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EXECUTION COPY
TRANSFER AND ASSUMPTION AGREEMENT
(First Union Master Credit Card Trust)
TRANSFER AND ASSUMPTION AGREEMENT, dated as of September 30, 2000 (this
"Agreement"), by and among First Union Direct Bank, National Association (as
successor to First Union National Bank of Georgia), a national banking
association (the "Bank"), in its individual capacity and as Transferor and
Servicer, The Bank of New York, a banking corporation organized and existing
under the laws of the State of New York, as Trustee (the "Trustee"), and MBNA
America Bank, National Association, a national banking association
("Successor"), as successor Transferor and Servicer pursuant to the Pooling and
Servicing Agreement referred to below.
WITNESSETH
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WHEREAS, the Bank and Trustee are parties to the Pooling and Servicing
Agreement, dated as of September 29, 1995, as amended by the First Amendment to
the Pooling and Servicing Agreement, dated as of February 22, 1996, and as
further amended by the Second Amendment to the Pooling and Servicing Agreement,
dated as of March 31, 1996, and as further amended by the Third Amendment to the
Pooling and Servicing Agreement, dated as of June 13, 1996, and as further
amended by the Fourth Amendment to the Pooling and Servicing Agreement, dated as
of September 1, 1997, and as further amended by the Fifth Amendment to the
Pooling and Servicing Agreement, dated as of August 16, 1999, and as
supplemented by the Supplemental Agreement to the Pooling and Servicing
Agreement, dated as of June 2, 1997, and as further supplemented by the Series
1996-1 Supplement, dated as of March 5, 1996, and as further supplemented by the
Series 1998-A Supplement, dated as of September 28, 1998, and as amended or
supplemented by Assignment No. 1 of Receivables in Additional Accounts, dated as
of March 12, 1997 (collectively, as amended or supplemented from time to time,
the "Pooling and Servicing Agreement"); and
WHEREAS, the Trustee, the Bank, the CA Investors named therein including
The Sanwa Bank, Limited, New York Branch, and The Sanwa Bank, Limited, New York
Branch, as agent, are the parties to the Loan Agreement, dated as of March 5,
1996 (as amended or supplemented from time to time, the "Loan Agreement")
relating to Series 1996-1; and
WHEREAS, the Bank, Corporate Asset Funding Company, Inc., as the Purchaser
(the "Purchaser"), and Citicorp North America, Inc., as Certificate Agent for
the Purchaser and the Owners (the "Class A Certificate Agent"), are parties to
the Certificate Purchase Agreement, dated as of September 28, 1998 (as amended
or supplemented from time to time, the "Certificate Purchase Agreement")
relating to Series 1998-A; and
WHEREAS, the Trustee, the Bank, the CA Investors named therein including
First Union National Bank, and First Union National Bank, as agent (the
"Collateral Agent"), are the parties to the Collateral Agreement, dated as of
September 28, 1998 (as amended or supplemented from time to time, the
"Collateral Agreement") relating to Series 1998-A; and
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WHEREAS, pursuant to a Purchase and Sale Agreement, dated as of August 14,
2000 (the "Purchase and Sale Agreement"), Successor is purchasing from the Bank,
and the Bank is selling to Successor, the assets described in the Purchase and
Sale Agreement; and
WHEREAS, the parties wish to provide for the assumption by Successor of the
obligations of the Transferor and the Servicer, as contemplated by Sections 7.02
and 8.02 of the Pooling and Servicing Agreement.
NOW, THEREFORE, the Bank, the Trustee and Successor hereby agree as
follows:
1. Defined Terms. All capitalized terms used in this Agreement without
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definition and defined in the Pooling and Servicing Agreement shall have the
meanings ascribed to them in the Pooling and Servicing Agreement (including by
way of reference to other documents).
2. Assumption of Transferor Obligations. (a) On and after the date of this
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Agreement, and pursuant to Section 7.02 of the Pooling and Servicing Agreement,
Successor (i) expressly assumes, undertakes and agrees to be liable for the
performance of each and every covenant and obligation of the Transferor, mutatis
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mutandis, and (ii) shall benefit from all rights granted to the Transferor,
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under the Pooling and Servicing Agreement; provided, however, that to the extent
that any right, covenant or obligation of the Transferor, as applicable under
the Pooling and Servicing Agreement, is inapplicable to Successor, Successor
shall be subject to such covenant or obligation, or benefit from such right, as
would apply, to the extent practicable, to Successor.
(b) On and after the date of this Agreement, the Bank shall be relieved of
all of its obligations as Transferor under the Pooling and Servicing Agreement,
other than obligations arising under the Pooling and Servicing Agreement prior
to the date of this Agreement.
3. Assumption of Servicer Obligations. (a) On and after the date of this
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Agreement, and pursuant to Section 8.02 of the Pooling and Servicing Agreement,
Successor (i) expressly assumes, undertakes and agrees to be liable for the
performance of each and every covenant and obligation of the Servicer, mutatis
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mutandis, and (ii) shall benefit from all the rights granted to the Servicer,
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under the Pooling and Servicing Agreement; provided, however, that to the extent
that any right, covenant or obligation of the Servicer, as applicable under the
Pooling and Servicing Agreement, is inapplicable to Successor, Successor shall
be subject to such covenant or obligation, or benefit from such right, as would
apply, to the extent practicable, to Successor.
