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EXECUTION COPY
FLEET BANK (RI), NATIONAL ASSOCIATION
Seller and Servicer
and
BANKERS TRUST COMPANY
Trustee
on behalf of the Series 2001-A Certificateholders
SERIES 2001-A SUPPLEMENT
Dated as of February 23, 2001
to
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of December 1, 1993,
as Amended and Restated on May 23, 1994
FLEET CREDIT CARD MASTER TRUST II
SERIES 2001-A
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TABLE OF CONTENTS
PAGE
ARTICLE I
Creation of the Series 2001-A Certificates
Section 1.1 Designation............................................................... 1
ARTICLE II
Definitions
Section 2.1 Definitions............................................................... 2
ARTICLE III
Servicer and Trustee
Section 3.1 Servicing Compensation.................................................... 16
ARTICLE IV
Rights of Series 2001-A Certificateholders and Collateral Interest Holder and
Allocation and Application of Collections
Section 4.1 Collections and Allocations............................................... 17
Section 4.2 Determination of Monthly Interest......................................... 19
Section 4.3 Determination of Monthly Principal........................................ 21
Section 4.4 Required Amount........................................................... 22
Section 4.5 Application of Class A Available Funds, Class B Available Funds,
Collateral Available Funds and Available Investor Principal
Collections............................................................... 23
Section 4.6 Defaulted Amounts; Investor Charge-Offs................................... 24
Section 4.7 Excess Spread; Excess Finance Charges..................................... 26
Section 4.8 Reallocated Principal Collections......................................... 27
Section 4.9 Excess Finance Charges.................................................... 28
Section 4.10 Shared Principal Collections.............................................. 28
Section 4.11 Determination of LIBOR.................................................... 29
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TABLE OF CONTENTS
(continued)
PAGE
Section 4.12 Principal Funding Account................................................. 29
Section 4.13 Accumulation Period....................................................... 30
Section 4.14 Reserve Account........................................................... 31
ARTICLE V
Distributions and Reports to Series 2001-A Certificateholders
Section 5.1 Distributions............................................................. 33
Section 5.2 Certificates and Statements............................................... 34
ARTICLE VI
Series 2001-A Pay Out Events
Section 6.1 Series 2001-A Pay Out Events.............................................. 34
ARTICLE VII
Optional Repurchase; Series Termination
Section 7.1 Optional Repurchase....................................................... 36
Section 7.2 Series Termination........................................................ 36
ARTICLE VIII
Final Distributions
Section 8.1 Sale of Receivables or Certificateholders' Interest Pursuant to Section
2.06 or 10.01 of the Agreement............................................ 37
Section 8.2 Distribution of Proceeds of Sale, Disposition or Liquidation of the
Receivables Pursuant to Section 9.02 of the Agreement..................... 38
Section 8.3 Instructions Pursuant to Section 9.02(a) of the Agreement................. 39
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE IX
Certificates
Section 9.1 Book-Entry Certificates; Private Placement
of the Class B Certificates............................................... 39
ARTICLE X
Miscellaneous Provisions
Section 10.1. Certain Matters Regarding the Collateral Interest Holder.................. 39
Section 10.2 Ratification of Agreement................................................. 39
Section 10.3 Counterparts.............................................................. 40
Section 10.4 Governing Law............................................................. 40
Section 10.5 Notices................................................................... 40
Section 10.6 Amendments................................................................ 40
Section 10.7. Uncertificated Securities................................................. 40
Section 10.8. Transfers of the Collateral Interest...................................... 40
EXHIBITS
- --------
EXHIBIT A-1 Form of Class A Certificate
EXHIBIT A-2 Form of Class B Certificate
EXHIBIT B Form of Monthly Payment Instructions
EXHIBIT C-1 Form of Monthly Certificateholder's Statement
EXHIBIT C-2 Form of Supplement to Monthly Certificateholder's Statement
EXHIBIT D Form of Investment Letter
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SERIES 2001-A SUPPLEMENT, dated as of February 23, 2001 (the
"Supplement"), among FLEET BANK (RI), NATIONAL ASSOCIATION, a national banking
association, as Seller and Servicer by assignment from ADVANTA NATIONAL BANK
pursuant to an Assignment and Assumption Agreement dated as of February 20,
1998, and BANKERS TRUST COMPANY, a New York banking corporation, as Trustee.
Pursuant to the Amended and Restated Pooling and Servicing
Agreement dated as of December 1, 1993, as Amended and Restated on May 23, 1994
(and as subsequently amended and supplemented, including by the terms of this
Supplement, the "Agreement"), among Fleet Bank (RI), National Association
(successor to Advanta National Bank), as Seller and Servicer, and the Trustee,
the Fleet Credit Card Master Trust II (formerly known as ADVANTA Credit Card
Master Trust II) (the "Trust") has been created. Section 6.03 of the Agreement
provides that the Seller may from time to time direct the Trustee to
authenticate one or more new Series of Investor Certificates representing
fractional undivided interests in the Trust. The Principal Terms of any new
Series are to be set forth in a Supplement to the Agreement.
Pursuant to this Supplement, the Seller and the Trustee shall
create a new Series of Investor Certificates and specify the Principal Terms
thereof.
ARTICLE I
Creation of the Series 2001-A Certificates
Section 1.1 Designation.
(a) There is hereby created a Series of Investor Certificates
to be issued pursuant to the Agreement and this Supplement to be known as "Fleet
Credit Card Master Trust II, Series 2001-A." The Series of Investor Certificates
created hereby shall be issued in two Classes. The first Class shall be known as
the "Class A Floating Rate Asset-Backed Certificates, Series 2001-A," and the
second Class shall be known as the "Class B Floating Rate Asset-Backed
Certificates, Series 2001-A." In addition, there is hereby created a third Class
of interests in the Trust which, except as expressly provided herein, shall be
deemed to be "Investor Certificates" for all purposes under the Agreement and
this Supplement and shall be in uncertificated form and which shall be known as
the "Collateral Interest, Series 2001-A." The Collateral Interest Holder shall
be the Series Enhancer for Series 2001-A.
(b) Series 2001-A shall be included in Group One. Series
2001-A shall be a Principal Sharing Series with respect to Group One only.
Series 2001-A shall not be subordinated to any other Series. Notwithstanding any
provision in the Agreement or in this Supplement to the contrary, the first
Distribution Date with respect to Series 2001-A shall be the April 2001
Distribution Date, and references herein to the Monthly Period relating to the
April 2001 Distribution Date shall mean the period from the Closing Date through
the end of March 2001.
(c) In the event that any term or provision contained herein
shall conflict with or be inconsistent with any term or provision contained in
the Agreement, the terms and provisions of this Supplement shall govern.
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(d) The Collateral Interest Holder, as holder of an "Investor
Certificate" under the Agreement, shall be entitled to the benefits of the
Agreement and this Supplement. Notwithstanding the foregoing, except as
expressly provided herein, (i) the provisions of Article VI and Article XII of
the Agreement relating to the execution, authentication, delivery, presentation,
cancellation and surrender of Registered Certificates and clauses (a) and (c) of
the definition of "Tax Opinion" in Section 1.01 of the Agreement shall not be
applicable to the Collateral Interest, and (ii) the provisions of Section 3.07
of the Agreement shall not cause the Collateral Interest to be treated as debt
for federal, state and local income and franchise tax purposes, but rather the
Seller intends, and together with the Collateral Interest Holder, agrees to
treat the Collateral Interest for federal, state and local income and franchise
tax purposes as representing an equity interest in the assets of the Trust.
ARTICLE II
Definitions
Section 2.1 Definitions.
(a) Whenever used in this Supplement, the following words and
phrases shall have the following meanings, and the definitions of such terms are
applicable to the singular as well as the plural forms of such terms and the
masculine as well as the feminine and neuter genders of such terms.
"Accumulation Date" shall mean the close of business on April
30, 2005.
"Accumulation Period" shall mean, unless a Pay Out Event with
respect to Series 2001-A shall have occurred prior thereto, the period
commencing on the Accumulation Date or such later date as is determined in
accordance with Section 4.13 and ending on the first to occur of (a) the
commencement of the Rapid Amortization Period, (b) the payment in full to the
Series 2001-A Holders of the Investor Amount or (c) the Series Termination Date.
"Accumulation Period Length" shall have the meaning specified
in Section 4.13.
"Additional Interest" shall mean, at any time of
determination, the Class A Additional Interest, the Class B Additional Interest
and the Collateral Additional Interest.
"Assignee" shall have the meaning specified in subsection
10.8(a).
"Available Investor Principal Collections" shall mean, with
respect to any Monthly Period, an amount equal to the sum of (a) (i) an amount
equal to the Principal Allocation Percentage of all Collections of Principal
Receivables received during such Monthly Period minus (ii) the amount of
Reallocated Principal Collections with respect to such Monthly Period which
pursuant to Section 4.8 are required to fund any deficiency in the amounts to be
distributed pursuant to Sections 4.5(a)(i), (ii) and (iii), 4.5(b)(i), and (ii)
and 4.7(d) for the related Distribution Date, plus (b) any Shared Principal
Collections with respect to other Series in Group One that are allocated to
Series 2001-A in accordance with Section 4.04 of the Agreement and Section 4.10
hereof, plus (c) any other amounts which pursuant to subsection 4.5(a)(iii)
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(including any amounts allocated with respect thereto pursuant to subsection
4.7(a)) and Section 4.7 hereof are to be treated as Available Investor Principal
Collections with respect to the related Distribution Date.
"Average Principal Balance" shall mean, for any Monthly Period
in which an Addition Date occurs, the weighted average of the sum of the
Principal Receivables in the Trust and the principal amount on deposit in the
Excess Funding Account at the end of the day on the last day of the prior
Monthly Period and the sum of the Principal Receivables in the Trust and the
principal amount on deposit in the Excess Funding Account at the end of the day
on the related Addition Date, weighted, respectively, by a fraction, the
numerator of which is the number of days from and including the first day of
such Monthly Period, to but excluding the related Addition Date, and the
denominator of which is the number of days in such Monthly Period, and by a
fraction, the numerator of which is the number of days from and including the
related Addition Date to and including the last day of such Monthly Period, and
the denominator of which is the number of days in such Monthly Period.
"Bank" shall mean Fleet Bank (RI), National Association.
"Base Rate" shall mean, with respect to any Monthly Period,
the annualized percentage equivalent of a fraction, the numerator of which is
equal to the sum of the Class A Monthly Interest, the Class B Monthly Interest,
the Collateral Minimum Monthly Interest and the Monthly Servicing Fee with
respect to the related Distribution Date and the denominator of which is the
Investor Amount as of the last day of the preceding Monthly Period.
"Class A Additional Interest" shall have the meaning specified
in subsection 4.2(a).
"Class A Available Funds" shall mean, with respect to any
Monthly Period, an amount equal to the sum of (a) the Class A Floating
Percentage of the Collections of Finance Charge Receivables allocated to Series
2001-A (including any amounts that are to be treated as Collections of Finance
Charge Receivables in accordance with the Agreement) and (b) the amount of
Principal Funding Investment Proceeds, if any, with respect to such Distribution
Date and (c) the amount of funds, if any, to be withdrawn from the Reserve
Account which, pursuant to Section 4.14, are required to be included in Class A
Available Funds with respect to such Distribution Date.
"Class A Certificate Rate" shall mean for any Interest Period
with respect to the Class A Certificates, a per annum rate equal to LIBOR as of
the LIBOR Determination Date applicable to such Interest Period plus the Class A
Certificate Rate Spread.
"Class A Certificate Rate Spread" shall mean 0.15% per annum.
"Class A Certificateholder" shall mean the Person in whose
name a Class A Certificate is registered in the Certificate Register.
"Class A Certificates" shall mean any one of the Certificates
executed by the Seller and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-1.
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"Class A Expected Final Distribution Date" shall mean the
February 2006 Distribution Date.
"Class A Floating Percentage" shall mean, with respect to any
Monthly Period, the percentage equivalent (which percentage shall never exceed
100%) of a fraction, the numerator of which is equal to the Class A Invested
Amount as of the close of business on the last day of the preceding Monthly
Period and the denominator of which is equal to the Invested Amount as of such
day; provided, however, that with respect to the first Monthly Period, the Class
A Floating Percentage shall mean the percentage equivalent of a fraction, the
numerator of which is the Class A Initial Invested Amount and the denominator of
which is the Initial Invested Amount.
"Class A Initial Invested Amount" shall mean $783,750,000.
"Class A Interest Shortfall" shall have the meaning specified
in subsection 4.2(a).
"Class A Invested Amount" shall mean, on any date of
determination, an amount equal to (a) the Class A Initial Invested Amount, minus
(b) the aggregate amount of principal payments made to the Class A
Certificateholders on or prior to such date, minus (c) the excess, if any, of
the aggregate amount of Class A Investor Charge-Offs for all prior Distribution
Dates over the aggregate amount of Class A Investor Charge-Offs reimbursed
pursuant to subsection 4.6(a) prior to such date minus (d) the Principal Funding
Account Balance (but not in excess of the Class A Initial Invested Amount) on
such date.
"Class A Investor Amount" shall mean, on any date of
determination, an amount equal to the sum of (a) the Class A Invested Amount and
(b) the Principal Funding Account Balance (but not in excess of the Class A
Initial Invested Amount).
"Class A Investor Charge-Off" shall have the meaning specified
in Section 4.6(a).
"Class A Investor Default Amount" shall mean, with respect to
each Distribution Date, an amount equal to the product of (i) the Investor
Default Amount for the related Monthly Period and (ii) the Class A Floating
Percentage for such Monthly Period.
"Class A Monthly Interest" shall have the meaning specified in
Section 4.2(a).
"Class A Monthly Principal" shall have the meaning specified
in Section 4.3(a).
"Class A Penalty Rate" shall mean the sum of the Class A
Certificate Rate and 2.00% per annum.
"Class A Principal Percentage" shall mean, with respect to any
Monthly Period (i) during the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is the
Class A Invested Amount as of the last day of the immediately preceding Monthly
Period and the denominator of which is the Invested Amount as of such day and
(ii) after the Revolving Period, the percentage equivalent (which percentage
shall never exceed 100%) of a fraction, the numerator of which is the Class A
Invested Amount as of the last day of the Revolving Period, and the denominator
of which is the
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Invested Amount as of such last day; provided, however, that with respect to the
first Monthly Period, the Class A Principal Percentage shall mean the percentage
equivalent of a fraction, the numerator of which is the Class A Initial Invested
Amount and the denominator of which is the Initial Invested Amount.
"Class A Required Amount" shall have the meaning specified in
Section 4.4(a).
"Class A Servicing Fee" shall have the meaning specified in
Section 3.1.
"Class B Additional Interest" shall have the meaning specified
in Section 4.2(b).
"Class B Available Funds" shall mean, with respect to any
Monthly Period, an amount equal to the Class B Floating Percentage of the
Collections of Finance Charge Receivables allocated to Series 2001-A (including
any amounts that are to be treated as Collections of Finance Receivables in
accordance with the Agreement).
"Class B Certificate Rate" shall mean, for any Interest Period
with respect to the Class B Certificates, a per annum rate specified in the
Supplemental Rate Letter, such rate not to exceed LIBOR for such Interest Period
plus 0.50%.
"Class B Certificateholder" shall mean the Person in whose
name a Class B Certificate is registered in the Certificate Register.
"Class B Certificates" shall mean any one of the Certificates
executed by the Seller and authenticated by or on behalf of the Trustee,
substantially in the form of Exhibit A-2.
"Class B Expected Final Distribution Date" shall mean the
February 2006 Distribution Date.
"Class B Floating Percentage" shall mean, with respect to any
Monthly Period, the percentage equivalent (which percentage shall never exceed
100%) of a fraction, the numerator of which is equal to the Class B Invested
Amount as of the close of business on the last day of the preceding Monthly
Period and the denominator of which is equal to the Invested Amount as of such
day; provided, however, that with respect to the first Monthly Period, the Class
B Floating Percentage shall mean the percentage equivalent of a fraction, the
numerator of which is the Class B Initial Invested Amount and the denominator of
which is the Initial Invested Amount.
"Class B Initial Invested Amount" shall mean $66,500,000.
"Class B Interest Shortfall" shall have the meaning specified
in Section 4.2(b).
"Class B Invested Amount" shall mean, on any date of
determination, an amount equal to (a) the Class B Initial Invested Amount, minus
(b) the aggregate amount of principal payments made to the Class B
Certificateholders on or prior to such date, minus (c) the excess, if any, of
the aggregate amount of Class B Investor Charge-Offs for all prior Distribution
Dates over the aggregate amount of any reimbursement of Class B Investor
Charge-Offs pursuant to subsection 4.6(b) for all Distribution Dates preceding
such date, minus (d) the aggregate amount
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of Reallocated Principal Collections allocated on all prior Distribution Dates
pursuant to Section 4.8(a) (excluding any Reallocated Principal Collections that
have resulted in a reduction in the Collateral Invested Amount pursuant to
Section 4.6(c)), minus (e) an amount equal to the amount by which the Class B
Invested Amount has been reduced on all prior Distribution Dates pursuant to
Section 4.6(a), plus (f) the aggregate amount of Excess Spread and Excess
Finance Charges allocated and available on all prior Distribution Dates pursuant
to Section 4.7(e) for the purpose of reimbursing amounts deducted pursuant to
the foregoing clauses (c), (d) and (e); and minus (g) the positive difference,
if any, between the Principal Funding Account Balance and the Class A Investor
Amount on such date; provided, however, that the Class B Invested Amount may not
be reduced below zero.
"Class B Investor Amount" shall mean, for any date of
determination, an amount equal to the sum of (a) the Class B Invested Amount and
(b) the positive difference, if any, between the Principal Funding Account
Balance and the Class A Investor Amount on such date (such sum not to exceed the
Class B Initial Invested Amount).
"Class B Investor Charge-Off" shall have the meaning specified
in Section 4.6(b).
"Class B Investor Default Amount" shall mean, with respect to
each Distribution Date, an amount equal to the product of (i) the Investor
Default Amount for the related Monthly Period and (ii) the Class B Floating
Percentage for such Monthly Period.
"Class B Monthly Interest" shall have the meaning specified in
Section 4.2(b).
"Class B Monthly Principal" shall have the meaning specified
in Section 4.3(b).
"Class B Penalty Rate" shall mean the sum of the Class B
Certificate Rate and 2.00% per annum.
"Class B Principal Commencement Date" shall mean, the earlier
to occur of (x) the Class B Expected Final Distribution Date (but only if the
Class A Investor Amount is paid in full on such date) and (y) the Special
Payment Date on which the Class A Investor Amount is paid in full.
"Class B Principal Percentage" shall mean with respect to any
Monthly Period (i) during the Revolving Period, the percentage equivalent (which
percentage shall never exceed 100%) of a fraction, the numerator of which is the
Class B Invested Amount as of the last day of the immediately preceding Monthly
Period and the denominator of which is the Invested Amount as of such day and
(ii) after the Revolving Period, the percentage equivalent (which percentage
shall never 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 Invested Amount as of such last day; provided, however, that
with respect to the first Monthly Period, the Class B Principal Percentage shall
mean the percentage equivalent of a fraction, the numerator of which is the
Class B Initial Invested Amount and the denominator of which is the Initial
Invested Amount.
"Class B Required Amount" shall have the meaning specified in
Section 4.4(b).
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"Class B Servicing Fee" shall have the meaning specified in
Section 3.1.
"Closing Date" shall mean February 23, 2001.
"Collateral Additional Interest" shall have the meaning
specified in Section 4.2(c).
"Collateral Available Funds" shall mean, with respect to any
Monthly Period, an amount equal to the Collateral Floating Percentage of the
Collections of Finance Charge Receivables allocated to Series 2001-A (including
any amounts that are to be treated as Collections of Finance Charge Receivables
in accordance with the Agreement).
