary of State of the State in
order to take priority over any security interest which is
perfected by filing with the Secretary of State of the State, and
(ii) any claim or lien in favor of any government or any agency
or instrumentality thereof.
4. If the Pooling and Servicing Agreement constitutes a
sale of the Receivables, (A) the Trustee has acquired or, in the
case of the Receivables hereafter created (other than Receivables
in Additional Accounts), will acquire, all right, title and
interest of the Seller in and to the Receivables now existing and
hereafter created (other than Receivables in Additional
Accounts), all monies due or to become due thereon, the right to
receive certain amounts paid or payable as Interchange in respect
of such Receivables (if and to the extent provided for in any
Supplement) and all proceeds (as defined in Section 9-306 of the
UCC as in effect in the State) of the foregoing (including
Recoveries and Adjustment Payments on such Receivables), and (B)
such property will be held by the Trust free and clear of any
lien or interest of any Person claiming through or under the
Seller, and the Trust owns such Receivables, all monies due or to
become due thereon, the right to receive certain amount paid or
payable as Interchange in respect of such Receivables (if and to
the extent provided for in any Supplement) and all proceeds (as
defined in Section 9-306 of the UCC as in effect in the State) of
the foregoing (including Recoveries and Adjustment Payments on
such Receivables) free of any lien or interest, in each case,
except for (x) lines permitted under subsection 2.05(b) of the
Pooling and Servicing Agreement, (y) the interest of the Holder
of the Seller Certificate, and (z) except as provided in any
Supplement, the Seller's right to receive interest accruing on,
and investment earnings in respect of any Series Account as
provided in the Pooling and Servicing Agreement. The opinion
with respect to Receivables and proceeds thereof hereafter
created which do not arise from the sale of goods or the
rendering of services may be qualified in its entirety by the
qualifications set forth in the opinion of counsel rendered on
the Closing Date.
F-3-2
<PAGE>
In addition, in connection with the opinions set forth in
paragraph 3 of this paragraph 4, no opinion need be expressed
herein with respect to Receivables in Additional Accounts or the
proceeds thereof, or with respect to their perfection or priority
of security interests in the proceeds of the Receivables, except
to the extent such proceeds (as defined in Section 9-306 of the
UCC as in effect in the State) consist of amounts held by the
Seller in accordance with the terms of the Pooling and Servicing
Agreement for less than ten days following receipt of such
proceeds by the Seller, and except to the extent that such
proceeds consist of either (i) amounts held in a Series Account
in accordance with the terms of the Pooling and Servicing
Agreement and any Supplement or (ii) Permitted Investments held
by or on behalf of the Trustee in accordance with the terms of
the Pooling and Servicing Agreement and any Supplement. Amounts
held in the Collection Account and in a Series Account and
Permitted Investments maintained or held in accordance with the
terms of the Pooling and Servicing Agreement and any Supplement
are "proceeds" of Receivables within the meaning of Section 9-306
of the UCC as in effect in the State (such counsel may note,
however, that, subject to the discussion elsewhere in this
paragraph 4, the UCC as in effect in the State does not apply to
the sale of general intangibles or proceeds thereof).
With respect of the opinions expressed in paragraph 3 and
this paragraph 4, such counsel may note that the effectiveness of
the financing statement will terminate (i) unless appropriate
continuation statements are filed within the period of six months
prior to the expiration of five year anniversary dates form the
date of the original filing of the financing statement, (ii) if
the Seller changes its name, identity or corporate structure,
unless new appropriate financing statements or amendments
indicating the new name, identity or corporate structure of the
Seller are properly filed before the expiration of four months
after the Seller changes its name, identity or corporate
structure, and (iii) four months after the Seller changes its
place of business or chief executive office to a jurisdiction
outside the State, unless such security interest is perfected in
such new jurisdiction within such time. Other than as discussed
in this paragraph, no action is required to maintain the
perfection, as described in paragraph 3 and this paragraph 4, of
the interests of the Trustee on behalf of the Investor
Certificateholders in the Receivables (other than Receivables in
Additional Accounts) and the proceeds thereof (as defined in
Section 9-306 of the UCC as in effect in the State).
The opinions expressed in paragraph 3 and this paragraph 4
are limited to the interests of the Investor Certificateholders
and any Credit Enhancer under the Pooling and Servicing
Agreement. In connection with paragraph 3 and this paragraph 4,
we express no opinion as to the interests of the Seller or the
Holder of the Seller Certificate under the Pooling and Servicing
Agreement. The opinions expressed in paragraph 3 and this
F-3-3
<PAGE>
paragraph 4 are subject to the interests of the Seller arising
under the Pooling and Servicing Agreement, which interests of the
Seller will not detract from the interest and the priority of the
interest held by the Trustee for the benefit of the Investor
Certificateholders and any Credit Enhancer.
5. Except for the financing statement referenced above, no
other financing statement covering the Accounts (other than
Receivables in Additional Accounts) or the Trustee's interest in
the Accounts (other than Receivables in Additional Accounts) or
the Trustee's interest in the Accounts (other than Receivables in
Additional Accounts) is on file in the office of the Secretary of
State of the State (Uniform Commercial Code Division).
6. In the course of such counsel acting as special counsel
to the Seller in connection with the matter to which this opinion
relates, and without independent investigation, under the laws of
the State, that such counsel have not become aware of any right,
lien or interest which has been asserted against the Receivables
any of the other properties that form the corpus of the Trust or
any of the proceeds (as defined in Section 9-306 as in effect in
the State) thereof, other than under the Pooling and Servicing
Agreement.
7. Assuming (i) that the Seller has been duly organized and
is validly existing under the laws of the State, (ii) that the
Pooling and Servicing Agreement does not constitute a sale of the
Receivables and that the Pooling and Servicing Agreement creates
a security interest (as defined in the UCC (as in effect in the
State) in favor of the Trustee for the benefit of the Trust, and
(iii) based upon a certificate of an officer of the Seller, that
the Trustee's security interest in the Receivables and proceeds
thereof was not taken in contemplation of the Seller's insolvency
or with the intent to hinder, delay or defraud the Seller or the
creditors of the Seller, to the extent the Trustee has a valid
perfected security interest in the Receivables and proceeds
thereof, such interest of the Trustee would be enforceable
notwithstanding an insolvency of, or the appointment of a
receiver or conservator for, the Seller. Such counsel may note
that they are aware of no cases directly on point and it is,
therefore, their and your understanding that the opinions
expressed in the preceding paragraph are not a prediction as to
what a court would actually hold, but opinions as to the decision
a court would reach if the issue were properly presented to it
and the court followed existing precedent as to legal principles
applicable in national bank insolvencies. No opinion need be
expressed as to whether a court may temporarily restrain the
exercise of the Trust's rights to and ownership or security
interests in the Receivables and their proceeds, regardless of
who has possession of the property in question. Further, such
counsel may point out the delays in the exercise of the rights
and interests of the Trust may occur with respect to the
Receivables and their proceeds in the possession of a Receiver or
F-3-4
<PAGE>
his appointee, regardless of whether the transaction constitutes
a true sale or a secured transaction, by actions unilaterally
taken by the Receiver or such appointee.
F-3-5
<PAGE>
EXHIBIT G
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Section 2.07(d) of the
Pooling and Servicing Agreement referred to below)
REASSIGNMENT NO. _______ OF RECEIVABLES,
dated as of _______________, ____
by and between THE CHASE MANHATTAN BANK, N.A.,
as trustee (the "Trustee"), and
CAROLINA FIRST BANK,
as Seller and Master Servicer (in such capacities,
the "Seller" and the "Master Servicer" respectively),
pursuant to the Pooling and Servicing Agreement
referred to below.
W I T N E S S E T H :
WHEREAS, the Seller and Master Servicer and the Trustee are
parties to the Pooling and Servicing Agreement dated as of
December 31, 1994 (as amended or supplemented, the "Agreement");
WHEREAS, pursuant to the Agreement, the Seller wishes to
remove all Receivables from certain Accounts and the Collateral
Security thereof (the "Removed Accounts") and to cause the
Trustee to reconvey the Receivables of such Removed Accounts and
such Collateral Security, whether now existing or hereafter
created, and all amounts currently held by the Trustee or
thereafter received by the Trust in respect of such Removed
Accounts, from the Trustee to the Seller (as each such term is
defined in the Agreement); and
WHEREAS the Trustee is willing to accept such removal and to
reconvey the Receivables in the Removed Accounts, such Collateral
Security and any related amounts held or received by the Trust
subject to the terms and conditions hereof.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed thereto in the
Agreement.
2. Notice of Removed Accounts.
(a) Not less than five Business Days prior to the
Removal Date, the Seller shall furnish to the Trustee, any
Credit Enhancers and each Rating Agency a written notice
specifying the Determination Date (which may be the
Determination Date on which such notice is given) on which
removal of the Receivables of one or more Accounts will
occur, such date being a Removal Date.
G-1
<PAGE>
(b) On or before the fifth business day after the
Removal Date, the Seller shall furnish to the Trustee a
computer file, microfiche list or other list of the Removed
Accounts that were removed on the Removal Date, specifying
for each Removed Account as of the date of the Removal
Notice its number, the aggregate amount outstanding in such
Removed Account and the aggregate amount of Principal
Receivables therein and represent that such computer file,
microfiche list or other list of the Removed Accounts is
true and complete in all material respects. Such file or
list shall be marked as Schedule 1 to this Reassignment and
shall be incorporated into and made a part of this
Reassignment as of the Removal Date and shall amend Schedule
1 to the Agreement.
3. Conveyance of Receivables and Accounts.
(a) The Trustee does hereby transfer, assign, set-over
and otherwise convey to the Seller, without recourse,
representation or warranty on and after the Removal Date,
all right, title and interest of the Trust in, to and under
all Receivables now existing at the close of business on the
Removal Date and thereafter created from time to time until
the termination of the Trust in Removed Accounts designated
hereby, all Collateral Security thereby, all monies due or
to become due and all amounts received with respect thereto,
all proceeds thereof (as defined in Section 9-306 of the UCC
as in effect in the State of South Carolina and Recoveries)
relating thereto.
(b) If requested by the Seller, in connection with
such transfer, the Trustee agrees to execute and deliver to
the Seller on or prior to the date of this Reassignment, a
termination statement with respect to the Receivables
existing at the close of business on the Removal Date and
thereafter created from time to time and Collateral Security
thereof in the Removed Accounts reassigned hereby (which may
be a single termination statement with respect to all such
Receivables) evidencing the release by the Trust of its lien
on the Receivables in the Removed Accounts and the
Collateral Security, and meeting the requirements of
applicable state law, in such manner and such jurisdictions
as are necessary to remove such lien.
4. Acceptance by Trustee. The Trustee hereby acknowledges
that, prior to or simultaneously with the execution and delivery
of this Reassignment, the Seller delivered to the Trustee the
computer file or such microfiche or written list described in
Section 2(b) of this Reassignment.
5. Representations and Warranties of the Seller. The
Seller hereby represents and warrants to the Trustee as of the
date of this Reassignment and as of the Removal Date:
G-2
<PAGE>
(a) Legal Valid and Binding Obligation. This
Reassignment constitutes a legal, valid and binding
obligation of the Seller, enforceable against the Seller in
accordance with its terms, except as such enforceability may
be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting
the enforcement of creditors' rights in general or the
rights of creditors of depository institutions the accounts
of which are insured by the FDIC and except as such
enforceability may be limited by general principles of
equity (whether considered in a suit at law or in equity);
(b) No Pay Out Event. The removal of the Accounts
hereby removed shall not, in the reasonable belief of the
Seller, (i) cause a Pay Out Event to occur, (ii) cause the
Aggregate Principal Receivables Amount to be, on the Removal
Date, less than the Required Principal Balance, (iii) cause
the Seller Amount to be on the Removal Date, to be less than
the Required Seller Amount or (iv) result in the failure to
make any payment specified in Article Four or Five or in the
related Supplement with respect to any Series or Class;
(c) Selection Procedures. No selection procedures
reasonably believed by the Seller to be adverse to the
interests of the Beneficiaries were utilized in selecting
the Accounts to be removed;
(d) No Notice of Ratings Effect. The Seller has not
received notice from any Rating Agency or any Credit
Enhancer that the proposed removal will result in a Ratings
Effect; and
(e) True and Complete List. The list of Removed
Accounts described in Section 2(b) of this Assignment is, as
of the Removal Date, true and complete in all material
respects and otherwise complies with Section 2.07(a)(iv) of
the Agreement;
provided, however, that in the event that the removal on such
Removal Date relates solely to Ineligible Accounts, the Seller
shall be deemed to make only the representations and warranties
contained in paragraph 5(a) above.
6. Condition Precedent. In addition to the conditions
precedent set forth in Sections 2.07 and 2.08 of the Agreement,
as applicable, the obligation of the Trustee to execute and
deliver this Reassignment is subject to the Seller having
delivered on or prior to the Removal Date to the Trustee and any
Credit Enhancers an Officer's Certificate certifying that (i) as
of the Removal Date, all requirements set forth in Section 2.07
of the Agreement for removing such Accounts and reconveying the
Receivables of such Removed Accounts and the Collateral Security,
whether existing at the close of business on the Removal Date or
G-3
<PAGE>
thereafter created from time to time until the termination of the
Trust, have been satisfied, and (ii) each of the representations
and warranties made by the Seller in Section 5 hereof is true and
correct as of the date of this Reassignment and as of the Removal
Date. The Trustee may conclusively rely on such Officer's
Certificate, shall have no duty to make inquiries with regard to
the matters set forth therein and shall incur no liability in so
relying.
7. Ratification of Agreement. As supplemented by this
Reassignment, the Agreement is in all respects ratified and
confirmed and the Assignment Agreement as so supplemented by this
Reassignment shall be read, taken and construed as one and the
same instrument.
8. Counterparts. This Reassignment may be executed in two
or more counterparts, and by different parties on separate
counterparts, each of which shall be an original, but all of
which shall constitute one and the same instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS,
RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED
IN ACCORDANCE WITH SUCH LAWS.
IN WITNESS WHEREOF, the undersigned have caused this
Reassignment to be duly executed and delivered by their
respective duly authorized officers on the day and year first
above written.
THE CHASE MANHATTAN BANK,
as Trustee
By: ___________________________
Name:
Title:
FIRST CAROLINA BANK, as Seller
and Master Servicer
By: ___________________________
Name:
Title:
G-4
<PAGE>
EXHIBIT H
FORM OF REPORT OF INDEPENDENT ACCOUNTANTS ON COMPLIANCE
H-1
<PAGE>
EXHIBIT I
FORM OF REVOLVING LINE OF CREDIT AGREEMENT
I-1
<PAGE>
EXHIBIT J
FORM OF SUBSERVICING AGREEMENT
J-1
<PAGE>
EXHIBIT K-1
FORM OF CLEARANCE SYSTEM CERTIFICATE
TO BE GIVEN TO THE TRUSTEE BY
EUROCLEAR OR CEDEL FOR
DELIVERY OF DEFINITIVE CERTIFICATES
IN EXCHANGE FOR A PORTION OF A
TEMPORARY GLOBAL SECURITY
CAROLINA FIRST CREDIT CARD MASTER TRUST
[Floating Rate] Asset Backed Certificates,
Series __, Class __
We refer to that portion of the temporary Global Certificate
in respect of the above-captioned issue which is herewith
submitted to be exchanged for definitive Certificates (the
"Submitted Portion") as provided in the Pooling and Servicing
Agreement dated as of December 31, 1994 (as amended and
supplemented, the "Pooling Agreement") between Carolina First
Bank, as Seller and Master Servicer, and the Chase Manhattan
Bank, as Trustee, in respect of such issue. Capitalized terms
used herein and not otherwise defined shall have the meanings
ascribed thereto in the Pooling Agreement.
This is to certify that (i) we have received a certificate
or certificates, in writing or by tested telex, with respect to
each of the persons appearing in our records as being entitled to
a beneficial interest in the submitted portion and with respect
to such persons' beneficial interest either (a) from such person,
substantially in the form of Exhibit K-2 to the Pooling
Agreement, or (b) from _____________, substantially in the form
of Exhibit K-3 to the Pooling Agreement, and (ii) the Submitted
Portion includes no part of the temporary Global Certificate
excepted in such certificates.
We further certify that as of the date hereof we have not
received any notification from any of the persons giving such
certificates to the effect that the statements made by them with
respect to any port of the submitted portion are no longer true
and cannot be relied on as of the date hereof.
We understand that this certificate is required in
connection with certain securities and tax laws in the United
States of America. If administrative or legal proceedings are
commenced or threatened in connection with which this
K-1-1
<PAGE>
certificates or would be relevant, we irrevocably authorized you
to produce this certificate or a copy thereof to any interested
party in such proceedings.
Dated: [Morgan Guaranty Trust,
Company of New York, Brussels
office, as operator of the
Euroclear System]
[Cedel S.A.]
By: __________________________
K-1-2
<PAGE>
EXHIBIT K-2
FORM OF CERTIFICATE
TO BE GIVEN TO EUROCLEAR OR CEDEL
BY MANAGER
WITH RESPECT TO REGISTERED CERTIFICATES SOLD TO
QUALIFIED INSTITUTIONAL BUYERS
CAROLINA FIRST CREDIT CARD MASTER TRUST
[Floating Rate] Assets Backed Certificates,
Series __, Class __
In connection with the initial issuance and placement of the
above referenced securities (the "Certificates"), an
institutional investor in the United States ("institutional
investor") is purchasing U.S. $___________ aggregate principal
amount of Certificates held in our account at [Morgan Guaranty
Trust Company of New York, Brussels office, as operator of the
Euroclear System] [Cedel S.A.] on behalf of such investor.
We reasonably believe that such institutional investor is a
qualified institutional buyer as such term is defined under Rule
144A of the Securities Act of 1933.
[We understand that this certificate is required in
connection with United States laws. We irrevocably authorize you
to produce this certificate or a copy hereof to any interested
party in any administrative or legal proceedings or official
inquiry with respect to the matters covered by this certificate.]
The Definitive Certificates in respect of this certificate
are to be issued in registered form in the minimum denomination
of U.S. $___________________ and such Definitive Certificates
(and, unless the Pooling and Servicing Agreement or Supplement
relating to the Certificates otherwise provides, any Certificates
issued in exchange or substitution for or on registration of
transfer of Certificates) shall bear the following legend:
"THIS CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933. NEITHER THIS CERTIFICATE NOR
ANY PORTION HEREOF MAY BE OFFERED OR SOLD, DIRECTLY OR
INDIRECTLY, IN THE UNITED STATES OR TO U.S. PERSONS (EACH AS
DEFINED HEREIN), EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF SUCH ACT OR PURSUANT TO AN AVAILABLE EXEMPTION
FROM SUCH REGISTRATION PROVISIONS. THE TRANSFER OF THIS
K-2-1
<PAGE>
CERTIFICATE IS SUBJECT TO CERTAIN CONDITIONS SET FORTH IN
THE POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN.
THIS CERTIFICATE CANNOT BE EXCHANGED FOR A BEARER
CERTIFICATE."
Dated: ________________
By: __________________________
Authorized Officer
K-2-2
<PAGE>
EXHIBIT K-3
FORM OF CERTIFICATE TO BE DELIVERED
TO EUROCLEAR OR CEDEL BY A BENEFICIAL OWNER
OF CERTIFICATES, OTHER THAN A QUALIFIED INSTITUTIONAL BUYER
CAROLINA FIRST CREDIT CARD MASTER TRUST
[Floating Rate] Asset Backed Certificates
Series __, Class__
This is to certify that as of the date hereof and except as
provided in the third paragraph hereof, the above-captioned
securities (the "Certificates") Certificates held by you for our
account (i) are owned by a person that is a United States person
or (ii) are owned by a United States person that is (A) the
foreign branch of a United States financial institution (as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v))
(a "Financial Institution") purchasing for its own account or for
resale, or (B) a United States person who acquired the
Certificates through the foreign branch of a financial
institution and who holds the Certificates though the financial
institution on the date hereof (and in either case (A) or (B),
the financial institution hereby agrees to comply with the
requirements of Section 165(i)(3)(A), (B) or (C) of the Internal
Revenue Code of 1986, as amended, and the regulations thereunder)
or (iii) are owned by a financial institution for purposes of
resale during the Restricted Period (as defined in U.S. Treasury
Regulations Section 1.1635(c)(2)(i)(D)(7)). In addition,
financial institutions described in clause (iii) above (whether
or not also described in clause (i) or (ii) above) certify that
they have not acquired the Certificates for purposes of resale
directly or indirectly to a United States person or to a person
within the United States or its possessions.
We undertake to advise you by tested telex if the above
statement as to beneficial ownerships not correct on the date of
delivery of the above-captioned Certificates in bearer form with
respect to such of said Certificates as then appear in your books
as being held for our account.
This certificate excepts and does not relate to U.S.
$________ principal amount of Certificates held by you for our
account, as to which we are not yet able to certify beneficial
ownership. We understand that delivery of Definitive
Certificates in such principal amount cannot be made until we are
able to so certify.
We understand that this certificate is required in
connection with certain securities and tax laws in the United
States of America. If administrative or legal proceedings are
commenced or threatened in connection with which this certificate
is or would be relevant, we irrevocably authorize you to produce
K-3-1
<PAGE>
this certificate or a copy thereof to any interested party in
such proceedings. As used herein, "United States" means the
United States of America (including the States and the District
of Columbia), its territories, its possessions and other area
subject to its jurisdiction; and "United States person" means a
citizen or resident of the United States, a corporation,
partnership or other entity created or organized in or under the
laws of the United States, or any political subdivision thereof,
or an estate or trust the income of which is subject to the
United States federal income taxation regardless of its source.
Dated: By: _________________________
As, or as agent for, the
beneficial owner(s) of the
interest in the Certificates
to which this certificate
relates.
