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EXHIBIT 4.2
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FIRST OF AMERICA CREDIT CARD MASTER TRUST
ASSUMPTION AGREEMENT
and
AMENDMENT TO POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1998
among
FIRST OF AMERICA BANK, N.A.
(formerly known as First of America Bank - Michigan, N.A.),
as Seller and Servicer,
FIRST OF AMERICA BANK - ILLINOIS, N.A.,
as Seller,
NATIONAL CITY BANK,
as Assuming Entity,
and
THE BANK OF NEW YORK,
as Trustee
in connection with the
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1995
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THIS ASSUMPTION AGREEMENT AND AMENDMENT TO POOLING AND SERVICING
AGREEMENT, dated as of September 1, 1998 (this "ASSUMPTION AGREEMENT"), is
hereby executed by and among FIRST OF AMERICA BANK, N.A. (formerly known as
First of America Bank - Michigan, N.A.), a national banking association, as
Seller and Servicer, FIRST OF AMERICA BANK - ILLINOIS, N.A., a national banking
association, as Seller (and together with First of America Bank, N.A., the
"SELLERS"), NATIONAL CITY BANK, a national banking association, as Assuming
Entity, and THE BANK OF NEW YORK, a New York banking corporation, as Trustee.
All capitalized terms used herein and not otherwise defined herein
have the meanings ascribed to them in the Agreement, as hereinafter defined.
Pursuant to the Pooling and Servicing Agreement dated as of June 1,
1995 (the "ORIGINAL AGREEMENT"), as modified by the Series 1995-1 Supplement
thereto (collectively, the "AGREEMENT"), among each Seller, the Servicer and
the Trustee, the Sellers have created the First of America Credit Card Master
Trust (the "TRUST"). Section 7.05 of the Original Agreement states, in
pertinent part, that the Sellers may assign, convey, and transfer the Assigned
Assets and the Assumed Obligations to another entity, without the consent or
approval of the Holders of the Certificates, upon satisfaction of certain
conditions.
The Sellers and others have entered into a Purchase and Sale Agreement
(the "PURCHASE AGREEMENT") with the Assuming Entity pursuant to which, among
other things, Sellers will sell to the Assuming Entity all of their right,
title, and interest in and to all Credit Card Accounts, as defined in the
Purchase Agreement (the "SALE"), including the rights and obligations of the
Sellers as set forth in the Agreement and the Loan Agreement dated as of June
1, 1995 (the "LOAN AGREEMENT") among each Seller, the Servicer, the Trustee,
and Union Bank of Switzerland, as agent and as a bank (the "AGENT"), on
September 1, 1998 (the "SALE DATE").
Pursuant to this Assumption Agreement and in accordance with Sections
7.05 and 13.01 of the Original Agreement, the Assuming Entity will expressly
assume the Assumed Obligations of the Sellers under the Agreement.
ARTICLE I
DELIVERIES AND ASSUMPTION OF OBLIGATIONS
Section 1.01. ASSUMPTION OF THE ASSUMED OBLIGATIONS. Pursuant to
Section 7.05(a) of the Original Agreement, the Assuming Entity hereby expressly
assumes the Assumed Obligations of each of the Sellers under and in accordance
with the terms of the Agreement, including the obligation under the Agreement
to transfer the Receivables arising under the Accounts to the Trust, effective
as of the Sale Date.
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Section 1.02. SUBSTITUTION OF THE ASSUMING ENTITY. Pursuant to Section
7.05(a) of the Original Agreement, the Assuming Entity is hereby expressly
substituted for each of the Sellers for purposes of Sections 7.04, 9.01, and
9.02 of the Agreement.
Section 1.03. DELIVERY OF ASSUMING ENTITY'S OFFICER'S CERTIFICATES.
Pursuant to Section 7.05(a) of the Original Agreement, the Sellers hereby
deliver to the Trustee an Officer's Certificate signed by an officer of the
Assuming Entity, in the form of Exhibit A hereto.
Section 1.04. DELIVERY OF OPINION OF SPECIAL COUNSEL AND OFFICER'S
CERTIFICATE. Pursuant to Sections 7.05(a) and (e) of the Original Agreement,
the Sellers hereby deliver to the Trustee an Opinion of Counsel signed by
special counsel to the Assuming Entity and an Officer's Certificate signed by
an officer of the Assuming Entity in connection therewith, all in the form of
Exhibit B hereto.
Section 1.05. DELIVERY OF OPINION OF COUNSEL. In connection with the
Opinion of Counsel signed by special counsel to the Assuming Entity, the
Assuming Entity hereby delivers to the Trustee an Opinion of Counsel, in the
form of Exhibit C hereto.
Section 1.06. CONSENT OF AGENT. Pursuant to Section 7.05(b) of the
Original Agreement, the Sellers hereby deliver to the Trustee the consent of
Agent, as Series Enhancer, to the transfer of the Assigned Assets and the
assumption of the Assumed Obligations, in the form of Exhibit D hereto.
Section 1.07. DELIVERY OF UCC-1 FINANCING STATEMENTS. Pursuant to
Section 7.05(c) of the Original Agreement, the Sellers or the Assuming Entity
hereby deliver to the Trustee copies of UCC-1 financing statements covering the
Sellers' Accounts to perfect the Trust's interest in the Receivables arising
under the Agreement.
Section 1.08. DELIVERY OF RATING AGENCY NOTICES. Pursuant to Sections
7.05(d) and 13.01(a) of the Original Agreement, the Sellers hereby deliver to
the Servicer and the Trustee copies of each written notice received indicating
that the Rating Agency Condition has been satisfied with respect to the
transfer of the Assigned Assets and the assumption of the Assumed Obligations.
Section 1.09. DELIVERY OF TAX OPINION. Pursuant to Section 7.05(f) of
the Original Agreement, the Sellers hereby deliver to the Trustee a Tax
Opinion, in the form of Exhibit E hereto.
Section 1.10. DELIVERY OF SELLERS' OFFICER'S CERTIFICATES. Pursuant to
Section 13.01(a) of the Original Agreement, the Sellers hereby deliver to the
Trustee an Officer's Certificate, in the form of Exhibits F-1 and F-2,
respectively, hereto.
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ARTICLE II
MISCELLANEOUS PROVISIONS
Section 2.01. REFERENCES TO SELLER IN AGREEMENT. On and after the Sale
Date, all references to the Seller or Sellers in the Agreement shall be deemed
to refer to the Assuming Entity.
Section 2.02. RATIFICATION OF AGREEMENT. The Agreement, as modified by
this Assumption Agreement, is in all respects ratified and confirmed by the
parties hereto.
Section 2.03. COUNTERPARTS. This Assumption 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 shall constitute one and
the same instrument.
Section 2.04. GOVERNING LAW. THIS ASSUMPTION 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.
IN WITNESS WHEREOF, the undersigned have caused this Assumption
Agreement to be duly executed and delivered by their respective duly authorized
officers on the day and year first above written.
FIRST OF AMERICA BANK, N.A., NATIONAL CITY BANK,
as Seller and Servicer as Assuming Entity
By: /s/ PAUL G. CLARK By: /s/ WILLIAM F. SMITH
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Name: Paul G. Clark Name: William F. Smith
Title: President Title: President,
National City Card Services
FIRST OF AMERICA BANK - ILLINOIS, THE BANK OF NEW YORK,
N.A., as Seller as Trustee
By: /s/ PAUL G. CLARK By: /s/ WUHAN DANSBY
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Name: Paul G. Clark Name: Wuhan Dansby
Title: President Title: Assistant Vice President
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