"Collateral Default Amount" shall mean, with respect to each
Distribution Date, an amount equal to the product of (i) the Investor Default
Amount for the related Monthly Period and (ii) the Collateral Floating
Percentage for such Monthly Period.
"Collateral Expected Final Distribution Date" shall mean the
March 2006 Distribution Date.
"Collateral Floating Percentage" shall mean, with respect to
any Monthly Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is the Collateral Invested
Amount as of the close of business on the last day of the preceding Monthly
Period and the denominator of which is equal to the Invested Amount as of such
day; provided, however, that with respect to the first Monthly Period, the
Collateral Floating Percentage shall mean the percentage equivalent of a
fraction, the numerator of which is the Collateral Initial Invested Amount and
the denominator of which is the Initial Invested Amount.
"Collateral Initial Invested Amount" shall mean $99,750,000.
"Collateral Interest" shall mean a fractional undivided
interest in the Trust which shall consist of the right to receive, (i) to the
extent necessary to make the required payments to the Collateral Interest Holder
under this Supplement, the portion of Collections allocable thereto under the
Agreement and this Supplement, funds on deposit in the Collection Account
allocable thereto pursuant to the Agreement and this Supplement and, (ii)
amounts available for payment to the Collateral Interest Holder pursuant to
subsections 4.7(k), 4.14(e), 4.14(f), 8.1(b), 8.2(a) and 8.2(b) or any other
provision of this Supplement.
"Collateral Interest Holder" shall mean the entity so
designated in the Transfer Agreement.
"Collateral Interest Shortfall" shall have the meaning
specified in subsection 4.2(c).
"Collateral Invested Amount" shall mean, for any date of
determination, an amount equal to (a) the Collateral Initial Invested Amount,
minus (b) an amount equal to the amount by which the Collateral Invested Amount
has been reduced on all prior Distribution Dates pursuant to Section 4.6, minus
(c) the aggregate amount paid pursuant to subsection
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4.5(e)(iii) prior to such date, plus (d) the aggregate amount of Excess Finance
Charges and Excess Spread allocated and available on all prior Distribution
Dates pursuant to subsection 4.7(i) for the purpose of reimbursing amounts
deducted pursuant to the foregoing clause (b); provided, however, that the
Collateral Invested Amount may not be reduced below zero.
"Collateral Minimum Interest Rate" shall mean the rate
designated as such in the Transfer Agreement; provided that for purposes of this
Supplement, such rate shall not exceed LIBOR plus 2.00% per annum.
"Collateral Minimum Monthly Interest" shall have the meaning
specified in Section 4.2(c).
"Collateral Monthly Principal" shall have the meaning
specified in Section 4.3(c).
"Collateral Principal Commencement Date" shall mean, the
earlier to occur of (x) the Collateral Expected Final Distribution Date (but
only if the Class A Investor Amount and the Class B Investor Amount are paid in
full on or prior to such date) and (y) the Special Payment Date on which the
Class A Investor Amount and the Class B Investor Amount are paid in full.
"Collateral Principal Percentage" shall mean, with respect to
any Monthly Period (i) during the Revolving Period, the percentage equivalent
(which percentage shall never exceed 100%) of a fraction, the numerator of which
is the Collateral Invested Amount as of the last day of the immediately
preceding Monthly Period and the denominator of which is the Invested Amount as
of such day and (ii) after the Revolving Period, the percentage equivalent
(which percentage shall never exceed 100%) of a fraction, the numerator of which
is the Collateral Invested Amount as of the last day of the Revolving Period,
and the denominator of which is the Invested Amount as of such last day;
provided, however, that with respect to the first Monthly Period, the Collateral
Principal Percentage shall mean the percentage equivalent of a fraction, the
numerator of which is the Collateral Initial Invested Amount and the denominator
of which is the Initial Invested Amount.
"Collateral Servicing Fee" shall have the meaning specified in
Section 3.1.
"Controlled Accumulation Amount" shall mean (a) for any
Distribution Date with respect to the Accumulation Period, the sum of the Class
A Initial Invested Amount and the Class B Initial Invested Amount divided by 9;
provided, however, that, if the Accumulation Period is modified pursuant to
Section 4.13, (i) the Controlled Accumulation Amount for each Distribution Date
with respect to the Accumulation Period shall mean the amount determined in
accordance with Section 4.13 on the date on which the Accumulation Period has
most recently been modified and (ii) the sum of the Controlled Accumulation
Amounts for all Distribution Dates with respect to the modified Accumulation
Period shall not be less than the Initial Invested Amount.
"Controlled Deposit Amount" shall mean, for any Distribution
Date with respect to the Accumulation Period, an amount equal to the sum of the
Controlled Accumulation Amount for such Distribution Date and any Deficit
Controlled Accumulation Amount for the immediately preceding Distribution Date.
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"Covered Amount" shall mean for any Distribution Date with
respect to the Accumulation Period or the first Special Payment Date if such
Special Payment Date occurs prior to the date on which the Class A Investor
Amount is paid in full, an amount equal to the product of (i) (A) a fraction,
the numerator of which is the actual number of days in the period from and
including the preceding Distribution Date to but excluding such Distribution
Date and the denominator of which is 360, times (B) the Class A Certificate Rate
and (ii) the Principal Funding Account Balance (but not in excess of the Class A
Initial Invested Amount), if any, as of the preceding Distribution Date.
"Deficit Controlled Accumulation Amount" shall mean (a) on the
first Distribution Date with respect to the Accumulation Period, the excess, if
any, of the Controlled Accumulation Amount for such Distribution Date over the
amount distributed from the Collection Account as Class A Monthly Principal and
Class B Monthly Principal for such Distribution Date and (b) on each subsequent
Distribution Date with respect to the Accumulation Period, the excess, if any,
of the Controlled Deposit Amount for such subsequent Distribution Date over the
amount distributed from the Collection Account as Class A Monthly Principal and
Class B Monthly Principal for such subsequent Distribution Date.
"Designated Maturity" shall mean, as of any LIBOR
Determination Date, one month; provided, that LIBOR for the initial Interest
Period will be determined by straight-line interpolation (based on the actual
number of days in the initial Interest Period) between two rates determined in
accordance with the definition of LIBOR, one of which will be determined for a
Designated Maturity of one month and the other of which will be determined for a
Designated Maturity of two months.
"Distribution Date" shall have the meaning assigned thereto in
the Agreement, except that with respect to the Series 2001-A Certificates, the
first Distribution Date shall be April 16, 2001.
"Excess Finance Charges" shall have the meaning specified in
Section 4.9.
"Excess Spread" shall mean, with respect to any Distribution
Date, the sum of the amounts, if any, specified pursuant to Sections 4.5(a)(iv),
4.5(b)(iii) and 4.5(c)(ii) with respect to such Distribution Date.
"Finance Charge Shortfall" shall have the meaning specified in
Section 4.9.
"Fitch" shall mean Fitch, Inc., or its successors.
"Floating Allocation Percentage" shall mean, with respect to
any Monthly Period, the percentage equivalent (which percentage shall never
exceed 100%) of a fraction, the numerator of which is the Invested Amount as of
the last day of the preceding Monthly Period (or with respect to the first
Monthly Period, the Initial Invested Amount) and the denominator of which is the
greater of (1) the sum of (x) the total amount of Principal Receivables in the
Trust at the end of the day on such date (or with respect to the first Monthly
Period, at the end of the day on the Closing Date) and (y) the principal amount
on deposit in the Excess Funding Account as of the end of the day on such date
and (2) the sum of the numerators used to calculate the Series
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Percentages (as such term is defined in the Agreement) with respect to Finance
Charge Receivables or Defaulted Receivables, as applicable, for all Series then
outstanding; provided, however, that with respect to any Monthly Period in which
an Addition Date occurs and the Servicer need not make daily deposits of
Collections into the Collection Account, the denominator in (x) above shall be
the Average Principal Balance; provided further, however, that with respect to
any Monthly Period in which an Addition Date occurs and the Servicer is required
to make daily deposits of Collections into the Collection Account, the
denominator in (x) above shall be (1) for the period from and including the
first day of such Monthly Period to but excluding the related Addition Date, the
aggregate amount of Principal Receivables in the Trust at the end of the day on
the last day of the prior Monthly Period and (2) for the period from and
including the related Addition Date to and including the last day of such
Monthly Period, the aggregate amount of Principal Receivables in the Trust at
the end of the day on the related Addition Date.
"Group One" shall mean Series 1995-C, Series 1995-D, Series
1996-A, Series 1996-B, Series 1996-C, Series 1996-D, Series 1996-E, Series
1999-A, Series 1999-B, Series 1999-C, Series 1999-D, Series 2000-A, Series
2000-B, Series 2000-C, Series 2000-D and Series 2001-A and each other
outstanding Series hereafter specified in the related Supplement to be included
in Group One.
"Initial Invested Amount" shall mean the sum of the Class A
Initial Invested Amount, the Class B Initial Invested Amount and the Collateral
Initial Invested Amount.
"Interchange" shall mean, with respect to Series 2001-A and
with respect to each Distribution Date, an amount of Interchange (as defined in
the Agreement) equal to one-twelfth of 1.25% of the outstanding balance of the
Principal Receivables allocable to Series 2001-A on the last day of the
preceding Monthly Period.
"Interest Period" shall mean, with respect to any Distribution
Date, the period from and including the Distribution Date immediately preceding
such Distribution Date (or, in the case of the first Distribution Date, from and
including the Closing Date) to but excluding such Distribution Date.
"Invested Amount" shall mean, as of any date of determination,
an amount equal to the sum of (a) the Class A Invested Amount as of such date,
(b) the Class B Invested Amount as of such date and (c) the Collateral Invested
Amount as of such date.
"Investment Letter" shall have the meaning specified in
subsection 10.8(b).
"Investor Amount" shall mean, as of any date of determination,
an amount equal to the sum of (a) the Invested Amount and (b) the Principal
Funding Account Balance.
"Investor Charge-Offs" shall mean Class A Investor Charge-Offs
and Class B Investor Charge-Offs.
"Investor Default Amount" shall mean, with respect to any
Distribution Date, an amount equal to the product of (a) the Defaulted Amount
for the related Monthly Period and (b) the Floating Allocation Percentage for
such Monthly Period.
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"LIBOR" shall mean an interest rate per annum determined by
the Trustee for each Interest Period in accordance with the provisions of
Section 4.11.
"LIBOR Determination Date" shall mean February 21, 2001 with
respect to the period from the Closing Date through April 15, 2001; and, with
respect to each Interest Period thereafter, the second London Business Day prior
to every Distribution Date on which such Interest Period begins commencing with
the April 2001 Distribution Date.
"London Business Day" shall mean a day on which dealings in
deposits in United States dollars are transacted in the London interbank market.
"Monthly Interest" means, with respect to any Distribution
Date, the Class A Monthly Interest, the Class B Monthly Interest and the
Collateral Minimum Monthly Interest for such Distribution Date.
"Monthly Servicing Fee" shall have the meaning specified in
Section 3.1.
"Net Portfolio Yield" shall mean, with respect to any Monthly
Period, the annualized percentage equivalent of a fraction, the numerator of
which is equal to (a) an amount equal to the product obtained by multiplying the
Floating Allocation Percentage with respect to such Monthly Period and the
amount of Collections of Finance Charge Receivables with respect to such Monthly
Period (including any other amounts that are to be treated as Collections of
Finance Charge Receivables in accordance with the Agreement), plus (b) the
amount of any Principal Funding Investment Proceeds for the related Distribution
Date, plus (c) the amount of funds, if any, to be withdrawn from the Reserve
Account which, pursuant to subsection 4.14(d), are required to be deposited into
the Collection Account and included in Class A Available Funds with respect to
such Distribution Date, minus (d) the Investor Default Amount for the
Distribution Date with respect to such Monthly Period, and the denominator of
which is the Investor Amount as of the last day of the preceding Monthly Period.
"Percentage Allocation" shall have the meaning specified in
Section 4.1(b)(ii).
"Permitted Assignee" shall mean any Person who, if it were the
Collateral Interest Holder or holder of an interest in the Trust, as applicable,
would not cause the Trust to be taxable as a publicly traded partnership for
federal income tax purposes.
"Principal Allocation Percentage" shall mean, with respect to
any Monthly Period:
(a) during the Revolving Period, the percentage equivalent
(which percentage shall never exceed 100%) of a fraction, (x) the numerator of
which is the Invested Amount as of the last day of the immediately preceding
Monthly Period (or, in the case of the first Monthly Period, the Closing Date)
and (y) the denominator of which is the greater of (i) the sum of (A) the total
amount of Principal Receivables in the Trust as of the last day of the
immediately preceding Monthly Period and (B) the principal amount on deposit in
the Excess Funding Account as of such last day (or, in the case of the first
Monthly Period, the Closing Date) and (ii) the sum of the numerators used to
calculate the Series Percentages applicable to Principal
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Receivables for all Series outstanding as of the date as to which such
determination is being made;
(b) during the Accumulation Period or the Rapid Amortization
Period, the percentage equivalent (which percentage shall never exceed 100%) of
a fraction, (x) the numerator of which is the Invested Amount as of the last day
of the Revolving Period or, if the numerator has been reduced as described in
the first proviso below during the Accumulation Period and a Rapid Amortization
Period commences, as of the last day of the Accumulation Period, and (y) the
denominator of which is the greater of (i) the sum of (A) the total amount of
Principal Receivables in the Trust as of the last day of the immediately
preceding Monthly Period and (B) the principal amount on deposit in the Excess
Funding Account as of such last day and (ii) the sum of the numerators used to
calculate the Series Percentages applicable to Principal Receivables for all
Series outstanding as of the date as to which such determination is being made;
provided however, that during the Accumulation Period, on any date, at the
option of the Servicer, the numerator of the Principal Allocation Percentage may
be reduced below the numerator used in the previous Monthly Period, to an amount
not less than the greater of (x) the Invested Amount as of the last day of the
immediately preceding Monthly Period (less the amount of any distributions of
principal deposited in the Principal Funding Account since the last day of the
immediately preceding Monthly Period) and (y) an amount that, if used as the
numerator of the Principal Allocation Percentage for the remainder of the
Accumulation Period, assuming for this purpose that (1) the payment rate with
respect to Collections of Principal Receivables remains constant at the level of
the immediately preceding Monthly Period, (2) the total amount of Principal
Receivables in the Trust (and the principal amount on deposit in the Excess
Funding Account, if any) remains constant at the level on the date of such
reduction, (3) no Pay Out Event with respect to any Series will subsequently
occur and (4) no additional Series (other than any Series being issued on the
date of such reduction) will be subsequently issued, would assure that Available
Investor Principal Collections for Series 2001-A would equal at least 125% of
the Controlled Accumulation Amount for each Monthly Period for so long as the
Invested Amount is greater than zero; provided further, however, that any such
reduction of the numerator of the Principal Allocation Percentage shall be
subject to the receipt by the Trustee of an Officer's Certificate of the
Servicer to the effect that the Servicer does not expect that the Available
Investor Principal Collections for any Monthly Period would be less than the
Controlled Accumulation Amount; provided further, however that with respect to
any Monthly Period in which an Addition Date occurs and the Servicer need not
make daily deposits of Collections into the Collection Account, the amount in
clause (y) (i) of paragraphs (a) and (b) above shall be the Average Principal
Balance; provided further, however, that with respect to any Monthly Period in
which an Addition Date occurs and the Servicer is required to make daily
deposits of Collections into the Collection Account, the amount in clause (y)
(i) of paragraphs (a) and (b) above shall be (1) for the period from and
including the first day of such Monthly Period to but excluding the related
Addition Date, the sum of (x) the aggregate amount of Principal Receivables in
the Trust at the end of the day on the last day of the prior Monthly Period and
(y) the principal amount on deposit in the Excess Funding Account as of such
last day and (2) for the period from and including the related Addition Date to
and including the last day of such Monthly Period, the sum of (x) the aggregate
amount of Principal Receivables in the Trust at the end of the day on the
related Addition Date and (y) the principal amount on deposit in the Excess
Funding Account at the end of the day on the related Addition Date.
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"Principal Funding Account" shall have the meaning set forth
in subsection 4.12(a)(i).
"Principal Funding Account Balance" shall mean, with respect
to any date of determination during the Accumulation Period, the principal
amount, if any, on deposit in the Principal Funding Account on such date of
determination.
"Principal Funding Investment Proceeds" shall have the meaning
specified in subsection 4.12(a)(ii).
"Principal Shortfall" shall have the meaning specified in
Section 4.10.
"Rapid Amortization Period" shall mean, (a) if on the day on
which a Trust Pay Out Event or a Series 2001-A Pay Out Event is deemed to have
occurred the Servicer need not make daily deposits into or withdrawals from the
Collection Account pursuant to Section 4.03(a) of the Agreement, the period
commencing at the close of business on the Business Day immediately preceding
the first day of the Monthly Period in which such Trust Pay Out Event or Series
2001-A Pay Out Event is deemed to have occurred or (b) otherwise, the period
commencing at the close of business on the Business Day immediately preceding
the day on which a Trust Pay Out Event or a Series 2001-A Pay Out Event is
deemed to have occurred, and ending on the first to occur of (i) the payment in
full to the Class A Certificateholders and the Class B Certificateholders of the
Class A Investor Amount and the Class B Investor Amount, respectively, and the
payment in full to the Collateral Interest Holder of the Collateral Invested
Amount, or (ii) the Series Termination Date.
"Reallocated Principal Collections" shall mean, with respect
to any Monthly Period, the product of (a) the Principal Allocation Percentage
with respect to such Monthly Period, (b) the aggregate amount of Collections in
respect of Principal Receivables for such Monthly Period and (c) the sum of the
Class B Principal Percentage and the Collateral Principal Percentage with
respect to such Monthly Period. Reallocated Principal Collections allocable to
the Class B Certificates shall equal, with respect to any Monthly Period, the
product of (a) the Principal Allocation Percentage with respect to such Monthly
Period of the aggregate amount of Collections in respect of Principal
Receivables deposited in the Collection Account for such Monthly Period and (b)
the Class B Principal Percentage with respect to such Monthly Period.
Reallocated Principal Collections allocable to the Collateral Interest shall
equal, with respect to any Monthly Period, the product of (a) the Principal
Allocation Percentage with respect to such Monthly Period of the aggregate
amount of Collections in respect of Principal Receivables deposited in the
Collection Account for such Monthly Period and (b) the Collateral Principal
Percentage with respect to such Monthly Period. In no event will the Collections
of Principal Receivables allocable to the Collateral Interest on any
Distribution Date exceed the Collateral Invested Amount on such Distribution
Date and in no event will the Collections of Principal Receivables allocable to
the Class B Certificates on any Distribution Date exceed the Class B Invested
Amount.
"Reassignment Amount" shall mean, with respect to any
Distribution Date, after giving effect to any deposits and distributions
otherwise to be made on such Distribution Date, the sum of (i) the Invested
Amount on such Distribution Date, plus (ii) Monthly Interest for such
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Distribution Date and any Monthly Interest previously due but not distributed to
the Series 2001-A Holders on a prior Distribution Date, plus (iii) the amount of
Additional Interest, if any, for such Distribution Date and any Additional
Interest previously due but not distributed to the Series 2001-A Holders on a
prior Distribution Date.
"Reference Banks" shall mean Barclays Bank plc, National
Westminster Bank PLC and Lloyds Bank of London or such other major banks in the
London interbank market selected by the Servicer from time to time.