(b) On and after the date of this Agreement, the Bank shall be relieved of
all of its obligations as Servicer under the Pooling and Servicing Agreement,
other than obligations arising under the Pooling and Servicing Agreement prior
to the date of this Agreement.
(c) In connection with the assumption by Successor pursuant to Section 3(a)
hereof, the Servicer will transfer to Successor the assets set forth in Schedule
1.
4. The Certificate Purchase Agreement. (a) The Bank hereby assigns all of
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its rights and obligations under the Certificate Purchase Agreement to Successor
and, on and after the date of this Agreement, Successor expressly assumes,
undertakes and agrees to be liable for the
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performance of each and every covenant and obligation of the Bank, as Transferor
and Servicer, mutatis mutandis, under the Certificate Purchase Agreement.
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(b) On and after the date of this Agreement, the Bank shall be relieved of
its obligations under the Certificate Purchase Agreement, other than obligations
arising under the Certificate Purchase Agreement prior to the date of this
Agreement.
(c) Pursuant to Section 7.04(b) of the Certificate Purchase Agreement, the
Class A Certificate Agent, acting at the direction of the Purchaser, hereby
consents to the Bank's assignment of all of the Bank's rights and obligations
under the Certificate Purchase Agreement to Successor.
5. The Loan Agreement. (a) The Bank, as Transferor and Servicer, hereby
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assigns all of its rights and obligations under the Loan Agreement to Successor
and, on and after the date of this Agreement, Successor expressly assumes,
undertakes and agrees to be liable for the performance of each and every
covenant and obligation of the Bank, as Transferor and Servicer, mutatis
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mutandis, under the Loan Agreement.
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(b) On and after the date of this Agreement, the Bank shall be relieved of
its obligations under the Loan Agreement, other than obligations arising under
the Loan Agreement prior to the date of this Agreement.
(c) Pursuant to Section 7.09(b) of the Loan Agreement, The Sanwa Bank,
Limited, New York Branch, as the Majority Investor (as defined in the Loan
Agreement), hereby consents to the Bank's assignment of all of the Bank's rights
and obligations under the Loan Agreement to Successor. The Sanwa Bank, Limited,
New York Branch acknowledges that this Agreement satisfies the requirements of
Sections 7.09(b)(i) and (ii) of the Loan Agreement.
6. The Collateral Agreement. (a) The Bank, as Transferor and Servicer,
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hereby assigns all of its rights and obligations under the Collateral Agreement
to Successor and, on and after the date of this Agreement, Successor expressly
assumes, undertakes and agrees to be liable for the performance of each and
every covenant and obligation of the Bank, as Transferor and Servicer, mutatis
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mutandis, under the Collateral Agreement.
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(b) On and after the date of this Agreement, the Bank shall be relieved of
its obligations under the Collateral Agreement, other than obligations arising
under the Collateral Agreement prior to the date of this Agreement.
(c) Pursuant to Section 7.9(b) of the Collateral Agreement, First Union
National Bank, as the Majority Investor (as defined in the Collateral
Agreement), hereby consents to the Bank's assignment of all of the Bank's rights
and obligations under the Collateral Agreement to Successor. First Union
National Bank acknowledges that this Agreement satisfies the requirements of
Sections 7.9(b)(i) and (ii) of the Collateral Agreement.
7. Representations and Warranties.
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(a) By the Bank. The Bank hereby represents and warrants to Trustee, on
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behalf of the Trust (as defined in the Pooling and Servicing Agreement), and to
Successor as follows:
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(i) This Agreement and the Purchase and Sale Agreement each
constitutes a legal, valid and binding obligation of the Bank enforceable
against the Bank in accordance with its terms (except as such enforceability may
be limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect affecting the enforcement of
creditors' rights in general and the rights of creditors of national banking
associations, and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity)).
(ii) The Bank is a national banking association duly organized,
validly existing and in good standing under the federal laws of the United
States of America and has the power and authority to execute and deliver this
Agreement.
(iii) There are no proceedings or investigations pending or, to the
best knowledge of the Bank, threatened against the Bank before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality asserting the invalidity of this Agreement or seeking to prevent
the consummation of any of the transactions contemplated by this Agreement.
(iv) All authorizations, consents, orders or approvals or other
actions of any Person or of any court or other governmental authority required
to be obtained by the Bank in connection with the execution and delivery of this
Agreement by the Bank and the performance of the transactions contemplated by
this Agreement by the Bank, have been obtained.
(v) All conditions required under Sections 7.02 and 8.02 of the
Pooling and Servicing Agreement (other than the execution and delivery of this
Agreement) and the Certificate Purchase Agreement in connection with the
transactions contemplated by this Agreement have been satisfied.