K-3-2
<PAGE>
SCHEDULE 1
LIST OF ACCOUNTS
S1-1
<PAGE>
SCHEDULE 2
COLLECTION ACCOUNT INFORMATION
Account Number: __________________________
Account Designation: _____________________
Name of Institution: ____________________________
S2-1
<PAGE>
SCHEDULE 3
LOCATION OF SERVICING CENTERS
S3-1
<PAGE>
SCHEDULE 4
COLLECTION ACCOUNT INFORMATION
S4-1
<PAGE>
<PAGE>
EXHIBIT 28.2 B&W
Draft of
1/24/95
CAROLINA FIRST BANK,
as Seller and Master Servicer
and
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
SERIES 1994-A SUPPLEMENT
to
CAROLINA FIRST CREDIT CARD MASTER TRUST
POOLING AND SERVICING AGREEMENT
Dated as of December 31, 1994
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS; INCORPORATION
OF POOLING AGREEMENT
Section 1.01. Definitions . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.02. Incorporation of Pooling and Servicing
Agreement . . . . . . . . . . . . . . . . . . . . . . . 18
ARTICLE TWO
DESIGNATION OF SERIES; CONVEYANCE; ADDITIONAL
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SELLER
Section 2.11. Designation . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.12. Conveyance. . . . . . . . . . . . . . . . . . . . . . . . 20
Section 2.13. Additional Representations, Warranties
and Covenants of the Seller . . . . . . . . . . . . . . 22
ARTICLE THREE
ADDITIONAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE MASTER SERVICER; WAIVER OF
ADDITIONAL SERVICING COMPENSATION
Section 3.07. Tax Treatment . . . . . . . . . . . . . . . . . . . . . . 24
Section 3.10. Additional Representations, Warranties
and Covenants of the Master Servicer. . . . . . . . . . 24
Section 3.11. Waiver of Servicing Compensation. . . . . . . . . . . . . 25
Section 3.12. Delivery of Distribution Data Statement . . . . . . . . . 25
ARTICLE FOUR
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.02(e). Establishment of Series 1994-A
Reserve Fund . . . . . . . . . . . . . . . . . . . . 27
Section 4.07. Allocations and Payments Generally. . . . . . . . . . . . 27
Section 4.08. Determination of LIBOR. . . . . . . . . . . . . . . . . . 27
Section 4.09. Advances. . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 4.10. Right of Inspection . . . . . . . . . . . . . . . . . . . 30
ARTICLE FIVE
(i)
<PAGE>
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
Section 5.01. Application of Collections of Finance
Charge Collections, Excess Spread and
Excess Finance Charge Collections . . . . . . . . . . . 31
Section 5.02. Reallocated Principal Collections . . . . . . . . . . . . 37
Section 5.03. Application of Amounts on Deposit in the
Series 1994-A Reserve Fund. . . . . . . . . . . . . . . 37
Section 5.04. Reduction of Class B Invested Amount. . . . . . . . . . . 38
Section 5.05. Claims on the Policy. . . . . . . . . . . . . . . . . . . 39
Section 5.06. Application of Amounts on Deposit in the
Excess Funding Account. . . . . . . . . . . . . . . . . 40
Section 5.07. Annual Report to Series 1994-A
Certificateholders; Tax Returns . . . . . . . . . . . . 41
Section 5.08. Payment in United States Dollars. . . . . . . . . . . . . 42
ARTICLE SIX
CONDITIONS TO ISSUANCE OF THE
SERIES 1994-A CERTIFICATES
Section 6.04(f). Non-Transferability of the Class B
Certificates . . . . . . . . . . . . . . . . . . . . 43
Section 6.13. Conditions Precedent to Issuance of the
Series 1994-A Certificates. . . . . . . . . . . . . . . . . . . . . 43
ARTICLE NINE
PAY OUT EVENTS
Section 9.02(d). Assignment of Receivables to
Series 1994-A Credit Enhancer. . . . . . . . . . . . 44
Section 9.03. Additional Pay Out Events . . . . . . . . . . . . . . . . 44
ARTICLE ELEVEN
THE TRUSTEE
Section 11.07(d). Removal of Trustee. . . . . . . . . . . . . . . . . . 46
Section 11.17. Recitals . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 11.18. Back-up Determination and Claims . . . . . . . . . . . . 46
(ii)
<PAGE>
ARTICLE TWELVE
TERMINATION
Section 12.06. Optional Purchase. . . . . . . . . . . . . . . . . . . . 47
ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01. Amendment. . . . . . . . . . . . . . . . . . . . . . . . 48
Section 13.03. Limitation on the Rights of the Holders
of the Series 1994-A Certificates. . . . . . . . . . . 48
Section 13.04. No Petition. . . . . . . . . . . . . . . . . . . . . . . 48
Section 13.05. Governing Law. . . . . . . . . . . . . . . . . . . . . . 48
Section 13.06. Notices. . . . . . . . . . . . . . . . . . . . . . . . . 48
Section 13.07. Severability of Provisions . . . . . . . . . . . . . . . 49
Section 13.12. Counterparts . . . . . . . . . . . . . . . . . . . . . . 49
Section 13.14. Instructions in Writing. . . . . . . . . . . . . . . . . 49
Section 13.18. Direction of Insolvency Proceedings. . . . . . . . . . . 49
Section 13.19. Series 1994-A Credit Enhancer. . . . . . . . . . . . . . 50
Section 13.20. Third-Party Beneficiaries. . . . . . . . . . . . . . . . 51
Section 13.21. Inclusion in a Group . . . . . . . . . . . . . . . . . . 51
EXHIBITS
Exhibit A - Form of Class A Certificate. . . . . . . . . . . . . . . . .A-1
Exhibit B - Form of Class B Certificate. . . . . . . . . . . . . . . . .B-1
Exhibit C - Form of Class R Certificate. . . . . . . . . . . . . . . . .C-1
Exhibit D - Form of Distribution Date Statement. . . . . . . . . . . . .D-1
Exhibit E - Form of Policy . . . . . . . . . . . . . . . . . . . . . . .E-1
Exhibit F - Form of Rule 144A Investment Letter. . . . . . . . . . . . .F-1
(iii)
<PAGE>
THIS SERIES 1994-A SUPPLEMENT, dated as of December 31, 1994
(the "Supplement") between Carolina First Bank, a South Carolina
state-chartered bank (the "Bank"), as Seller and Master Servicer,
and The Chase Manhattan Bank, N.A., a national banking
association, as Trustee, is entered into pursuant to the terms
of, and supplements, the Pooling and Servicing Agreement dated as
of December 31, 1994 (the "Pooling and Servicing Agreement"),
also between the Bank, as Seller and Master Servicer, and The
Chase Manhattan Bank, N.A., as Trustee, solely in connection with
the issuance of the Series 1994-A Certificates described herein.
Pursuant to Section 6.09 of the Pooling and Servicing
Agreement, the Seller and the Trustee may from time to time
direct the Trustee to issue, on behalf of the Trust, one or more
Series of Certificates representing undivided interests in the
Trust by, among other things, executing a Supplement to the
Pooling Agreement. Certain terms applicable to any such Series
are to be set forth in such Supplement.
Pursuant to this Supplement, the Trustee shall create a
Series of Certificates, designated the "Series 1994-A
Certificates". The parties hereto shall hereby specify the
Principal Terms of the Series 1994-A Certificates. The Series
1994-A Certificates are the first Series issued by the Trust and
shall not be included in a Group unless the Seller shall first
satisfy the conditions set forth in Section 13.18.
<PAGE>
ARTICLE ONE
DEFINITIONS; INCORPORATION
OF POOLING AGREEMENT
Section 1.01. Definitions.
(a) Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed thereto in the Pooling and
Servicing Agreement. Each capitalized term defined herein
relates only to the Series 1994-A Certificates and to no other
Series of Certificates issued by the Trust. In the event that
any term or provision contained herein shall conflict with or be
inconsistent with any provision contained in the Pooling
Agreement, to the extent that such conflicting terms or
provisions relate only to the Series 1994-A Certificates, the
terms and provisions of this Supplement shall govern. All
Article and Section references herein shall be to Articles and
Sections of the Pooling Agreement, as amended or supplemented by
this Supplement, except as otherwise provided herein. The
Articles and Sections contained herein supplement, but do not
remove or replace the Articles or Sections in the Pooling
Agreement bearing the same Article or Section numbers.
(b) Whenever used in this Supplement, the following words
and phrases shall have the following meanings:
"Advance" means any advance of funds by the Class R
Certificateholders to the Seller pursuant to Section 4.09.
"Available Excess Finance Charge Collections" with respect
to any Distribution Date on or after the date, if any, on which
the Series 1994-A Certificates are included in a Group, means the
amount, if any, of Shared Excess Finance Charge Collections with
respect to such Group allocated to the Series 1994-A Certificate-
holders' Interest pursuant to Section 4.05.
"Available Principal Collections" with respect to any
Distribution Date, means an amount equal to the sum of (i) the
Series 1994-A Principal Allocation Percentage of all Collections
of Principal Receivables received during the related Monthly
Period (minus the amount of any Reallocated Principal Collections
with respect to such Monthly Period), (ii) the aggregate amount
of the sum of Excess Spread and Available Excess Finance Charge
Collections that are to be treated as Available Principal
Collections pursuant to Sections 5.01(a) and 5.01(b) with respect
to such Distribution Date, (iii) the amount withdrawn from the
Series 1994-A Reserve Fund to make any reimbursement of Class A
Investor Charge-Offs or Class R Investor Charge-Offs on such
Distribution Date pursuant to Section 5.03 and (iv) if the Series
1994-A Certificates are included in a Group, Shared Excess
Principal Collections allocated to the Series 1994-A
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<PAGE>
Certificateholders' Interest pursuant to Section 4.04 with
respect to such Distribution Date.
"Business Day" (i) solely for purposes of calculating LIBOR
pursuant to Section 4.08 and the definition of "LIBOR
Determination Date", means any day other than a day on which
banking institutions in London, England, and New York City, New
York, trading in U.S. dollar deposits in the London interbank
market are authorized or obligated by law or executive order to
be closed and (ii) for all other purposes, has the meaning
ascribed thereto in the Pooling Agreement.
"Charge-Off Rate" as calculated on any Determination Date
with respect to the related Monthly Period, means the annualized
percentage equivalent of a fraction, the numerator of which is
the Defaulted Amount for such Monthly Period and the denominator
of which is the Aggregate Principal Receivables Amount as of the
last day of the Monthly Period preceding such Monthly Period.
"Class A Additional Interest" with respect to any Interest
Period, means interest accrued during such Interest Period at the
Class A Certificate Rate on the aggregate amount of accrued and
unpaid Class A Monthly Interest as of the Distribution Date which
is the first day of such Interest Period.
"Class A Available Funds" with respect to any Monthly
Period, means the product of (i) the Class A Floating Percentage
and (ii) the product of (a) the Series 1994-A Floating Allocation
Percentage and (b) the aggregate amount of Collections of Finance
Charge Receivables, Recoveries and Investment Proceeds, if any,
with respect to such Monthly Period.
"Class A Balance" as of any date of determination, means the
Class A Initial Balance minus the aggregate amount distributed to
the Class A Certificateholders in payment of principal, including
any payments made by the Series 1994-A Credit Enhancer in respect
of Class A Investor Charge-Offs, prior to such date.
"Class A Certificate" means any of the $70,000,000 Floating
Rate Asset Backed Certificates, Series 1994-A, Class A, issued in
accordance with the terms hereof, substantially in the form
attached hereto as Exhibit A. The Class A Certificates are a
Class of Investor Certificates.
"Class A Certificate Rate" with respect to the first
Interest Period, means 6.24%, and with respect to each subsequent
Interest Period, means LIBOR plus 0.30%.
"Class A Certificateholder" means any Holder of a Class A
Certificate.
"Class A Controlled Amortization Amount" means $4,375,000.
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<PAGE>
"Class A Controlled Distribution Amount" with respect to any
Distribution Date during the Series 1994-A Controlled
Amortization Period, means the sum of the Class A Controlled
Amortization Amount and any Class A Deficit Controlled
Amortization Amount as of the close of business on the
immediately preceding Distribution Date.
"Class A Deficit Controlled Amortization Amount" (i) on the
first Distribution Date during the Series 1994-A Controlled
Amortization Period, means the excess, if any, of the Class A
Controlled Amortization Amount for such Distribution Date over
the amount distributed as Class A Monthly Principal for such
Distribution Date and (ii) on each subsequent Distribution Date
during the Series 1994-A Controlled Amortization Period, means
the excess, if any, of the sum of the Class A Controlled
Distribution Amount for such subsequent Distribution Date plus
any Class A Deficit Controlled Amortization Amount as of the
close of business on the preceding Distribution Date over the
amount distributed as Class A Monthly Principal on such
subsequent Distribution Date.
"Class A Expected Final Payment Date" means the May 15, 2000
Distribution Date.
"Class A Floating Percentage" with respect to any Monthly
Period, means the percentage equivalent (not to exceed 100%) of a
fraction, the numerator of which is the Class A Invested Amount
as of the last day of the Monthly Period preceding such Monthly
Period (or, with respect to the first Monthly Period, the Class A
Initial Invested Amount) and the denominator of which is the
Series 1994-A Invested Amount as of such last day (or, with
respect to the first Monthly Period, the Series 1994-A Initial
Invested Amount).
"Class A Funding Percentage" with respect to any date of
determination, means the percentage equivalent of a fraction, the
numerator of which is the Class A Invested Amount and the
denominator of which is the sum of the Class A Invested Amount
and the Class R Invested Amount, each as of the last day of the
Monthly Period preceding such date of determination.
"Class A Initial Balance" means the Class A Balance as of
the Series 1994-A Closing Date, which will be $70,000,000.
"Class A Initial Invested Amount" means the Class A Invested
Amount as of the Series 1994-A Closing Date, which will be
$70,000,000.
"Class A Invested Amount" as of any date of determination,
means the lesser of (i) the Class A Balance as of such date and
(ii) an amount equal to the total of (a) the Class A Initial
Invested Amount, minus (b) the amount of principal payments made
to the Class A Certificateholders on or prior to such date, minus
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<PAGE>
(c) the aggregate amount of Class A Investor Charge-Offs realized
since the Series 1994-A Closing Date plus (d) the aggregate
amount of Excess Spread, Available Excess Finance Charge
Collections or funds released from the Series 1994-A Reserve Fund
and applied to reimburse realized Class A Investor Charge-Offs on
or prior to such date.
"Class A Investor Charge-Off" with respect to any
Distribution Date, means the amount, if any, of the Class A
Investor Default Amount on such Distribution Date not funded from
Class A Available Funds, Excess Spread, Available Excess Finance
Charge Collections, Reallocated Principal Collections, amounts on
deposit in the Series 1994-A Reserve Fund or the reallocation of
the Class B Invested Amount pursuant to Section 5.04.
"Class A Investor Default Amount" with respect to any
Distribution Date, means the product of (i) the Class A Floating
Percentage with respect to the related Monthly Period and (ii)
the Series 1994-A Investor Default Amount for such Monthly
Period.
"Class A Monthly Interest" with respect to any Distribution
Date, means an amount equal to the product of (i) a fraction, the
numerator of which is the actual number of days in the related
Interest Period and the denominator of which is 360, (ii) the
Class A Certificate Rate and (iii) either (a) the Class A Balance
as of the first day of such Interest Period, after giving effect
to any distributions of principal to the Class A
Certificateholders on such first day or (b) with respect to the
first Distribution Date, the Class A Initial Invested Amount.
"Class A Monthly Interest Claim Amount" has the meaning set
forth in Section 5.05(a).
"Class A Monthly Principal" with respect to any Distribution
Date in any month following the month in which the Series 1994-A
Amortization Date or a Pay Out Event occurs, means the least of
(i) the product of (a) the Class A Funding Percentage as of the
related Determination Date, and (b) the Available Principal
Collections on deposit in the Collection Account on such
Distribution Date, (ii) if such Distribution Date occurs during
the Controlled Amortization Period, the Class A Controlled
Distribution Amount for such Distribution Date and (iii) the
Class A Balance on such Distribution Date.
"Class A Policy Amount" with respect to any Distribution
Date, means the premium payable with respect to the Class A
Certificates pursuant to the Premium Letter.
"Class A Principal Percentage" with respect to any Monthly
Period during (i) the Series 1994-A Revolving Period, means the
percentage equivalent (not to exceed 100%) of a fraction, the
numerator of which is the Class A Invested Amount as of the last
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<PAGE>
day of the Monthly Period preceding such Monthly Period (or, with
respect to the first Monthly Period, the Class A Initial Invested
Amount), and the denominator of which is the Series 1994-A
Invested Amount as of such last day, (or, with respect to the
first Monthly Period, the Series 1994-A Initial Invested Amount)
and (ii) a Series 1994-A Amortization Period, means the
percentage equivalent (not to exceed 100%) of a fraction, the
numerator of which is the Class A Invested Amount as of the last
day of the Series 1994-A Revolving Period, and the denominator of
which is the Series 1994-A Invested Amount as of such last day.
"Class A Reimbursement Percentage" with respect to any
Distribution Date, means the percentage equivalent of a fraction,
the numerator of which is the Class A Balance and the denominator
of which is the sum of the Class A Balance and the Class R
Balance, each as of the last day of the Monthly Period preceding
the related Monthly Period.
"Class A Servicing Fee" with respect to any Distribution
Date, means the product of (i) the Class A Floating Percentage
with respect to the related Monthly Period and (ii) the Series
1994-A Monthly Servicing Fee for such Distribution Date.
"Class B Advance Percentage" with respect to the first
Distribution Date, means 25% and, with respect to any subsequent
Distribution Date, means the greater of (i) 18% or (ii) 25% less
the sum of the Class B Advance Percentage Declines, if any,
recognized on such Distribution Date and on all prior
Distribution Dates; provided, however, that for any Distribution
Date subsequent to the occurrence of a Pay Out Event, the Class B
Advance Percentage will be the Class B Advance Percentage as of
the last Distribution Date preceding such Pay Out Event.
"Class B Advance Percentage Decline" as determined on any
Determination Date with respect to the related Distribution Date,
means the product of (i) the excess, if any, of (a) the Sales 4
and 5 Percentage as of the last day of the Monthly Period
preceding the related Monthly Period over (b) the Sales 4 and 5
Percentage as of the last day of the related Monthly Period and
(ii) 0.70.
"Class B Available Funds" with respect to any Monthly
Period, means the product of (i) the Class B Floating Percentage
and (ii) the product of (a) the Series 1994-A Floating Allocation
Percentage and (b) the aggregate amount of Collections of Finance
Charge Receivables, Recoveries and Investment Proceeds, if any,
with respect to such Monthly Period.
"Class B Certificate" means any of the $17,500,000 (Initial
Amount) Asset Backed Certificates, Series 1994-A, Class B, issued
in accordance with the terms hereof, substantially in the form
attached hereto as Exhibit B. The Class B Certificates are a
Class of Investor Certificates that is subordinated, to the
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<PAGE>
extent set forth herein, to the Class A Certificates and the
Class R Certificates.
"Class B Certificateholder" means any Holder of a Class B
Certificate.
"Class B Floating Percentage" with respect to any Monthly
Period, means the percentage equivalent (not to exceed 100%) of a
fraction, the numerator of which is the Class B Invested Amount
as of the last day of the Monthly Period preceding such Monthly
Period (or, with respect to the first Monthly Period, the Class B
Initial Invested Amount) and the denominator of which is equal to
the Series 1994-A Invested Amount on such last day (or, with
respect to the first Monthly Period, the Series 1994-A Initial
Invested Amount).
"Class B Initial Invested Amount" means the Class B Invested
Amount as of the Series 1994-A Closing Date, which will be
$17,500,000.
"Class B Invested Amount" as of any date of determination,
will mean an amount equal to the total of (i) the Class B Initial
Invested Amount, minus (ii) the amount of principal payments made
to Class B Certificateholders on or prior to such date (which
will not include Excess Spread or Available Excess Finance Charge
Collections applied to reimburse amounts described in clauses
(iii) or (iv) on or prior to such date), minus (iii) the
aggregate amount of Reallocated Principal Collections on or prior
to such date, minus (iv) the aggregate amount of Class B Investor
Charge-Offs on or prior to such date, minus (v) an amount equal
to the Class B Advance Percentage of the aggregate amount of
principal distributed to the Class R Certificateholders on or
prior to such date, plus (vi) an amount equal to the Class B
Advance Percentage of the aggregate amount of Advances made on or
prior to such date, plus (vii) the aggregate amount of Excess
Spread and Available Excess Finance Charge Collections applied to
reimburse the amounts described in clauses (iii) and (iv) on or
prior to such date.
"Class B Investor Charge-Off" with respect to any
Distribution Date means the sum of (i) the amount, if any, of the
Class B Investor Default Amount on such Distribution Date not
funded from Excess Spread or Available Excess Finance Charge
Collections and (ii) the sum of the Class A Investor Default
Amount and Class R Investor Default Amount covered by the
reallocation to the Class A Invested Amount and the Class R
Invested Amount of a portion of the Class B Invested Amount on
such Distribution Date pursuant to Section 5.04.
"Class B Investor Default Amount" with respect to any
Distribution Date, means the product of (i) the Class B Floating
Percentage with respect to the related Monthly Period and (ii)
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<PAGE>
the Series 1994-A Investor Default Amount for such Monthly Period.
"Class B Monthly Principal" (i) with respect to any
Distribution Date prior to the Class B Principal Commencement
Date, means zero and (ii) with respect to the Class B Principal
Commencement Date and each subsequent Distribution Date, means
the lesser of (a) the Class B Invested Amount and (b) the amount
of Available Principal Collections remaining after all required
distributions to the Class A Certificateholders, the Class R
Certificateholders and the Series 1994-A Credit Enhancer have
been made on such Distribution Date.
"Class B Principal Commencement Date" means the later to
occur of (i) the Distribution Date on which the Class A Invested
Amount is paid in full or (ii) the Distribution Date on which the
Class R Invested Amount is paid in full.
"Class B Principal Percentage" (i) with respect to any
Monthly Period during the Series 1994-A Revolving Period, means
the percentage equivalent (not to exceed 100%) of a fraction, the
numerator of which is the Class B Invested Amount as of the last
day of the Monthly Period preceding such Monthly Period (or, with
respect to the first Monthly Period, the Class B Initial Invested
Amount) and the denominator of which is the Series 1994-A
Invested Amount as of such last day (or, with respect to the
first Monthly Period, the Series 1994-A Initial Invested Amount)
and (ii) with respect to any Monthly Period during a Series 1994-
A Amortization Period, the percentage equivalent (not to exceed
100%) of a fraction, the numerator of which is the Class B
Invested Amount as of the last day of the Revolving Period, and
the denominator of which is the Series 1994-A Invested Amount as
of such day.
"Class B Servicing Fee" with respect to any Distribution
Date, means the product of (i) the Class B Floating Percentage
for the related Monthly Period and (ii) the Series 1994-A Monthly
Servicing Fee for such Distribution Date.
"Class R Additional Interest" with respect to any Interest
Period, means interest accrued during such Interest Period at the
Class R Certificate Rate on the aggregate amount of accrued and
unpaid Class R Monthly Interest as of the Distribution Date which
is the first day of such Interest Period.
"Class R Available Funds" with respect to any Monthly
Period, means the product of (i) the Class R Floating Percentage
and (ii) the product of (a) the Series 1994-A Floating Allocation
Percentage and (b) the aggregate amount of Collections of Finance
Charge Receivables, Recoveries and Investment Proceeds, if any,
with respect to such Monthly Period.