"Required Reserve Account Amount" shall mean, with respect to
any Distribution Date prior to the Reserve Account Funding Date, $0, and on or
after the Reserve Account Funding Date, an amount equal to (a) the product of
(i) 0.5% of the Class A Investor Amount as of the preceding Distribution Date
(after giving effect to all changes therein on such date) and (ii) a fraction,
the numerator of which is the number of Monthly Periods scheduled to be included
in the Accumulation Period as of such date and the denominator of which is nine
(except that if such numerator is one, the Required Reserve Account Amount
determined pursuant to this clause (a) shall be $0) or (b) any other amount
designated by the Seller, provided that, if such designation is of a lesser
amount, the Seller (i) shall have received written notice from each Rating
Agency that such designation will not result in the reduction or withdrawal of
the rating of the Series 2001-A Certificates and shall have delivered copies of
each such written notice to the Servicer and the Trustee, and (ii) shall have
delivered to the Trustee a certificate of an authorized officer to the effect
that, based on the facts known to such officer at such time, in the reasonable
belief of the Seller, such designation will not cause a Pay Out Event or an
event that, after the giving of notice or the lapse of time, would cause a Pay
Out Event to occur with respect to Series 2001-A.
"Reserve Account" shall have the meaning specified in Section
4.14(a).
"Reserve Account Funding Date" shall mean the Distribution
Date with respect to the Monthly Period which commences three months prior to
the Monthly Period in which, as of the related Determination Date, the
Accumulation Period is scheduled to commence.
"Reserve Account Surplus" shall mean, as of any date of
determination, the amount, if any, by which the amount on deposit in the Reserve
Account exceeds the Required Reserve Account Amount.
"Reserve Draw Amount" shall have the meaning specified in
Section 4.14(c).
"Revolving Period" shall mean the period beginning on the
Closing Date and ending on the earlier of (a) the close of business on the day
preceding the commencement of the Accumulation Period and (b) the close of
business on the day preceding the commencement of the Rapid Amortization Period.
"Series Invested Amount" shall mean the Invested Amount.
"Series Investor Amount" shall mean, as of any date of
determination, an amount equal to the numerator of the Principal Allocation
Percentage on such date.
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"Series 2001-A" shall mean the Series of Investor
Certificates, the terms of which are specified in this Supplement and shall
include the Class A Certificates, the Class B Certificates and the Collateral
Interest.
"Series 2001-A Certificate" shall mean a Class A Certificate
or a Class B Certificate.
"Series 2001-A Certificateholder" shall mean a Class A
Certificateholder or a Class B Certificateholder.
"Series 2001-A Holder" shall mean a Class A Certificateholder,
a Class B Certificateholder or the Collateral Interest Holder.
"Series 2001-A Pay Out Event" shall have the meaning specified
in Section 6.1.
"Series 2001-A Supplement" shall mean this Supplement.
"Series Percentage" shall mean with respect to Finance Charge
Receivables and Defaulted Receivables, the Floating Allocation Percentage, and
with respect to Principal Receivables, the Principal Allocation Percentage.
"Series Termination Date" shall mean the earlier to occur of
(i) the August 2008 Distribution Date and (ii) the termination of the Trust
pursuant to Section 12.01 of the Agreement.
"Servicing Base Amount" shall have the meaning specified in
Section 3.1.
"Servicing Fee Rate" shall mean 2.0%.
"Special Payment Date" shall mean each Distribution Date with
respect to the Rapid Amortization Period.
"Supplemental Rate Letter" shall mean that certain letter
agreement designated as the Supplemental Rate Letter, dated as of the Closing
Date, between the Seller and the Trustee.
"Telerate Page 3750" shall mean the display page currently so
designated on the Bridge Telerate Markets Report (or such other page as may
replace such page on such service for the purpose of displaying comparable rates
or prices).
"Transfer" shall have the meaning specified in subsection
10.8(a).
"Transfer Agreement" shall mean the agreement between Fleet
(RI) and the Collateral Interest Holder, dated as of February 23, 2001, as
amended or modified from time to time, relating to the transfer of the
Collateral Interest.
(b) Notwithstanding anything to the contrary in this
Supplement or the Agreement, the term "Rating Agency" shall mean, whenever used
in this Supplement or the Agreement with respect to Series 2001-A, Moody's,
Standard & Poor's and Fitch; provided,
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however, that references to "Rating Agency" in the definition of "Eligible
Investments" shall be deemed to not include Fitch to the extent that an
investment is rated by Moody's and Standard & Poor's, but not by Fitch.
Reference to rating categories of Moody's and Standard & Poor's in the Agreement
shall be deemed to be references to the equivalent rating categories of Fitch.
(c) All capitalized terms used herein and not otherwise
defined herein have the meanings ascribed to them in the Agreement.
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Supplement shall refer to this Supplement as a
whole and not to any particular provision of this Supplement; references to any
Article, Section or Exhibit are references to Articles, Sections and Exhibits in
or to this Supplement unless otherwise specified; and the term "including" means
"including without limitation."
(e) Unless the context otherwise requires, references in this
Supplement to the "Seller" and from and after the date any Additional Seller is
designated pursuant to Section 2.08(e) of the Agreement, such references shall
mean the Bank in its capacity as Seller and any such Additional Seller(s).
ARTICLE III
Servicer and Trustee
Section 3.1 Servicing Compensation.
The share of the Servicing Fee allocable to the Series 2001-A
Holders with respect to any Distribution Date (the "Monthly Servicing Fee"),
shall be equal to one-twelfth the product of (i) the Servicing Fee Rate and (ii)
the Invested Amount, if any, as of the last day of the Monthly Period preceding
such Distribution Date (the amount calculated pursuant to this clause (ii) is
referred to as the "Servicing Base Amount"); provided, however, with respect to
the April 2001 Distribution Date, the Monthly Servicing Fee shall be $1,410,750.
The share of the Monthly Servicing Fee allocable to the Class
A Certificateholders with respect to any Distribution Date (the "Class A
Servicing Fee"), shall be equal to one-twelfth of the product of (a) the Class A
Floating Percentage, (b) the Servicing Fee Rate and (c) the Servicing Base
Amount; provided, however, that with respect to the April 2001 Distribution
Date, the Class A Servicing Fee shall be $1,175,625. The share of the Monthly
Servicing Fee allocable to the Class B Certificateholders with respect to any
Distribution Date (the "Class B Servicing Fee"), shall be equal to one-twelfth
of the product of (a) the Class B Floating Percentage, (b) the Servicing Fee
Rate and (c) the Servicing Base Amount; provided, however, that with respect to
the April 2001 Distribution Date, the Class B Servicing Fee shall be $99,750.
The share of the Monthly Servicing Fee allocable to the Collateral Interest
Holder with respect to any Distribution Date (the "Collateral Servicing Fee"),
shall be equal to one-twelfth of the product of (a) the Collateral Floating
Percentage, (b) the Servicing Fee Rate and (c) the Servicing Base Amount;
provided, however, that with respect to the April 2001 Distribution Date, the
Collateral Servicing Fee shall be $135,375. In no event shall the Trust, the
Trustee, or the Series 2001-A Holders be liable for the share of the Servicing
Fee to be paid by
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the Holders of the Sellers' Interest or the Certificateholders of any other
Series. The Class A Servicing Fee shall be payable to the Servicer solely to the
extent amounts are available for distribution in respect thereof pursuant to
Section 4.5(a)(ii), 4.7(a) or 4.8(a); the Class B Servicing Fee shall be payable
solely to the extent amounts are available for distribution in respect thereof
pursuant to Section 4.5(b)(ii), 4.7(c) or 4.8(b); and the Collateral Servicing
Fee shall be payable solely to the extent amounts are available for distribution
in respect thereof pursuant to Section 4.5(c)(i) or 4.7(g).
ARTICLE IV
Rights of Series 2001-A Certificateholders and Collateral Interest
Holder and Allocation and Application of Collections
Section 4.1 Collections and Allocations. The Servicer will
apply, or will instruct the Trustee in writing to apply, all Collections and
other funds on deposit in the Collection Account that are allocated to the
Series 2001-A Holders as follows:
(a) Allocations During the Revolving Period. During the
Revolving Period, the Servicer shall, on or prior to the close of business on
the second Business Day following any Date of Processing, allocate the following
amounts as set forth below:
(i) Allocate to the Series 2001-A Holders the product
of (x) the Floating Allocation Percentage on such Date of
Processing and (y) the aggregate amount of Collections of
Finance Charge Receivables on such Date of Processing, and of
that allocation, deposit and retain in the Collection Account
(A) prior to the LIBOR Determination Date occurring in such
Monthly Period, an amount equal to the product of (v) the
Floating Allocation Percentage on such Date of Processing and
(w) the aggregate amount of Collections of Finance Charge
Receivables on such Date of Processing and (B) on and after
such LIBOR Determination Date, the difference between (1)
Monthly Interest for the related Distribution Date (plus, if
the Bank is not the Servicer, the Monthly Servicing Fee for
such Monthly Period) and (2) the amounts previously deposited
in the Collection Account with respect to such Monthly Period
pursuant to this subsection (a)(i);
(ii) Allocate to the Series 2001-A Holders an amount
equal to the product of (A) the Principal Allocation
Percentage on such Date of Processing and (B) the aggregate
amount of Collections of Principal Receivables on such Date of
Processing, which amount shall be first, if any other
Principal Sharing Series in Group One is outstanding and in
its Amortization Period or Accumulation Period (as such terms
are defined in the Agreement), retained in the Collection
Account for application, to the extent necessary, as Shared
Principal Collections in accordance with Section 4.04 of the
Agreement to other Series in Group One on the related
Distribution Date, and second paid to the Holders of the
Sellers' Interest; provided, however, that the amount to be
paid to the Holders of the Sellers' Interest pursuant to this
Section 4.1(a)(ii) on any Date of
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Processing shall be paid to such Holders only if the Seller
Amount on such Date of Processing is greater than the Required
Seller Amount (after giving effect to all Principal
Receivables transferred to the Trust on such day and any
amounts deposited in the Excess Funding Account on such day)
and otherwise shall be deposited in the Excess Funding Account
until the Seller Amount is greater than the Required Seller
Amount and applied in accordance with Section 4.02 of the
Agreement and the remainder shall be paid to the Holders of
the Sellers' Interest.
(b) Allocations During the Accumulation Period. During the
Accumulation Period, the Servicer shall, prior to the close of business on the
second Business Day following any Date of Processing, allocate the following
amounts as set forth below:
(i) Allocate to the Series 2001-A Holders and deposit
and retain in the Collection Account an amount equal to the
product of (A) the Floating Allocation Percentage on such Date
of Processing and (B) the aggregate amount of Collections of
Finance Charge Receivables on such Date of Processing.
(ii) Allocate to the Series 2001-A Holders and
deposit and retain in the Collection Account an amount equal
to the product of (x) the Principal Allocation Percentage on
such Date of Processing and (y) the aggregate amount of
Collections of Principal Receivables on such Date of
Processing (for any such date, a "Percentage Allocation");
provided, however, that if, with respect to any Monthly Period
occurring prior to the Class B Expected Final Distribution
Date, the sum of such Percentage Allocations with respect to
the same Monthly Period exceeds the Controlled Deposit Amount
for the related Distribution Date or if, with respect to any
Monthly Period in which the Class B Expected Final
Distribution Date occurs, the sum of such Percentage
Allocations with respect to that Monthly Period exceeds the
Collateral Invested Amount for the related Distribution Date,
then such excess shall not be treated as a Percentage
Allocation and shall be first, if any other Principal Sharing
Series in Group One is outstanding and in its Amortization
Period or Accumulation Period (as such terms are defined in
the Agreement), retained in the Collection Account for
application, to the extent necessary, as Shared Principal
Collections in accordance with Section 4.04 of the Agreement
to other Series in Group One on the related Distribution Date,
and second paid to the Holders of the Sellers' Interest only
if the Seller Amount on such Date of Processing is greater
than the Required Seller Amount (after giving effect to all
Principal Receivables transferred to the Trust on such day and
any amounts deposited in the Excess Funding Account on such
day) and otherwise shall be deposited in the Excess Funding
Account until the Seller Amount is greater than the Required
Seller Amount and applied in accordance with Section 4.02 of
the Agreement and the remainder shall be paid to the Holders
of the Sellers' Interest.
(c) Allocations During the Rapid Amortization Period. During
the Rapid Amortization Period, the Servicer shall, prior to the close of
business on the second Business Day following any Date of Processing, allocate
the following amounts as set forth below:
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(i) Allocate to the Series 2001-A Holders and deposit
and retain in the Collection Account an amount equal to the
product of (A) the Floating Allocation Percentage on such Date
of Processing and (B) the aggregate amount of Collections of
Finance Charge Receivables on such Date of Processing.
(ii) Allocate to the Series 2001-A Holders and
deposit and retain in the Collection Account an amount equal
to the product of (A) the Principal Allocation Percentage on
such Date of Processing and (B) the aggregate amount of
Collections of Principal Receivables on such Date of
Processing; provided, however, that after the date on which an
amount of such Collections equal to the Invested Amount has
been deposited into the Collection Account and allocated to
the Series 2001-A Holders, the amount determined in accordance
with this subparagraph (ii) in excess thereof shall be first,
if any other Principal Sharing Series in Group One is
outstanding and in its Amortization Period or Accumulation
Period (as such terms are defined in the Agreement), retained
in the Collection Account for application, to the extent
necessary, as Shared Principal Collections in accordance with
Section 4.04 of the Agreement to other Series in Group One on
the related Distribution Date, and second paid to the Holders
of the Sellers' Interest only if the Seller Amount on such
Date of Processing is greater than the Required Seller Amount
(after giving effect to all Principal Receivables transferred
to the Trust on such day and any amounts deposited in the
Excess Funding Account on such day) and otherwise shall be
deposited in the Excess Funding Account until the Seller
Amount is greater than the Required Seller Amount and applied
in accordance with Section 4.02 of the Agreement and the
remainder shall be paid to the Holders of the Sellers'
Interest.
(d) Notwithstanding anything to the contrary in this Section
4.1, if on any Date of Processing the aggregate amount of Principal Receivables
is less than the sum of the Series Investor Amounts for all Series outstanding,
all Collections of Principal Receivables on such date that are otherwise payable
to the Holders of the Sellers' Interest shall, unless such Collections are to be
retained in the Collection Account, be deposited in the Excess Funding Account
and applied in accordance with Section 4.02 of the Agreement.
(e) Notwithstanding the foregoing, the Servicer need not make
daily deposits of Collections into the Collection Account at any time when the
requirements of Section 4.03 of the Agreement are satisfied.
Section 4.2 Determination of Monthly Interest.
(a) The amount of monthly interest ("Class A Monthly
Interest") distributable from the Collection Account with respect to the Class A
Certificates on each Distribution Date shall be an amount equal to the product
of (i) (A) a fraction, the numerator of which is the actual number of days in
the related Interest Period and the denominator of which is 360, times (B) the
Class A Certificate Rate and (ii) the outstanding principal amount of the Class
A Certificates as of the close of business on the preceding Record Date;
provided, however, with respect to the April 2001 Distribution Date, Class A
Monthly Interest shall be equal to the interest accrued on the Class A Initial
Invested Amount at the applicable Class A Certificate Rate for the period
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from the Closing Date through April 15, 2001 (calculated on the basis of the
actual number of days in such period and a year of 360 days).
On the Determination Date preceding each Distribution Date,
the Servicer shall determine the excess, if any (the "Class A Interest
Shortfall"), of (x) the Class A Monthly Interest for such Distribution Date over
(y) the aggregate amount of funds allocated and available to pay such Class A
Monthly Interest on such Distribution Date. If the Class A Interest Shortfall
with respect to any Distribution Date is greater than zero, on each subsequent
Distribution Date until such Class A Interest Shortfall is fully paid, an
additional amount ("Class A Additional Interest") equal to the product of (i)
(A) a fraction, the numerator of which is the actual number of days from and
including the Distribution Date on which there is a shortfall to but excluding
such subsequent Distribution Date and the denominator of which is 360, times (B)
the Class A Penalty Rate and (ii) such Class A Interest Shortfall (or the
portion thereof which has not been paid to the Class A Certificateholders) shall
be payable as provided herein with respect to the Class A Certificates.
Notwithstanding anything to the contrary herein, Class A Additional Interest
shall be payable or distributed to Class A Certificateholders only to the extent
permitted by applicable law.
(b) The amount of monthly interest ("Class B Monthly
Interest") distributable from the Collection Account with respect to the Class B
Certificates on each Distribution Date shall be an amount equal to the product
of (i) (A) a fraction, the numerator of which is the actual number of days in
the related Interest Period and the denominator of which is 360, times (B) the
Class B Certificate Rate and (ii) the outstanding principal amount of the Class
B Certificates as of the close of business on the preceding Record Date;
provided, however, with respect to the April 2001 Distribution Date, Class B
Monthly Interest shall be equal to the interest accrued on the Class B Initial
Invested Amount at the applicable Class B Certificate Rate for the period from
the Closing Date through April 15, 2001 (calculated on the basis of the actual
number of days in such period and a year of 360 days).
On the Determination Date preceding each Distribution Date,
the Servicer shall determine the excess, if any (the "Class B Interest
Shortfall"), of (x) the Class B Monthly Interest for such Distribution Date over
(y) the aggregate amount of funds allocated and available to pay such Class B
Monthly Interest on such Distribution Date. If the Class B Interest Shortfall
with respect to any Distribution Date is greater than zero, on each subsequent
Distribution Date until such Class B Interest Shortfall is fully paid, an
additional amount ("Class B Additional Interest") equal to the product of (i)
(A) a fraction, the numerator of which is the actual number of days in the
period from and including the Distribution Date on which there is a shortfall to
but excluding such subsequent Distribution Date and the denominator of which is
360, times (B) the Class B Penalty Rate and (ii) such Class B Interest Shortfall
(or the portion thereof which has not been paid to the Class B
Certificateholders) shall be payable as provided herein with respect to the
Class B Certificates. Notwithstanding anything to the contrary herein, Class B
Additional Interest shall be payable or distributed to Class B
Certificateholders only to the extent permitted by applicable law.
(c) The amount of monthly interest ("Collateral Minimum
Monthly Interest") distributable from the Collection Account with respect to the
Collateral Interest on each Distribution Date shall be an amount equal to the
product of (i)(A) a fraction, the numerator of
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which is the actual number of days in the related Interest Period and the
denominator of which is 360; times (B) the Collateral Minimum Interest Rate; and
(ii) the outstanding principal amount of the Collateral Interest as of the close
of business on the preceding Record Date; provided, however, with respect to the
April 2001 Distribution Date, the Collateral Minimum Monthly Interest shall be
equal to the interest accrued on the Collateral Initial Invested Amount at the
applicable Collateral Minimum Interest Rate for the period from the Closing Date
through April 15, 2001 (calculated on the basis of the actual number of days in
such period and a year of 360 days).
On the Determination Date preceding each Distribution Date,
the Servicer shall determine the excess, if any (the "Collateral Interest
Shortfall"), of (x) the Collateral Minimum Monthly Interest for such
Distribution Date over (y) the aggregate amount of funds allocated and available
to pay such Collateral Minimum Monthly Interest on such Distribution Date. If
the Collateral Interest Shortfall with respect to any Distribution Date is
greater than zero, on each subsequent Distribution Date until such Collateral
Interest Shortfall is fully paid, an additional amount ("Collateral Additional
Interest") equal to the product of (i)(A) a fraction, the numerator of which is
the actual number of days from and including the Distribution Date on which
there is a shortfall to but excluding such subsequent Distribution Date and the
denominator of which is 360, times (B) the Collateral Minimum Interest Rate and
(ii) such Collateral Interest Shortfall (or the portion thereof which has not
been paid to the Collateral Interest Holder) shall be payable as provided herein
with respect to the Collateral Interest. Notwithstanding anything to the
contrary herein, Collateral Additional Interest shall be payable or distributed
to the Collateral Interest Holder only to the extent permitted by applicable
law.