(b) By Successor. Successor hereby represents and warrants to Trustee, on
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behalf of the Trust (as defined in the Pooling and Servicing Agreement), and to
the Bank as follows:
(i) This Agreement and the Purchase and Sale Agreement each
constitutes a legal, valid and binding obligation of Successor, enforceable
against Successor 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)).
(ii) Successor is a national banking association duly organized,
validly existing and in good standing under the federal laws of the United
States of America, has the power and authority to execute and deliver this
Agreement and is a Person eligible to assume and perform the obligations of the
Transferor and the Servicer under the Pooling and Servicing Agreement, the
Certificate Purchase Agreement, the Loan Agreement, the Collateral Agreement and
the transactions contemplated therein.
(iii) There are no proceedings or investigations pending or, to the
best knowledge of Successor, threatened against Successor before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality asserting the invalidity
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of this Agreement or seeking to prevent the consummation of any of the
transactions contemplated by this Agreement.
(iv) All authorizations, consents, orders or approvals or other
actions of any Person or of any court or other governmental authority required
to be obtained by Successor in connection with the execution and delivery of
this Agreement by Successor and the performance of the transactions contemplated
by this Agreement by Successor, have been obtained.
8. Financing Statements. At or before the Closing Date (as defined in the
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Purchase and Sale Agreement), the Bank will execute, file and deliver to
Successor financing statements naming Successor as debtor and the Trustee as
secured party, prepared by the Bank, in the appropriate forms (with appropriate
notations of date and time of filing from the filing office) under the Uniform
Commercial Code in the applicable jurisdiction to give notice of Successor's
interest in the Accounts (as defined in the Purchase and Sale Agreement). Such
financing statements will be filed by the Bank at the appropriate place or
places maintained under applicable law for the financing statements to be filed
for such purposes. To the extent such financing statements are filed in
connection with Section 3.1(d) of the Purchase and Sale Agreement, this Section
7 will be deemed satisfied.
9. Acceptance by Trustee. Trustee hereby accepts the assumption by
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Successor of rights and obligations of the Bank as Transferor and Servicer under
the Pooling and Servicing Agreement, and from and after the date of this
Agreement, Successor shall be the Transferor and Servicer thereunder (and as
otherwise contemplated by this Agreement).
10. Further Assurances. The Bank agrees to do or take, or cause to be
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done or taken, all such things and actions as Successor or Trustee may
reasonably request in order to effect more fully the transfers contemplated by
this Agreement.
11. Ratification of Agreements. As supplemented and amended by this
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Agreement, the Pooling and Servicing Agreement, the Certificate Purchase
Agreement, the Loan Agreement and the Collateral Agreement are in all respects
ratified and confirmed and each such agreement, as so supplemented and amended
by this Agreement, shall be read, taken and construed as one and the same
instrument.
12. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ITS
CONFLICT OF LAW PROVISIONS.
13. Counterparts. This Agreement may be executed in two or more
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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.
14. Effectiveness. This Agreement shall be effective as of the Effective
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Time (as such term is defined in the Purchase and Sale Agreement).
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IN WITNESS WHEREOF, the Bank, the Trustee, Successor, Collateral Interest
Holder, the Certificate Agent and the Collateral Agent have caused this
Agreement to be duly executed by their respective officers as of the day and
year first written above.
FIRST UNION DIRECT BANK, NATIONAL
ASSOCIATION, as Transferor and
Servicer and in its individual capacity
/s/ James H. Gilbraith II
By: _________________________________
Name: James H. Gilbraith II
Title:
THE BANK OF NEW YORK, Trustee
/s/ Cassandra Shedd
By: ________________________________
Name: Cassandra Shedd
Title:Assistant Treasurer
MBNA AMERICA BANK, NATIONAL ASSOCIATION
Successor Transferor and Servicer
/s/ Thomas Dunn
By: ________________________________
Name: Thomas Dunn
Title:Executive Vice President
CONSENTED TO BY THE MAJORITY INVESTORS
UNDER THE LOAN AGREEMENT
THE SANWA BANK, LIMITED,
NEW YORK BRANCH,
as Majority Investor
/s/ Kazuya Kurano
By: _______________________________
Name: Kazuya Kurano
Title:Senior Vice President
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CONSENTED TO BY THE CLASS A CERTIFICATE AGENT
CITICORP NORTH AMERICA, INC.,
in its capacity as Class A Certificate Agent
for the Class A Certificateholder
By: /s/ Radford C. West
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Name: Radford C. West
Title: Vice President
CONSENTED TO BY THE MAJORITY INVESTORS
UNDER THE COLLATERAL AGREEMENT
FIRST UNION NATIONAL BANK,
as Majority Investor
By: /s/ James H. Gilbraith II
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Name: James H. Gilbraith II
Title:
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SCHEDULE 1
In connection with the Transfer and Assumption Agreement to which this
Schedule is attached, the Servicer will transfer to Successor the funds in the
following accounts:
1. Collection Account - funds in an amount equal to $170,814,662.
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2. Spread Account (1996-1) - funds in an amount equal to $8,363,639.
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3. Reserve Account (1996-1) - funds in an amount equal to $4,600,000.
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4. Principal Funding Account (1996-1) - funds in an amount equal to
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$345,706,218.
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