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<PAGE>
"Class R Balance" (i) prior to the date of the first
Advance, means zero, and (ii) as of any date of determination
thereafter, means the aggregate amount of all Advances made (or
deemed to have been made) on or prior to such date minus the
aggregate amount distributed to the Class R Certificateholders in
payment of principal, including payments by the Series 1994-A
Credit Enhancer in respect of Class R Investor Charge-Offs, on or
prior to such date.
"Class R Certificate" means any of the $15,000,000 (Maximum
Amount) Floating Rate Asset Backed Certificates, Series 1994-A,
Class R, issued in accordance with the terms thereof,
substantially in the form attached hereto as Exhibit C. The
Class R Certificates are a Class of Investor Certificates that
are Variable Funding Certificates.
"Class R Certificate Purchase Agreement" means the
Certificate Purchase Agreement dated as of the Series 1994-A
Closing Date, among the Seller, Mitsubishi, as Purchaser, and the
Other Purchasers, as the same may be amended, supplemented or
otherwise modified from time to time, substantially in the form
of Exhibit F.
"Class R Certificate Rate" with respect the first Interest
Period, means 0%, and with respect to each subsequent Interest
Period, means LIBOR plus 0.30%.
"Class R Certificateholder" means any Holder of a Class R
Certificate.
"Class R Controlled Amortization Amount" means one-sixteenth
of the Class R Balance as of the close of business on
December 15, 1998.
"Class R Controlled Distribution Amount" with respect to any
Distribution Date during the Series 1994-A Controlled
Amortization Period, means the sum of the Class R Controlled
Amortization Amount and any Class R Deficit Controlled
Amortization Amount as of the close of business on the
immediately preceding Distribution Date.
"Class R Deficit Controlled Amortization Amount" (i) on the
first Distribution Date during the Series 1994-A Controlled
Amortization Period, means the excess, if any, of the Class R
Controlled Amortization Amount for such Distribution Date over
the amount distributed as Class R Monthly Principal for such
Distribution Date and (ii) on each subsequent Distribution Date
during the Series 1994-A Controlled Amortization Period, means
the excess, if any, of the Class R Controlled Distribution Amount
for such subsequent Distribution Date plus any Class R Deficit
Controlled Amortization Amount for the preceding Distribution
Date over the amount distributed as Class R Monthly Principal for
such subsequent Distribution Date.
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<PAGE>
"Class R Expected Final Payment Date" means the May 15, 2000
Distribution Date.
"Class R Floating Percentage" means, with respect to any
Monthly Period, the percentage equivalent (not to exceed 100%) of
a fraction, the numerator of which is the Class R Invested Amount
as of the last day of the Monthly Period preceding such Monthly
Period and the denominator of which is the Series 1994-A Invested
Amount as of such last day (except that, with respect to the
first Monthly Period, the Class R Floating Percentage will be
zero).
"Class R Funding Percentage" with respect to any date of
determination, means the percentage equivalent of a fraction, the
numerator of which is the Class R Invested Amount and the
denominator of which is the sum of the Class A Invested Amount
and the Class R Invested Amount, each as of such date of
determination.
"Class R Invested Amount" as of any date of determination,
means an amount equal to the least of (i) the Class R Maximum
Amount, (ii) the Class R Balance and (iii) the total of (a) the
sum of the amounts of each Advance made (or deemed to be made) on
or prior to such date, minus (b) the amount of principal payments
made to the holders of the Class R Certificates on or prior to
such date, minus (c) the aggregate amount of Class R Investor
Charge-Offs realized since the Series 1994-A Closing Date, plus
(d) the aggregate amount of Excess Spread, Available Excess
Finance Charge Collections or funds released from the Series
1994-A Reserve Fund and applied to reimburse realized Class R
Investor Charge-Offs on or prior to such date. For purposes of
making any calculation with respect to any action, consent,
direction, vote or notice by Certificateholders under the Pooling
and Servicing Agreement or this Supplement, the Class R Invested
Amount shall at all times be deemed to equal the Class R Maximum
Amount.
"Class R Investor Charge-Off" with respect to any
Distribution Date, means the amount, if any, of the Class R
Investor Default Amount on such Distribution Date not funded from
Class R Available Funds, Excess Spread, Available Excess Finance
Charge Collections, Reallocated Principal Collections, amounts on
deposit in the Series 1994-A Reserve Fund or the reallocation of
the Class B Invested Amount pursuant to Section 5.04.
"Class R Investor Default Amount" with respect to any
Distribution Date, means the product of (i) the Class R Floating
Percentage with respect to the related Monthly Period and (ii)
the Series 1994-A Investor Default Amount for such Monthly
Period.
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"Class R Maximum Amount" means $15,000,000, subject to
reduction as set forth in the Class R Certificate Purchase Agreement.
"Class R Monthly Interest" with respect to any Distribution
Date other than the first Distribution Date, means an amount
equal to the product of (i) a fraction, the numerator of which is
the actual number of days in the related Interest Period and the
denominator of which is 360, (ii) the Class R Certificate Rate
and (iii) the Class R Balance as of the first day of such
Interest Period, after giving effect to any Advances made on such
day and distributions of principal to the Class R Certificate-
holders on such day. With respect to the first Distribution
Date, Class R Monthly Interest will be zero.
"Class R Monthly Interest Claim Amount" has the meaning set
forth in Section 5.05(a).
"Class R Monthly Principal" with respect to any Distribution
Date in any month following the month in which the Series 1994-A
Amortization Date or a Pay Out Event occurs, means the least of
(i) the product of (a) the Class R Funding Percentage as of the
related Determination Date and (b) Available Principal
Collections on deposit in the Collection Account on such
Distribution Date, (ii) for each Distribution Date during the
Series 1994-A Controlled Amortization Period, the Class R
Controlled Distribution Amount for such Distribution Date and
(iii) the Class R Balance on such Distribution Date.
"Class R Policy Amount" with respect to each Distribution
Date, means the premium payable with respect to the Class R
Certificates pursuant to the Premium Letter.
"Class R Principal Percentage" (i) with respect to any
Monthly Period during the Series 1994-A Revolving Period, means
the percentage equivalent (not to exceed 100%) of a fraction, the
numerator of which is the Class R Invested Amount as of the last
day of the preceding Monthly Period and the denominator of which
is the Series 1994-A Invested Amount as of such day (except that,
with respect to the first Monthly Period, the Class R Principal
Percentage will be zero) and (ii) with respect to any Monthly
Period during a Series 1994-A Amortization Period, the percentage
equivalent (not to exceed 100%) of a fraction the numerator of
which is the Class R Invested Amount as of the last day of the
Revolving Period and the denominator of which is the Series
1994-A Invested Amount as of such day.
"Class R Reimbursement Percentage" with respect to any
Distribution Date means the percentage equivalent of a fraction
the numerator of which is the Class R Balance and the denominator
of which is the sum of the Class A Balance and the Class R
Balance, each as of the last day of the Monthly Period preceding
the related Monthly Period.
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"Class R Servicing Fee" with respect to any Distribution
Date, means the product of (i) the Class R Floating Percentage
for the related Monthly Period and (ii) the Series 1994-A Monthly
Servicing Fee for such Distribution Date.
"Credit Enhancer Default" means any of the following events
shall have occurred and be continuing: (i) the Series 1994-A
Credit Enhancer fails to make a payment under the Policy in
accordance with its terms; (ii) the Series 1994-A Credit Enhancer
(a) files any petition or commences any case or proceeding under
any provision or chapter of the United States Bankruptcy Code or
any other similar federal or state law relating to insolvency,
bankruptcy, rehabilitation, liquidation or reorganization, (b)
makes a general assignment for the benefit of its creditors, or
(c) is the subject of an order for relief under the United States
Bankruptcy Code or any other similar federal or state law
relating to insolvency, bankruptcy, rehabilitation, liquidation
or reorganization which is final and nonappealable; or (iii) a
court of competent jurisdiction, the New York Department of
Insurance or other competent regulatory authority enters a final
and nonappealable order, judgment or decree (a) appointing a
custodian, trustee, agent or receiver for the Series 1994-A
Credit Enhancer or for all or any material portion of its
property or (b) authorizing the taking of possession by a
custodian, trustee, agent or receiver of the Series 1994-A Credit
Enhancer of all or any material portion of its property.
"Distribution Date" has the meaning ascribed thereto in the
Pooling and Servicing Agreement; provided, however, that the
first Distribution Date with respect to the Series 1994-A
Certificates will be February 15, 1995.
"Distribution Date Statement" means the statement to be
prepared on each Determination Date pursuant to Section 3.04(b),
substantially in the form attached hereto as Exhibit D.
"Excess Spread" with respect to any Distribution Date, means
an amount equal to the sum of (i) the amounts described in
Sections 5.01(a)(i)(E), 5.01(a)(ii)(E) and 5.01(a)(iii)(C) and
(ii) the product of (a) the Series 1994-A Funding Percentage,
(b) the Seller's Percentage and (c) Collections of Finance Charge
Receivables during the related Monthly Period.
"Excess Spread Percentage" as calculated on any
Determination Date for the related Distribution Date and with
respect to the related Monthly Period, means the annualized
percentage equivalent of a fraction, the numerator of which is
the sum of (i) Excess Spread and (ii) if the Series 1994-A
Certificates are included in a Group, Available Excess Finance
Charge Collections, and the denominator of which is the sum of
the Class A Invested Amount and the Class R Invested Amount, each
as of such Determination Date; provided, however, that in
calculating the Excess Spread Percentage on any Determination
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Date relating to a Distribution Date in (i) any January, Excess
Spread will be deemed to equal the amount described in the
definition thereof for the related Distribution Date plus the
product of (a) 0.917 and (b) the Class A Policy Amount payable on
such Distribution Date and (ii) any other calendar month, Excess
Spread will be deemed to equal the amount described in the
definition thereof for the related Distribution Date, minus the
product of (a) 0.083 and (b) the Class A Policy Amount payable on
such Distribution Date.
"Guaranteed Distributions" shall have the meaning set forth
in the Policy.
"Initial Reserve Fund Amount" means $1,700,000.
"Insolvency Proceeding" has the meaning set forth in
Section 13.15(b).
"Insurance and Indemnity Agreement" means the Insurance and
Indemnity Agreement dated as of the Series 1994-A Closing Date,
between the Bank and the Series 1994-A Credit Enhancer pursuant
to which the Policy will be issued.
"Interest Period" means (i) with respect to the first
Distribution Date, the period from and including the Series
1994-A Closing Date to but excluding the first Distribution Date,
and (ii) for any subsequent Distribution Date, the period from
and including the preceding Distribution Date to but excluding
such Distribution Date.
"LIBOR" means the London interbank offered rate for one-
month deposits denominated in U.S. dollars having maturities
corresponding to the relevant Interest Period, determined by the
Master Servicer pursuant to Section 4.08 or the Trustee pursuant
to Section 11.18.
"LIBOR Determination Date" for the Interest Period relating
to the first Distribution Date, means January 20, 1995, and for
each subsequent Interest Period means the second Business Day
prior to the Distribution Date on which such Interest Period
commences.
"Mitsubishi" means the Mitsubishi Trust and Banking
Corporation, New York Branch, or any successor thereto.
"Non-Usage Fee" with respect to any Interest Period other
than the first Interest Period and any Interest Period during an
Amortization Period, during which the Class R Balance is less
than the Class R Maximum Amount, means an amount equal to the
product of (i) one-twelfth of 0.25% per annum, (ii) the excess of
the Class R Maximum Amount over the Class R Balance, each as of
the first day of such Interest Period, after giving effect to all
allocations and distributions with respect to the Class R
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<PAGE>
Certificates on such Distribution Date, and (iii) a fraction, the
numerator of which is the number of days during such Interest
Period and the denominator of which is 360. The Non-Usage Fee
with respect to the first Interest Period or any Interest Period
during an Amortization Period will be zero.
"Non-Usage Fee Claim Amount" has the meaning set forth in
Section 5.05(a).
"Notice of Claim" means any notice prepared and delivered by
the Trustee to the Series 1994-A Credit Enhancer in accordance
with Section 5.05 or 9.02(d) and the provisions of the Policy in
connection with the making of a claim under the Policy.
"Other Purchasers" means the Holders of the Class R
Certificates that purchase their Class R Certificates pursuant to
the Class R Certificate Purchase Agreement and who are identified
in such agreement as Purchasers.
"Pay Out Event" means any of the events defined as a "Pay
Out Event" in the Pooling Agreement and any of the events
specified in Section 9.03.
"Policy" means the financial guaranty insurance policy
issued by the Series 1994-A Credit Enhancer to the Trustee for
the benefit of the Class A Certificateholders and the Class R
Certificateholders, in the form attached hereto as Exhibit E.
"Pooling Agreement" means the Pooling and Servicing
Agreement, as amended, supplemented or otherwise modified from
time to time, and as supplemented by this Supplement.
"Pooling and Servicing Agreement" means the Pooling and
Servicing Agreement dated as of December 31, 1994, between the
Bank, as Seller and Master Servicer, and The Chase Manhattan
Bank, N.A., as Trustee.
"Preference Claim" has the meaning set forth in
Section 13.15(b).
"Premium Letter" means the letter dated the Series 1994-A
Closing Date, addressed to the Bank from the Series 1994-A Credit
Enhancer setting forth the premium payable with respect to the
Policy, a copy of which has been delivered to the Trustee.
"Purchasers" means Mitsubishi, as Purchaser under the
Certificate Purchase Agreement, and the Other Purchasers.
"Rating Agencies" means each of Moody's and Standard &
Poor's.
"Reallocated Principal Collections" with respect to any
Distribution Date during the Series 1994-A Revolving Period,
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means the amount of collections of Principal Receivables
allocable to the Class B Certificates that will be allocated to
cover the Required Amount for such Distribution Date, which will
equal the lesser of (i) the Class B Principal Percentage of
collections of Principal Receivables allocable to the Series
1994-A Certificateholders' Interest and (ii) the portion, if any,
of the Required Amount that is not funded by Excess Spread or
Available Excess Finance Charge Collections pursuant to Section
5.01(b).
"Reference Bank" means any of the four major banks in the
London interbank market selected by the Master Servicer for
purposes of determining LIBOR under Section 4.08(a).
"Repurchase Price" with respect to the Distribution Date
on which a retransfer of the Trust Assets pursuant to Section
2.03(b) or a repurchase of the Series 1994-A Certificates
pursuant to Section 12.06 is to be effected, means the sum of (i)
the aggregate of the Class A Balance, the Class R Balance and the
Class B Invested Amount, plus (ii) accrued and unpaid interest on
the Class A Certificates at the applicable Class A Certificate
Rate and on the Class R Certificates at the applicable Class R
Certificate Rate through such Distribution Date, plus (iii) the
sum of the aggregate amounts, if any, of Class A Additional
Interest and Class R Additional Interest payable on such
Distribution Date.
"Required Amount" as of any Distribution Date, means the
excess, if any of (i) the sum for such Distribution Date of (a)
current and overdue Class A Monthly Interest and Class R Monthly
Interest, (b) current and overdue Non-Usage Fees, (c) Class A
Additional Interest and Class R Additional Interest, (d) current
and overdue Class A Servicing Fee and Class R Servicing Fee, (e)
current and overdue Class A Policy Amount and Class R Policy
Amount and (e) the Class A Investor Default Amount and the Class
R Investor Default Amount, over (ii) the sum for such
Distribution Date of Class A Available Funds and Class R
Available Funds held in the Collection Account on such
Distribution Date.
"Required Reserve Fund Amount" as of any Distribution Date,
means the greater of (i) the product of (a) the sum of the
Class A Invested Amount and the Class R Maximum Amount and (b) 5%
and (ii) $1,700,000; provided, however, that if a Pay Out Event
with respect to the Series 1994-A Certificates has occurred, or
there has been a required withdrawal from the Reserve Fund during
an Amortization Period for the Series 1994-A Certificates, the
Required Reserve Fund Amount with respect to any Distribution
Date thereafter shall equal the Required Reserve Fund Amount on
the Distribution Date immediately preceding such Pay Out Event or
required withdrawal.
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"Sales 4 and 5 Accounts" means all of the Accounts
identified as such on the Schedule of Accounts.
"Sales 4 and 5 Percentage" as of any date of determination
means the percentage equivalent of a fraction the numerator of
which is aggregate balance of Principal Receivables in such
Accounts on such date of determination and the denominator of
which is the Aggregate Principal Receivables Amount. The Master
Servicer will determine the aggregate balance of Principal
Receivables in Sales 4 and 5 Accounts with respect to any date of
determination by subtracting from the aggregate balance of
Receivables in such Accounts (other than Defaulted Receivables)
on such date, an amount equal to the aggregate amount of Finance
Charge Receivables billed to Obligors on such Accounts during the
Monthly Period immediately prior to such date.
"Series 1994-A Amortization Date" means January 1, 1999.
"Series 1994-A Amortization Period" means either of the
Series 1994-A Controlled Amortization Period or the Series 1994-A
Rapid Amortization Period.
"Series 1994-A Certificates" means the Investor Certificates
issued pursuant to the Pooling and Servicing Agreement and the
Supplement.
"Series 1994-A Certificateholders' Interest" means the
Certificateholders' Interest with respect to the Series 1994-A
Certificates.
"Series 1994-A Closing Date" means January 24, 1995.
"Series 1994-A Controlled Amortization Period" means the
period from the Series 1994-A Amortization Date until the
earliest to occur of the reduction of each of the Class A Balance
and the Class R Balance to zero, (ii) the commencement of a
Series 1994-A Rapid Amortization Period or (iii) the Series 1994-
A Termination Date.
"Series 1994-A Credit Enhancer" means Financial Security
Assurance Inc., a New York monoline insurance company, its
successors and assigns.
"Series 1994-A Credit Enhancer Default" will have the
meaning set forth in the definition of "Credit Enhancer Default"
in the Pooling and Servicing Agreement, appropriately modified
such that (i) the Series 1994-A Credit Enhancer is substituted
for Credit Enhancer, (ii) the Policy is substituted for Credit
Enhancement and (iii) the Insurance and Indemnity Agreement is
substituted for Credit Enhancement Agreement.
"Series 1994-A Cutoff Date" means December 31, 1994.
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"Series 1994-A Floating Allocation Percentage" will be
calculated as set forth in the definition of "Floating Allocation
Percentage" in the Pooling and Servicing Agreement.
"Series 1994-A Funding Percentage" will be calculated as set
forth in the definition of "Series Funding Percentage" in the
Pooling and Servicing Agreement.
"Series 1994-A Initial Invested Amount" means the Series
1994-A Invested Amount as of the Series 1994-A Closing Date,
which will be $87,500,000.
"Series 1994-A Invested Amount" as of any date of
determination, means an amount equal to the sum of the Class A
Invested Amount, the Class R Invested Amount and the Class B
Invested Amount, each as of such date.
"Series 1994-A Investor Default Amount" with respect to any
Monthly Period, means the product of (i) the Series 1994-A
Floating Allocation Percentage with respect to such Monthly
Period and (ii) the Defaulted Amount for such Monthly Period.
"Series 1994-A Majority Holders" means the Holders of
Investor Certificates evidencing in the aggregate 51% or more of
the sum of the Class A Balance and the Class R Balance; provided,
however, that any such Certificates held by the Seller or any
Affiliate of the Seller shall be disregarded in determining the
foregoing sum.
"Series 1994-A Monthly Servicing Fee" with respect to any
Distribution Date, means the product of (i) one-twelfth, (ii)
2.0% and (iii) the Series 1994-A Invested Amount as of the last
day of the Monthly Period preceding the related Monthly Period
(or, with respect to the first Distribution Date, the Series
1994-A Initial Invested Amount).
"Series 1994-A Principal Allocation Percentage" will be
calculated as set forth in the definition of "Principal
Allocation Percentage" in the Pooling and Servicing Agreement.
"Series 1994-A Rapid Amortization Period" means the period
commencing with the occurrence and continuance of a Pay Out Event
and continuing until the Series 1994-A Termination Date.
"Series 1994-A Reserve Fund" means the Reserve Fund
established pursuant to Section 4.02(b) and identified as such on
Schedule 2 to the Pooling and Servicing Agreement. The Series
1994-A Reserve Fund will be a Series Account for purposes of the
Pooling and Servicing Agreement.
"Series 1994-A Revolving Period" means the period from the
Series 1994-A Closing Date until the earlier to occur of (i) the
Series 1994-A Amortization Date or (ii) any Pay Out Event that
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gives rise to the commencement of a Series 1994-A Rapid
Amortization Period.
"Series 1994-A Termination Date" means the August 15, 2001
Distribution Date.
"Supplement" unless the context otherwise requires, means
this Supplement.
"Termination Date Shortfall" has the meaning set forth in
Section 5.05(b).
"Unreimbursed Credit Enhancer Amounts" with respect to any
Distribution Date, means the sum of, without duplication, (i)
current and overdue Class A Policy Amounts and Class R Policy
Amounts, (ii) amounts paid in respect of claims under the Policy
with respect to prior Distribution Dates, (iii) payments made by
the Series 1994-A Credit Enhancer to fund Class A Investor
Charge-Offs or Class R Investor Charge-Offs on one or more prior
Distribution Dates, (iv) other amounts owed to the Series 1994-A
Credit Enhancer under the Insurance and Indemnity Agreement, and
(v) accrued and unpaid interest on such amounts pursuant to the
Insurance and Indemnity Agreement, in each case for which the
Series 1994-A Credit Enhancer has not previously been reimbursed.
Section 1.02. Incorporation of Pooling and Servicing
Agreement. The terms and provisions of the Pooling and Servicing
Agreement are hereby incorporated as if they were set forth in
full herein. As supplemented by this Supplement, the Pooling and
Servicing Agreement is hereby ratified and confirmed in all
respects, and the Pooling and Servicing Agreement and this
Supplement shall be read, taken and construed together as one and
the same instrument. In the event of any conflict or
inconsistency between the terms of this Supplement and the terms
of the Pooling and Servicing Agreement, insofar as the such
conflicting or inconsistent terms apply to the Series 1994-A
Certificates, the terms of this Supplement shall control.
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ARTICLE TWO
DESIGNATION OF SERIES; CONVEYANCE; ADDITIONAL
REPRESENTATIONS, WARRANTIES AND COVENANTS
OF THE SELLER
Section 2.11. Designation. There is hereby created a
Series of Certificates to be issued pursuant to the Pooling and
Servicing Agreement and this Supplement to be known as the
"Series 1994-A Certificates". The Series 1994-A Certificates
will include three Classes of Certificates, designated the "Class
A Certificates", the "Class R Certificates" and the "Class B
Certificates", respectively. Subject to the conditions set forth
herein and in the Class R Certificate Purchase Agreement, the
Trustee shall authenticate and deliver (i) one or more fully
registered certificates, substantially in the form attached
hereto as Exhibit A, representing 100% of the Class A
Certificates, (ii) one or more fully registered certificates
substantially in the form attached hereto as Exhibit C,
representing 100% of the Class R Certificates (which shall be
issued in fully registered form) and (iii) a single fully
registered certificate, substantially in the form attached hereto
as Exhibit B, representing 100% of the Class B Certificates
(which shall be issued in fully registered form), in each case to
or upon the order of the Seller in the names and denominations
specified by the Seller. The Series 1994-A Certificates shall be
authenticated and delivered in the manner and at the times for
authentication and delivery provided for in Article Six of the
Pooling and Servicing Agreement.