Section 4.3 Determination of Monthly Principal.
(a) The amount of monthly principal ("Class A Monthly
Principal") distributable from the Collection Account with respect to the Class
A Certificates on each Distribution Date, beginning with the first Distribution
Date with respect to the Accumulation Period or the Rapid Amortization Period,
shall be equal to the least of (x) the Available Investor Principal Collections
on deposit in the Collection Account with respect to such Distribution Date, (y)
for each Distribution Date with respect to the Accumulation Period (and on or
prior to the Class A Expected Final Distribution Date), the Controlled Deposit
Amount for such Distribution Date and (z) the Class A Invested Amount on such
Distribution Date.
(b) The amount of monthly principal ("Class B Monthly
Principal") distributable from the Collection Account with respect to the Class
B Certificates on each Distribution Date, beginning with the first Distribution
Date with respect to the Accumulation Period on which the full amount of the
Class A Investor Amount is on deposit in the Principal Funding Account or has
been paid to the Class A Certificateholders or, if earlier, the first Special
Payment Date on which the Class A Investor Amount is paid in full, shall be
equal to the least of (x) the Available Investor Principal Collections on
deposit in the Collection Account with respect to such Distribution Date (minus
the portion of such Available Investor Principal Collections applied to Class A
Monthly Principal on such Distribution Date), (y) for each Distribution Date
with respect to the Accumulation Period (and on or prior to the Class B Expected
Final Distribution Date), the Controlled Deposit Amount for such Distribution
Date (minus the portion of such Controlled Deposit Amount for such Distribution
Date applied to
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Class A Monthly Principal on such Distribution Date) and (z) the Class B
Invested Amount on such Distribution Date.
(c) The amount of monthly principal ("Collateral Monthly
Principal") distributable from the Collection Account with respect to the
Collateral Interest on each Distribution Date, beginning with the Collateral
Principal Commencement Date, shall be equal to the lesser of (x) the Available
Investor Principal Collections on deposit in the Collection Account with respect
to such Distribution Date (minus the portion of such Available Investor
Principal Collections applied to Class A Monthly Principal and Class B Monthly
Principal on such Distribution Date), and (y) the Collateral Invested Amount on
such Distribution Date.
Section 4.4 Required Amount.
(a) With respect to each Distribution Date, on the related
Determination Date, the Servicer shall determine the amount (the "Class A
Required Amount"), if any, by which (a) the sum of (i) Class A Monthly Interest
for such Distribution Date, (ii) any Class A Monthly Interest previously due but
not paid to the Class A Certificateholders on a prior Distribution Date, (iii)
any Class A Additional Interest for such Distribution Date and any Class A
Additional Interest previously due but not paid to the Class A
Certificateholders on a prior Distribution Date, (iv) the Class A Servicing Fee
for such Distribution Date, (v) any Class A Servicing Fee previously due but not
paid to the Servicer and (vi) the Class A Investor Default Amount, if any, for
such Distribution Date exceeds (b) the Class A Available Funds. In the event
that the Class A Required Amount for such Distribution Date is greater than
zero, all or a portion of the Excess Spread and the Excess Finance Charges
allocable to Series 2001-A with respect to the related Monthly Period in an
amount equal to the Class A Required Amount for such Distribution Date shall be
distributed from the Collection Account on such Distribution Date pursuant to
Section 4.7(a). In the event that the Class A Required Amount for such
Distribution Date exceeds the amount of Excess Spread and the amount of Excess
Finance Charges allocable to Series 2001-A with respect to the related Monthly
Period, all or a portion of the Reallocated Principal Collections with respect
to such Monthly Period in an amount equal to such excess shall be distributed
from the Collection Account on such Distribution Date pursuant to Section
4.8(a).
(b) With respect to each Distribution Date on the related
Determination Date, the Servicer shall determine the amount (the "Class B
Required Amount"), equal to the sum of (I) the amount if any, by which (a) the
sum of (i) Class B Monthly Interest for such Distribution Date, (ii) any Class B
Monthly Interest previously due but not paid to the Class B Certificateholders
on a prior Distribution Date, (iii) any Class B Additional Interest for such
Distribution Date and any Class B Additional Interest previously due but not
paid to the Class B Certificateholders on a prior Distribution Date, (iv) the
Class B Servicing Fee for such Distribution Date and (v) any Class B Servicing
Fee previously due but not paid to the Servicer exceeds (b) the Class B
Available Funds, plus (II) the Class B Investor Default Amount for such
Distribution Date. In the event that the Class B Required Amount for such
Distribution Date is greater than zero, all or a portion of Excess Spread and
the Excess Finance Charges allocable to Series 2001-A (other than Excess Spread
and Excess Finance Charges applied pursuant to Sections 4.7(a) and (b) with
respect to such Distribution Date) with respect to the related Monthly Period
shall be applied to fund the Class B Required Amount. In the event that the
Class B Required Amount for such Distribution Date exceeds the portion of Excess
Spread and
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Excess Finance Charges allocated to Series 2001-A with respect to the related
Monthly Period and available to fund the Class B Required Amount as provided in
the preceding sentence, all or a portion of the Reallocated Principal
Collections allocable to the Collateral Invested Amount available therefor with
respect to such Monthly Period in an amount equal to such excess shall be
distributed from the Collection Account on such Distribution Date pursuant to
Section 4.8(b).
Section 4.5 Application of Class A Available Funds, Class B
Available Funds, Collateral Available Funds and Available Investor Principal
Collections. The Servicer shall apply or shall direct the Trustee in writing to
apply, on each Distribution Date, Class A Available Funds, Class B Available
Funds, Collateral Available Funds and Available Investor Principal Collections
for the Monthly Period with respect to such Distribution Date to make the
following distributions:
(a) On each Distribution Date, an amount equal to the Class A
Available Funds with respect to such Distribution Date will be distributed in
the following priority:
(i) an amount equal to Class A Monthly Interest for
such Distribution Date, plus the amount of any Class A Monthly
Interest previously due but not distributed to the Class A
Certificateholders on a prior Distribution Date, plus the
amount of any Class A Additional Interest for such
Distribution Date and any Class A Additional Interest
previously due but not distributed to the Class A
Certificateholders on a prior Distribution Date, shall be
distributed to the Paying Agent for payment to the Class A
Certificateholders;
(ii) an amount equal to the Class A Servicing Fee for
such Distribution Date, plus the amount of any Class A
Servicing Fee previously due but not distributed to the
Servicer on a prior Distribution Date, shall be distributed to
the Servicer;
(iii) an amount equal to the Class A Investor Default
Amount for such Distribution Date shall be treated as a
portion of Available Investor Principal Collections for such
Distribution Date; and
(iv) the balance, if any, shall constitute Excess
Spread and shall be allocated and distributed as set forth in
Section 4.7.
(b) On each Distribution Date, an amount equal to the Class B
Available Funds with respect to such Distribution Date will be distributed in
the following priority:
(i) an amount equal to Class B Monthly Interest for
such Distribution Date, plus the amount of any Class B Monthly
Interest previously due but not distributed to the Class B
Certificateholders on a prior Distribution Date, plus the
amount of any Class B Additional Interest for such
Distribution Date and any Class B Additional Interest
previously due but not distributed to the Class B
Certificateholders on a prior Distribution Date, shall be
distributed to the Paying Agent for payment to the Class B
Certificateholders;
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(ii) an amount equal to the Class B Servicing Fee for
such Distribution Date, plus the amount of any Class B
Servicing Fee previously due but not distributed to the
Servicer on a prior Distribution Date, shall be distributed to
the Servicer; and
(iii) the balance, if any, shall constitute Excess
Spread and shall be allocated and distributed as set forth in
Section 4.7.
(c) On each Distribution Date, an amount equal to the
Collateral Available Funds with respect to such Distribution Date will be
distributed in the following priority:
(i) if the Bank or the Trustee is no longer the
Servicer, an amount equal to the Collateral Servicing Fee for
such Distribution Date, plus the amount of any Collateral
Servicing Fee previously due but not distributed to the
Servicer on a prior Distribution Date, shall be distributed to
the Servicer; and
(ii) the balance, if any, shall constitute Excess
Spread and shall be allocated and distributed as set forth in
Section 4.7.
(d) On each Distribution Date with respect to the Revolving
Period, an amount equal to the Available Investor Principal Collections for the
related Monthly Period shall be treated as Shared Principal Collections and
applied in accordance with Section 4.04 of the Agreement.
(e) On each Distribution Date with respect to the Accumulation
Period or the Rapid Amortization Period, an amount equal to the Available
Investor Principal Collections for the related Monthly Period will be
distributed in the following priority:
(i) an amount equal to Class A Monthly Principal for
such Distribution Date, shall (A) during the Accumulation
Period, be deposited in the Principal Funding Account for
payment to the Class A Certificateholders by the Paying Agent
in accordance with Section 5.1(b) on each Distribution Date
beginning on the earlier to occur of the Class A Expected
Final Distribution Date or the first Special Payment Date and
(B) during the Rapid Amortization Period be paid to the
Holders of the Class A Certificates;
(ii) after giving effect to the distribution referred
to in clause (i) above, an amount equal to Class B Monthly
Principal for such Distribution Date, shall (A) during the
Accumulation Period, be deposited in the Principal Funding
Account for payment to the Class B Certificateholders by the
Paying Agent in accordance with subsection 5.1(d) on each
Distribution Date beginning on the Class B Principal
Commencement Date and (B) during the Rapid Amortization
Period, be paid to the Holders of the Class B Certificates;
(iii) after giving effect to the distributions
referred to in clauses (i) and (ii) above, an amount equal to
Collateral Monthly Principal for such Distribution Date shall
be distributed to the Collateral Interest Holder in accordance
with
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subsection 5.1(e) on each Distribution Date beginning on the
Collateral Principal Commencement Date; and
(iv) for each Distribution Date, after giving effect
to the distributions referred to in clauses (i), (ii) and
(iii) above, an amount equal to the balance, if any, of such
Available Investor Principal Collections then on deposit in
the Collection Account shall be treated as Shared Principal
Collections and applied in accordance with Section 4.04 of the
Agreement.
Section 4.6 Defaulted Amounts; Investor Charge-Offs.
(a) On each Determination Date, the Servicer shall calculate
the Class A Investor Default Amount, if any, for the related Distribution Date.
If, on any Distribution Date, the Class A Required Amount for the related
Monthly Period exceeds the sum of (x) the amount of Reallocated Principal
Collections with respect to such Monthly Period and (y) the amount of Excess
Spread and the Excess Finance Charges allocable to Series 2001-A with respect to
such Distribution Date, the Collateral Invested Amount shall be reduced by the
amount of such excess, but not by more than the excess of the Class A Investor
Default Amount for such Distribution Date over the sum of the amount of
Reallocated Principal Collections and Excess Spread and Excess Finance Charges
used to fund the Class A Investor Default Amount for such Distribution Date. In
the event that such reduction would cause the Collateral Invested Amount to be a
negative number, the Collateral Invested Amount shall be reduced to zero and the
Class B Invested Amount shall be reduced by the amount by which the Collateral
Invested Amount would have been reduced below zero, but not by more than the
excess, if any, of the Class A Investor Default Amount for such Distribution
Date over the sum of the amount of such reduction, if any, of the Collateral
Invested Amount with respect to such Distribution Date and the amount of
Reallocated Principal Collections and Excess Spread and Excess Finance Charges
used to fund the Class A Investor Default Amount for such Distribution Date. In
the event that such reduction would cause the Class B Invested Amount to be a
negative number, the Class B Invested Amount shall be reduced to zero, and the
Class A Invested Amount shall be reduced by the amount by which the Class B
Invested Amount would have been reduced below zero, but not by more than the
excess, if any, of the Class A Investor Default Amount for such Distribution
Date over the sum of the aggregate amount of the reductions, if any, of the
Collateral Invested Amount and the Class B Invested Amount for such Distribution
Date and the amount of Reallocated Principal Collections and Excess Spread and
Excess Finance Charges used to fund the Class A Investor Default Amount for such
Distribution Date (a "Class A Investor Charge-Off"). Class A Investor
Charge-Offs shall thereafter be reimbursed and the Class A Invested Amount
increased (but not by an amount in excess of the aggregate unreimbursed Class A
Investor Charge-Offs) on any Distribution Date by the amount of Excess Spread
and Excess Finance Charges allocated and available for that purpose pursuant to
Section 4.7(b).
(b) On each Determination Date, the Servicer shall calculate
the Class B Required Amount, if any, for the related Distribution Date. If, on
any Distribution Date, the Class B Required Amount for such Distribution Date
exceeds the sum of (x) the amount of Excess Spread and Excess Finance Charges
allocated to Series 2001-A with respect to the related Monthly Period which are
not used to fund the Class A Required Amount and Class A Investor Charge-Offs on
the related Distribution Date and (y) the amount of Reallocated Principal
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Collections which are available to fund the Class B Required Amount on such
Distribution Date pursuant to Section 4.8(b), then the Collateral Invested
Amount shall be reduced by the amount of such excess, but not by more than the
excess of the Class B Investor Default Amount for such Distribution Date over
the sum of the amount of Reallocated Principal Collections and Excess Spread and
Excess Finance Charges used to fund the Class B Investor Default Amount for such
Distribution Date. In the event that such reduction would cause the Collateral
Invested Amount to be a negative number, the Collateral Invested Amount shall be
reduced to zero, and the Class B Invested Amount shall be reduced by the amount
by which the Collateral Invested Amount would have been reduced below zero, but
not by more than the excess, if any, of the Class B Investor Default Amount for
such Distribution Date over the sum of the amount of such reduction, if any, of
the Collateral Invested Amount with respect to such Distribution Date and the
amount of Reallocated Principal Collections and Excess Spread and Excess Finance
Charges used to fund the Class B Investor Default Amount for such Distribution
Date (a "Class B Investor Charge-Off"). Class B Investor Charge-Offs shall
thereafter be reimbursed and the Class B Invested Amount increased (but not by
an amount in excess of the aggregate unreimbursed Class B Investor Charge-Offs)
on any Distribution Date by the amount of Excess Spread and Excess Finance
Charges allocated and available for that purpose pursuant to subsection 4.7(e).
(c) If, on any Distribution Date, Reallocated Principal
Collections for such Distribution Date are applied pursuant to Section 4.8(a) or
(b), the Collateral Invested Amount shall be reduced by the amount of such
Reallocated Principal Collections. In the event that such reduction would cause
the Collateral Invested Amount to be a negative number, the Collateral Invested
Amount shall be reduced to zero, and the Class B Invested Amount shall be
reduced by the amount by which the Collateral Invested Amount would have been
reduced below zero.
(d) If, on any Distribution Date, the Collateral Default
Amount exceeds the amount of Excess Spread and Excess Finance Charges available
to fund the Collateral Default Amount pursuant to subsection 4.7(h) on such
Distribution Date, then the Collateral Invested Amount shall be reduced by the
amount of such excess; provided, however, that the Collateral Invested Amount
shall not be reduced below zero.
Section 4.7 Excess Spread; Excess Finance Charges. The
Servicer shall apply or shall direct the Trustee in writing to apply, on each
Distribution Date, Excess Spread and Excess Finance Charges allocated to Series
2001-A with respect to the related Monthly Period, to make the following
distributions in the following priority:
(a) an amount equal to the Class A Required Amount, if any,
with respect to such Distribution Date shall be distributed by the Trustee to
fund any deficiency pursuant to Sections 4.5(a)(i), (ii) and (iii), in that
order of priority;
(b) an amount equal to the aggregate amount of Class A
Investor Charge-Offs which have not been previously reimbursed as provided in
Section 4.6(a) (after giving effect to the allocation on such Distribution Date
of any amount for that purpose pursuant to Section 4.6(a)) shall be treated as a
portion of Available Investor Principal Collections for such Distribution Date;
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(c) an amount up to the Class B Required Amount, if any, with
respect to such Distribution Date shall be distributed by the Trustee to fund
any deficiency pursuant to Sections 4.5(b)(i) and (ii), in that order of
priority;
(d) an amount equal to the Class B Investor Default Amount for
such Distribution Date shall be treated as a portion of Available Investor
Principal Collections for such Distribution Date;
(e) an amount equal to the aggregate amount by which the Class
B Invested Amount has been reduced pursuant to clauses (c), (d) and (e) of the
definition of "Class B Invested Amount" in Section 2.1 of this Supplement (but
not in excess of the aggregate amount of such reductions which have not been
previously reimbursed) shall be treated as a portion of Available Investor
Principal Collections for such Distribution Date;
(f) an amount equal to the Collateral Minimum Monthly Interest
for such Distribution Date, plus the amount of any Collateral Minimum Monthly
Interest previously due but not distributed to the Collateral Interest Holder on
a prior Distribution Date pursuant to this subsection plus the amount of any
Collateral Additional Interest for such Distribution Date and any Collateral
Additional Interest previously due but not distributed to the Collateral
Interest Holder on a prior Distribution Date shall be paid to the Collateral
Interest Holder;
(g) an amount equal to the Collateral Servicing Fee for such
Distribution Date (or if the Bank or the Trustee is no longer the Servicer, the
portion of the Collateral Servicing Fee for such Distribution Date not paid
pursuant to Section 4.5(c)(i)), plus the amount of any Collateral Servicing Fee
previously due but not distributed to the Servicer on a prior Distribution Date,
shall be distributed to the Servicer;
(h) an amount equal to the Collateral Default Amount for such
Distribution Date shall be treated as a portion of Available Investor Principal
Collections with respect to such Distribution Date;
(i) an amount equal to the aggregate amount by which the
Collateral Invested Amount has been reduced pursuant to clause (b) of the
definition of "Collateral Invested Amount" (but not in excess of the aggregate
amount of such reductions which have not been previously reimbursed) shall be
treated as a portion of Available Investor Principal Collections with respect to
such Distribution Date;
(j) an amount up to the excess, if any, of the Required
Reserve Account Amount over the amount on deposit therein, shall be deposited
into the Reserve Account; and
(k) the balance, if any, shall be distributed to the
Collateral Interest Holder.
Section 4.8 Reallocated Principal Collections. The Servicer
shall apply or shall direct the Trustee in writing to apply on each Distribution
Date, Reallocated Principal Collections (applying all such Collections with
respect to the Collateral Invested Amount prior to applying any such Collections
with respect to the Class B Invested Amount and applying no such Collections
with respect to the Class B Invested Amount pursuant to clause (b) below) with
respect to such Distribution Date, to make the following distributions in the
following priority:
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(a) an amount equal to the excess, if any, of (i) the Class A
Required Amount, if any, with respect to such Distribution Date over (ii) the
amount of Excess Spread and Excess Finance Charges allocated to Series 2001-A
with respect to the related Monthly Period shall, be distributed by the Trustee
to fund any deficiency pursuant to Sections 4.5(a)(i), (ii) and (iii), in that
order of priority;
(b) an amount equal to the excess, if any, of (i) the Class B
Required Amount, if any, with respect to such Distribution Date over (ii) the
amount of Excess Spread and Excess Finance Charges allocated and available to
the Class B Certificates pursuant to Sections 4.7(c) and (d) on such
Distribution Date, shall be distributed by the Trustee to fund any deficiency
pursuant to Sections 4.5(b)(i) and (ii) and Section 4.7(d), in that order of
priority; and
(c) the balance, if any, of such Reallocated Principal
Collections shall be treated as a portion of Available Investor Principal
Collections to be applied in accordance with subsections 4.5(d) and (e).
Section 4.9 Excess Finance Charges. On each Distribution Date,
(a) the Servicer shall allocate the aggregate amount for all outstanding Series
in Group One that the related Supplements or Transfer Agreements specify are to
be treated as a portion of Excess Finance Charges for such Distribution Date
(collectively, "Excess Finance Charges") as specified in the Supplements or
Transfer Agreements for each Series in Group One and (b) the Servicer shall
withdraw (or shall instruct the Trustee in writing to withdraw) from the
Collection Account and pay to the Holders of the Sellers' Interest an amount
equal to the excess, if any, of (x) the Excess Finance Charges for such
Distribution Date over (y) the aggregate amount for all Series in Group One that
the related Supplements specify are Finance Charge Shortfalls (as defined in the
related Supplements or Transfer Agreements ) for such Distribution Date. Excess
Finance Charges for any Distribution Date will be allocated to Series 2001-A in
an amount equal to the product of (x) the aggregate amount of Excess Finance
Charges for such Distribution Date and (y) a fraction, the numerator of which is
the Finance Charge Shortfall for Series 2001-A for such Distribution Date and
the denominator of which is the aggregate amount of Finance Charge Shortfalls
for all the Series in Group One for such Distribution Date. The amount of
"Excess Finance Charges" for Series 2001-A for any Distribution Date shall be
specified in the Transfer Agreement. On each Distribution Date, the Trustee
shall deposit in the Collection Account for application in accordance with
Section 4.5 of the Agreement, the amount of "Excess Finance Charges" received by
the Trustee pursuant to the Transfer Agreement on such date. The "Finance Charge
Shortfall" for Series 2001-A for any Distribution Date shall be equal to the
excess, if any, of (a) the full amount required to be paid, without duplication,
pursuant to Sections 4.5(a), 4.5(b), 4.5(c) and 4.7(a) through (j) on such
Distribution Date over (b) the sum of Class A Available Funds, Class B Available
Funds and Collateral Available Funds with respect to the related Monthly Period.
Section 4.10 Shared Principal Collections. Subject to Section
4.04 of the Agreement, Shared Principal Collections for any Distribution Date
will be allocated to Series 2001-A in an amount equal to the product of (x) the
aggregate amount of Shared Principal Collections with respect to all Series in
Group One for such Distribution Date and (y) a fraction, the numerator of which
is the Principal Shortfall for Series 2001-A for such Distribution Date and the
denominator of which is the aggregate amount of Principal Shortfalls for all the
Series
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which are Principal Sharing Series in Group One for such Distribution
Date. The "Principal Shortfall" for Series 2001-A shall be equal to (a) for any
Distribution Date with respect to the Revolving Period and the Rapid
Amortization Period, zero, and (b) for any Distribution Date with respect to the
Accumulation Period on or prior to the Class B Expected Final Distribution Date,
the excess, if any, of the Controlled Deposit Amount with respect to such
Distribution Date over the amount of Available Investor Principal Collections
for such Distribution Date (excluding any portion thereof attributable to Shared
Principal Collections) and (c) for each Distribution Date on or after the Class
B Expected Final Distribution Date, the excess, if any, of the Invested Amount
over the amount of Available Investor Principal Collections for such
Distribution Date (excluding any portion thereof attributable to Shared
Principal Collections).
Section 4.11 Determination of LIBOR.
(a) On each LIBOR Determination Date, the Trustee shall
determine LIBOR based on the rate for deposits in United States dollars for a
period of the Designated Maturity which appears on Telerate Page 3750 as of
11:00 A.M. (London Time) on such date.
(b) If such rate does not appear on Telerate Page 3750, the
Trustee will determine LIBOR on the basis of quotations of the offered rates for
deposits in United States dollars provided by the Reference Banks at
approximately 11:00 A.M. (London time) on such LIBOR Determination Date to prime
banks in the London interbank market for a period of the Designated Maturity. If
at least two such quotations are provided, LIBOR will be the arithmetic mean of
such quotations.
(c) If, on the LIBOR Determination Date, such rate does not
appear on Telerate Page 3750 and only one or none of the Reference Banks
provides such offered quotations, LIBOR will be the rate per annum that the
Trustee determines to be the arithmetic mean of the offered quotations that
three major banks in the city of New York selected by the Servicer are quoting
at approximately 11:00 A.M. (New York City time) on that day for loans in United
States dollars to leading European banks for a period of the Designated
Maturity.
Section 4.12 Principal Funding Account.
(a)(i) The Servicer, for the benefit of the Series
2001-A Holders, shall establish and maintain in the name of
the Trustee, on behalf of the Trust, an Eligible Deposit
Account (the "Principal Funding Account"), bearing a
designation clearly indicating that the funds deposited
therein are held for the benefit of the Series 2001-A
Certificateholders. The Principal Funding Account shall
initially be established by the Trustee.
(ii) At the written direction of the Servicer, funds
on deposit in the Principal Funding Account shall be invested
by the Trustee in Eligible Investments selected by the
Servicer. All such Eligible Investments shall be held by the
Trustee for the benefit of the Series 2001-A
Certificateholders; provided that on each Distribution Date
all interest and other investment income (net of losses and
investment expenses ) ("Principal Funding Investment
Proceeds") on funds on deposit therein shall be applied as set
forth in paragraph (iii) below.
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Funds on deposit in the Principal Funding Account shall be
invested in Eligible Investments that will mature so that such
funds will be available at the close of business on the
Transfer Date preceding the following Distribution Date. 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 in writing by the Servicer, the
Servicer having reasonably determined that the interest of the
Series 2001-A Certificateholders may be adversely affected if
such Eligible Investment is held to its maturity. Unless the
Servicer directs otherwise, funds deposited in the Principal
Funding Account on a Transfer Date (which immediately precedes
a Distribution Date) upon the maturity of any Eligible
Investments are not required to be invested overnight.
(iii) On each Distribution Date with respect to the
Accumulation Period, the Servicer shall direct the Trustee in
writing to withdraw from the Principal Funding Account and
deposit into the Collection Account all Principal Funding
Investment Proceeds then on deposit in the Principal Funding
Account, and such Principal Funding Investment Proceeds shall
be treated as a portion of Class A Available Funds for such
Distribution Date.
(iv) Reinvested interest and other investment income
on funds deposited in the Principal Funding Account shall not
be considered to be principal amounts on deposit therein for
purposes of this Supplement.
(v) The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the
Principal Funding Account and in all proceeds thereof. The
Principal Funding Account shall be under the sole dominion and
control of the Trustee for the benefit of the Series 2001-A
Certificateholders. If, at any time, the Principal Funding
Account ceases to be an Eligible Deposit Account, the Trustee
shall within 10 Business Days (or such longer period, not to
exceed 30 calendar days, as to which each Rating Agency may
consent) establish a new Principal Funding Account meeting the
conditions specified in paragraph (a) (i) above as an Eligible
Deposit Account and shall transfer any cash and/or any
investments to such new Principal Funding Account.
(vi) Pursuant to the authority granted to the
Servicer in Section 3.01(b) of the Agreement, the Servicer
shall have the power, revocable by the Trustee, to make
withdrawals and payments or to instruct the Trustee in writing
to make withdrawals and payments from the Principal Funding
Account for the purposes of carrying out the Servicer's or
Trustee's duties hereunder. Pursuant to the authority granted
to the Paying Agent in Section 5.1 of this Supplement and
Section 6.07 of the Agreement, the Paying Agent shall have the
power, revocable by the Trustee, to withdraw funds from the
Principal Funding Account for the purpose of making
distributions to the Series 2001-A Certificateholders.
Section 4.13 Accumulation Period. The Accumulation Period is
scheduled to commence on the Accumulation Date; provided, however, that if the
Accumulation Period Length on any Determination Date (determined as described
below) is less than nine months,
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upon notice to the Trustee, the Seller, each Rating Agency and the Collateral
Interest Holder, the Servicer, at its option, may elect to modify the date on
which the Accumulation Period actually commences to the first day of the month
that is a number of months prior to the month in which the Class A Expected
Final Distribution Date occurs at least equal to the Accumulation Period Length
(so that, as a result, the number of Monthly Periods in the Accumulation Period
will at least equal the Accumulation Period Length); provided, however, that (i)
the length of the Accumulation Period will not be less than one month; and (ii)
notwithstanding any other provision of this Supplement to the contrary, no
election to postpone the commencement of the Accumulation Period shall be made
after a Pay Out Event (as defined in the related Supplement) shall have occurred
and is continuing with respect to any other Series. On each Determination Date,
the Servicer will determine the "Accumulation Period Length," which will mean a
number of months such that the amount available for distribution of principal on
the Class A Certificates on the Class A Expected Final Distribution Date and for
distribution of principal on the Class B Certificates on the Class B Expected
Final Distribution Date will equal or exceed the sum of the Class A Investor
Amount and the Class B Investor Amount, assuming for this purpose that (1) the
payment rate with respect to Collections of Principal Receivables remains
constant at the lowest level of such payment rate during the twelve preceding
Monthly Periods (or such lower payment rate as the Servicer may select), (2) the
total amount of Principal Receivables in the Trust (and the principal amount on
deposit in the Excess Funding Account, if any) remains constant at the level on
such date of determination, (3) no Pay Out Event with respect to any Series will
subsequently occur and (4) no additional Series (other than any Series being
issued on such date of determination) will be subsequently issued. Any notice by
the Servicer electing to modify the commencement of the Accumulation Period
pursuant to this Section 4.13 shall specify (i) the Accumulation Period Length,
(ii) the commencement date of the Accumulation Period and (iii) the Controlled
Accumulation Amount with respect to each Monthly Period during the Accumulation
Period.
Section 4.14 Reserve Account.
(a) The Servicer shall establish and maintain, in the name of
the Trustee, on behalf of the Trust, for the benefit of the Series 2001-A
Holders, an Eligible Deposit Account (the "Reserve Account") bearing a
designation clearly indicating that the funds deposited therein are held for the
benefit of the Series 2001-A Holders. The Reserve Account shall initially be
established with the Trustee. The Trustee shall possess all right, title and
interest in all funds on deposit from time to time in the Reserve Account and in
all proceeds thereof. The Reserve Account shall be under the sole dominion and
control of the Trustee for the benefit of the Series 2001-A Holders. If at any
time the Reserve Account ceases to be an Eligible Deposit Account, the Trustee
(or the Servicer on its behalf) shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Rating Agency may
consent) establish a new Reserve Account meeting the conditions specified above
as an Eligible Deposit Account, and shall transfer any cash and/or any
investments to such new Reserve Account. The Trustee, at the written direction
of the Servicer, shall (i) make withdrawals from the Reserve Account from time
to time for the purposes set forth in this Supplement, and (ii) on each
Distribution Date (from and after the Reserve Account Funding Date) prior to the
termination of the Reserve Account make a deposit into the Reserve Account in
the amount specified in, and otherwise in accordance with, Section 4.7(j).
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(b) Funds on deposit in the Reserve Account shall be invested
at the written direction of the Servicer by the Trustee in Eligible Investments.
Funds on deposit in the Reserve Account on any Transfer Date, after giving
effect to any withdrawals from the Reserve Account on such Transfer Date, shall
be invested in such investments that will mature so that such funds will be
available for withdrawal on or prior to the immediately succeeding Transfer
Date. The Trustee shall maintain for the benefit of the Series 2001-A Holders
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 Servicer in
writing, the Servicer having reasonably determined that the interest of the
Series 2001-A Holders may be adversely affected if such Eligible Investment is
held to its maturity. On each Distribution Date, all interest and earnings (net
of losses and investment expenses) accrued since the preceding Distribution Date
on funds on deposit in the Reserve Account shall be retained in the Reserve
Account (to the extent that the amount on deposit in the Reserve Account is less
than the Required Reserve Account Amount) and the balance, if any, shall be
deposited in the Collection Account and treated as Collections of Finance Charge
Receivables allocable to Series 2001-A. For purposes of determining the
availability of funds or the balance in the Reserve Account for any reason under
this Supplement, except as otherwise provided in the preceding sentence,
investment earnings on such funds shall be deemed not to be available or on
deposit.
(c) On the Determination Date preceding each Distribution Date
with respect to the Accumulation Period (prior to the Class B Expected Final
Distribution Date) and the first Special Payment Date, the Servicer shall
calculate the "Reserve Draw Amount" which shall be equal to the excess, if any,
of the Covered Amount with respect to such Distribution Date or Special Payment
Date over the Principal Funding Investment Proceeds with respect to such
Distribution Date or Special Payment Date; provided, that such amount will be
reduced to the extent that funds otherwise would be available for deposit in the
Reserve Account under subsection 4.7(j) with respect to such Distribution Date.
(d) In the event that for any Distribution Date the Reserve
Draw Amount is greater than zero, the Reserve Draw Amount, up to the amount on
deposit in the Reserve Account, shall be withdrawn from the Reserve Account on
the related Transfer Date by the Trustee (acting in accordance with the
instructions of the Servicer), deposited into the Collection Account and
included in the Class A Available Funds for such Distribution Date.
(e) In the event that the Reserve Account Surplus on any
Distribution Date, after giving effect to all deposits to and withdrawals from
the Reserve Account with respect to such Distribution Date, is greater than
zero, the Trustee, acting in accordance with the written instructions of the
Servicer, shall withdraw from the Reserve Account, and distribute to the
Collateral Interest Holder, an amount equal to such Reserve Account Surplus.
(f) Upon the earliest to occur of (i) the termination of the
Trust pursuant to Article XII of the Agreement, (ii) the day on which the Class
A Investor Amount is paid in full to the Class A Certificateholders, (iii) if
the Accumulation Period has not commenced, the occurrence of a Pay Out Event
with respect to Series 2001-A and (iv) if the Accumulation Period has commenced,
the earlier of the first Special Payment Date and the Class A Expected Final
Distribution Date, the Trustee, acting in accordance with the written
instructions of the Servicer,
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after the prior payment of all amounts owing to the Series 2001-A
Certificateholders which are payable from the Reserve Account as provided
herein, shall withdraw from the Reserve Account and distribute to the Collateral
Interest Holder all amounts, if any, on deposit in the Reserve Account and the
Reserve Account shall be deemed to have terminated for purposes of this
Supplement.
ARTICLE V
Distributions and Reports to Series 2001-A Certificateholders
Section 5.1 Distributions.
(a) On each Distribution Date, the Paying Agent shall
distribute to each Class A Certificateholder of record on the related Record
Date (other than as provided in Section 12.02 of the Agreement) such Class A
Certificateholder's pro rata share of the amounts that are allocated and
available on such Distribution Date to pay interest on the Class A Certificates
pursuant to this Supplement.
(b) On each Distribution Date, commencing with the first to
occur of the Class A Expected Final Payment Date and the first Special Payment
Date, the Paying Agent shall distribute to each Class A Certificateholder of
record on the related Record Date (other than as provided in Section 12.02 of
the Agreement) such Class A Certificateholder's pro rata share of the amounts
that are on deposit in the Principal Funding Account or that are otherwise
allocated and available on such date to pay principal of the Class A
Certificates pursuant to this Supplement up to a maximum amount on any such date
equal to the Class A Investor Amount on such date (unless there has been an
optional repurchase of the Certificateholders' Interest pursuant to Section
10.01 of the Agreement, in which event the foregoing limitation will not apply).
(c) On each Distribution Date, the Paying Agent shall
distribute to each Class B Certificateholder of record on the related Record
Date (other than as provided in Section 12.02 of the Agreement) such Class B
Certificateholder's pro rata share of the amounts that are allocated and
available on such Distribution Date to pay interest on the Class B Certificates
pursuant to this Supplement.
(d) On each Distribution Date, commencing with the Class B
Principal Commencement Date, the Paying Agent shall distribute to each Class B
Certificateholder of record on the related Record Date (other than as provided
in Section 12.02 of the Agreement) such Class B Certificateholder's pro rata
share of the amounts that are on deposit in the Principal Funding Account (after
payments have been made to the Class A Certificateholders as provided in (b)
above) or that are otherwise allocated and available on such date to pay
principal of the Class B Certificates pursuant to this Supplement up to a
maximum amount on any such date equal to the Class B Investor Amount on such
date (unless there has been an optional repurchase of the Certificateholders'
Interest pursuant to Section 10.01 of the Agreement, in which event the
foregoing limitation will not apply).
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(e) On each Transfer Date, the Trustee shall distribute to the
Collateral Interest Holder the aggregate amount payable to the Collateral
Interest Holder pursuant to Sections 4.5, 4.7 and 4.14 to the Collateral
Interest Holder's account, as specified in writing by the Collateral Interest
Holder, in immediately available funds.
(f) The distributions to be made pursuant to this Section 5.1
are subject to the provisions of Sections 2.06, 9.02, 10.01 and 12.02 of the
Agreement and Sections 8.1 and 8.2 of this Supplement.
(g) Except as provided in Section 12.02 of the Agreement with
respect to a final distribution, distributions to Series 2001-A
Certificateholders hereunder shall be made by check mailed to each Series 2001-A
Certificateholder at such Series 2001-A Certificateholder's address appearing in
the Certificate Register without presentation or surrender of any Series 2001-A
Certificate or the making of any notation thereon; provided, however, that with
respect to Series 2001-A Certificates registered in the name of a Clearing
Agency, such distributions shall be made to such Clearing Agency in immediately
available funds.
Section 5.2 Certificates and Statements.
(a) Not later than each Determination Date, the Servicer shall
deliver to the Trustee, the Paying Agent, each Rating Agency and the Collateral
Interest Holder, a certificate substantially in the form of Exhibit B. prepared
by the Servicer.
(b) On each Distribution Date, the Paying Agent, on behalf of
the Trustee, shall forward to each Class A Certificateholder a statement
substantially in the form of Exhibit C-1 prepared by the Servicer and shall
forward to each Class B Certificateholder a statement substantially in the form
of Exhibit C-1 and a supplement to the monthly certificateholder's statement
substantially in the form of Exhibit C-2 prepared by the Servicer.
(c) A copy of each statement or certificate provided pursuant
to paragraph (a) or (b) may be obtained by any Series 2001-A Certificateholder
or any Certificate Owner thereof by a request in writing to the Servicer;
provided that the Servicer shall not be required to deliver a copy of the
supplement described in paragraph (b) to any Class A Certificate or any Class A
Certificate Owner and, with respect to any certificate described in paragraph
(a) delivered to any Class A Certificateholder or Class A Certificate Owner, the
Servicer may omit information relating to the amount of interest paid or
interest rate applicable to the Class B Certificates.
(d) On or before January 31 of each calendar year, beginning
with calendar year 2002, the Paying Agent, on behalf of the Trustee, shall
furnish or cause to be furnished to each Person who at any time during the
preceding calendar year was a Series 2001-A Certificateholder, a statement
prepared by the Servicer containing the information which is required to be
contained in the statement to Series 2001-A Certificateholders, as set forth in
paragraph (b) above, aggregated for such calendar year or the applicable portion
thereof during which such Person was a Series 2001-A Certificateholder, together
with other information as is required to be provided by an issuer of
indebtedness under the Internal Revenue Code. Such obligation of the Servicer
shall be deemed to have been satisfied to the extent that substantially
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comparable information shall be provided by the Paying Agent pursuant to any
requirements of the Internal Revenue Code as from time to time in effect.