The Series 1994-A Certificates are not subordinated to any
other Series or Class, and shall be entitled to the rights and
benefits of the Pooling and Servicing Agreement (including with
respect to distributions of interest and principal payments) on a
pari passu basis with each other Series and Class that is not
subordinated to any other Series or Class. The Class A
Certificates and the Class R Certificates are not subordinated to
any other Series or Class and shall be issued on a pari passu
basis with respect to all amounts allocable to the Series 1994-A
Certificateholders' Interest. The Class B Certificates will be
subordinated to the Class A Certificates and Class R Certificates
to the extent set forth herein with respect to (i) payments of
interest and principal to, (ii) certain fees allocable to and
(iii) the allocation of certain Defaulted Amounts to, the Class A
Certificates and the Class R Certificates but are not
subordinated to any other Series or Class.
Section 2.12. Conveyance.
(a) Conveyance. The Seller does hereby transfer, assign,
set-over and otherwise convey to the Trustee for the benefit of
the Class A Certificateholders and the Class R Certificateholders
and, to the extent set forth herein, for the Class B Certificate-
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holders, the Series 1994-A Credit Enhancer and the Seller, as
their interests appear herein, which interests shall be
subordinated to the interests of the Class A Certificateholders
and the Class R Certificateholders to the extent set forth
herein, a security interest and lien in all of the Seller's
right, title and interest in and to the amounts on deposit in the
Collection Account, the Series 1994-A Reserve Fund and the Excess
Funding Account, all Eligible Investments held in respect of
amounts on deposit therein and all proceeds thereof, as
collateral security for the amounts payable from time to time to
the Class A Certificateholders.
(b) Acknowledgement of the Trustee. The Trustee hereby
acknowledges its acceptance, on behalf of the Trust, of all
right, title and interest in and to the Trust Assets including,
without limitation, the rights of the Seller to certain amounts
on deposit in the Collection Account, the Excess Funding Account
and the Series 1994-A Reserve Fund, Eligible Investments held in
respect of such amounts and all proceeds thereof.
The Trustee hereby declares that it shall maintain such
right, title and interest in respect of amounts on deposit in or
credited to the Collection Account, Eligible Investments held in
respect of amounts on deposit in or credited to the Collection
Account and all proceeds thereof upon the trust set forth in the
Pooling and Servicing Agreement, this Supplement and each other
supplement relating to the issuance of a Series other than the
Series 1994-A Certificates, for the benefit of the Investor
Certificateholders as their respective interests appear herein
and therein and, as such interests are subordinated to the
interests of the Investor Certificateholders, the Master
Servicer, the Series 1994-A Credit Enhancer, any other Credit
Enhancer and the Holder of the Seller Certificate.
The Trustee hereby declares that it shall maintain such
right, title and interest in respect of amounts on deposit in or
credited to the Excess Funding Account, Eligible Investments held
in respect of amounts on deposit in or credited to the Excess
Funding Account and all proceeds thereof upon the trust set forth
in the Pooling and Servicing Agreement and this Supplement for
the benefit of the Investor Certificateholders as their
respective interests appear herein and therein and, as such
interests are subordinated to the interests of the Investor
Certificateholders, the Series 1994-A Credit Enhancer, any other
Credit Enhancer and the Holder of the Seller Certificate.
The Trustee hereby declares that it shall maintain such
right, title and interest in respect of amounts on deposit in or
credited to the Series 1994-A Reserve Fund, Eligible Investments
held in respect of amounts on deposit in or credited to the
Series 1994-A Reserve Fund and all proceeds thereof upon the
trust set forth in the Pooling and Servicing Agreement and this
Supplement, for the benefit of the Class A Certificateholders and
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the Class R Certificateholders and, as such interests are
subordinated to the interests of the Class A Certificateholders
and the Class R Certificateholders, the Master Servicer, the
Series 1994-A Credit Enhancer and the Holder of the Seller
Certificate.
The Trustee hereby acknowledges that its acceptance, on
behalf of the Trust, of all right, title and interest of the
Seller in and to Receivables in the Accounts and Additional
Accounts (and in all Receivables created in such Accounts after
the Series 1994-A Closing Date or the related Addition Date, as
the case may be), will be upon the trust set forth in the Pooling
and Servicing Agreement and each Supplement, and that by such
acceptance the Trustee will be deemed to have declared that it
will maintain such right, title and interest upon the trust set
forth herein and in the Pooling and Servicing Agreement, for the
Investor Certificateholders and the other Beneficiaries as their
interests appear herein and therein; provided, however, that the
interests of any Credit Enhancer and the Seller in such
Receivables shall be subordinated to the interests of the
Investor Certificateholders as and to the extent provided in the
Pooling and Servicing Agreement and each Supplement.
Section 2.13. Additional Representations, Warranties and
Covenants of the Seller. The Seller hereby makes the following
representations, warranties and covenants to the Trustee and for
the benefit of the Holders of the Series 1994-A Certificates and
to the Series 1994-A Credit Enhancer, on which the Trustee has
relied in executing this Supplement and authenticating the Series
1994-A Certificates:
(a) Conditions Precedent Satisfied. On or prior to
the Series 1994-A Closing Date, the Seller will have
satisfied all conditions precedent to the issuance of the
Series 1994-A Certificates contained in the Pooling and
Servicing Agreement (including, but not limited to, all
applicable provisions of Section 6.03) and the Class R
Certificate Purchase Agreement.
(b) Policy in Effect. On or prior to the Series 1994-
A Closing Date, the Policy will have been issued in the form
attached hereto as Exhibit E in accordance with the terms of
the Insurance and Indemnity Agreement.
(c) Reserve Fund Initial Deposit. At or prior to the
time of the issuance of the Series 1994-A Certificates, the
Seller will have deposited in the Series 1994-A Reserve
Fund, in immediately available funds, an amount equal to the
Initial Reserve Fund Amount.
(d) Representations and Warranties in the Pooling
Agreement. Each of the representations and warranties made
by the Seller in the Pooling Agreement is true and correct
21
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on the date hereof and will be true and correct on the
Series 1994-A Closing Date.
(e) Limitation of Revolving Line of Credit Accounts.
As of the Series 1994-A Cutoff Date, the percentage
equivalent of a fraction the numerator of which is the
aggregate amount of Principal Receivables in Accounts that
are Revolving Line of Credit Accounts and the denominator of
which is the Aggregate Principal Receivables Amount was less
than 5%.
(f) No Dead or Bankrupt Obligors. As of the Series
1994-A Cutoff Date, the Seller had not received notice of
the death of or the commencement of voluntary or involuntary
bankruptcy proceedings with respect to any Obligor.
(g) Covenants in the Pooling Agreement. Each of the
covenants made by the Seller in the Pooling Agreement is
hereby made by the Seller for the benefit of the Holders of
the Series 1994-A Certificates and the Series 1994-A Credit
Enhancer as if set forth in full herein.
(h) Amendment of Supplements. The Seller hereby
covenants not to enter into any amendment to any Supplement
with respect to any other Series at any time prior to the
payment in full of the Class A Certificates and the Class R
Certificates, unless it shall have received the prior
written consent of the Series 1994-A Credit Enhancer.
(i) Required Seller Percentage. The Seller hereby
covenants not to seek or consent to any change in the
Required Seller Percentage at any time other than during the
continuance of a Credit Enhancer Default relating to
payments under the Policy with respect to the Series 1994-A
Credit Enhancer prior to the payment in full of the Class A
Certificates and the Class R Certificates, unless it shall
have received the prior written consent of the Series 1994-A
Credit Enhancer.
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ARTICLE THREE
ADDITIONAL REPRESENTATIONS, WARRANTIES AND
COVENANTS OF THE MASTER SERVICER; WAIVER OF
ADDITIONAL SERVICING COMPENSATION
Section 3.07. Tax Treatment. The Seller has entered into
the Pooling and Servicing Agreement and this Supplement and the
Class A Certificates and the Class R Certificates will be issued
with the intention that the Class A Certificates and the Class R
Certificates will qualify under applicable tax law as
indebtedness of the Seller secured by the Trust Assets, and that
the interests represented by the Class B Certificates will be
treated under applicable tax law as an equity interest in the
Trust, or alternatively as an interest in a partnership (that is
not a publicly traded partnership taxable as a corporation or an
association taxable as a corporation) created under the Pooling
and Servicing Agreement and this Supplement. The Seller, each
Beneficiary, each Series 1994-A Certificateholder and each Series
1994-A Certificate Owner, by the acceptance of its Certificate or
Book-Entry Certificate, as applicable, agrees to treat and to
take no action inconsistent with the treatment of the Class A
Certificates and the Class R Certificates (or beneficial
interests therein) as indebtedness of the Seller secured by the
Receivables and the treatment of the Class B Certificates as
representing an equity interest in the Trust, or alternatively as
an interest in a partnership, for United States federal, state,
local and non-United States income and franchise taxes and any
other taxes imposed on or measured by income. Each Series 1994-A
Certificateholder agrees that it will cause any Class A
Certificate Owner, Class R Certificate Owner or Class B
Certificate Owner, as the case may be, acquiring an interest in
such Certificate through it to comply with the Pooling and
Servicing Agreement and this Supplement as to treatment as
indebtedness, in the case of the Class A Certificates and the
Class R Certificates, or equity or partnership interests, in the
case of the Class B Certificates, under applicable tax law, as
described in this Section.
Section 3.10. Additional Representations, Warranties and
Covenants of the Master Servicer. The Master Servicer hereby
makes, and any Successor Master Servicer by accepting its
appointment under the Pooling Agreement and hereunder will be
deemed to make, the following representations, warranties and
covenants to the Trustee and for the benefit of the Holders of
the Series 1994-A Certificates and the Series 1994-A Credit
Enhancer, on which the Trustee has relied in executing this
Supplement and authenticating the Series 1994-A Certificates or
in consenting to such appointment:
(a) Establishment of Accounts. The Master Servicer,
for the benefit of the Holders of the Series 1994-A
Certificates and the other Beneficiaries has caused, or on
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or prior to the Series 1994-A Closing Date will have caused,
to be established the Collection Account pursuant to Section
4.02(a). Each of the Series 1994-A Reserve Fund and the
Excess Funding Account has been, or on or prior to the
Series 1994-A Closing Date, will have been, established by
the Trustee pursuant to Section 4.02(b), 4.02(c) and
4.02(e). Each of the Collection Account and the Series
1994-A Reserve Fund and the Excess Funding Account, is
accurately identified and described in Schedule 2 to the
Pooling Agreement.
(b) Collection Account Initial Deposit. On or prior
to the Series 1994-A Closing Date, the Master Servicer will
cause an amount equal to the amount of Collections on the
Receivables received by the Seller or the Master Servicer
during the period from the Series 1994-A Cutoff Date to the
second Business Day immediately preceding the Series 1994-A
Closing Date to be deposited into the Collection Account.
(c) Representations and Warranties in the Pooling
Agreement. Each of the representations and warranties made
by the Master Servicer in the Pooling Agreement is true and
correct on the date hereof and will be true and correct on
the Series 1994-A Closing Date.
(d) Covenants in the Pooling Agreement. Each of the
covenants made by the Master Servicer in the Pooling
Agreement is hereby made for the benefit of the Holders of
the Series 1994-A Certificates and the Series 1994-A Credit
Enhancer by the Master Servicer as if set forth in full
herein.
Section 3.11. Waiver of Servicing Compensation. No later
than the Business Day prior to each Determination Date, the
Master Servicer shall notify the Trustee of the amount, if any,
of Interchange or Servicing Fee to be included as Collections of
Finance Charge Receivables allocable to the Series 1994-A
Certificateholders' Interest with respect to the preceding
Monthly Period, which shall be zero, unless and until the Master
Servicer shall waive its right to receive all or any portion of
such servicing compensation in respect of such Monthly Period
pursuant to Section 3.02(a). On each Determination Date, the
Seller shall transfer to the Master Servicer any such amounts
received by the Seller, and the Master Servicer shall deposit
into the Collection Account, in immediately available funds, the
amount of Interchange or Servicing Fee to be so included as
Collections of Finance Charge Receivables allocable to the Series
1994-A Certificateholders' Interest with respect to the preceding
Monthly Period. The Seller hereby assigns, sets-over, conveys,
pledges and grants a security interest and lien to the Trustee
for the benefit of the Holders of the Series 1994-A Certificates
in any Interchange or Servicing Fee so designated by the Master
Servicer and the proceeds thereof. To the extent that the
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Supplement for another Series also contains an assignment, set-
over, conveyance, pledge or grant of a security interest in
Interchange or Servicing Fee (except as otherwise specified in
any such Supplement) the Certificateholders' Interest of each
such Series and the Series 1994-A Certificateholders' Interest
shall rank pari passu and be equally and ratably entitled to the
benefits of such waived portion of Interchange or Servicing Fee,
all in accordance with the terms and provisions of this
Supplement and such other Supplements.
Section 3.12 Delivery of Distribution Date Statement. On
or before each Distribution Date, in connection with the
Trustee's distribution of payments on such Distribution Date, the
Trustee shall deliver to each Holder of record of a Series 1994-A
Certificate a copy of such Distribution Date Statement.
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ARTICLE FOUR
RIGHTS OF CERTIFICATEHOLDERS AND
ALLOCATION AND APPLICATION OF COLLECTIONS
Section 4.02(e). Establishment of Series 1994-A Reserve
Fund. The Trustee will, on or prior to the Series 1994-A Closing
Date, establish a Reserve Fund for the benefit of the Class A
Certificateholders and the Class R Certificateholders and, as
such interests are subordinated to the interests of the Class A
Certificateholders and the Class R Certificateholders, for the
benefit of the Series 1994-A Credit Enhancer, the Class B
Certificateholders and the Seller, in accordance with the
provisions of Section 4.02(b). The Series 1994-A Reserve Fund
will be funded at or prior to the time of the issuance of the
Series 1994-A Certificates by the deposit therein, by the Seller,
in immediately available funds, of the Initial Reserve Fund
Amount. Thereafter, the Series 1994-A Reserve Fund will be
funded by the deposit therein by the Trustee of amounts of Excess
Spread or Available Excess Finance Charge Collections available
for such purpose in accordance with the provisions of Section
5.01(b). On each Distribution Date, the Trustee will withdraw
funds from the Series 1994-A Reserve Fund to make the
distributions, if any, described in Section 5.03.
The Trustee shall, at the direction of the Seller, invest
funds on deposit in or credited to the Series 1994-A Reserve Fund
in Eligible Investments in accordance with the provisions of
Section 4.02(d).
Section 4.07. Allocations and Payments Generally. The
allocation to the Series 1994-A Certificateholders' Interest of
Collections, Investment Proceeds with respect to amounts on
deposit in the Collection Account and the Series 1994-A Reserve
Fund and Defaulted Amounts shall be made at the times described
in, and in the amounts calculated pursuant to, Article Four.
Deposits, withdrawals and payments that are to be made with
respect to the Series 1994-A Certificates will be made in
accordance with Articles Four and Five.
Section 4.08. Determination of LIBOR. The Master Servicer
will determine LIBOR in accordance with the following provisions:
(a) On each LIBOR Determination Date, the Master
Servicer will determine LIBOR for the related Interest
Period on the basis of quotations by Reference Banks of
offered rates for deposits in United States dollars having
the maturity of the related Interest Period, as such
quotations appear on the display designated as page "LIBO"
on the Reuter Monitor Money Rates Service (or such other
page as may replace the LIBO page on that service for the
purpose of displaying London interbank offered rates of
major banks) as of 11:00 a.m. (London time). LIBOR as
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<PAGE>
determined by the Master Servicer is the arithmetic mean of
such quotations (rounded if necessary, to the nearest
multiple of 0.0625% per annum).
(b) If, on any LIBOR Determination Date two or more
Reference Banks provide quotations, LIBOR will be determined
in accordance with clause (a) above on the basis of the
offered quotations of the Reference Banks providing such
quotations.
(c) If, on any LIBOR Determination Date fewer than two
Reference Banks provide such offered quotations, LIBOR will
equal: (i) the rate per annum (rounded as aforesaid) that
the Master Servicer determines to be either (A) the
arithmetic mean of the offered quotations that leading banks
in The City of New York selected by the Master Servicer are
quoting on the relevant LIBOR Determination Date for United
States dollar deposits having the aforesaid maturities to
the principal London office of each of the Reference Banks,
or those of them (being at least two in number) to which
such offered quotations are, in the opinion of the Master
Servicer, being so made or (B) in the event the Master
Servicer cannot determine such arithmetic mean, the
arithmetic mean of the offered quotations that leading banks
in The City of New York selected by the Master Servicer are
quoting on such LIBOR Determination Date to leading European
banks for United States dollar deposits having the aforesaid
maturities; or (ii) if the banks selected as aforesaid by
the Master Servicer are not quoting as described in clause
(a) above, LIBOR for such Interest Period will be LIBOR as
determined on the previous LIBOR Determination Date.
Section 4.09. Advances.
(a) On any Distribution Date during the Series 1994-A
Revolving Period, the Seller may, subject to the following
limitations and the terms and conditions of the Class R
Certificate Purchase Agreement, require the Class R Certificate-
holders to make Advances. The Seller will not require the
Class R Certificateholders to make Advances on any Distribution
Date if: (i) after giving effect to any such Advance the Class R
Invested Amount would exceed the Class R Maximum Amount; (ii) a
Pay Out Event or an event that with the lapse of time or notice
would become a Pay Out Event has occurred and not been cured or
will occur upon the making of such Advance; (iii) after giving
effect thereto (A) the Required Seller Amount would exceed the
Seller Amount or (B) the Required Principal Balance would exceed
the Aggregate Principal Receivables Amount, each determined as of
the last day of the related Monthly Period; (iv) the Trustee has
not, or the Class R Certificateholders have not, received
(A) written notice of the Seller's intent to require such
Advances on or prior to the day on which such notice is required
including certification as to the satisfaction of the conditions
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in Sections 2.13(d) and 3.10(c) as if made on the date of such
notice or (B) any required report from the Master Servicer.
(b) The Trustee will apply each Advance either to (i) the
acquisition by the Trust from the Seller of Receivables in
Additional Accounts or (ii) increase the Class R Invested Amount
and the Class B Invested Amount and correspondingly reduce the
Seller Amount in connection with growth in the Aggregate
Principal Receivables Balance. Upon receipt of Advances on any
Distribution Date, (i) the Trustee will, subject to the last
sentence of Section 4.03(d), distribute such amounts to the
Seller, and (ii) each of the Trustee and the Master Servicer
shall record on its respective books and records an increase (A)
in the Class R Invested Amount and the Class R Balance equal to
the amount of each such Advance (not to exceed the Class R
Maximum Amount) and (B) in the Class B Invested Amount equal to
the product of (1) the Class B Advance Percentage as of such
Distribution Date and (2) the amount of each such Advance.
The Seller will give the Master Servicer revocable written
notice of its intention to require Advances no later than the
earlier to occur of (i) the day prior to the first day during
such Monthly Period on which the Master Servicer releases any
Collections to the Seller rather than depositing them in the
Collection Account pursuant to Section 4.03 or releases amounts
on deposit in the Excess Funding Account or the Collection
Account to the Seller pursuant to Section 4.02(c) or (ii) 12:00
noon, New York City time, on the related Determination Date.
Upon receipt of such notice, the Master Servicer will give pro
forma effect to the amount of such Advances as if they had been
made on the last day of the preceding Monthly Period in
determining the Class R Invested Amount, the Class B Invested
Amount and the Seller Amount for purposes of calculating all
allocation percentages and making all allocations during such
Monthly Period, and will adjust its books and records with
respect to any calculations and allocations made prior to its
receipt of such notice. If, prior to the time such notice
becomes irrevocable, the Master Servicer receives written notice
from the Seller that the Seller no longer intends to require such
Advances on such Distribution Date, the Master Servicer will
recalculate the Class R Invested Amount, the Class B Invested
Amount and the Seller Amount for purposes of making all further
allocations and calculations during such Monthly Period, and will
adjust its books and records with respect to any calculations and
allocations made on the basis of such pro forma adjustments prior
to its receipt of such notice. If the Trustee has released funds
to the Holder of the Seller Certificate prior to such
adjustments, the Trustee shall make all future distributions to
the Holder of the Seller Certificate net of any such amounts in
excess of the amounts that would have been distributable thereto,
based on such adjustments. Notices requiring Advances will
become irrevocable upon the receipt thereof by the Class R
Certificateholders. The Seller will give notice of Advances to
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the Trustee no earlier than five and no later than three Business
Days prior to the related Distribution Date and the Trustee will
forward such notice to the Class R Certificateholders who will
make such Advances on such Distribution Date.
(c) During the Revolving Period, pursuant to Sections
5.01(c)(i) and 5.06 the Seller may subject to any conditions
specified in the Class R Certificate Purchase Agreement, upon not
less than three Business Days' prior written notice to the
Trustee, subject to the following limitations, direct the Trustee
to repay, in whole or in part, any or all outstanding Advances on
any Distribution Date from Available Principal Collections on
deposit in the Collection Account or from amounts on deposit in
the Excess Funding Account. The Seller may not direct the
Trustee to repay any Advance from amounts on deposit in the
Excess Funding Account (and after giving pro forma effect to all
other allocations, distributions, deposits and withdrawals to be
made on such Distribution Date) if following such repayment
either (i) the Required Seller Amount would exceed the Seller
Amount or (ii) the Required Principal Balance would exceed the
Aggregate Principal Receivables Amount, in each case determined
as of the last day of the related Monthly Period. Final
repayment of the unpaid principal balance of the Class R
Certificates will commence on the first Distribution Date
following the termination of the Series 1994-A Revolving Period
in accordance with the provisions of Articles Four and Five.