ARTICLE VI
Series 2001-A Pay Out Events
Section 6.1 Series 2001-A Pay Out Events. If any one of the
following events (each, a "Series Pay Out Event") shall occur with respect to
Series 2001-A:
(a) failure on the part of the Seller (A) to make any payment
or deposit required by the terms of the Agreement on or before the date
occurring five Business Days after the date such payment or deposit is required
to be made herein or (B) duly to observe or perform in any material respect any
other covenants or agreements of the Seller set forth in the Agreement which has
a material adverse effect on the Series 2001-A Holders (which determination
shall be made, for so long as the Collateral Invested Amount is greater than
zero, without reference to whether any funds are available pursuant to Series
Enhancement) and continues unremedied for a period of 60 days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Seller by the Trustee, or to the Seller and the Trustee
by Series 2001-A Holders aggregating not less than 50% of the outstanding
principal balance of the Series 2001-A;
(b) any representation or warranty made by the Seller in the
Agreement or any information contained in a computer file or microfiche list
required to be delivered by the Servicer on behalf of the Seller pursuant to
Section 2.01 or 2.08 of the Agreement (A) shall prove to have been incorrect in
any material respect when made or when delivered, which continues to be
incorrect in any material respect for a period of 60 days after the date on
which written notice of such failure, requiring the same to be remedied, shall
have been given to the Seller by the Trustee, or to the Seller and the Trustee
by Holders of the Series 2001-A Certificates aggregating not less than 50% of
the outstanding principal balance of the Series 2001-A Certificates and (B) as a
result of which the interests of the Series 2001-A Certificateholders are
materially and adversely affected (which determination shall be made, for so
long as the Collateral Invested Amount is greater than zero, without reference
to whether any funds are available pursuant to any Series Enhancement);
provided, however, that a Series Pay Out Event pursuant to this subparagraph (b)
shall not be deemed to occur hereunder if the Seller has accepted reassignment
of the related Receivable, or all of such Receivables, if applicable, during
such period (or such longer period as the Trustee may specify) in accordance
with the provisions hereof and of the Agreement;
(c) (1) with respect to the last day of any prior Monthly
Period during which the Seller Amount is less than the Required Seller Amount,
the failure of the Seller to convey on or prior to the Required Designation Date
Receivables in Additional Accounts to the Trust such that the Seller Amount
shall be at least equal to the Required Seller Amount as of the close of
business on the applicable Addition Date; or (2) with respect to the last day of
any prior Monthly Period during which the aggregate amount of Principal
Receivables is less than the Required Principal Balance as of such day, the
failure of the Seller to convey on or prior to the Required Designation Date
Receivables in Additional Accounts to the Trust such that the aggregate
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amount of the Principal Receivables shall be at least equal to the Required
Principal Balance as of the close of business on the applicable Addition Date;
(d) the Net Portfolio Yield averaged over three consecutive
Monthly Periods is less than the Base Rate averaged over such period;
(e) any Servicer Default shall occur which would have a
material adverse effect on the Series 2001-A Certificateholders (which
determination shall be made, for so long as the Collateral Invested Amount is
greater than zero, without reference to whether any funds are available pursuant
to any Series Enhancement); or
(f) the Class A Investor Amount shall not be paid in full on
the Class A Expected Final Distribution Date or the Class B Investor Amount
shall not be paid in full on the Class B Expected Final Distribution Date or the
Collateral Invested Amount shall not be paid in full on the Collateral Expected
Final Distribution Date;
then, in the case of any event described in subparagraph (a), (b) or (e), after
the applicable grace period, if any, set forth in such subparagraphs, either the
Trustee or the holders of Investor Certificates (including the Collateral
Interest Holder) of Series 2001-A evidencing more than 50% of the aggregate
unpaid principal amount of such Investor Certificates (including the Collateral
Interest) by notice then given in writing to the Seller and the Servicer (and to
the Trustee if given by the Holders of Investor Certificates (including the
Collateral Interest Holder) of Series 2001-A) may declare that a Pay Out Event
has occurred with respect to Series 2001-A as of the date of such notice, and,
in the case of any event described in subparagraph (c), (d) or (f) a Pay Out
Event shall occur with respect to Series 2001-A without any notice or other
action on the part of the Trustee or Holders of Investor Certificates (including
the Collateral Interest Holder) of Series 2001-A immediately upon the occurrence
of such event.
ARTICLE VII
Optional Repurchase; Series Termination
Section 7.1 Optional Repurchase. On any day occurring on or
after the date on which the Investor Amount is reduced to 5% or less of the
Initial Invested Amount, the Seller shall have the option to purchase the
interest of the Series 2001-A Holders, at a purchase price equal to (i) if such
day is a Distribution Date, the Reassignment Amount for such Distribution Date
or (ii) if such day is not a Distribution Date, the Reassignment Amount for the
Distribution Date following such day.
Section 7.2 Series Termination.
(a) If, on the June 2008 Distribution Date, the Investor
Amount (after giving effect to all changes therein on such date) would be
greater than zero, the Servicer, on behalf of the Trustee, shall, within the
40-day period which begins on such Distribution Date, solicit bids for the sale
of Principal Receivables and the related Finance Charge Receivables (or
interests therein) in an amount equal to the Investor Amount and accrued and
unpaid interest thereon at the close of business on the last day of the Monthly
Period preceding the Series Termination
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Date (after giving effect to all distributions required to be made on the Series
Termination Date, except pursuant to this Section 7.2; provided, however that in
no event shall such amount exceed the Series Percentage of Receivables on the
Series Termination Date). Such bids shall require that such sale shall (subject
to Section 7.2(b)) occur on the Series Termination Date. The Seller and the
Collateral Interest Holder shall be entitled to participate in, and to receive
from the Trustee a copy of each other bid submitted in connection with, such
bidding process.
(b) The Servicer, on behalf of the Trustee, shall sell such
Receivables (or interests therein) on the Series Termination Date to the bidder
who made the highest cash purchase offer. The proceeds of any such sale shall be
treated as Collections on the Receivables allocated to Series 2001-A pursuant to
the Agreement and this Supplement; provided, however, that the Servicer shall
determine conclusively the amount of such proceeds which are allocable to
Finance Charge Receivables and the amount of such proceeds which are allocable
to Principal Receivables. During the period from the June 2008 Distribution Date
to the Series Termination Date, the Servicer shall continue to collect payments
on the Receivables and allocate and deposit such collections in accordance with
the provisions of the Agreement and the Supplements.
ARTICLE VIII
Final Distributions
Section 8.1 Sale of Receivables or Certificateholders'
Interest Pursuant to Section 2.06 or 10.01 of the Agreement.
(a) Purchase Price. The amount to be paid with respect to
Series 2001-A in connection with (i) a reassignment of Receivables to the Seller
pursuant to Section 2.06 of the Agreement or (ii) a repurchase of the
Certificateholders' Interest pursuant to Section 10.01 of the Agreement shall
equal the Reassignment Amount for the first Distribution Date following the
Monthly Period in which the reassignment obligation arises under the Agreement.
(b) Distributions Pursuant to Section 7.1 or 7.2 of this
Supplement and Section 10.01 of the Agreement. With respect to the Reassignment
Amount deposited into the Collection Account pursuant to Section 7.1 or 8.1(a)
or any amounts allocable to Series 2001-A deposited into the Collection Account
pursuant to Section 7.2, the Trustee shall, not later than 3:00 p.m. New York
City time, on the related Distribution Date, make deposits or distributions of
the following amounts (in the priority set forth below and, in each case, after
giving effect to any deposits and distributions otherwise to be made on such
date) in immediately available funds: (i) (x) the Class A Investor Amount on
such Distribution Date will be distributed to the Paying Agent for payment to
the Class A Certificateholders and (y) an amount equal to the sum of (A) Class A
Monthly Interest for such Distribution Date, (B) any Class A Monthly Interest
previously due but not distributed to the Class A Certificateholders on a prior
Distribution Date and (C) the amount of Class A Additional Interest, if any, for
such Distribution Date and any Class A Additional Interest previously due but
not distributed to the Class A Certificateholders on any prior Distribution
Date, will be distributed to the Paying Agent for payment to the Class A
Certificateholders, (ii) (x) the Class B Investor Amount on such Distribution
Date will be distributed to the Paying Agent for payment to the Class B
Certificateholders and (y) an amount equal to the sum of (A) Class B Monthly
Interest for such Distribution Date, (B) any Class B
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Monthly Interest previously due but not distributed to the Class B
Certificateholders on a prior Distribution Date and (C) the amount of Class B
Additional Interest, if any, for such Distribution Date and any Class B
Additional Interest previously due but not distributed to the Class B
Certificateholders on any prior Distribution Date, will be distributed to the
Paying Agent for payment to the Class B Certificateholders and (iii) all
remaining amounts will be distributed to the Collateral Interest Holder.
(c) Notwithstanding anything to the contrary in this
Supplement or the Agreement, all amounts distributed to the Paying Agent
pursuant to Section 8.1(b) for payment to the Series 2001-A Certificateholders
shall be deemed distributed in full to the Series 2001-A Certificateholders on
the date on which such funds are distributed to the Paying Agent pursuant to
this Section and shall be deemed to be a final distribution pursuant to Section
12.02 of the Agreement.
Section 8.2 Distribution of Proceeds of Sale, Disposition or
Liquidation of the Receivables Pursuant to Section 9.02 of the Agreement.
(a) Not later than 12:00 noon, New York City time, on the
Distribution Date following the date on which the Insolvency Proceeds are
deposited into the Collection Account pursuant to Section 9.02(b) of the
Agreement, the Trustee shall (in the following priority and, in each case, after
giving effect to any deposits and distributions otherwise to be made on such
Distribution Date) (i) deduct an amount equal to the Class A Investor Amount on
such Distribution Date from the portion of the Insolvency Proceeds allocated to
Collections of Principal Receivables and distribute such amount to the Paying
Agent for payment to the Class A Certificateholders, provided that the amount of
such distribution shall not exceed the product of (x) the portion of the
Insolvency Proceeds allocated to Collections of Principal Receivables and (y)
the Principal Allocation Percentage with respect to the related Monthly Period,
(ii) deduct an amount equal to the Class Investor Amount on such Distribution
Date from the portion of the Insolvency Proceeds allocated to Collections of
Principal Receivables and distribute such amount to the Paying Agent for payment
to the Class B Certificateholders, provided that the amount of such distribution
shall not exceed (x) the product of (A) the portion of such Insolvency Proceeds
allocated to Collections of Principal Receivables and (B) the Principal
Allocation Percentage with respect to the related Monthly Period minus (y) the
amount distributed to the Paying Agent pursuant to clause (i) of this sentence
and (iii) distribute the remaining amount of the Insolvency Proceeds to the
Collateral Interest Holder.
(b) Not later than 12:00 noon, New York City time, on such
Distribution Date, the Trustee shall (in the following priority and, in each
case, after giving effect to any deposits and distributions otherwise to be made
on such Distribution Date) (i) deduct an amount equal to the sum of (w) Class A
Monthly Interest for such Distribution Date, (x) any Class A Monthly Interest
previously due but not distributed to the Class A Certificateholders on a prior
Distribution Date and (y) the amount of Class A Additional Interest, if any, for
such Distribution Date and any Class A Additional Interest previously due but
not distributed to the Class A Certificateholders on a prior Distribution Date
from the portion of the Insolvency Proceeds allocated to Collections of Finance
Charge Receivables and distribute such amount to the Paying Agent for payment to
the Class A Certificateholders, provided that the amount of such distribution
shall not exceed the product of (x) the portion of the Insolvency Proceeds
allocated
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to Collections of Finance Charge Receivables, (y) the Floating Allocation
Percentage with respect to the related Monthly Period and (z) the Class A
Floating Percentage with respect to such Monthly Period and (ii) deduct an
amount equal to the sum of (w) Class B Monthly Interest for such Distribution
Date, (x) Class B Monthly Interest previously due but not distributed to the
Class B Certificateholders and (y) the amount of Class B Additional Interest, if
any, for such Distribution Date and any Class B Additional Interest previously
due but not distributed to the Class B Certificateholders on a prior
Distribution Date from the portion of the Insolvency Proceeds allocated to
Collections of Finance Charge Receivables and distribute such amount to the
Paying Agent for payment to the Class B Certificateholders, provided that the
amount of such distribution shall not exceed the product of (x) the portion of
the Insolvency Proceeds allocated to Collections of Finance Charge Receivables,
(y) the Floating Allocation Percentage with respect to the related Monthly
Period and (z) the Class B Floating Percentage with respect to such Monthly
Period. To the extent that the product of (A) the portion of the Insolvency
Proceeds allocated to Collections of Finance Charge Receivables and (B) the
Floating Allocation Percentage with respect to the related Monthly Period
exceeds the aggregate amount distributed to the Paying Agent pursuant to the
preceding sentence, the excess shall be distributed to the Collateral Interest
Holder.
(c) Notwithstanding anything to the contrary in this
Supplement or the Agreement, all amounts distributed to the Paying Agent
pursuant to this Section for payment to the Series 2001-A Certificateholders
shall be distributed in full to the Series 2001-A Certificateholders on the date
on which funds are distributed to the Paying Agent pursuant to this Section and
shall be deemed to be a final distribution pursuant to Section 12.02 of the
Agreement.
Section 8.3 Instructions Pursuant to Section 9.02(a) of the
Agreement. The Holders of Investor Certificates of Series 2001-A evidencing more
than 50% of the Investor Amount of each Class (including the Collateral
Interest) shall not be considered as having disapproved of any liquidation of
the Receivables and to continue transferring Principal Receivables to the Trust
pursuant to Section 9.02(a) of the Agreement unless Holders of more than 50% of
the Investor Amount of each of the Class A Certificates, the Class B
Certificates and the Collateral Interest instruct the Trustee to such effect in
the manner required pursuant to Section 9.02(a) of the Agreement.
ARTICLE IX
Certificates
Section 9.1 Book-Entry Certificates; Private Placement of the
Class B Certificates.
(a) The Class A Certificates and the Class B Certificates
shall be delivered as Book-Entry Certificates. The Clearing Agency for the Class
A Certificates and the Class B Certificates shall be The Depository Trust
Company, and the Class A Certificates and the Class B Certificates shall be
initially registered in the name of Cede & Co., its nominee.
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(b) The Class B Certificates have not been registered under
the Act or any state securities law. The Class B Certificates shall bear a
legend to the effect set forth in Exhibit A-2 hereto, which, notwithstanding
anything in the Agreement and this Supplement to the contrary, shall not require
the application of subsection 6.04(c) of the Agreement to any transfer of any
such Class B Certificates. Neither the Seller nor the Trustee is obligated to
register the Class B Certificates under the Act or to take any other action not
otherwise required under this Supplement or the Agreement to permit the transfer
of the Class B Certificates without registration.
(c) No transfer of any Class B Certificate or any interest
therein (including, without limitation, by pledge or hypothecation) shall be
made, unless registered under the Act or any state securities law, except in
compliance with the restrictions on transfer set forth in this Section 9.1
(including the applicable legend to be set forth on the face of each Class B
Certificate as provided in Exhibit A-2) in a transaction exempt from the
registration requirements of the Act and applicable state securities or "Blue
Sky" laws to a person (i) that the transferor reasonably believes is a
"qualified institutional buyer" within the meaning thereof in Rule 144A (a
"QIB") in the form of beneficial interests in the Class B Certificates, and (ii)
that is aware that the resale or other transfer is being made in reliance on
Rule 144A.
(d) Each purchaser of a Class B Certificate, by its acceptance
thereof, will be deemed to have acknowledged, represented to and agreed with the
Seller as follows:
(i) It understands and acknowledges that the Class B
Certificates have not been and will not be registered under
the Act or any other applicable securities law, are eligible
for resale pursuant to Rule 144A, and, unless so registered,
may not be offered, sold or otherwise transferred except in
compliance with the registration requirements of the Act and
any other applicable securities law, pursuant to Rule 144A and
in each case in compliance with the conditions for transfer
set forth in paragraph (iv) below.
(ii) It is a "qualified institutional buyer," as
defined in Rule 144A, and it is aware that any sale of the
Class B Certificates to it will be made in reliance on its
representation that is a QIB. Such acquisition will be for its
own account or for the account of another QIB.
(iii) It acknowledges that neither the Seller nor any
person representing the Seller has made any representation to
it with respect to the Seller or the offering or sale of any
Class B Certificates, other than the information contained in
the private placement memorandum relating to the Class B
Certificates and the accompanying Prospectus which have been
delivered to it and upon which it is relying in making its
investment decision with respect to the Class B Certificates.
It has had access to such financial and other information
concerning the Seller and the Class B Certificates as it has
deemed necessary in connection with its decision to purchase
the Class B Certificates, including an opportunity to ask
questions of and request information from the Seller.
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(iv) It is purchasing the Class B 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 offer or sale in
connection with, any distribution thereof in violation of the
Act, subject to any requirements of law that the disposition
of its property or the property of such investor account or
accounts be at all times within its or their control and
subject to its or their ability to resell such Class B
Certificates pursuant to Rule 144A or subject to any other
available exemption from the registration requirements of the
Act. It agrees on its own behalf and on behalf of any investor
account for which it is purchasing the Class B Certificates
and each subsequent holder of the Class B Certificates by its
acceptance thereof will agree to offer, sell or otherwise
transfer such Class B Certificates only (i) pursuant to a
registration statement which has been declared effective under
the Act or (ii) for so long as the Class B Certificates are
eligible for resale under Rule 144A, to a person it reasonably
believes is a QIB that purchases for its own account or for
the account of a QIB to whom notice is given that the transfer
is being made in reliance on Rule 144A, subject in each of the
foregoing cases to any requirement of law that the disposition
of its property or the property of such investor account or
accounts be at all times within its or their control. Each
purchaser acknowledges that each Class B Certificate will
contain a legend substantially to the following effect:
"THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS
CERTIFICATE, AGREES THAT THIS CERTIFICATE, OR ANY
INTEREST OR PARTICIPATION HEREIN, MAY BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN
COMPLIANCE WITH THE SECURITIES ACT AND OTHER
APPLICABLE LAWS AND ONLY (1) TO THE BANK, (2)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT, OR (3)
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A
PERSON THAT THE HOLDER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT (A "QIB")
PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING
FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS
INFORMED, IN EACH CASE, THAT THE REOFFER, RESALE,
PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A UNDER THE SECURITIES ACT. EACH CERTIFICATE
OWNER BY ACCEPTING A BENEFICIAL INTEREST IN THIS
CERTIFICATE IS DEEMED TO REPRESENT THAT IT IS EITHER
A QIB PURCHASING FOR ITS OWN ACCOUNT OR A QIB
PURCHASING FOR THE ACCOUNT OR A QIB PURCHASING FOR
THE ACCOUNT OF ANOTHER QIB.
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46
PRIOR TO PURCHASING ANY CLASS B CERTIFICATES,
PURCHASERS SHOULD CONSULT COUNSEL WITH RESPECT TO THE
AVAILABILITY AND CONDITIONS OF EXEMPTION FROM THE
RESTRICTION ON RESALE OR TRANSFER. THE BANK HAS NOT
AGREED TO REGISTER THE CLASS B CERTIFICATES UNDER THE
SECURITIES ACT, TO QUALIFY THE CLASS B CERTIFICATES
UNDER THE SECURITIES LAWS OF ANY STATE OR TO PROVIDE
REGISTRATION RIGHTS TO ANY PURCHASER.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE
HEREOF COVENANTS AND AGREES THAT IT WILL NOT AT ANY
TIME INSTITUTE AGAINST THE TRUST, OR JOIN IN ANY
INSTITUTION AGAINST THE TRUST OF, ANY BANKRUPTCY
PROCEEDINGS UNDER ANY UNITED STATED FEDERAL OR STATE
BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY
OBLIGATIONS RELATING TO THE CLASS B CERTIFICATES OR
THE POOLING AND SERVICING AGREEMENT."
(v) It acknowledges that the Seller and others will
rely upon the truth and accuracy of the foregoing
acknowledgements, representations and agreements and agrees
that, if any of the acknowledgements, representations or
warranties deemed to have been made by it by its purchase of
Class B Certificates are no longer accurate, it shall promptly
notify the Seller. If it is acquiring any Class B Certificates
as a fiduciary or agent for one or more investor accounts, it
represents that it has sole investment discretion with respect
to each such account and that it has full power to make the
foregoing acknowledgements, representations and agreements on
behalf of each such account.
(vi) It acknowledges that the Seller, the Owner Trust
and others will rely on the truth and accuracy of the
foregoing acknowledgements, representations and agreements,
and agrees that if any of the foregoing acknowledgements,
representations and agreements deemed to have been made by it
are no longer accurate, it shall promptly notify the Seller
and the Owner Trust.
(e) Each purchaser of a Class B Certificate, by its acceptance
thereof, will be deemed to have acknowledged, represented to and agreed with the
Seller that it is not and will not be (a) an employee benefit plan that is
subject to ERISA, (b) a plan or other arrangement (including an individual
retirement account or Keogh plan) that is subject to Section 4975 of the Code,
or (c) an entity whose underlying assets include "plan assets" under the Plan
Asset Regulation by reason of any such plan's investment in the entity other
than an insurance company which is investing assets of its general account and
satisfies conditions applicable under Sections I and III of the U.S. Department
of Labor Prohibited Transaction Class Exemption 95-60. Each purchaser of a Class
B Certificate acknowledges that each Class B
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Certificate will contain a legend substantially to the following effect (in
addition to the legend in subsection 10.05(d)(iv) above):
"THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE
HEREOF REPRESENTS AND WARRANTS, FOR THE BENEFIT OF
FLEET BANK (RI), NATIONAL ASSOCIATION, THAT SUCH
HOLDER IS NOT (1) AN EMPLOYEE BENEFIT PLAN THAT IS
SUBJECT TO THE EMPLOYEE RETIREMENT INCOME SECURITY
ACT OF 1974, AS AMENDED, (2) A PLAN OR OTHER
ARRANGEMENT (INCLUDING AN INDIVIDUAL RETIREMENT
ACCOUNT OR KEOGH PLAN) THAT IS SUBJECT TO SECTION
4975 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, OR (3) AN ENTITY WHOSE UNDERLYING ASSETS
INCLUDE "PLAN ASSETS" UNDER THE PLAN ASSET REGULATION
BY REASON OF ANY SUCH PLAN'S INVESTMENT IN THE ENTITY
OTHER THAN AN INSURANCE COMPANY WHICH IS INVESTING
ASSETS OF ITS GENERAL ACCOUNT AND SATISFIES THE
CONDITIONS APPLICABLE UNDER SECTIONS I AND III OF
U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS
EXEMPTION 95-60. BY ACCEPTING AND HOLDING THIS CLASS
B CERTIFICATE, THE HOLDER HEREOF SHALL BE DEEMED TO
HAVE REPRESENTED AND WARRANTED THAT IT IS NOT A
BENEFIT PLAN OR THAT IT IS AN INSURANCE COMPANY WHICH
SATISFIES THE CONDITIONS SPECIFIED ABOVE. BY
ACQUIRING ANY INTEREST IN THIS CLASS B CERTIFICATE,
THE APPLICABLE CERTIFICATE OWNER OR OWNERS SHALL BE
DEEMED TO HAVE REPRESENTED AND WARRANTED THAT IT OR
THEY ARE NOT BENEFIT PLANS OR THAT IT IS AN INSURANCE
COMPANY WHICH SATISFIES THE CONDITIONS SPECIFIED
ABOVE."
ARTICLE X
Miscellaneous Provisions
Section 10.1. Certain Matters Regarding the Collateral
Interest Holder. Amounts payable to the Collateral Interest Holder hereunder
shall be applied in accordance with the provisions of the Transfer Agreement.
Section 10.2 Ratification of Agreement. As supplemented by
this Supplement, the Agreement is in all respects ratified and confirmed and the
Agreement as so supplemented by this Supplement shall be read, taken and
construed as one and the same instrument.
Section 10.3 Counterparts. This Supplement 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.
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48
Section 10.4 GOVERNING LAW. THIS SUPPLEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING THE UCC AS IN
EFFECT IN 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 10.5 Notices. All directions, notices and instructions
to the Trustee shall be in writing (which may be facsimile).
Section 10.6 Amendments. This Supplement may be amended by the
Seller without the consent of the Servicer, the Trustee or any Investor
Certificateholder if the Seller provides the Trustee with (i) an Opinion of
Counsel to the effect that such amendment or modification would reduce the risk
that the Trust would be treated as taxable as a publicly traded partnership
pursuant to Code section 7704 and (ii) an Officer's Certificate that such
amendment or modification would not materially and adversely affect any Investor
Certificateholder; provided that no such amendment shall be deemed effective
without (i) the Trustee's consent, if the Trustee's rights, duties and
obligations hereunder are thereby modified and (ii) the Trustee having obtained
written assurance that such amendment or modification will not, by itself, lower
the current ratings on the Series 2001-A Certificates. The Seller shall provide
the Rating Agencies with prior written notice of any such amendment or
modification.
Section 10.7. Uncertificated Securities. The Collateral
Interest shall be delivered in uncertificated form.
Section 10.8. Transfers of the Collateral Interest.
(a) Unless otherwise consented to by the Seller, no portion of
the Collateral Interest or any interest therein may be sold, conveyed, assigned,
hypothecated, pledged, participated, exchanged or otherwise transferred (each, a
"Transfer") except in accordance with this Section 10.8 and only to a Permitted
Assignee. Any attempted or purported transfer, assignment, exchange, conveyance,
pledge, hypothecation or grant other than to a Permitted Assignee shall be void.
Unless otherwise consented to by the Seller, no portion of the Collateral
Interest or any interest therein may be Transferred to any Person (each such
Person acquiring the Collateral Interest or any interest therein, an "Assignee")
unless such Assignee shall have executed and delivered to the Seller on or
before the effective date of any Transfer a letter substantially in the form
attached hereto as Exhibit D (an "Investment Letter"), executed by such
Assignee, with respect to the related Transfer to such Assignee of all or a
portion of the Collateral Interest.
(b) Each Assignee will certify that the Collateral Interest or
the interest therein purchased by such Assignee will be acquired for investment
only and not with a view to any public distribution thereof, and that such
Assignee will not offer to sell or otherwise dispose of the Collateral Interest
or any interest therein so acquired by it in violation of any of the
registration requirements of the Securities Act, or any applicable state or
other securities laws. Each Assignee will acknowledge and agree that (i) it has
no right to require the Seller to register under the Securities Act or any other
securities law the Collateral Interest or the interest therein
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49
to be acquired by the Assignee and (ii) the sale of the Collateral Interest is
not being made by means of the prospectus prepared in connection with the sale
of the Series 2001-A Certificates. Each Assignee will agree with the Seller
that: (a) such Assignee will deliver to the Seller on or before the effective
date of any Transfer a letter in the form annexed hereto as Exhibit E (an
"Investment Letter"), executed by such Assignee with respect to the purchase by
such Assignee of all or a portion of the Collateral Interest and (b) all of the
statements made by such Assignee in its Investment Letter shall be true and
correct as of the date made.
(c) No portion of the Collateral Interest or any interest
therein may be Transferred, and each Assignee will certify that it is not, (a)
an "employee benefit plan" (as defined in Section 3(3) of ERISA) which is
subject to ERISA, (b) any "plan" (as defined in Section 4975(e)(1) of the Code),
including individual retirement accounts and Keogh plans, which is subject to
Section 4975 of the Code or (c) any other entity whose underlying assets include
"plan assets" (within the meaning of Department of Labor Regulation Section
2510.3-101 or otherwise under ERISA) by reason of any such plan's investment in
the entity, including, without limitation, an insurance company general account.
(d) This Section 10.8 shall not apply to the transfer and
pledge of the Collateral Interest on the Closing Date by the Bank pursuant to
the Transfer Agreement or by Fleet Secured Note Trust 2001-A to the Indenture
Trustee (as defined in the Transfer Agreement) pursuant to the Indenture (as
defined in the Transfer Agreement).
[Signature Page to Follow]
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IN WITNESS WHEREOF, the undersigned have caused this
Supplement to be duly executed and delivered by their respective duly authorized
officers on the day and year first above written.
FLEET BANK (RI), NATIONAL ASSOCIATION,
Seller and Servicer,
By: /s/ Jeffrey A. Lipson
--------------------------------
Name: Jeffrey A. Lipson
Title: Vice President
BANKERS TRUST COMPANY,
Trustee
By: /s/ Peter Becker
----------------------------------
Name: Peter Becker
Title: Assistant Vice President
[Signature Page for Series 2001-A Supplement]
51
EXHIBIT A-1
TO SUPPLEMENT
REGISTERED
FLEET CREDIT CARD MASTER TRUST II
CLASS A FLOATING RATE ASSET-BACKED CERTIFICATE,
SERIES 2001-A
Unless this Class A Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Issuer or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
Evidencing an undivided interest in a trust, the corpus of which
consists of receivables generated from time to time in the ordinary course
of business in a portfolio of revolving consumer credit card accounts
owned by Fleet Bank (RI), National Association (the "Bank") as successor
in interest to Advanta National Bank (formerly known as Advanta National
Bank USA and prior to that known as Colonial National Bank USA and
successor in interest to the former Advanta National Bank) or any
Additional Seller.
No. _____ CUSIP NO. __________________
$__________________
(Not an interest in or obligation of Fleet Bank (RI), National
Association or any affiliate thereof, except to the limited extent
described herein.)
This certifies that CEDE & CO. (the "Investor Certificateholder") is
the registered owner of an undivided interest in certain assets of a trust (the
"Trust"), created pursuant to the Amended and Restated Pooling and Servicing
Agreement, dated as of December 1, 1993 (as amended and restated as of May 23,
1994, and as amended by Amendment Number 1, dated as of July 1, 1994, as further
amended by Amendment Number 2, dated as of October 6, 1995, as further amended
by Amendment Number 3, dated as of February 20, 1998, and as further amended by
Amendment Number 4, dated as of May 14, 1999, as further amended by amendment
Number 5, dated as of December 29, 2000, and as assigned by Advanta National
Bank to the Bank pursuant to an Assignment and Assumption Agreement, dated as of
February 20, 1998, among Advanta National Bank, the Bank, Fleet Credit Card,
LLC, and Bankers Trust
52
Company, as trustee, the "Amended and Restated Pooling and Servicing Agreement")
between the Bank, as seller (in such capacity together with its predecessors as
sellers during such period as any such predecessors were sellers, the "Seller")
and servicer (in such capacity, the "Servicer"), and Bankers Trust Company, as
trustee (the "Trustee"), as supplemented by the Series 2001-A Supplement, dated
as of February 23, 2001, by and between the Bank, as Seller and Servicer, and
the Trustee. The Amended and Restated Pooling and Servicing Agreement, the
Series 2001-A Supplement and any amendments, exhibits and schedules thereto are
collectively referred to herein as the "Agreement." The corpus of the Trust
consists of (i) a portfolio of receivables (the "Receivables") arising under
selected VISA and MasterCard* consumer credit card accounts or other revolving
consumer credit accounts (the "Accounts") in portfolios of revolving consumer
credit accounts owned by any of the Bank or any Additional Seller, (ii) all
monies due or to become due in payment of the Receivables, all proceeds of the
Receivables (other than investment earnings related to such proceeds), (iii) the
right to receive certain Interchange attributed to cardholder charges for
merchandise and services in the Accounts, (iv) certain amounts recovered from
Accounts in which the Receivables have been written off as uncollectible, (v)
proceeds of credit insurance policies relating to the Receivables and (vi) all
monies on deposit in certain bank accounts of the Trust and the benefits of any
type of enhancement ("Series Enhancement") issued with respect to any Series
(the drawing on or payment of such Series Enhancement being available only to
Certificateholders of a specified Series or Class unless otherwise indicated in
the related Supplement). The Trust assets may also include participations
(including 100% participations) representing undivided interests in a pool of
assets primarily consisting of revolving credit card receivables or consumer
loan receivables (secured and unsecured), and any interests in both such types
of receivables, including securities representing or backed by both such types
of receivables, and other self-liquidating financial assets owned by the Seller
or any affiliate of the Seller and collections thereon. The Seller conveyed to
the Trust all Receivables existing under certain designated Accounts at the time
of the formation of the Trust and all Receivables arising under such Accounts
from time to time thereafter. In addition, the Seller has conveyed and the
Seller may convey in the future all Receivables existing under certain
designated Additional Accounts (including Automatic Additional Accounts) and all
Receivables thereafter arising in such Additional Accounts.
Although a summary of certain provisions of the Agreement is set
forth below, this Class A Certificate does not purport to summarize the
Agreement, such summary is qualified in its entirety by the terms and provisions
of the Agreement and reference is made to the 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. A copy
of the Agreement may be obtained from the Trustee by writing to the Trustee at
Four Albany Street, New York, New York 10006, Attention: Corporate Trust and
Agency Group/Structured Finance Group. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in the
Agreement.
- ---------
* VISA and MasterCard are registered trademarks of VISA USA, Inc., and
MasterCard International, respectively.
A-1-2
53
This Class A Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement to which the Holder of this
Class A Certificate by virtue of the acceptance hereof assents and is bound.
It is the intent of the Seller and the Class A Certificateholders
that, for federal income taxes, state and local income and franchise taxes and
any other taxes imposed on or measured by income, the Class A Certificates will
be treated as indebtedness secured by the Receivables. The Servicer, by entering
into the Agreement, and the Seller, the Holder of the Bank Certificate, each
Holder of a Class A Certificate and each Holder of a Class B Certificate, by
acceptance of its Certificate, agrees to treat the Series 2001-A Certificates
for purposes of federal income taxes, state and local income and franchise
taxes, and any other taxes imposed on or measured by income, as indebtedness of
the Seller.
Subject to the terms of the Agreement, payments of principal of the
Class A Certificates are limited to the unpaid Class A Investor Amount, which
may be less than the unpaid principal balance of the Class A Certificates,
pursuant to the terms of the Agreement. All principal of and interest on the
Class A Certificates is scheduled to be paid by the February 2005 Distribution
Date but may be paid earlier. Subject to prior termination as provided in the
Agreement, the interest of the Series 2001-A Certificateholders in the Trust
will terminate following the earliest of (i) the date on which the Investor
Amount is paid in full, (ii) the August 2008 Distribution Date and (iii) the
termination of the Trust pursuant to Section 12.01 of the Agreement.
The Receivables consist of Principal Receivables which arise
generally from the purchase of goods and services and cash advances and in
respect of Periodic Finance Charges, Overlimit Fees, Late Fees, annual
membership fees and annual service charges, if any, Cash Advance Fees,
transaction charges and all other fees and charges with respect to the Accounts
designated by the Seller to be included in Finance Charge Receivables. This
Certificate is one of a series of Certificates entitled "Fleet Credit Card
Master Trust II, Class A Floating Rate Asset Backed Certificates, Series 2001-A"
(the "Class A Certificates"), each of which represents a fractional undivided
interest in certain assets of the Trust. The Trust's assets are allocated in
part to the Holders of the Class A Certificates, in part to the Holders of the
Class B Certificates, in part to the Collateral Interest Holder, in part to the
Holders of Investor Certificates of all other Series and in part to the Seller
as Holder of the Bank Certificate and the Holders of any Supplemental
Certificates outstanding from time to time. The Bank Certificate and the Holders
of any outstanding Supplemental Certificates represent the Sellers' Interest in
the Trust. The Bank Certificate and any outstanding Supplemental Certificates
represent the interest in the Principal Receivables not represented by the
Investor Certificates.
The aggregate interest represented by the Series 2001-A Certificates
and the Collateral Interest at any time in the Principal Receivables in the
Trust shall not exceed an amount equal to the Principal Allocation Percentage
thereof (as set forth in the Agreement) at such time. The Initial Invested
Amount is $950,000,000. The Invested Amount for any date will equal the sum of
the Class A Invested Amount, the Class B Invested Amount and the Collateral
Invested Amount. The Class A Initial Invested Amount is $783,750,000. The Class
A Invested Amount for any date of determination will be an amount equal to (a)
the Class A Initial Invested
A-1-3
54
Amount, minus (b) the aggregate amount of principal payments made to the Class A
Certificateholders on or prior to such date, minus (c) the excess, if any, of
the aggregate amount of Class A Investor Charge-Offs for all prior Distribution
Dates over the aggregate amount of Class A Investor Charge-Offs reimbursed prior
to such date, minus (d) the Principal Funding Account Balance (but not in excess
of the Class A Initial Invested Amount) on such date.
Interest will be distributed monthly on the 15th day of each
calendar month or, if such 15th day is not a Business Day, payment will be made
on the next succeeding Business Day (each, a "Distribution Date"), commencing
April 16, 2001, in an amount equal to the product of (i) (a) a fraction, the
numerator of which is the actual number of days in the related Interest Period
and the denominator of which is 360, times (b) the Class A Certificate Rate, and
(ii) the outstanding principal amount of the Class A Certificates as of the
preceding Record Date (or, in the case of the first Distribution Date, as of the
Closing Date).
The Class A Certificates will bear interest for each Interest Period
at the rate of 0.15% per annum above LIBOR determined as set forth below (the
"Class A Certificate Rate").
The Trustee will determine LIBOR on February 21, 2001 for the period
from the Closing Date through April 15, 2001 and for each Interest Period
thereafter, on the second London Business Day prior to the Distribution Date on
which such Interest Period commences (each, a "LIBOR Determination Date"). A
"London Business Day" is any day on which dealings in deposits in United States
dollars are transacted in the London interbank market. The Class A Certificate
Rate applicable to the then current and the immediately preceding Interest
Periods may be obtained by telephoning the Trustee at its Corporate Trust Office
at (800) 735-7777.
The determination of LIBOR will be made in accordance with the
following provisions:
(i) On each LIBOR Determination Date, the Trustee will determine
LIBOR based on the rate for deposits in United States dollars for a period
of the Designated Maturity which appears on Telerate Page 3750 as of 11:00
A.M. (London time) on such date.
(ii) If such rate does not appear on Telerate Page 3750, the Trustee
will determine LIBOR on the basis of quotations of the offered rates for
deposits in United States dollars provided by the Reference Banks at
approximately 11:00 A.M. (London time) on such LIBOR Determination Date to
prime banks in the London interbank market for a period of the Designated
Maturity. If at least two such quotations are provided, LIBOR will be the
arithmetic mean of such quotations.
(iii) If, on the LIBOR Determination Date, such rate does not appear
on Telerate Page 3750 and only one or none of the Reference Banks provides
such offered quotations, LIBOR will be the rate per annum that the Trustee
determines to be the arithmetic mean of the offered quotations that three
major banks in The City of New York selected by the Servicer are quoting
at approximately 11:00 A.M. (New York City
A-1-4
55
time) on that day for loans in United States dollars to leading European
banks for a period of the Designated Maturity.
"Designated Maturity" as used in the preceding provisions means, one
month; provided, that LIBOR for the initial Interest Period will be determined
by straight-line interpolation (based on the actual numbers of days in the
initial Interest Period) between two rates determined in accordance with the
definition of LIBOR, one of which will be determined for a Designated Maturity
of one month and the other of which will be determined for a Designated Maturity
of two months.
On each Distribution Date with respect to the Accumulation Period,
an amount equal to the least of (a) Available Investor Principal Collections on
deposit in the Collection Account with respect to such Distribution Date, (b)
the Controlled Deposit Amount for such Distribution Date and (c) the Class A
Invested Amount on such Distribution Date, will be deposited in the Principal
Funding Account for payment to the Class A Certificateholders on the earlier to
occur of the Class A Expected Final Distribution Date or the first Distribution
Date with respect to the Rapid Amortization Period.
On each Distribution Date during the Rapid Amortization Period until
the Class A Investor Amount has been paid in full or the Series Termination Date
occurs, the Class A Certificateholders will be entitled to receive Available
Investor Principal Collections in an amount up to the Class A Investor Amount.