Section 4.10. Right of Inspection. The Master Servicer
will permit the Class A Certificateholders or Class R
Certificateholders, or any authorized representative thereof, to
visit and inspect any of the properties of the Master Servicer,
to examine the corporate books and financial records of the
Master Servicer, and make copies thereof or extracts therefrom
and to discuss the affairs, finances and accounts of the Master
Servicer with its principal officers, as applicable, and its
independent public accountants, in each case insofar as they
relate to the Accounts, the Receivables or the Trust, all at such
reasonable times as Class A Certificateholders or Class R
Certificateholders representing at least 10% of the Class A
Invested Amount or the Class R Invested Amount, as the case may
be, may reasonably request, but no more often than two times
within a twelve-month period with respect to each Class or, so
long as a Credit Enhancer Default shall have occurred and be
continuing with respect to the Series 1994-A Credit Enhancer, an
unlimited number of visits and inspections can be made. The
Master Servicer shall pay the reasonable expenses of such
Certificateholders or their representative in connection with the
first two visits in any consecutive 12-month period if a Credit
Enhancer Default shall have occurred and be continuing with
respect to the Series 1994-A Credit Enhancer, otherwise such
expenses shall be borne by the Certificateholders requesting such
visit and examination.
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ARTICLE FIVE
DISTRIBUTIONS AND REPORTS TO
CERTIFICATEHOLDERS
Section 5.01. Application of Collections of Finance Charge
Collections, Excess Spread and Excess Finance Charge Collections.
(a) Payments of Interest, Servicing Fees and Other Items.
On each Distribution Date, the Trustee, acting pursuant to the
Master Servicer's instructions, will withdraw from the Collection
Account an amount equal to the sum of Class A Available Funds,
Class R Available Funds and Class B Available Funds, each for the
related Monthly Period, to make the following distributions and
applications in the following priority:
(i) an amount equal to the Class A Available Funds
will be distributed or applied in the following priority:
(A) the Trustee will distribute to the Class A
Certificateholders an amount equal to the sum of (1)
Class A Monthly Interest, (2) the aggregate amount, if
any, of Class A Monthly Interest due but not paid on
one or more prior Distribution Dates and (3) any Class
A Additional Interest;
(B) the Trustee will distribute to the Master
Servicer an amount equal to the sum of (1) the Class A
Servicing Fee and (2) the aggregate amount, if any, of
Class A Servicing Fee due but not paid to the Master
Servicer on one or more prior Distribution Dates (in
each case only to the extent not retained by or paid or
made available to the Master Servicer prior to such
Distribution Date);
(C) the Trustee will treat an amount equal to the
Class A Investor Default Amount for such Distribution
Date as a portion of Available Principal Collections
for such Distribution Date;
(D) unless a Credit Enhancer Default pursuant to
clause (i) of the definition thereof has occurred and
is continuing with respect to the Series 1994-A Credit
Enhancer, the Trustee will distribute to the Series
1994-A Credit Enhancer an amount equal to the sum of
(1) the Class A Policy Amount, if any, with respect to
such Distribution Date and (2) the aggregate amount, if
any, of Class A Policy Amount due but not paid to the
Series 1994-A Credit Enhancer on one or more prior
Distribution Dates; and
(E) the Trustee will first apply any remaining
amount thereof to complete the distributions described
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in Sections 5.01(a)(ii)(A) and 5.01(a)(ii)(D) to the
extent Class R Available Funds are insufficient
therefor, and then will treat the remainder as a
portion of Excess Spread to be allocated, distributed
or applied as set forth under Section 5.01(b);
(ii) an amount equal to the Class R Available Funds
will be distributed or applied in the following priority:
(A) the Trustee will distribute to the Class R
Certificateholders an amount equal to the sum of (1)
Class R Monthly Interest, (2) the aggregate amount, if
any, of Class R Monthly Interest due but not paid on
one or more prior Distribution Dates, (3) any Class R
Additional Interest, (4) any Non-Usage Fee and (5) the
aggregate amount, if any, of Non-Usage Fee due but not
paid to the Class R Certificateholders on one or more
prior Distribution Dates;
(B) the Trustee will distribute to the Master
Servicer an amount equal to the sum of (1) the Class R
Servicing Fee and (2) the aggregate amount, if any, of
Class R Servicing Fee due but not paid to the Master
Servicer on one or more prior Distribution Dates (in
each case only to the extent not retained by or paid or
made available to the Master Servicer prior to such
Distribution Date);
(C) the Trustee will treat an amount equal to the
Class R Investor Default Amount for such Distribution
Date as a portion of Available Principal Collections
for such Distribution Date;
(D) unless a Series Enhancer Default pursuant to
clause (i) of the definition thereof has occurred and
is continuing with respect to the Series 1994-A Credit
Enhancer, the Trustee will distribute to the Series
1994-A Credit Enhancer an amount equal to the sum of
(1) the Class R Policy Amount and (2) the aggregate
amount, if any, of Class R Policy Amount due but not
paid to the Series 1994-A Credit Enhancer on one or
more prior Distribution Dates; and
(E) the Trustee will treat the remainder as a
portion of Excess Spread to be allocated, distributed
or applied as set forth under Section 5.01(b);
(iii) an amount equal to the Class B Available Funds
will be distributed or applied in the following priority:
(A) the Trustee will distribute to the Master
Servicer an amount equal to the sum of (1) the Class B
Servicing Fee and (2) the aggregate amount, if any, of
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Class B Servicing Fee due but not paid to the Master
Servicer on one or more prior Distribution Dates (in
each case only to the extent not retained by or paid or
made available to the Master Servicer prior to such
Distribution Date);
(B) the Trustee will treat an amount equal to the
Class B Investor Default Amount for such Distribution
Date as a portion of Available Principal Collections
for such Distribution Date; and
(C) the Trustee will treat the remainder as a
portion of Excess Spread to be allocated, distributed
or applied as set forth under Section 5.01(b).
(b) Application of Excess Spread; Excess Finance Charge
Collections. On each Distribution Date, the Trustee, acting
pursuant to the Master Servicer's instructions, will apply Excess
Spread with respect to the related Monthly Period to make the
following allocations, distributions and applications in the
following priority and, if on such Distribution Date there are
Available Excess Finance Charge Collections, such Available
Excess Finance Charge Collections will then be applied to
complete the following allocations, distributions and
applications in the following priority:
(i) the Trustee will distribute or apply, an amount
thereof up to the Required Amount, to complete the
distributions and applications specified under Sections
5.01(a)(i)(A), (B), (C) and (D) and 5.01(a)(ii)(A), (B), (C)
and (D), in that order; provided, however, that if the
amount thereof is less than the Required Amount, the Trustee
will allocate the respective portions thereof to be
distributed or applied as specified under Sections
5.01(a)(i) and 5.01(a)(ii), on a pro rata basis, based on
the Class A Funding Percentage and the Class R Funding
Percentage as of the last day of the Monthly Period
preceding the related Monthly Period;
(ii) if the Master Servicer is not the Bank, the
Trustee will distribute to the Master Servicer an amount
thereof up to the aggregate amount of current or past due
Class B Servicing Fee to complete the distribution described
in Section 5.01(a)(iii)(A);
(iii) the Trustee will treat an amount thereof up to
the aggregate amount of Class A Investor Charge-Offs and
Class R Investor Charge-Offs not funded by optional payments
by the Series 1994-A Credit Enhancer or reimbursed pursuant
to this Section or Section 5.03 on one or more prior
Distribution Dates as a portion of Available Principal
Collections for such Distribution Date, and each of the
Master Servicer and the Trustee will record a corresponding
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increase in (1) in the Class A Invested Amount (equal to the
product of the Class A Reimbursement Percentage and such
amount) and (2) in the Class R Invested Amount (equal to the
product of the Class R Reimbursement Percentage and such
amount);
(iv) unless a Credit Enhancer Default pursuant to
clause (i) of the definition thereof has occurred and is
continuing with respect to the Series 1994-A Credit
Enhancer, the Trustee will distribute to the Series 1994-A
Credit Enhancer an amount equal to the aggregate amount of
Unreimbursed Credit Enhancer Amounts;
(v) the Trustee will deposit into the Series 1994-A
Reserve Fund an amount equal to the excess, if any, of the
Required Reserve Fund Amount over the amount then on deposit
in the Series 1994-A Reserve Fund;
(vi) if the Master Servicer is the Bank, the Trustee
will distribute to the Master Servicer an amount thereof up
to the aggregate amount of current or past due Class B
Servicing Fee to complete the distribution described in
Section 5.01(a)(iii)(A);
(vii) the Trustee will treat an amount equal to the
amount described in Section 5.01(a)(iii)(B), to the extent
that Class B Available Funds were not so applied on such
Distribution Date, as a portion of Available Principal
Collections for such Distribution Date;
(viii) the Trustee will treat an amount equal to the
aggregate amount by which the Class B Invested Amount has
been reduced by (and not previously reimbursed for)
Reallocated Principal Collections or Class B Investor
Charge-Offs on all prior Distribution Dates as a portion of
Available Principal Collections, and each of the Master
Servicer and the Trustee will record a corresponding
increase in the Class B Invested Amount;
(ix) if a Credit Enhancer Default pursuant to clause
(i) of the definition thereof has occurred and is
continuing, the Trustee will distribute to the Series 1994-A
Credit Enhancer an amount thereof up to Unreimbursed Credit
Enhancer Amounts; and
(x) if the Series 1994-A Certificates are included in
a Group, the Trustee will treat the remainder of such
amounts as Excess Finance Charge Collections constituting a
portion of Shared Excess Finance Charge Collections with
respect to such Group and such Distribution Date. The
Trustee will release such amounts to the Holder of the
Seller Certificate if (A) the Series 1994-A Certificates are
not included in a Group or (B) the amount of Shared Excess
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Finance Charge Collections exceeds the aggregate amount of
Interest Shortfalls for all Series in a Group that includes
the Series 1994-A Certificates (but only to the extent of
such excess).
(c) Payments of Principal. On each Distribution Date, the
Trustee, acting pursuant to the Master Servicer's instructions,
will distribute, allocate or apply Available Principal
Collections on deposit in the Collection Account in the following
priority:
(i) during the Series 1994-A Revolving Period:
(A) if the Seller has directed the Trustee to
make an optional repayment of Advances on such
Distribution Date from amounts on deposit in the
Collection Account pursuant to Section 4.09(c), the
Trustee will distribute to the Class R
Certificateholders, an amount equal to the least of (1)
the Class R Balance as of such Distribution Date, (2)
the amount of Advances that the Seller has specified
are to be repaid on such Distribution Date or (3)
Available Principal Collections; and
(B) the Trustee will deposit into the Excess
Funding Account an amount equal to the lesser of (1)
the Series 1994-A Funding Percentage of the greater of
(I) the excess of the Required Seller Amount over the
Seller Amount or (II) the excess of the Required
Principal Balance over the Aggregate Principal
Receivables Amount or (2) Available Principal
Collections remaining after the distribution described
in clause (A) above; and
(ii) during the Series 1994-A Controlled Amortization
Period or the Series 1994-A Rapid Amortization Period:
(A) the Trustee will distribute, concurrently, an
amount equal to Class A Monthly Principal to the
Class A Certificateholders, and an amount equal to
Class R Monthly Principal, to the Class R
Certificateholders;
(B) the Trustee will distribute to the Series
1994-A Credit Enhancer an amount equal to the amount of
Unreimbursed Credit Enhancer Amounts; provided,
however, that the Trustee will not distribute any such
amounts to the Series 1994-A Credit Enhancer on any
Distribution Date during the Series 1994-A Controlled
Amortization Period if a Credit Enhancer Default
pursuant to clause (i) of the definition thereof has
occurred and is continuing as of such Distribution
Date;
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(C) the Trustee will distribute to the Class B
Certificateholders an amount equal to Class B Monthly
Principal for such Distribution Date; and
(D) the Trustee will deposit into the Excess
Funding Account an amount equal to the lesser of (1)
the Series 1994-A Funding Percentage of the greater of
(I) the excess of the Required Seller Amount over the
Seller Amount or (II) the excess of the Required
Principal Balance over the Aggregate Principal
Receivables Amount or (2) Available Principal
Collections remaining after the distributions described
in Section 5.01(c)(ii)(A) through (C); and
(iii) after giving effect to the allocations,
distributions and applications set forth in Sections
5.01(c)(i) and 5.01(c)(ii), first, the Trustee will release
such amounts to the Series 1994-A Credit Enhancer to the
extent of any Unreimbursed Credit Enhancer Amounts, second,
after making all required deposits thereto from available
principal collections with respect to each other Series, the
Trustee will deposit any remaining amounts, up to the Excess
Funding Amount, into the Excess Funding Account and, third,
if the Series 1994-A Certificates are included in a Group,
the Trustee will treat the remainder of such amounts as
Excess Principal Collections constituting a portion of
Shared Principal Collections with respect to such Group and
such Distribution Date. The Trustee will release the
remainder to the Holder of the Seller Certificate if (A) the
Series 1994-A Certificates are not included in a Group or
(B) the amount of Shared Principal Collections exceeds the
aggregate amount of Principal Shortfalls for all Series in a
Group that includes the Series 1994-A Certificates (but only
to the extent of such excess).
In addition, on any Distribution Date during a Series 1994-A
Amortization Period on or after a Distribution Date on which
Class A Investor Charge-Offs or Class R Investor Charge-Offs are
realized, the Series 1994-A Credit Enhancer may transfer funds to
the Trustee in an amount up to the aggregate amount of Class A
Investor Charge-Offs and Class R Investor Charge-Offs, subject to
receipt of written notice by the Trustee from the Series 1994-A
Credit Enhancer of its intention to make such a deposit and the
amount thereof at or before 12:00 noon, New York City time, on
the related Determination Date. Upon receipt of such funds, the
Trustee will distribute the Class A Reimbursement Percentage of
such funds to the Class A Certificateholders to reimburse in
whole or in part the aggregate amount of unreimbursed Class A
Investor Charge-Offs and distribute the Class R Reimbursement
Percentage of such funds to the Class R Certificateholders to
reimburse in whole or in part the aggregate amount of
unreimbursed Class R Investor Charge-Offs. Upon the receipt and
distribution of such funds by the Trustee, each of the Trustee
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and the Master Servicer will record on its respective books and
records corresponding reductions in the Class A Balance, the
Class R Balance or both, as the case may be.
Section 5.02. Reallocated Principal Collections. On each
Determination Date the Master Servicer will determine the
Required Amount with respect to the related Distribution Date.
If on any Determination Date the Master Servicer determines that
the Required Amount will be greater than zero, and that Excess
Spread and Available Excess Finance Charge Collections with
respect to such Distribution Date will be less than the Required
Amount, the Master Servicer will direct the Trustee to treat
Class B Monthly Principal held in the Collection Account for the
related Distribution Date up to the amount of such deficiency as
if such Class B Monthly Principal were Excess Spread, to complete
the distributions provided for in Section 5.01(b)(i). Each of
the Master Servicer and the Trustee will record on its respective
books and records a reduction in the Class B Invested Amount
equal to the aggregate amount of such Reallocated Principal
Collections.
Section 5.03. Application of Amounts on Deposit in the
Series 1994-A Reserve Fund. If on any Determination Date the
Master Servicer determines that the Required Amount will be
greater than zero, and that the amount of Excess Spread,
Available Excess Finance Charge Collections and Reallocated
Principal Collections will be less than the Required Amount, then
the Master Servicer will direct the Trustee to make a withdrawal
from the Series 1994-A Reserve Fund in an amount equal to the
lesser of (i) the amount of such deficiency or (ii) the amount on
deposit in the Series 1994-A Reserve Fund, and to apply the
amount so withdrawn as if such amount were Excess Spread to
complete the distributions provided for in Section 5.01(b)(i).
Further, if on any Determination Date the Master Servicer
determines that the aggregate amount of unreimbursed Class A
Investor Charge-Offs and Class R Investor Charge-Offs will exceed
the amount of Excess Spread and Available Excess Finance Charge
Collections available for reimbursement thereof pursuant to
Section 5.01(b)(iii), then the Master Servicer will direct the
Trustee to make a withdrawal from the Series 1994-A Reserve Fund
equal to the lesser of (i) the amount of such deficiency or (ii)
the amount on deposit in the Series 1994-A Reserve Fund, and to
treat such amount as Available Principal Collections for such
Distribution Date, whereupon each of the Master Servicer and the
Trustee will record on its respective books and records
corresponding increases in (a) the Class A Invested Amount (equal
to the Class A Reimbursement Percentage of the amount so
withdrawn), and (b) the Class R Invested Amount (equal to the
Class R Reimbursement Percentage of the amount so withdrawn). In
addition, if on any Determination Date on which the Bank is no
longer the Master Servicer, the Master Servicer determines that
Excess Spread, Available Excess Finance Charge Collections and
Reallocated Principal Collections with respect to such
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Distribution Date will be insufficient to fund the amount
described in Section 5.01(b)(ii), the Master Servicer will direct
the Trustee to make a withdrawal from the Series 1994-A Reserve
Fund in an amount equal to the lesser of (i) the amount of such
deficiency or (ii) the amount on deposit in the Series 1994-A
Reserve Fund, and to apply the amount so withdrawn as if such
amount were Excess Spread, to complete the distributions provided
for in Section 5.01(b)(ii).
On the Distribution Date on which each of the Class A
Balance and the Class R Balance has been paid in full, any
amounts remaining on deposit in the Series 1994-A Reserve Fund
will be distributed, first, to the Series 1994-A Credit Enhancer
up to the amount of any Unreimbursed Credit Enhancer Amounts and
the remainder will be deposited into the Excess Funding Account
or, subject to the provisions of Section 4.03(d), released to the
Holder of the Seller Certificate.
In the event of a sale of the Receivables and an early
termination of the Trust due to an Insolvency Event, an optional
repurchase of the Series 1994-A Certificateholders' Interest by
the Seller, a sale of a portion of the Receivables on the Series
1994-A Termination Date, a repurchase or sale of the Series
1994-A Certificateholders' Interest and the Certificateholders'
Interest of each other Series in connection with a Servicer
Default or a reassignment thereof to the Seller as set forth in
Section 2.03(b), all amounts on deposit in the Series 1994-A
Reserve Fund on the related Distribution Date (after giving
effect to all other withdrawals therefrom as described above)
will be withdrawn therefrom and distributed, first, to the Series
1994-A Credit Enhancer up to the amount of any Unreimbursed
Credit Enhancer Amounts and the remainder will be deposited into
the Excess Funding Account or, subject to the provisions of
Section 4.03(d), released to the Holder of the Seller
Certificate.
Section 5.04. Reduction of Class B Invested Amount. If on
any Determination Date the Master Servicer determines that the
Required Amount will be greater than zero, and that the amount of
Excess Spread, Available Excess Finance Charge Collections,
Reallocated Principal Collections and amounts on deposit in the
Series 1994-A Reserve Fund with respect to such Distribution Date
will be less than the Required Amount, then each of the Master
Servicer and the Trustee will record in its respective books and
records a reduction of the Class B Invested Amount in the amount
of such deficiency attributable to Class A Investor Default
Amounts or Class R Investor Default Amount, characterizing such
reduction as a Class B Investor Charge-Off, and will not record
any part of such deficiency either as a Class A Investor Charge-
Off or a Class R Investor Charge-Off. If the amount of such
deficiency exceeds the amount of the Class B Invested Amount on
such Distribution Date, then each of the Master Servicer and the
Trustee will record in its respective books and records as a
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Class A Investor Charge-Off or a Class R Investor Charge-Off the
respective portions of the remainder of such deficiency
attributable to Class A Investor Default Amounts or Class R
Investor Default Amounts that are not funded by optional payments
from the Series 1994-A Credit Enhancer pursuant to Section
5.01(c) on such Distribution Date.
Section 5.05. Claims on the Policy.
(a) On each Determination Date, the Master Servicer shall
determine the amount, if any, by which (i) Class A Monthly
Interest for such Distribution Date exceeds the amounts available
therefor for such Distribution Date pursuant to Sections 5.01
through 5.04 (the "Class A Monthly Interest Claim Amount"),
(ii) Class R Monthly Interest for such Distribution Date exceeds
the amounts available therefor for such Distribution Date
pursuant to Sections 5.01 through 5.04 (the "Class R Monthly
Interest Claim Amount") and (iii) Non-Usage Fee for such
Distribution Date exceeds the amounts available therefor for such
Distribution Date pursuant to Sections 5.01 through 5.04 (the
"Non-Usage Fee Claim Amount"). With respect to each Distribution
Date on which the Class A Monthly Interest Claim Amount, the
Class R Monthly Interest Claim Amount or the Non-Usage Fee Claim
Amount is greater than zero, as soon as practicable and in no
event later than 12:00 noon, New York City time, on the third
Business Day immediately preceding such Distribution Date, the
Trustee shall prepare and deliver a Notice of Claim in accordance
with the Policy in respect of the Class A Monthly Interest Claim
Amount, the Class R Monthly Interest Claim Amount or the
Non-Usage Fee Claim Amount, as the case may be. The Trustee
shall deposit all amounts received from the Series 1994-A Credit
Enhancer with respect to a claim made pursuant to this Section in
the Collection Account for payment to Series 1994-A
Certificateholders on the related Distribution Date.
(b) On the Determination Date immediately preceding the
August 15, 2001 Distribution Date, the Master Servicer shall
determine the Class A Balance and the Class R Balance, if any,
that will remain unpaid on such Distribution Date after all
distributions pursuant to Article Five have been made (a
"Termination Date Shortfall"). If the Termination Date Shortfall
is greater than zero, as soon as practicable and in no event
later than 12:00 noon, New York City time, on such Determination
Date the Trustee shall prepare and deliver a Notice of Claim in
accordance with the Policy in respect of the Termination Date
Shortfall; provided, however, that at any time when each of the
Class A Invested Amount and the Class R Invested Amount is zero,
the Series 1994-A Credit Enhancer may at any time on or prior to
the fourth Business Day preceding a Distribution Date, in its
sole and absolute discretion, direct the Trustee in writing to
prepare and deliver, and upon receipt of such direction the
Trustee shall prepare and deliver, a Notice of Claim in
accordance with the Policy for (i) the sum of the Class A Balance
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and the Class R Balance, if any, that will remain unpaid on the
next succeeding Distribution Date after all distributions
pursuant to Article 5 have been made and (ii) the Class A Monthly
Interest Claim Amount, Class R Monthly Interest Claim Amount and
Non-Usage Fee Claim Amount as described in Section 5.05(a), if
any, for such Distribution Date. The Trustee shall deposit all
amounts received from the Series 1994-A Credit Enhancer with
respect to a claim made pursuant to this Section in the
Collection Account for payment to the Series 1994-A
Certificateholders on the related Distribution Date.
(c) Any Notice of Claim delivered by the Trustee pursuant
to this Section shall specify the Class A Monthly Interest Claim
Amount, the Class R Monthly Interest Claim Amount, the Non-Usage
Fee Claim Amount or the Termination Date Shortfall, as
applicable, claimed under the Policy. In accordance with the
provisions of the Policy, the Series 1994-A Credit Enhancer is
required to pay to the Trustee the Class A Monthly Interest Claim
Amount, the Class R Monthly Interest Claim Amount,the Non-Usage
Fee Claim Amount or the Termination Date Shortfall, as
applicable, properly claimed thereunder by 12:00 noon, New York
City time, on the later of (i) the third Business Day following
receipt of the Notice of Claim and (ii) the applicable
Distribution Date. In accordance with the provisions of the
Policy, any Notice of Claim received on a day which is not a
Business Day or after 12:00 noon, New York City time, on a
Business Day shall be deemed to have been received on the
Business Day next succeeding the day of receipt. Any payment
made by the Series 1994-A Credit Enhancer under the Policy shall
be applied solely to the payment of the Class A Certificates and
Class R Certificates, and for no other purpose.
Section 5.06. Application of Amounts on Deposit in the
Excess Funding Account. On any Distribution Date during the
Series 1994-A Revolving Period, upon three Business Days' prior
written notice to the Class R Certificateholders and at the
direction of the Seller, the Trustee shall withdraw amounts on
deposit in the Excess Funding Account (after giving effect to all
allocations, distributions, deposits and withdrawals on such
Distribution Date), up to the Class R Balance as of such
Distribution Date (after giving effect to all allocations,
distributions, deposits and withdrawals on such Distribution
Date), and distribute such amount to the Class R
Certificateholders, as an optional repayment of Advances;
provided, however, that amounts may not be so withdrawn if as a
result of such withdrawal either (i) the Required Seller Amount
would exceed the Seller Amount or (ii) the Required Principal
Balance would exceed the Aggregate Principal Receivables Amount
each as of the last day of the related Monthly Period. On each
Distribution Date during the Series 1994-A Controlled
Amortization Period, the Trustee will transfer funds on deposit
in the Excess Funding Account into the Collection Account to be
treated as Available Principal Collections to the extent required
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to complete the distributions described in Sections
5.01(c)(ii)(A) and 5.01(c)(ii)(B). On the first Distribution
Date following the termination of the Series 1994-A Controlled
Amortization Period, the Trustee will transfer all funds on
deposit in the Excess Funding Account into the Collection Account
to be treated as Available Principal Collections and distributed
as set forth in Section 5.01(c)(ii) and 5.01(c)(iii).
On any Distribution Date, after giving effect to all
required allocations, distributions, deposits and withdrawals,
funds on deposit in the Excess Funding Account will be withdrawn
and distributed to the Holder of the Seller Certificate or, at
the direction of the Seller, made available to be applied as
Shared Excess Finance Charge Collections to the extent that,
after giving effect to the withdrawal of such funds from the
Excess Funding Account (i) the Required Seller Amount will not
exceed the Seller Amount and (ii) the Required Principal Balance
will not exceed the Aggregate Principal Receivables Amount.
Section 5.07. Annual Report to Series 1994-A Certificate-
holders; Tax Returns.
(a) Within a reasonable period of time after the end of
each calendar year, but not later than the earlier to occur of
April 1 or the latest date permitted by law, the Trustee will
mail to each Person who at any time during the preceding calendar
year was a Series 1994-A Certificateholder of record a statement
prepared by the Master Servicer containing the information
required to be contained in the regular monthly reports to Series
1994-A Certificateholders aggregated for the preceding calendar
year or the applicable portion thereof during which such Person
was a Series 1994-A Certificateholder.
(b) Within a reasonable period of time after the end of
each calendar year, but not later than five days prior to the
latest date permitted by law, the Trustee will mail to each
Person who at any time during the preceding calendar year was a
Series 1994-A Certificateholder of record, all necessary tax
information related to the Trust (and consistent with the tax
treatment of such Series 1994-A Certificates) as prepared by a
firm of independent certified accountants in order for such
Series 1994-A Certificateholders to file their own tax returns.
In addition, the Seller shall furnish to the Trustee for
distribution to such Person at such time any other information
necessary under applicable law for the preparation of such income
tax returns.
Section 5.08. Payment in United States Dollars. All
payments, distributions, allocations and calculations to be made
hereunder will be made in United States Dollars and in terms of
United States Dollars.
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ARTICLE SIX
CONDITIONS TO ISSUANCE OF THE
SERIES 1994-A CERTIFICATES
Section 6.04(f). Non-Transferability of the Class B
Certificates. Notwithstanding anything to the contrary contained
herein or in the Pooling and Servicing Agreement, the Class B
Certificates shall not be transferable.
Section 6.13. Conditions Precedent to Issuance of the
Series 1994-A Certificates. On the Series 1994-A Closing Date,
the Trustee shall authenticate and deliver the Series 1994-A
Certificates in accordance with the provisions of the Pooling
Agreement, this Supplement and the written instructions of the
Seller upon the satisfaction of each of the following conditions:
(a) Each of the Pooling and Servicing Agreement, this
Supplement, the Class R Certificate Purchase Agreement and
the Insurance and Indemnity Agreement shall have been
executed and delivered by each of the parties thereto and
shall not have been terminated, revoked, rescinded, altered
or amended in any manner that would have a material adverse
effect on the interests of any Holder of a Series 1994-A
Certificate or the Series 1994-A Credit Enhancer prior to
the Series 1994-A Closing Date.
(b) All of the conditions precedent to the issuance of
any Series specified in Section 6.03 shall have been
satisfied on or prior to the Series 1994-A Closing Date.
(c) The Policy shall have been issued by the Series
1994-A Credit Enhancer and delivered to the Trustee on or
prior to the Series 1994-A Closing Date and, if delivered
prior to the Series 1994-A Closing Date, shall not have been
terminated, revoked, rescinded, altered or amended in any
manner.
(d) The Seller shall have deposited or caused to be
deposited into the Series 1994-A Reserve Fund the Initial
Reserve Fund Amount.
(e) The Master Servicer shall have deposited or caused
to be deposited into the Collection Account an amount equal
to the aggregate amount of Collections received during the
period from the Series 1994-A Cutoff Date to two Business
Days immediately preceding the Series 1994-A Closing Date.
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ARTICLE NINE
PAY OUT EVENTS
Section 9.02(d). Assignment of Receivables to Series 1994-A
Credit Enhancer. In the event that, based on offers to purchase
the Receivables received by the Trustee, the Series 1994-A Credit
Enhancer would not be reimbursed in full for all Unreimbursed
Credit Enhancer Amounts following the distribution of Trust
Liquidation Proceeds and all funds allocable to the Series 1994-A
Certificateholders' Interest on deposit in or credited to (and
the Eligible Investments and Investment Proceeds with respect
thereto) the Collection Account, the Excess Funding Account and
the Series 1994-A Reserve Account pursuant to Section 9.02(c),
the Series 1994-A Credit Enhancer shall be permitted to request
an assignment of (i) a portion of (a) the Receivables assignable
pursuant to Section 9.02(c), (b) funds on deposit in or credited
to the Collection Account or the Excess Funding Account and (c)
all Eligible Investments and Investment Proceeds, and (ii) all
funds on deposit in or credited to the Series 1994-A Reserve Fund
to it in lieu of such a distribution of Trust Liquidation
Proceeds. In the event that the Series 1994-A Credit Enhancer
elects to request such an assignment, then, promptly following
receipt by the Trustee of notice of such request, the Trustee
shall file with the Series 1994-A Credit Enhancer a Notice of
Claim in accordance with the Policy in respect of any portion of
the Class A Balance and the Class R Balance, if any, as of the
close of business on the Distribution Date immediately preceding
the date of the receipt by the Trustee of such Notice of Claim,
together with accrued and unpaid interest on the Class A
Certificates and the Class R Certificates (other than Class A
Additional Interest or Class R Additional Interest). All amounts
received by the Trustee from the Series 1994-A Credit Enhancer
with respect to a claim made pursuant to this Section shall be
distributed to the Class A Certificateholders and the Class R
Certificateholders. Immediately upon payment by the Series
1994-A Credit Enhancer of all amounts required to be paid by the
Series 1994-A Credit Enhancer with respect to a claim made
pursuant to this Section, the Trustee shall be deemed to have
assigned the Trust Assets described in clauses (i) and (ii)
above. To effect such deemed assignment, the Trustee shall do
and perform any reasonable acts and execute any further
instruments reasonably requested by the Series 1994-A Credit
Enhancer.
Section 9.03. Additional Pay Out Events. If any of the
following events shall occur:
(a) as calculated on any Determination Date for the
succeeding Distribution Date, beginning with the third
Determination Date following the Series 1994-A Closing Date,
the average of the Excess Spread Percentage for the three
preceding Monthly Periods is less than 1.00%;
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(b) as calculated on any Determination Date beginning
with the third Determination Date following the Series
1994-A Closing Date, the average of the Charge-Off Rate for
the three preceding Monthly Periods is more than 8.00%; or
(c) a Credit Enhancer Default shall have occurred and
be continuing with respect to the Series 1994-A Credit
Enhancer;
then a Pay Out Event with respect to the Series 1994-A
Certificates shall be deemed to have occurred without any notice
or other action on the part of the Trustee, the Series 1994-A
Credit Enhancer or any Holder, immediately upon the occurrence
thereof; provided, however, that if the Trustee receives written
notice at or prior to 12:00 noon, New York City time, on the
related Determination Date from the Series 1994-A Credit Enhancer
to the effect that either one or both of the tests described in
clauses (a) or (b) above are to be suspended until further
notice, then the occurrence of either one or both of the events
described in clauses (a) or (b) above, as the case may be, shall
not constitute a Pay Out Event unless and until written notice is
received by the Trustee from the Series 1994-A Credit Enhancer
reinstating such suspended test or tests.
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<PAGE>
ARTICLE ELEVEN
THE TRUSTEE
Section 11.07(d). Removal of Trustee. The Series 1994-A
Credit Enhancer shall have the right to direct the Master
Servicer to remove the Trustee pursuant to Section 11.07(b) of
the Pooling and Servicing Agreement. In the event that the
Trustee fails to make any distributions required to be made under
the Pooling Agreement, or fails to make any claim under the
Policy required to be made pursuant to Section 5.05 or Section
11.18, the Series 1994-A Majority Holders shall have the right to
direct the Master Servicer to remove the Trustee pursuant to
Section 11.07(b) of the Pooling and Servicing Agreement and the
right to consult with the Credit Enhancer in the selection of a
successor Trustee.
Section 11.17. Recitals. The Trustee shall not be
responsible in any manner whatsoever for or in respect of the
validity or sufficiency of this Supplement or for or in respect
of the recitals contained herein, all of which recitals are made
solely by the Seller and the Master Servicer.
Section 11.18. Back-up Determination and Claims. In the
event that the Master Servicer fails to (i) make any
determination of LIBOR pursuant to Section 4.08 or (ii) make any
determination as to the appropriate claim amounts under the
Policy pursuant to Section 5.05 or 9.02(d), the Trustee will make
such determination at the expense of the Master Servicer and
shall be and hereby is indemnified by the Master Servicer for any
loss, claim or liability (including reasonable attorneys' fees)
arising out of any error or alleged error in making any such
determination.
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ARTICLE TWELVE
TERMINATION
Section 12.06. Optional Purchase. The Seller shall have
the option, exercisable in its sole discretion, to repurchase the
Series 1994-A Certificates, in accordance with the provisions of
Section 12.04 and, with respect to the Class R Certificates, the
terms and conditions of the Class R Certificate Purchase
Agreement, on any Distribution Date on or after the Distribution
Date on which the sum of the Class A Invested Amount and the
Class R Invested Amount is reduced to an amount less than or
equal to $4,250,000 (5% of the sum of the Class A Initial
Invested Amount and the Class R Maximum Amount). The purchase
price to be paid by the Seller in connection with any such
repurchase shall be the Repurchase Price plus all Unreimbursed
Credit Enhancer Amounts.
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ARTICLE THIRTEEN
MISCELLANEOUS
Section 13.01. Amendment. Except as set forth below, the
provisions of this Supplement may be amended by the Seller, the
Master Servicer and the Trustee to the extent permitted and in
accordance with Section 13.01 of the Pooling Agreement.
Section 13.03. Limitation on the Rights of the Holders of
the Series 1994-A Certificates. Subject to the provisions of
Section 13.16, the Holders of the Series 1994-A Certificates will
have the right to take any action or give any direction to the
Trustee to the extent permitted and in accordance with Section
13.03 of the Pooling Agreement, including with respect to the
institution of any suit, action or proceeding in equity or at
law.
Section 13.04. No Petition. The Master Servicer and the
Trustee, by executing this Supplement, the Series 1994-A Credit
Enhancer and any Successor Master Servicer, by accepting the
benefits hereof, and each Holder of a Series 1994-A Certificate,
by accepting such Certificate or any interest therein, hereby
covenants and agrees that they will not at any time institute
against Carolina First Corporation or the Seller any bankruptcy,
reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal
or state bankruptcy or similar law.
Section 13.05. Governing Law. THIS SUPPLEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES.
THE IMMUNITIES AND STANDARDS OF CARE OF THE TRUSTEE IN THE
ADMINISTRATION OF THE TRUST CREATED BY THE POOLING AGREEMENT AS
SUPPLEMENTED BY THIS SUPPLEMENT SHALL BE DETERMINED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
Section 13.06. Notices. All demands, notices,
instructions, directions and communications under this Supplement
or the Pooling Agreement shall be given as set forth in Section
13.06 of the Pooling Agreement. Any such notice given to (i) the
Series 1994-A Credit Enhancer will be delivered to Financial
Security Assurance Inc., 350 Park Avenue, New York, New York
10022; Attention: Surveillance Department, Confirmation: (212)
826-0100, Telecopy Nos: (212) 339-3518, (212) 339-3529 (in each
case in which notice or other communication to Financial Security
refers to a Servicer Default, a Pay Out Event, a claim on the
Policy or with respect to which failure on the part of Financial
Security to respond shall be deemed to constitute consent or
acceptance, then a copy of such notice or other communication
should also be sent to the attention of each of the General
Counsel and the Head -- Financial Guaranty Group and shall be
marked to indicate "URGENT MATERIAL ENCLOSED.")
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<PAGE>
Section 13.07. Severability of Provisions. If any one or
more of the provisions or terms of this Supplement shall for any
reason whatsoever be held invalid, then the unenforceable
provision(s) or term(s) shall be deemed severable from the
remaining provisions or terms of this Supplement and shall in no
way affect the validity or enforceability of the other provisions
or terms of this Supplement or the Pooling and Servicing
Agreement.
Section 13.12. Counterparts. This Supplement may be
executed in any number of counterparts (and by different parties
in separate counterparts), each of which shall be an original,
but all of which together shall constitute one and the same
instrument.
Section 13.14. Instructions in Writing. All instructions
given by the Seller or the Master Servicer to the Trustee
pursuant to this Supplement shall be in writing, and may be
included in a daily report or Distribution Date Statement unless
required to be delivered prior to the date such reports are
actually received by the Trustee.
Section 13.18. Direction of Insolvency Proceedings.
(a) In the event that a Responsible Officer of the Trustee
has received a certified copy of an order of the appropriate
court that any Guaranteed Distribution (as defined in the Policy)
paid on a Class A Certificate or a Class R Certificate has been
avoided in whole or in part as a preference payment under
applicable bankruptcy law, the Trustee shall so notify the Series
1994-A Credit Enhancer, shall comply with the provisions of the
Policy to obtain payment by the Series 1994-A Credit Enhancer of
such avoided Guaranteed Distribution payment, and shall, at the
time it provides notice to the Series 1994-A Credit Enhancer,
notify Class A Certificateholders and Class R Certificateholders
by mail that, in the event that any such payment is so
recoverable, such Series Class A Certificateholder or Class R
Certificateholder will be entitled to payment pursuant to the
terms of the Policy, a copy of which shall be made available
through the Trustee. Pursuant to the terms of the Policy, the
Series 1994-A Credit Enhancer will make such payment on behalf of
such Class A Certificateholder or Class R Certificateholder to
the receiver, conservator, debtor-in-possession or trustee in
bankruptcy named in the Order (as defined in the Policy) and not
to the Trustee or any Class A Certificateholder or Class R
Certificateholder directly (unless such Certificateholder has
previously paid such payment to the receiver, conservator,
debtor-in-possession or trustee in bankruptcy, in which case the
Series 1994-A Credit Enhancer will make such payment to the
Trustee for distribution to such Certificateholder upon proof of
such payment reasonably satisfactory to the Series 1994-A Credit
Enhancer).
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(b) Upon actual knowledge by a Responsible Officer of the
Trustee of either of the following events, the Trustee shall
promptly notify the Series 1994-A Credit Enhancer of (i) the
commencement of any of the events or proceedings described in the
definition of "Insolvency Event" or any such event or proceedings
applicable to an Obligor under an Account (any such event or
proceeding, an "Insolvency Proceeding") and (ii) the making of
any claim in connection with any Insolvency Proceeding seeking
the avoidance as a preferential transfer (a "Preference Claim")
with regard to any payment of a Guaranteed Distribution on a
Series 1994-A Certificate. Each Class A Certificateholder and
Class R Certificateholder, by its purchase of Class A
Certificates or Class R Certificates, as the case may be, and the
Trustee hereby agree that, the Series 1994-A Credit Enhancer may,
unless a Series 1994-A Credit Enhancer Default has occurred and
is continuing, at any time during the continuation of an
Insolvency Proceeding direct all matters relating to such
Insolvency Proceeding (other than as specified in Section
13.19(b) or matters relating exclusively to payment of the
Trustee's fee), including, without limitation, (i) all matters
relating to any Preference Claim, (ii) the direction of any
appeal of any order relating to any Preference Claim and (iii)
the posting of any surety, supersedeas or performance bond
pending any such appeal, each of the foregoing to be at the
expense of the Series 1994-A Credit Enhancer subject to
reimbursement as provided in the Insurance and Indemnity
Agreement. In addition, and without limitation of the foregoing,
the Series 1994-A Credit Enhancer shall be subrogated to, and
each Class A Certificateholder and Class R Certificateholder and
the Trustee hereby delegates and assigns, to the fullest extent
permitted by law, the rights of the Trustee and each Class A
Certificateholder and Class R Certificateholder in the conduct of
any proceeding with respect to a Preference Claim, including,
without limitation, all rights of any party to an adversary
proceeding action with respect to any court order issued in
connection with any such Preference Claim (other than as
specified in Section 13.16 or matters relating exclusively to the
Trustee's fee).
Section 13.19. Series 1994-A Credit Enhancer.
(a) The Series 1994-A Credit Enhancer shall be entitled to
receive all notices, opinions and other documents required to be
provided hereunder or in the Pooling Agreement to the Trustee or
the Series 1994-A Certificateholders, and, so long as a Series
1994-A Credit Enhancer Default has not occurred or is not
continuing, the Series 1994-A Credit Enhancer shall be entitled,
in lieu of the required aggregate percentage, if any, of Series
1994-A Certificateholders, to give all instructions, directions,
votes, requests, notices, consents or waivers permitted or
required to be given thereby in the Pooling Agreement (other than
the matters described in Section 9.02(a) or 11.07(d) or matters
relating exclusively to the Trustee's fee) or this Supplement by
48
<PAGE>
the Series 1994-A Certificateholders; provided, however, that
with respect to clauses (i) through (iv) of Section 13.01(b) of
the Pooling and Servicing Agreement, no action shall be taken
without the consent of Holders of Investor Certificates
evidencing in the aggregate more than 66-2/3% of the sum of the
Class A Balance and the Class R Balance. The Trustee hereby
acknowledges the Series 1994-A Credit Enhancer's rights under
this Section; provided, further, that with respect to any other
amendment pursuant to Section 13.01(b) of the Pooling and
Servicing Agreement, no action shall be taken without the consent
of the Series 1994-A Majority Holders, which consent shall not be
unreasonably withheld.
(b) So long as a Credit Enhancer Default pursuant to clause
(i) of the definition thereof with respect to the Series 1994-A
Credit Enhancer has occurred and is continuing, all references
hereunder and in the Pooling Agreement to instructions,
directions, votes, consents or waivers permitted to be given by
the Series 1994-A Credit Enhancer (other than the matters
described in Section 13.01 or 2.13(h)) shall be deemed to refer
to the Series 1994-A Majority Holders. So long as a Credit
Enhancer Default pursuant to clause (i) of the definition thereof
has occurred and is continuing, the Series 1994-A Credit Enhancer
shall be deemed to have given its consent with respect to matters
under Section 13.01 or 2.13(h) if the Series 1994-A Credit
Enhancer shall have failed to respond to any notice thereunder
for a period of 10 Business Days.
Section 13.20. Third-Party Beneficiaries. This Supplement
will inure to the benefit of and be binding upon the parties
hereto, the Holders of the Series 1994-A Certificates and the
Series 1994-A Credit Enhancer and their respective successors and
permitted assigns. Except as otherwise expressly provided in
this Supplement, no other Person will have any right or
obligation hereunder.
Section 13.21. Inclusion in a Group. The Series 1994-A
Certificates may be included in a Group upon the satisfaction of
the following conditions:
(i) the Seller shall have provided written notice of
its intent to the include the Series 1994-A Certificates in
a Group no later than 60 days prior to the date upon which
such inclusion will become effective, which notice shall
specify the names or Series designations of each other
Series to be included in such Group and the effective date
of such inclusion, to the Trustee, the Master Servicer, each
Holder of record of a Series 1994-A Certificate as of the
Record Date preceding the date of such notice, the Series
1994-A Credit Enhancer, each Credit Enhancer with respect to
another Series to be included in such Group, Moody's,
Standard & Poor's and each Rating Agency with respect to
each other Series to be included in such Group;
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(ii) each condition precedent with respect to the
inclusion in a Group of each other Series specified in such
notice shall have been satisfied on or prior to the
effective date specified in such notice;
(iii) the Seller shall have delivered a Tax Opinion
with respect to such inclusion to the Trustee and the Series
1994-A Credit Enhancer; and
(iv) the Seller shall have delivered to the Trustee
and the Series 1994-A Credit Enhancer an Officer's
Certificate certifying that the conditions specified in
clauses (i) through (iii) have been satisfied.
50
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IN WITNESS WHEREOF, the parties hereto have caused this
Supplement to be duly executed by their respective officers as of
the day and year first above written.
CAROLINA FIRST BANK,
as Seller and Master Servicer
By:
Name:
Title:
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By:
Name:
Title:
<PAGE>
EXHIBIT A
FORM OF CLASS A CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS IN
RELIANCE ON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH
STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS
CERTIFICATE MAY BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS
MADE IN ACCORDANCE WITH SECTION 6.04 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN AND (B) IS MADE (I) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (II)
TO THE BANK OR (III) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT AND THAT IS AWARE THAT THE
RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A.
NEITHER THE BANK NOR THE TRUSTEE WILL BE OBLIGATED TO REGISTER
THIS CERTIFICATE UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS. IN THE EVENT THAT THE TRANSFER OF THIS
CERTIFICATE IS TO BE MADE, EITHER (A) AN OPINION OF COUNSEL OR
(B) A REPRESENTATION LETTER FROM THE PROSPECTIVE INVESTOR, IN
BOTH CASES IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND
THE BANK, ARE REQUIRED TO BE DELIVERED TO THE TRUSTEE AND THE
BANK, TO THE EFFECT THAT SUCH TRANSFER MAY BE MADE WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS. THIS CERTIFICATE WILL BE ELIGIBLE FOR PURCHASE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS THE TRUSTEE AND THE BANK SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE, TO
THE EFFECT THAT (A) SUCH TRANSFEREE WILL NOT ACQUIRE THIS
CERTIFICATE WITH THE ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A BENEFIT PLAN
DESCRIBED IN SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A "BENEFIT PLAN INVESTOR" (AS
SUCH TERM IS DEFINED UNDER THE DEPARTMENT OF LABOR REGULATIONS
PROMULGATED UNDER ERISA) OR (B) THAT SUCH TRANSFEREE IS A BENEFIT
PLAN OR IS ACQUIRING THIS CERTIFICATE WITH THE ASSETS OF A
BENEFIT PLAN OR A BENEFIT PLAN INVESTOR, AND IF THE
REPRESENTATION IN (B) IS MADE, SUCH TRANSFEREE SHALL DELIVER AN
OPINION OF COUNSEL, IN FORM AND CONTENT SATISFACTORY TO THE
TRUSTEE AND BANK, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF
THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING
DEEMED TO BE "PLAN ASSETS" (AS SUCH TERM IS DEFINED UNDER ERISA),
WILL NOT SUBJECT THE ASSETS OF THE TRUST TO THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE, AND WILL NOT
SUBJECT THE TRUSTEE, SELLER OR MASTER SERVICER TO ANY OBLIGATION
IN ADDITION TO THOSE ALREADY UNDERTAKEN IN THE POOLING AGREEMENT.
A-1
<PAGE>
CAROLINA FIRST CREDIT CARD MASTER TRUST
FLOATING RATE ASSET BACKED CERTIFICATE,
SERIES 1994-A, CLASS A
Evidencing an interest in a trust, the assets of which consist
primarily of receivables generated from time to time in the
ordinary course of business in a portfolio of revolving credit
card accounts and a limited number of unsecured revolving line of
credit accounts owned by Carolina First Bank, a South Carolina
state-chartered bank.
CUSIP Number: 143879AA2 Initial Principal Balance: $70,000,000
Percentage Interest evidenced
by this Certificate: __%
Series 1994-A Cutoff Date: December 31, 1994
First Distribution Date: February 15, 1995
THIS CERTIFIES THAT ____________________________________, is
the registered owner of a non-assessable, fully-paid, fractional
undivided interest in the Carolina First Credit Card Master Trust
(the "Trust"), that was created pursuant to the Pooling and
Servicing Agreement, dated as of December 31, 1994 (the "Pooling
and Servicing Agreement"), between Carolina First Bank, a South
Carolina state-chartered bank, as seller (in such capacity, the
"Seller") and as master servicer (in such capacity, the "Master
Servicer"), and The Chase Manhattan Bank, N.A., a national
banking association, as trustee (the "Trustee"), as the same has
been supplemented by a Series 1994-A Supplement, dated as of
December 31, 1994 (the "Supplement" and, together with the
Pooling and Servicing Agreement, the "Pooling Agreement"),
between the Seller and Master Servicer and the Trustee. This
Certificate is one of the duly authorized Certificates designated
as Floating Rate Asset Backed Certificates, Series 1994-A, Class
A (the "Class A Certificates") issued under the Pooling
Agreement. Simultaneously with the issuance of the Class A
Certificates, the Trust will issue pursuant to the Pooling
Agreement, Floating Rate Asset Backed Certificates, Series
1994-A, Class R (the "Class R Certificates") and Asset Backed
Certificates, Series 1994-A, Class B (the "Class B Certificates"
and, together with the Class A Certificates and the Class R
Certificates, the "Certificates"). Capitalized terms used herein
and not otherwise defined have the meanings ascribed thereto in
the Pooling Agreement.
Although this Class A Certificate summarizes certain
provisions of the Pooling Agreement, this Class A Certificate
does not purport to summarize all of the terms thereof.
Reference is made to the Pooling Agreement for further
information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Seller, the Master Servicer and the
A-2
<PAGE>
Trustee hereunder and thereunder. In the event of any
inconsistency or conflict between the terms of this Class A
Certificate and those of the Pooling Agreement, the terms of the
Pooling Agreement shall control.
The Certificates represent interests in the Trust only and
do not represent an obligation of, or an interest in, the Bank,
the Seller, the Master Servicer, the Trustee, the Series 1994-A
Credit Enhancer or any of their respective Affiliates. The
Certificates will not be savings accounts or deposits and none of
the Certificates, the Receivables or the Accounts will be insured
or guaranteed by the Federal Deposit Insurance Corporation or any
other governmental agency or instrumentality. This Certificate
is limited in right of payment to the Trust Assets, certain
optional payments by the Series 1994-A Credit Enhancer in respect
of Class A Investor Charge-Offs and payments under the Policy of
Guaranteed Distributions and Preference Claims.
This Certificate is subject to the terms, provisions and
conditions of, and is entitled to the rights and benefits
afforded by, the Pooling Agreement, to which terms, provisions
and conditions the Holder of this Certificate assents and by
which such Holder is bound, by virtue of its acceptance of this
Certificate.
Class A Monthly Interest shall accrue on this Class A
Certificate as set forth in the Pooling Agreement. The Class A
Certificates have the benefit of a financial guaranty insurance
policy (the "Policy") issued by Financial Security Assurance Inc.
(the "Series 1994-A Credit Enhancer"). Full payment of interest
due on the Class A Certificates on each Distribution Date and
full payment of any principal of the Class A Certificates
remaining unpaid on the August 15, 2005 Distribution Date (the
"Series 1994-A Termination Date") will be unconditionally and
irrevocably guaranteed pursuant to the Policy. This Certificate
is subject to prepayment prior to the Series 1994-A Termination
Date to the extent set forth in the Pooling Agreement.
The Pooling Agreement may be amended and the rights and
obligations of the parties thereto and of the Holder of this
Certificate modified as set forth in the Pooling Agreement.
Subject to the restrictions on exchange set forth in Section
6.04 of the Pooling Agreement, at the option of the Holder, this
Certificate may be exchanged for other Certificates of the same
Class and Series of authorized denominations of like aggregate
fractional interests in the Trust Assets and bearing numbers that
are not contemporaneously outstanding, upon surrender of this
Certificate to be exchanged at any such office or agency. If
this Certificate is so surrendered for exchange the Seller shall
execute, and the Trustee shall authenticate and deliver, the
appropriate number of Certificates of the same Class and Series.
A-3
<PAGE>
If this Certificate is presented or surrendered for
registration of transfer or exchange, it shall be accompanied by
a written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the
Holder hereof or his attorney-in-fact duly authorized in a
writing delivered to the Transfer Agent and Registrar.
Generally, this Certificate may not be acquired by or for
the account of any employee benefit plan, trust or account,
including an individual retirement account, that is subject to
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or that is described in Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended, or an entity whose
underlying assets include plan assets by reason of a plan's
investment in such entity or any "benefit plan investor" (as
defined under ERISA)(a "Benefit Plan"), by a Person acting on
behalf of a Benefit Plan or using the assets of a Benefit Plan to
acquire such Certificates. By accepting and holding this
Certificate, the Holder hereof shall be deemed to have
represented and warranted that it is not a Benefit Plan or shall
be required to provide a letter of representations or an Opinion
of Counsel as described in Section 6.04(d)(ii)(B) of the Pooling
and Servicing Agreement.
By its acceptance of this Certificate, each Holder hereof
(i) acknowledges that it is the intent of the Seller and agrees
that it is the intent of the Holder that, for U.S. federal,
state, local and non-U.S. income and franchise tax purposes only,
the Class A Certificates will be treated as evidence of
indebtedness of the Seller secured by the Trust Assets and the
Trust not be characterized as an association taxable as a
corporation, (ii) agrees to treat this Certificate for U.S.
federal, state, local and non-U.S. income and franchise tax
purposes as indebtedness and (iii) agrees that the provisions of
the Pooling Agreement and the Certificate Purchase Agreement
shall be construed to further these intentions of the parties.
This Certificate shall be construed in accordance with the
laws of the State of New York, without regard to its conflict of
laws principles, and all obligations, rights and remedies under
or arising in connection with this Certificate shall be
determined in accordance with the laws of the State of New York.
Unless the certificate of authentication hereon shall have
been executed by or on behalf of the Trustee by the manual
signature of a duly authorized signatory, this Certificate shall
not entitle the Holder hereof to any benefit under the Pooling
Agreement or be valid for any purpose.
A-4
<PAGE>
IN WITNESS WHEREOF, the Seller has caused this Certificate
to be executed by its officer thereunto duly authorized.
CAROLINA FIRST BANK,
as Seller
Dated: __________, ____ By: _________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1994-A Certificates referred to in
the Pooling Agreement.
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By: ___________________________
Authorized Officer
A-5
<PAGE>
EXHIBIT B
FORM OF CLASS B CERTIFICATE
THIS CERTIFICATE IS NOT PERMITTED TO BE TRANSFERRED,
ASSIGNED, EXCHANGED OR OTHERWISE PLEDGED OR CONVEYED OTHER THAN
AS SET FORTH IN SECTION 6.04 OF THE POOLING AGREEMENT IN
CONNECTION WITH TRANSFERS TO A SUCCESSOR TO THE SELLER, AS
DESCRIBED IN SECTIONS 7.04 OF THE POOLING AGREEMENT.
THIS CERTIFICATE HAS NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS IN
RELIANCE ON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH
STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS
CERTIFICATE MAY BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS
MADE IN ACCORDANCE WITH SECTION 6.04 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN AND (B) IS MADE (I) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (II)
TO THE BANK OR (III) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT AND THAT IS AWARE THAT THE
RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A.
NEITHER THE BANK NOR THE TRUSTEE WILL BE OBLIGATED TO REGISTER
THIS CERTIFICATE UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS. IN THE EVENT THAT THE TRANSFER OF THIS
CERTIFICATE IS TO BE MADE, EITHER (A) AN OPINION OF COUNSEL OR
(B) A REPRESENTATION LETTER FROM THE PROSPECTIVE INVESTOR, IN
BOTH CASES IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND
THE BANK, ARE REQUIRED TO BE DELIVERED TO THE TRUSTEE AND THE
BANK, TO THE EFFECT THAT SUCH TRANSFER MAY BE MADE WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS. THIS CERTIFICATE WILL BE ELIGIBLE FOR PURCHASE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS THE TRUSTEE AND THE BANK SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE, TO
THE EFFECT THAT (A) SUCH TRANSFEREE WILL NOT ACQUIRE THIS
CERTIFICATE WITH THE ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A BENEFIT PLAN
DESCRIBED IN SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A "BENEFIT PLAN INVESTOR" (AS
SUCH TERM IS DEFINED UNDER THE DEPARTMENT OF LABOR REGULATIONS
PROMULGATED UNDER ERISA) OR (B) THAT SUCH TRANSFEREE IS A BENEFIT
PLAN OR IS ACQUIRING THIS CERTIFICATE WITH THE ASSETS OF A
BENEFIT PLAN OR A BENEFIT PLAN INVESTOR, AND IF THE
REPRESENTATION IN (B) IS MADE, SUCH TRANSFEREE SHALL DELIVER AN
OPINION OF COUNSEL, IN FORM AND CONTENT SATISFACTORY TO THE
TRUSTEE AND BANK, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF
B-1
<PAGE>
THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING
DEEMED TO BE "PLAN ASSETS" (AS SUCH TERM IS DEFINED UNDER ERISA),
WILL NOT SUBJECT THE ASSETS OF THE TRUST TO THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE, AND WILL NOT
SUBJECT THE TRUSTEE, SELLER OR MASTER SERVICER TO ANY OBLIGATION
IN ADDITION TO THOSE ALREADY UNDERTAKEN IN THE POOLING AGREEMENT.
B-2
<PAGE>
CAROLINA FIRST CREDIT CARD MASTER TRUST
ASSET BACKED CERTIFICATE,
SERIES 1994-A, CLASS B
Evidencing an interest in a trust, the assets of which consist
primarily of receivables generated from time to time in the
ordinary course of business in a portfolio of revolving credit
card accounts and a limited number of unsecured revolving line of
credit accounts owned by Carolina First Bank, a South Carolina
state-chartered bank.
Initial Invested Amount: $17,500,000
Percentage Interest evidenced
by this Certificate: 100%
Series 1994-A Cutoff Date: December 31, 1994
First Distribution Date: February 15, 1995
THIS CERTIFIES THAT CAROLINA FIRST BANK is the registered
owner of a non-assessable, fully-paid, fractional undivided
interest in the Carolina First Credit Card Master Trust (the
"Trust"), that was created pursuant to the Pooling and Servicing
Agreement, dated as of December 31, 1994 (the "Pooling and
Servicing Agreement"), between Carolina First Bank, a South
Carolina state-chartered bank, as seller (the "Seller") and as
master servicer (in such capacity, the "Master Servicer"), and
The Chase Manhattan Bank, N.A., a national banking association,
as trustee (in such capacity, the "Trustee"), as the same has
been supplemented by a Series 1994-A Supplement, dated as of
December 31, 1994 (the "Supplement" and, together with the
Pooling and Servicing Agreement, the "Pooling Agreement"),
between the Seller and Master Servicer and the Trustee. This
Certificate is one of the duly authorized Series 1994-A
Certificates designated as Asset Backed Certificates, Series
1994-A, Class B (the "Class B Certificates") issued under the
Pooling Agreement. Simultaneously with the issuance of the
Class B Certificates, the Trustee will issue, pursuant to the
Pooling Agreement, Floating Rate Asset Backed Certificates,
Series 1994-A, Class A (the "Class A Certificates") and Floating
Rate Asset Backed Certificates, Series 1994-A, Class R (the
"Class R Certificates" and, together with the Class B
Certificates and the Class A Certificates, the "Certificates").
The Class B Certificates are subordinated to the Class A
Certificates and the Class R Certificates to the extent provided
in the Pooling Agreement. Capitalized terms used herein and not
otherwise defined have the meanings ascribed thereto in the
Pooling Agreement and the Supplement.
Although this Class B Certificate summarizes certain
provisions of the Pooling Agreement, this Class B Certificate
does not purport to summarize all of the terms thereof.
Reference is made to the Pooling Agreement for further
B-3
<PAGE>
information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Seller, the Master Servicer and the
Trustee hereunder and thereunder. In the event of any
inconsistency or conflict between the terms of this Class B
Certificate and those of the Pooling Agreement, the terms of the
Pooling Agreement shall control.
The Certificates represent interests in the Trust only and
do not represent an obligation of, or an interest in, the Bank,
the Seller, the Master Servicer, the Trustee, the Series 1994-A
Credit Enhancer or any of their respective Affiliates. The
Certificates will not be savings accounts or deposits and none of
the Certificates, the Receivables or the Accounts will be insured
or guaranteed by the Federal Deposit Insurance Corporation or any
other governmental agency or instrumentality. This Certificate
is limited in right of payment to the Trust Assets, as provided
in the Pooling Agreement.
This Certificate is subject to the terms, provisions and
conditions of, and is entitled to the rights and benefits
afforded by, the Pooling Agreement, to which terms, provisions
and conditions the Holder of this Certificate assents and by
which such Holder is bound, by virtue of its acceptance of this
Certificate.
No monthly interest shall accrue on this Certificate. No
principal will be paid on this Certificate until the Class A
Certificates and the Class R Certificates have been paid in full.
This Certificate is subject to prepayment prior to the Series
1994-A Termination Date to the extent set forth in the Pooling
Agreement.
The Pooling Agreement may be amended and the rights and
obligations of the parties thereto and of the Holder of this
Certificate modified as set forth in the Pooling Agreement.
Subject to the restrictions on exchange set forth in Section
6.04 of the Pooling Agreement, at the option of the Holder, this
Certificate may be exchanged for other Certificates of the same
Class and Series of authorized denominations of like aggregate
fractional interests in the Trust Assets and bearing numbers that
are not contemporaneously outstanding, upon surrender of this
Certificate to be exchanged at any such office or agency. If
this Certificate is so surrendered for exchange the Seller shall
execute, and the Trustee shall authenticate and deliver, the
appropriate number of Certificates of the same Class and Series.
If this Certificate is presented or surrendered for
registration of transfer or exchange, it shall be accompanied by
a written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the
B-4
<PAGE>
Holder hereof or his attorney-in-fact duly authorized in a
writing delivered to the Transfer Agent and Registrar.
Generally, this Certificate may not be acquired by or for
the account of any employee benefit plan, trust or account,
including an individual retirement account, that is subject to
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or that is described in Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended, or an entity whose
underlying assets include plan assets by reason of a plan's
investment in such entity or any "benefit plan investor" (as
defined under ERISA)(a "Benefit Plan"), by a Person acting on
behalf of a Benefit Plan or using the assets of a Benefit Plan to
acquire such Certificates. By accepting and holding this
Certificate, the Holder hereof shall be deemed to have
represented and warranted that it is not a Benefit Plan or shall
be required to provide a letter of representations or an Opinion
of Counsel as described in Section 6.04(d)(ii)(B) of the Pooling
and Servicing Agreement.
By its acceptance of this Certificate, each Holder hereof
(i) acknowledges that it is the intent of the Seller and agrees
that it is the intent of the Holder that, for U.S. federal,
state, local and non-U.S. income and franchise tax purposes only,
the Class B Certificates will be treated as representing an
equity interest in the Trust or, alternatively, as an interest in
a partnership, (ii) agrees to treat the Class B Certificates for
U.S. federal, state, local and non-U.S. income and franchise tax
purposes as representing an equity interest in the Trust or,
alternatively, as an interest in a partnership and (iii) agrees
that the provisions of the Pooling Agreement shall be construed
to further these intentions of the parties.
This Certificate shall be construed in accordance with the
laws of the State of New York, without regard to its conflict of
laws principles, and all obligations, rights and remedies under
or arising in connection with this Certificate shall be
determined in accordance with the laws of the State of New York.
Unless the certificate of authentication hereon shall have
been executed by or on behalf of the Trustee by the manual
signature of a duly authorized signatory, this Certificate shall
not entitle the Holder hereof to any benefit under the Pooling
Agreement or be valid for any purpose.
B-5
<PAGE>
IN WITNESS WHEREOF, the Seller has caused this Certificate
to be executed by its officer thereunto duly authorized.
CAROLINA FIRST BANK,
as Seller
Dated: __________, ____ By: __________________________
Name:
Title:
B-6
<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1994-A Certificates referred to in
the Pooling Agreement.
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By: ___________________________
Authorized Officer
B-7
<PAGE>
EXHIBIT C
FORM OF CLASS R CERTIFICATE
THIS CERTIFICATE HAS NOT BEEN REGISTERED WITH THE SECURITIES
AND EXCHANGE COMMISSION UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS IN
RELIANCE ON EXEMPTIONS PROVIDED BY THE SECURITIES ACT AND SUCH
STATE SECURITIES LAWS. NO RESALE OR OTHER TRANSFER OF THIS
CERTIFICATE MAY BE MADE UNLESS SUCH RESALE OR TRANSFER (A) IS
MADE IN ACCORDANCE WITH SECTION 6.04 OF THE POOLING AND SERVICING
AGREEMENT REFERRED TO HEREIN AND (B) IS MADE (I) PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (II)
TO THE BANK OR (III) TO A PERSON WHO THE TRANSFEROR REASONABLY
BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT AND THAT IS AWARE THAT THE
RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A.
NEITHER THE BANK NOR THE TRUSTEE WILL BE OBLIGATED TO REGISTER
THIS CERTIFICATE UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS. IN THE EVENT THAT THE TRANSFER OF THIS
CERTIFICATE IS TO BE MADE, EITHER (A) AN OPINION OF COUNSEL OR
(B) A REPRESENTATION LETTER FROM THE PROSPECTIVE INVESTOR, IN
BOTH CASES IN FORM AND SUBSTANCE SATISFACTORY TO THE TRUSTEE AND
THE BANK, ARE REQUIRED TO BE DELIVERED TO THE TRUSTEE AND THE
BANK, TO THE EFFECT THAT SUCH TRANSFER MAY BE MADE WITHOUT
REGISTRATION UNDER THE SECURITIES ACT OR ANY APPLICABLE STATE
SECURITIES LAWS. THIS CERTIFICATE WILL BE ELIGIBLE FOR PURCHASE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT.
NO RESALE OR OTHER TRANSFER OF THIS CERTIFICATE MAY BE MADE
UNLESS THE TRUSTEE AND THE BANK SHALL HAVE RECEIVED A
REPRESENTATION LETTER FROM THE TRANSFEREE OF THIS CERTIFICATE, TO
THE EFFECT THAT (A) SUCH TRANSFEREE WILL NOT ACQUIRE THIS
CERTIFICATE WITH THE ASSETS OF ANY "EMPLOYEE BENEFIT PLAN" AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME
SECURITY ACT OF 1974, AS AMENDED ("ERISA"), A BENEFIT PLAN
DESCRIBED IN SECTION 4975(E)(1) OF THE INTERNAL REVENUE CODE OF
1986, AS AMENDED (THE "CODE"), OR A "BENEFIT PLAN INVESTOR" (AS
SUCH TERM IS DEFINED UNDER THE DEPARTMENT OF LABOR REGULATIONS
PROMULGATED UNDER ERISA) OR (B) THAT SUCH TRANSFEREE IS A BENEFIT
PLAN OR IS ACQUIRING THIS CERTIFICATE WITH THE ASSETS OF A
BENEFIT PLAN OR A BENEFIT PLAN INVESTOR, AND IF THE
REPRESENTATION IN (B) IS MADE, SUCH TRANSFEREE SHALL DELIVER AN
OPINION OF COUNSEL, IN FORM AND CONTENT SATISFACTORY TO THE
TRUSTEE AND BANK, TO THE EFFECT THAT THE PURCHASE OR HOLDING OF
THIS CERTIFICATE WILL NOT RESULT IN THE ASSETS OF THE TRUST BEING
DEEMED TO BE "PLAN ASSETS" (AS SUCH TERM IS DEFINED UNDER ERISA),
WILL NOT SUBJECT THE ASSETS OF THE TRUST TO THE PROHIBITED
TRANSACTION PROVISIONS OF ERISA AND THE CODE, AND WILL NOT
SUBJECT THE TRUSTEE, SELLER OR MASTER SERVICER TO ANY OBLIGATION
IN ADDITION TO THOSE ALREADY UNDERTAKEN IN THE POOLING AGREEMENT.
C-1
<PAGE>
CAROLINA FIRST CREDIT CARD MASTER TRUST
FLOATING RATE ASSET BACKED CERTIFICATE,
SERIES 1994-A, CLASS R
Evidencing an interest in a trust, the assets of which consist
primarily of receivables generated from time to time in the
ordinary course of business in a portfolio of revolving credit
card accounts and a limited number of unsecured revolving line of
credit accounts owned by Carolina First Bank, a South Carolina
state-chartered bank.
CUSIP Number: 143879AB0 Maximum Amount: $15,000,000
Percentage Interest evidenced
by this Certificate: __%
Series 1994-A Cutoff Date: December 31, 1994
First Distribution Date: February 15, 1995
THIS CERTIFIES THAT ___________________________________, is
the registered owner of a non-assessable, fully-paid, fractional
undivided interest in the Carolina First Credit Card Master Trust
(the "Trust"), that was created pursuant to the Pooling and
Servicing Agreement, dated as of December 31, 1994 (the "Pooling
and Servicing Agreement"), between Carolina First Bank, a South
Carolina state-chartered bank, as seller (in such capacity, the
"Seller") and as Master Servicer (the "Master Servicer"), and The
Chase Manhattan Bank, N.A., a national banking association, as
trustee (the "Trustee"), as the same has been supplemented by a
Series 1994-A Supplement, dated as of December 31, 1994 (the
"Supplement" and, together with the Pooling and Servicing
Agreement, the "Pooling Agreement"), between the Seller and
Master Servicer and the Trustee. This Certificate is one of the
duly authorized Certificates designated as Floating Rate Asset
Backed Certificates, Series 1994-A, Class R (the "Class R
Certificates") issued under the Pooling Agreement.
Simultaneously with the issuance of the Class R Certificates, the
Trust will issue pursuant to the Pooling Agreement Floating Rate
Asset Backed Certificates, Series 1994-A, Class A (the "Class A
Certificates") and Asset Backed Certificates, Series 1994-A,
Class B (the "Class B Certificates" and together with the Class A
Certificates and the Class R Certificates, the "Certificates").
Capitalized terms used herein and not otherwise defined have the
meanings ascribed thereto in the Pooling Agreement.
Although this Class R Certificate summarizes certain
provisions of the Pooling Agreement and the Certificate Purchase
Agreement, this Class R Certificate does not purport to summarize
all of the terms thereof. Reference is made to the Pooling
Agreement and the Certificate Purchase Agreement for further
information with respect to the interests, rights, benefits,
obligations, proceeds and duties evidenced hereby and the rights,
duties and obligations of the Seller, the Master Servicer and the
C-2
<PAGE>
Trustee hereunder and thereunder. In the event of any
inconsistency or conflict between the terms of this Class R
Certificate and those of the Pooling Agreement or the Certificate
Purchase Agreement, the terms of the Pooling Agreement or the
Certificate Purchase Agreement, as the case may be, shall
control.
The Certificates represent interests in the Trust only and
do not represent an obligation of, or an interest in, the Bank,
the Seller, the Master Servicer, the Trustee, the Series 1994-A
Credit Enhancer or any of their respective Affiliates. The
Certificates will not be savings accounts or deposits and none of
the Certificates, the Receivables or the Accounts will be insured
or guaranteed by the Federal Deposit Insurance Corporation or any
other governmental agency or instrumentality. This Certificate
is limited in right of payment to the Trust Assets, certain
optional payments of principal made by the Seller, certain
optional payments by the Series 1994-A Credit Enhancer in respect
of Class R Investor Charge-Offs and payments under the Policy of
Guaranteed Distributions and Preference Claims.
This Certificate is subject to the terms, provisions and
conditions of, and is entitled to the rights and benefits
afforded by, the Pooling Agreement and the Class R Certificate
Purchase Agreement dated as of the Series 1994-A Closing Date
(the "Certificate Purchase Agreement"), among the Seller, the
Mitsubishi Trust and Banking Corporation, New York Branch, as
purchaser, to which terms, provisions and conditions the Holder
of this Certificate assents and by which such Holder is bound, by
virtue of its acceptance of this Certificate.
This Certificate evidences the amount of Advances made by
the Holder hereof that are from time to time outstanding. Upon
satisfaction of the conditions specified in Section 4.09 of the
Pooling Agreement and the Certificate Purchase Agreement
(including but not limited to the Holder receiving notice of the
requirement to make an Advance no later than three Business Days
prior to the related Distribution Date), the Holder of this
Certificate will be required to make an Advance of an amount
specified in the Certificate Purchase Agreement in immediately
available funds on the related Distribution Date. The Holder
hereof shall and is hereby authorized to record on the grid
attached to this Certificate (or at such Holder's option, in its
internal books and records) the date and amount of each Advance
made by it, the amount of each repayment of the Class R Balance
made pursuant to the Certificate Purchase Agreement; provided,
however, that failure to make any such recordation on the grid or
records or any error in the grid or records shall not adversely
affect the Holder's rights with respect to its interest in the
assets of the Trust and its right to receive Class R Monthly
Interest in respect of the outstanding principal amount of all
Advances made by it and the Non-Usage Fee payable to it pursuant
to the Pooling Agreement and the Certificate Purchase Agreement.
C-3
<PAGE>
Class R Monthly Interest shall accrue on this Class R
Certificate and the Holder hereof will be entitled to receive the
Non-Usage Fee, in each case to the extent and as set forth in the
Pooling Agreement and the Certificate Purchase Agreement. The
Class A Certificates and the Class R Certificates will have the
benefit of a financial guaranty insurance policy (the "Policy")
to be issued by Financial Security Assurance Inc. (the "Series
1994-A Credit Enhancer"). Full payment of interest and Non-Usage
Fee due on the Class R Certificates on each Distribution Date and
full payment of any principal of the Class R Certificates
remaining unpaid on the August 15, 2001 Distribution Date (the
"Series 1994-A Termination Date") will be unconditionally and
irrevocably guaranteed pursuant to the Policy. This Certificate
is subject to prepayment prior to the Series 1994-A Termination
Date to the extent set forth in the Pooling Agreement.
The Pooling Agreement and the Certificate Purchase Agreement
may be amended and the rights and obligations of the parties
thereto and of the Holder of this Certificate modified as set
forth in the Pooling Agreement and the Certificate Purchase
Agreement.
Subject to the restrictions on exchange set forth in Section
6.04 of the Pooling Agreement, at the option of the Holder, this
Certificate may be exchanged for other Certificates of the same
Class and Series of authorized denominations of like aggregate
fractional interests in the Trust Assets and bearing numbers that
are not contemporaneously outstanding, upon surrender of this
Certificate to be exchanged at any such office or agency. If
this Certificate is so surrendered for exchange the Seller shall
execute, and the Trustee shall authenticate and deliver, the
appropriate number of Certificates of the same Class and Series.
If this Certificate is presented or surrendered for
registration of transfer or exchange, it shall be accompanied by
a written instrument of transfer in a form satisfactory to the
Trustee and the Transfer Agent and Registrar duly executed by the
Holder hereof or his attorney-in-fact duly authorized in a
writing delivered to the Transfer Agent and Registrar.
Generally, this Certificate may not be acquired by or for
the account of any employee benefit plan, trust or account,
including an individual retirement account, that is subject to
the Employee Retirement Income Security Act of 1974, as amended
("ERISA"), or that is described in Section 4975(e)(1) of the
Internal Revenue Code of 1986, as amended, or an entity whose
underlying assets include plan assets by reason of a plan's
investment in such entity or any "benefit plan investor" (as
defined under ERISA)(a "Benefit Plan"), by a Person acting on
behalf of a Benefit Plan or using the assets of a Benefit Plan to
acquire such Certificates. By accepting and holding this
Certificate, the Holder hereof shall be deemed to have
represented and warranted that it is not a Benefit Plan or shall
C-4
<PAGE>
be required to provide a letter of representations or an Opinion
of Counsel as described in Section 6.04(d) of the Pooling and
Servicing Agreement. By acquiring any interest in this
Certificate, the applicable Certificate Owner or Owners shall be
deemed to have represented and warranted that it or they are not
Benefit Plans or shall be required to provide a letter of
representations or an Opinion of Counsel as described in Section
6.04(d) of the Pooling and Servicing Agreement.
By its acceptance of this Certificate, each Holder hereof
(i) acknowledges that it is the intent of the Seller and agrees
that it is the intent of the Holder that, for U.S. federal,
state, local and non-U.S. income and franchise tax purposes only,
the Class A Certificates and the Class R Certificates will be
treated as evidence of indebtedness of the Seller secured by the
Trust Assets and the Trust not be characterized as an association
taxable as a corporation, (b) agrees to treat this Certificate
for U.S. federal, state, local and non-U.S. income and franchise
tax purposes as indebtedness and (c) agrees that the provisions
of the Pooling Agreement and the Certificate Purchase Agreement
shall be construed to further these intentions of the parties.
This Certificate shall be construed in accordance with the
laws of the State of New York, without regard to its conflict of
laws principles, and all obligations, rights and remedies under
or arising in connection with this Certificate shall be
determined in accordance with the laws of the State of New York.
Unless the certificate of authentication hereon shall have
been executed by or on behalf of the Trustee by the manual
signature of a duly authorized signatory, this Certificate shall
not entitle the Holder hereof to any benefit under the Pooling
Agreement or the Certificate Purchase Agreement or be valid for
any purpose.
C-5
<PAGE>
IN WITNESS WHEREOF, the Seller has caused this Certificate
to be executed by its officer thereunto duly authorized.
CAROLINA FIRST BANK
By: _________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Series 1994-A Certificates referred to in
the Pooling Agreement.
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By: _________________________
Authorized Officer
C-6
<PAGE>
ADVANCES AND REPAYMENTS
Date of Amount Date Total Class R
Advance Advanced Advance Amount of Balance
Repaid Advance
Repaid
C-7
<PAGE>
EXHIBIT D
FORM OF DISTRIBUTION DATE STATEMENT
The undersigned, a duly authorized representative of Carolina First
Bank, as Master Servicer (the "Bank"), pursuant to the Pooling and
Servicing Agreement dated as of December 31, 1994 (the "Pooling and
Servicing Agreement"), as supplemented by a Series 1994-A Supplement
dated as of December 31, 1994 (the "Supplement" and, together with the
Pooling and Servicing Agreement, the "Pooling Agreement"), in each case
between the Bank, as Seller and Master Servicer, and The Chase Manhattan
Bank, N.A., as Trustee, does hereby certify as follows:
General
(i) Capitalized terms used in this Distribution Date Statement that
are not otherwise defined shall have the meanings ascribed
thereto in the Pooling Agreement. Defined terms shall be
defined with respect to the related Distribution Date, Interest
Period or Monthly Period, as the content may require; provided
that the "preceding Monthly Period" shall mean the Monthly
Period immediately preceding the calendar month in which this
Distribution Date Statement is delivered.
(ii) The date of this Distribution Date Statement is a Determination
Date and this Distribution Date Statement is being delivered
pursuant to Section 3.04(b) of the Pooling Agreement in respect
of the __________, ____ Distribution Date.
(iii) The Bank is as of the date hereof the Seller and the Master
Servicer under the Pooling Agreement.
(iv) The undersigned is a Servicing Officer.
Collection Information
1. The aggregate amount of Collections received during the preceding
Monthly Period is equal to. . . . . . . . . . . . . . . . $__________
2. The aggregate amount of such Collections allocated to Principal
Receivables for the preceding Monthly Period was equal to $__________
3. The aggregate amount of such Collections allocated to Finance Charge
Receivables for the preceding Monthly Period was equal to $__________
Reference and Computational Information
1. The Invested Amount of each Class of Certificates as of the close
of business on the immediately preceding Distribution Date
was equal to:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class B. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
2. The outstanding principal balance of each Class of Certificates as
of the close of business on the immediately preceding Distribution Date
was equal to:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class B. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
3. The Certificate Rate of each Class of Certificates for the related
Interest Period equals:
D-1
<PAGE>
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
4. The Floating Allocation Percentage for each Class of
Certificates equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class B. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
5. The Principal Allocation Percentage the
Certificates equals: . . . . . . . . . . . . . . . . . . . _____%
6. The Funding Percentage for each Class of Certificates
equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
7. The amount of Advances to be made by the holders
of the Class R Certificates on the related
Distribution Date equals: . . . . . . . . . . . . . . . . . $__________
8. The amount of Available Principal Collections equals: . . . $__________
9. The amount of Available Funds for the preceding Monthly Period
for each Class of Certificates equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class B. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
10. The Investor Default Amount for each Class of
Certificates equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class B. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
11. The Investor Charge-Offs for each Class of Certificates
equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class B. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
12. The amount of Excess Spread for the Certificates
equals:. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
13. The amount of Excess Spread that will be used to make
payment of the following components of the Required
Amount equals:
a. Current and overdue Class A Monthly Interest and
Class R Monthly Interest . . . . . . . . . . . . . . . $__________
b. Current and overdue Non-Usage Fees . . . . . . . . . . $__________
c. Class A Additional Interest and Class R
Additional Interest. . . . . . . . . . . . . . . . . . $__________
d. Current and overdue Class A Policy Amount and
Class R Policy Amount. . . . . . . . . . . . . . . . . $__________
e. Class A Investor Default Amount and Class R
Investor Default Amount. . . . . . . . . . . . . . . . $__________
14. The amount of Transfer Deposit Amounts allocable
D-2
<PAGE>
to the Certificates equals: . . . . . . . . . . . . . . . $__________
Payment Information
1. The amount of Monthly Interest for each Class of
Certificates equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
2. The amount of Additional Interest for each Class of
Certificates equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
3. The amount of Non-Usage Fee for the preceding Monthly Period
in respect of the Class R Certificates equals:. . . . . . $__________
4. The amount of Monthly Principal for each Class of
Certificates equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class B. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
5. The amount of Deficit Controlled Amortization Amount for each
Class of Certificates equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class B. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
6. The amount of optional payments of Class A and Class R Investor
Charge-Offs being made by Financial Security on the related
Distribution Date equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
7. The amount of optional payments of principal being made by the
Seller in respect of the Class R Certificates on the related
Distribution Date equals. . . . . . . . . . . . . . . . . $__________
8. The amount of the Policy Amount payable in
respect of each Class of Certificates equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
9. The Required Amount is equal to. . . . . . . . . . . . . . $__________
10. The amount of Reallocated Principal Collections for each Class
of Certificates and the related Distribution Date equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
11. The amount on deposit in the Excess Funding Account
is equal to . . . . . . . . . . . . . . . . . . . . . . . $__________
12. The amount by which the Class B Invested Amount is reduced to make
payment of the Required Amount described in Item 9 above is
equal to. . . . . . . . . . . . . . . . . . . . . . . . . $__________
D-3
<PAGE>
Servicing Compensation Information
1. The amount of the Monthly Servicing Fee allocable to each Class
of Certificates equals:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class B. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
2. The amount of Interchange during the preceding Monthly Period in
respect of which the Master Servicer has waived its right to
receive and has instead agreed to be treated as Collections
of Finance Charge Receivables . . . . . . . . . . . . . . $__________
Series 1994-A Reserve Fund Information
1. The amount on deposit in the Series 1994-A Reserve Fund as of
the close of business on the preceding Distribution Date
was equal to. . . . . . . . . . . . . . . . . . . . . . . $__________
2. The amount on deposit in the Series 1994-A Reserve Fund as of the
opening of business on the related Distribution Date is
equal to. . . . . . . . . . . . . . . . . . . . . . . . . $__________
3. The Required Reserve Fund Amount is equal to . . . . . . . . $__________
4. The amount on deposit in the Series 1994A Reserve Fund that
will be used to make payment of the following components of the
Required Amount, after allocating Excess Spread, if any,
against the Required Amount, equals:
a. Current and overdue Class A Monthly Interest
and Class R Monthly Interest . . . . . . . . . . . . . $__________
b. Current and overdue Non-Usage Fees . . . . . . . . . . $__________
c. Class A Additional Interest and Class R
Additional Interest. . . . . . . . . . . . . . . . . . $__________
d. Current and overdue Class A Policy Amount and
Class R Policy Amount. . . . . . . . . . . . . . . . . $__________
e. Class A Investor Default Amount and Class R
Investor Default Amount. . . . . . . . . . . . . . . . __________
f. Current and overdue Class B Servicing Fee. . . . . . . $__________
Seller's Interest Information
1. The Seller Amount as of the last day of the preceding Monthly
Period was equal to. . . . . . . . . . . . . . . . . . . $__________
2. The Required Seller Amount as of the last day of the preceding
Monthly Period was equal to. . . . . . . . . . . . . . . $__________
3. The Required Principal Balance as of the last day of the preceding
Monthly Period was equal to. . . . . . . . . . . . . . . $__________
Testing Information
1. The Excess Spread Percentage for the preceding Monthly Period
and the average of the Excess Spread Percentages for the three
consecutive preceding Monthly Periods were equal to . . . . $__________
2. The Charge-Off Rate for the preceding Monthly Period
and the average of the Charge-Off Rates for the three consecutive
preceding Monthly Periods were equal to . . . . . . . . $__________
Policy Claim Information
D-4
<PAGE>
1. The Monthly Interest Claim Amount in respect of
each Class of Certificates is equal to:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
2. The Non-Usage Fee Claim Amount in respect of the
Class R Certificates is equal to. . . . . . . . . . . . . $__________
3. The Termination Date Shortfall in respect of each
Class of Certificates is equal to:
Class A. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
Class R. . . . . . . . . . . . . . . . . . . . . . . . . . $__________
4. The amount of Unreimbursed Credit Enhancer Amounts as of the
end of the preceding Monthly Period was equal to . . . . . $__________
Miscellaneous
1. As of the date hereof, to the best knowledge of the undersigned, no
default in the performance of the obligations of the Master Servicer
under the Pooling Agreement has occurred or is continuing except as
follows: [set forth in detail the (i) nature of such default, (ii)
the action taken by the Master Servicer, if any, to remedy such
default and (iii) the current status of each such default; if
applicable, insert "None"].
2. As of the date hereof no Insolvency Event or Payout Event has been
deemed to have occurred for the Monthly Period for this Distribution
Date.
3. As of the date hereof, to the best knowledge of the undersigned, no
Lien has been placed on any of the Receivables (or, if there is a
Lien, such Lien consists of _____________________).
D-5
<PAGE>
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this Distribution Date Statement this ___ day of __________, ____.
CAROLINA FIRST BANK,
as Master Servicer
By: _________________________
Name:
Title:1
D-6
<PAGE>
EXHIBIT E
FORM OF POLICY
E-1
<PAGE>
EXHIBIT F
RULE 144A REPRESENTATION LETTER
Carolina First Bank
102 South Main Street
Greenville, South Carolina 29601
The Chase Manhattan Bank, N.A.
4 Chase Metro Tech Center
Brooklyn, New York 11245
Re: Carolina First Credit Card Master Trust
Asset Backed Certificates, Series 1994-A, Classes A and R
Dear Sirs:
_____________________ (the "Purchaser") is today purchasing in a
private resale from _________________________ (the "Seller") $_________
aggregate principal amount of the certificates of one or both of the
above-referenced classes (the "Certificates"), issued pursuant to the
pooling and servicing agreement, dated as of December 31, 1994 (the
"Pooling and Servicing Agreement"), between Carolina First Bank (the
"Bank") and The Chase Manhattan Bank, N.A., as trustee (the "Trustee").
In connection with the purchase of the Certificates, the Purchaser
hereby represents and warrants to each of you as follows:
1. The Purchaser understands that the Certificates have not been
registered under the Securities Act of 1933, as amended (the "Securities
Act"), or the securities laws of any state.
2. The Purchaser is acquiring the Certificates for its own account,
or for one or more investor accounts for which it is acting as a
fiduciary or agent, in each case for investment, and not with a view
to, or for resale in connection with, a distribution that would
constitute a violation of the Securities Act or any state securities
laws (subject to the understanding that disposition of the Purchaser's
property will remain at all times within its control).
3. The Purchaser agrees to offer, sell or otherwise transfer such
Certificates only if (i) the Certificates are subsequently registered
under the Securities Act or (ii) the exemption from the registration
requirements of the Securities Act provided by Rule 144A promulgated
thereunder is available.
4. The Purchaser is a qualified institutional buyer as defined in
Rule 144A of the Securities Act, it is aware that the sale to it is
being made in reliance on Rule 144A, is acquiring the Certificates for
its own account or for the account of a qualified institutional buyer
and it understands that such Certificates may be resold, pledged or
transferred only to a person who it reasonably believes is a qualified
institutional buyer that purchases for its own account or for the
account of a qualified institutional buyer to whom notice is given that
the resale, pledge or transfer is being made in reliance on Rule 144A.
5. Either (a) the 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"), or a plan described in Section 4975(e)(1)
of the Internal Revenue Code of 1986, as amended (the "Code"), or a
"benefit plan investor" (as such term is defined under 29 C.F.R. Section
2510.3-101 (collectively, a "Plan"), or (ii) an entity acquiring the
Certificates with the assets of any Plan; or (b) the Purchaser is a Plan
or is using the assets of a Plan to acquire the Certificates and
represents that (assuming that less than 25% of the Class __ Invested
Amount as of the Closing Date (as such terms are defined in the Pooling and
F-1
<PAGE>
Servicing Agreement) of the Certificates is held by entities
described in (a)(i) or (ii) above) the purchase and holding of the
Certificates will not constitute a "prohibited transaction" within the
meaning of Section 406 of ERISA or Section 4975 of the Code; or (c) the
acquisition of the Certificates is subject to a statutory or
administrative exemption from the "prohibited transaction" provisions of
ERISA and the Code specifying exemption.
6. The Purchaser understands that there is no market, nor is there
any assurance that a market will develop, for the Certificates and that
the Bank does not have any obligation to make or facilitate any such
market (or to otherwise repurchase the Certificates from the Purchaser)
under any circumstances.
7. The Purchaser hereby further agrees to be bound by all the terms
and conditions of the Certificates as provided in the Pooling and
Servicing Agreement and, with respect tot he Class R Certificateholders,
the Class R Certificate Purchase Agreement.
8. If the Purchaser sells any of the Certificates, the Purchaser
will obtain from any subsequent Purchaser the same representations
contained in this Representation Letter.
Capitalized terms used herein that are not otherwise defined shall
have the meanings ascribed thereto in the Pooling and Servicing
Agreement or the Private Placement Memorandum, as the case may be.
Executed at ____________________, this ____ day of __________, ____.
______________________________
Purchaser's Name (Print)
By ___________________________
Signature
Its __________________________
______________________________
Address of Purchaser
______________________________
Purchaser's Taxpayer
Identification Number
F-2
<PAGE>