On any Distribution Date occurring on or after the Investor Amount
is reduced to 5% or less of the Initial Invested Amount during the Revolving
Period the Seller will have the option (to be exercised in its sole discretion)
to repurchase the Certificates.
This Class A Certificate does not represent an obligation of, or an
interest in, FleetBoston Financial, the Bank, any Additional Seller, the
Servicer or any Affiliate of any of them. None of the Class A Certificates, the
Accounts nor the Receivables are deposits or insured or guaranteed by the
Federal Deposit Insurance Corporation or any other governmental agency. This
Class A Certificate is limited in right of payment to certain Collections with
respect to the Receivables (and certain other amounts), all as more specifically
set forth herein and in the Agreement.
The Agreement may be amended under certain circumstances by the
Servicer, the Seller and the Trustee, without Certificateholder consent,
provided that (i) the Seller shall have delivered to the Trustee an Officer's
Certificate to the effect that the Seller reasonably believes that such
amendment will not result in the occurrence of a Pay Out Event or materially
adversely affect the amount or timing of distributions to be made to the
Investor Certificateholders of any Series or Class and (ii) written confirmation
from each Rating Agency that such amendment will not result in a reduction or
withdrawal of the rating of the Series 2001-A Certificates or the rating of any
other outstanding Series or Class with respect to which it is a Rating Agency.
The Agreement may be amended by the Servicer, the Seller and the
Trustee, with the consent of the Holders of Investor Certificates evidencing not
less than 66-2/3% of the
A-1-5
56
aggregate Investor Amount of the Investor Certificates of all adversely affected
Series, for the purpose of adding any provisions to, changing in any manner or
eliminating any of the provisions of the Agreement or of modifying in any manner
the rights of Investor Certificateholders of any Series then issued and
outstanding; provided, however, that no such amendment shall (a) reduce in any
manner the amount of, or delay the timing of, distributions to Investor
Certificateholders or deposits of amounts to be so distributed or the amount
available under any Series Enhancement without the consent to any such amendment
of each affected Certificateholder, (b) change the definition of or the manner
of calculating the interest of any Investor Certificateholder without the
consent of each affected Investor Certificateholder, (c) reduce the aforesaid
percentage required to consent to any such amendment without the consent of each
Investor Certificateholder or (d) adversely affect the rating of any Series or
Class by each Rating Agency without the consent of the Holders of Investor
Certificates of such Series or Class evidencing not less than 66-2/3% of the
aggregate Investor Amount of the Investor Certificates of such Series or Class.
The Class A Certificates are issuable only in denominations of
$1,000 and integral multiples of $1,000 in excess thereof. The transfer of this
Class A Certificate shall be registered in the Certificate Register upon
surrender of this Class A Certificate for registration of transfer at any office
or agency maintained by the Transfer Agent and Registrar accompanied by a
written instrument of transfer, in a form satisfactory to the Trustee and the
Transfer Agent and Registrar, duly executed by the Holder or his attorney and
duly authorized in writing, and thereupon one or more new Class A Certificates
of authorized denominations and for the same aggregate fractional undivided
interest will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations
therein set forth, this Class A Certificate is exchangeable for a new Class A
Certificate evidencing a like aggregate fractional undivided interest, as
requested by the Holder surrendering this Class A Certificate. No service charge
may be imposed for any such exchange, but the Transfer Agent and Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
Prior to due presentation of this Class A Certificate for
registration of transfer, the Transfer Agent and Registrar, the Paying Agent and
the Trustee and any agent of any of them may treat the person in whose name this
Class A Certificate is registered as the owner hereof for all purposes, and
neither the Trustee, the Paying Agent or the Transfer Agent and Registrar nor
any agent of any of them shall be affected by notice to the contrary except in
certain circumstances described in the Agreement.
This Class A Certificate shall be construed in accordance with and
governed by the laws of the State of New York, without reference to its conflict
of law provisions.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, or by an authenticating agent
appointed by the Trustee, this Class A Certificate shall not be entitled to any
benefit under the Agreement, or be valid for any purpose.
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IN WITNESS WHEREOF, the Seller has caused this Class A Certificate
to be duly executed.
FLEET BANK (RI), NATIONAL ASSOCIATION
By:______________________________
Vice President
This is one of the Class A Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee,
By:______________________________
Authorized Officer
Dated:
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ASSIGNMENT
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE(S)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________________
: :
: :
: :
__________________________ ______________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
____________________ the within certificate and all rights thereunder, and
hereby irrevocably constitutes and appoints ____________________ Attorney, with
full power of substitution in the premises, to transfer said certificate on the
books kept for registration thereof.
Dated: ________________________
__________________________________________________
Note: The signature(s) to this Assignment must
correspond with the name(s) as written on the face
of the within certificate in every particular,
without alteration or enlargement or any change
whatever.
(1) An assignee which is not a United States
Person as defined in the Internal Revenue
Code of 1986, as amended (the "Code") must
certify to the Transfer Agent and Registrar
in writing as to such status and such
further information as may be required under
the Code or reasonably requested by the
Transfer Agent and Registrar.
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59
EXHIBIT A-2
TO SUPPLEMENT
REGISTERED
THIS CERTIFICATE HAS NOT BEEN AND WILL NOT BE REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAW. THE HOLDER HEREOF, BY PURCHASING THIS CERTIFICATE, AGREES THAT
THIS CERTIFICATE, OR ANY INTEREST OR PARTICIPATION HEREIN, MAY BE REOFFERED,
RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY IN COMPLIANCE WITH THE SECURITIES
ACT AND OTHER APPLICABLE LAWS AND ONLY (1) TO THE BANK, (2) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE SECURITIES
ACT, OR (3) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT TO A PERSON THAT THE
HOLDER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING
OF RULE 144A UNDER THE SECURITIES ACT (A "QIB") PURCHASING FOR ITS OWN ACCOUNT
OR A QIB PURCHASING FOR THE ACCOUNT OF A QIB, WHOM THE HOLDER HAS INFORMED, IN
EACH CASE, THAT THE REOFFER, RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A UNDER THE SECURITIES ACT. EACH CERTIFICATE OWNER BY
ACCEPTING A BENEFICIAL INTEREST IN THIS CERTIFICATE IS DEEMED TO REPRESENT THAT
IT IS EITHER A QIB PURCHASING FOR ITS OWN ACCOUNT OR A QIB PURCHASING FOR THE
ACCOUNT OR A QIB PURCHASING FOR THE ACCOUNT OF ANOTHER QIB.
PRIOR TO PURCHASING ANY CLASS B CERTIFICATES, PURCHASERS SHOULD CONSULT
COUNSEL WITH RESPECT TO THE AVAILABILITY AND CONDITIONS OF EXEMPTION FROM THE
RESTRICTION ON RESALE OR TRANSFER. THE BANK HAS NOT AGREED TO REGISTER THE CLASS
B CERTIFICATES UNDER THE SECURITIES ACT, TO QUALIFY THE CLASS B CERTIFICATES
UNDER THE SECURITIES LAWS OF ANY STATE OR TO PROVIDE REGISTRATION RIGHTS TO ANY
PURCHASER.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF REPRESENTS AND
WARRANTS, FOR THE BENEFIT OF FLEET BANK (RI), NATIONAL ASSOCIATION, THAT SUCH
HOLDER IS NOT (1) AN EMPLOYEE BENEFIT PLAN THAT IS SUBJECT TO THE EMPLOYEE
RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, (2) A PLAN OR OTHER
ARRANGEMENT (INCLUDING AN INDIVIDUAL RETIREMENT ACCOUNT OR KEOGH PLAN) THAT IS
SUBJECT TO SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, OR (3)
AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" UNDER THE PLAN ASSET
REGULATION BY REASON OF ANY SUCH PLAN'S INVESTMENT IN THE ENTITY OTHER THAN AN
INSURANCE COMPANY WHICH IS INVESTING ASSETS OF ITS GENERAL ACCOUNT AND SATISFIES
THE
60
CONDITIONS APPLICABLE UNDER SECTIONS I AND III OF U.S. DEPARTMENT OF LABOR
PROHIBITED TRANSACTION CLASS EXEMPTION 95-60. BY ACCEPTING AND HOLDING THIS
CLASS B CERTIFICATE, THE HOLDER HEREOF SHALL BE DEEMED TO HAVE REPRESENTED AND
WARRANTED THAT IT IS NOT A BENEFIT PLAN OR THAT IT IS AN INSURANCE COMPANY WHICH
SATISFIES THE CONDITIONS SPECIFIED ABOVE. BY ACQUIRING ANY INTEREST IN THIS
CLASS B CERTIFICATE, THE APPLICABLE CERTIFICATE OWNER OR OWNERS SHALL BE DEEMED
TO HAVE REPRESENTED AND WARRANTED THAT IT OR THEY ARE NOT BENEFIT PLANS OR THAT
IT IS AN INSURANCE COMPANY WHICH SATISFIES THE CONDITIONS SPECIFIED ABOVE.
THE HOLDER OF THIS CERTIFICATE BY ITS ACCEPTANCE HEREOF COVENANTS AND
AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST THE TRUST, OR JOIN IN ANY
INSTITUTION AGAINST THE TRUST OF, ANY BANKRUPTCY PROCEEDINGS UNDER ANY UNITED
STATED FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY
OBLIGATIONS RELATING TO THE CLASS B CERTIFICATES OR THE POOLING AND SERVICING
AGREEMENT.
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61
FLEET CREDIT CARD MASTER TRUST II
CLASS B FLOATING RATE ASSET-BACKED CERTIFICATE,
SERIES 2001-A
THIS CLASS B CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT
OF A BENEFIT PLAN.
Unless this Class B Certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Issuer or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or in such
other name as is requested by an authorized representative of DTC (and any
payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
Evidencing an undivided interest in a trust, the corpus of which
consists of receivables generated from time to time in the ordinary course
of business in a portfolio of revolving consumer credit card accounts
owned by Fleet Bank (RI), National Association (the "Bank") as successor
in interest to Advanta National Bank (formerly known as Advanta National
Bank USA and prior to that known as Colonial National Bank USA and
successor in interest to the former Advanta National Bank) or any
Additional Seller.
No. ___ CUSIP NO. __________________
$__________________
(Not an interest in or obligation of Fleet Bank (RI), National
Association, or any affiliate thereof, except to the limited extent
described herein.)
This certifies that CEDE & CO. (the "Investor Certificateholder") is the
registered owner of an undivided interest in certain assets of a trust (the
"Trust"), created pursuant to the Amended and Restated Pooling and Servicing
Agreement, dated as of December 1, 1993 (as amended and restated on May 23,
1994, and as amended by Amendment Number 1, dated as of July 1, 1994, as further
amended by Amendment Number 2, dated as of October 6, 1995, as further amended
by Amendment Number 3, dated as of February 20, 1998, and as further amended by
Amendment Number 4, dated as of May 14, 1999, as further amended by Amendment
Number 5, dated as of December 29, 2000 and as assigned by Advanta National Bank
to the Bank pursuant to an Assignment and Assumption Agreement, dated as of
February 20, 1998, among Advanta National Bank, the Bank, Fleet Credit Card,
LLC, and Bankers Trust Company, as trustee, the "Amended and Restated Pooling
and Servicing Agreement") between the Bank, as seller (in such capacity,
together with its predecessor as sellers during such period as any such
predecessors were sellers, the "Seller") and servicer (in such capacity, the
"Servicer") and
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Bankers Trust Company, as trustee (the "Trustee"), as supplemented by the Series
2001-A Supplement, dated as of February 23, 2001, by and between the Bank, as
Seller and Servicer, and the Trustee. The Amended and Restated Pooling and
Servicing Agreement, the Series 2001-A Supplement and any amendments, exhibits
and schedules thereto are collectively referred to herein as the "Agreement."
The corpus of the Trust consists of (i) a portfolio of receivables (the
"Receivables") arising under selected VISA and MasterCard* consumer credit card
accounts or other revolving consumer credit accounts (the "Accounts") in
portfolios of revolving consumer credit accounts owned by any of the Bank or any
Additional Seller, (ii) all monies due or to become due in payment of the
Receivables, all proceeds of the Receivables (other than investment earnings
related to such proceeds), (iii) the right to receive certain Interchange
attributed to cardholder charges for merchandise and services in the Accounts,
(iv) certain amounts recovered from Accounts in which the Receivables have been
written off as uncollectible, (v) proceeds of credit insurance policies relating
to the Receivables and (vi) all monies on deposit in certain bank accounts of
the Trust and the benefits of any type of enhancement ("Series Enhancement")
issued with respect to any Series (the drawing on or payment of such Series
Enhancement being available only to Certificateholders of a specified Series or
Class unless otherwise indicated in the related Supplement). The Trust assets
may also include participations (including 100% participations) representing
undivided interests in a pool of assets primarily consisting of revolving credit
card receivables or consumer loan receivables (secured and unsecured), and any
interests in both such types of receivables, including securities representing
or backed by both such types of receivables, and other self-liquidating
financial assets owned by the Seller or any affiliate of the Seller and
collections thereon. The Seller, conveyed to the Trust all Receivables existing
under certain designated Accounts at the time of the formation of the Trust and
all Receivables arising under such Accounts from time to time thereafter. In
addition, the Seller has conveyed and the Seller may convey in the future all
Receivables existing under certain designated Additional Accounts (including
Automatic Additional Accounts) and all Receivables thereafter arising in such
Additional Accounts.
Although a summary of certain provisions of the Agreement is set
forth below, this Class B Certificate does not purport to summarize the
Agreement, such summary is qualified in its entirety by the terms and provisions
of the Agreement and reference is made to the 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. A copy
of the Agreement may be obtained from the Trustee by writing to the Trustee at
Four Albany Street, New York, New York 10006, Attention: Corporate Trust and
Agency Group/Structured Finance Group. To the extent not defined herein, the
capitalized terms used herein have the meanings ascribed to them in the
Agreement.
This Class B Certificate is issued under and is subject to the
terms, provisions and conditions of the Agreement to which the Holder of this
Class B Certificate by virtue of the acceptance hereof assents and is bound.
- --------
* VISA and MasterCard are registered trademarks of VISA USA, Inc., and
MasterCard International, respectively.
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63
It is the intent of the Seller and the Class B Certificateholders
that, for federal income taxes, state and local income and franchise taxes and
any other taxes imposed on or measured by income, the Class B Certificates will
be treated as indebtedness secured by the Receivables. The Servicer, by entering
into the Agreement, and the Seller, the Holder of the Bank Certificate, each
Holder of a Class B Certificate, and each Holder of a Class A Certificate, by
acceptance of its Certificate, agrees to treat the Series 2001-A Certificates
for purposes of federal income taxes, state and local income and franchise
taxes, and any other taxes imposed on or measured by income, as indebtedness of
the Seller.
Subject to the terms of the Agreement, payments of principal of the
Class B Certificates are limited to the unpaid Class B Investor Amount, which
may be less than the unpaid principal balance of the Class B Certificates,
pursuant to the terms of the Agreement. Principal payments on the Class B
Certificates will not be made unless the Class A Certificates are paid in full.
All principal of and interest on the Class B Certificates is scheduled to be
paid by the February 2005 Distribution Date, but may be paid earlier. Subject to
prior termination as provided in the Agreement, the interest of the Series
2001-A Certificateholders in the Trust will terminate following the earliest of
(i) the date on which the Investor Amount is paid in full and (ii) the August
2008 Distribution Date and (iii) the termination of the Trust pursuant to
Section 12.01 of the Agreement.
The Receivables consist of Principal Receivables which arise
generally from the purchase of goods and services and cash advances and in
respect of Periodic Finance Charges, Overlimit Fees, Late Fees, annual
membership fees and annual service charges, if any, Cash Advance Fees,
transaction charges and all other fees and charges with respect to the Accounts
designated by the Seller to be included in Finance Charge Receivables. This
Certificate is one of a series of Certificates entitled "Fleet Credit Card
Master Trust II, Class B Floating Rate Asset Backed Certificates, Series 2001-A"
(the "Class B Certificates"), each of which represents a fractional undivided
interest in certain assets of the Trust. The Trust's assets are allocated in
part to the Holders of the Class B Certificates and in part to the Holders of
the Class A Certificates, in part to the Collateral Interest Holder, in part to
the Holders of Investor Certificates of all other Series and in part to the
Seller as Holder of the Bank Certificate and the Holders of any outstanding
Supplemental Certificates outstanding from time to time. The Bank Certificate
and any outstanding Supplemental Certificates represent the Sellers' Interest in
the Trust. The Bank Certificate and any outstanding Supplemental Certificates
represent the interest in the Principal Receivables not represented by the
Investor Certificates.
THE CLASS B CERTIFICATES ARE SUBORDINATED TO THE CLASS A
CERTIFICATES TO THE EXTENT SET FORTH IN THE AGREEMENT.
The aggregate interest represented by the Series 2001-A Certificates
and the Collateral Interest at any time in the Principal Receivables in the
Trust shall not exceed an amount equal to the Principal Allocation Percentage
thereof (as set forth in the Agreement) at such time. The Initial Invested
Amount is $950,000,000. The Invested Amount for any date will equal the sum of
the Class A Invested Amount, the Class B Invested Amount and the Collateral
Invested Amount. The Class B Initial Invested Amount is $66,500,000. The Class B
Invested Amount for any date will be an amount equal to (a) the Class B Initial
Invested Amount, minus
A-2-5
64
(b) the aggregate amount of principal payments made to the Class B
Certificateholders on or prior to such date, minus (c) the excess, if any, of
the aggregate amount of Class B Investor Charge-Offs for all prior Distribution
Dates over the aggregate amount of any reimbursement of Class B Investor
Charge-Offs for all Distribution Dates preceding such date, minus (d) the amount
of Reallocated Principal Collections allocated on all prior Distribution Dates,
minus (e) an amount equal to the amount by which the Class B Invested Amount has
been reduced pursuant to subsection 4.6(a) of the Agreement on all prior
Distribution Dates, plus (f) the amount of Excess Spread and Excess Finance
Charges allocated and available on all prior Distribution Dates for the purpose
of reimbursing amounts deducted pursuant to the foregoing clauses (c), (d) and
(e), and minus (g) the positive difference, if any, between the Principal
Funding Account Balance and the Class A Investor Amount on such date; provided,
however, that the Class B Invested Amount may not be reduced below zero.
Interest will be distributed monthly on the 15th day of each
calendar month or, if such 15th day is not a Business Day, payment will be made
on the next succeeding Business Day (each, a "Distribution Date"), commencing
April 16, 2001, in an amount equal to the product of (i) (a) a fraction, the
numerator of which is the actual number of days in the related Interest Period
divided by 360, times (b) the Class B Certificate Rate, and (ii) the outstanding
principal amount of the Class B Certificates as of the preceding Record Date
(or, in the case of the first Distribution Date as of the Closing Date).
The Class B Certificates will bear interest for each Interest Period
at a per annum rate specified in the Supplemental Rate Letter, such rate not to
exceed LIBOR for such Interest Period plus 0.50% (the "Class B Certificate
Rate").
The Trustee will determine LIBOR on February 21, 2001 for the period
from the Closing Date through April 15, 2001 and for each Interest Period
thereafter, on the second London Business Day prior to the Distribution Date on
which such Interest Period commences (each, a "LIBOR Determination Date"). A
"London Business Day" is any day on which dealings in deposits in United States
dollars are transacted in the London interbank market. The Class B Certificate
Rate applicable to the then current and the immediately preceding Interest
Periods may be obtained by telephoning the Trustee at its Corporate Trust Office
at (800) 735-7777.
The determination of LIBOR will be made in accordance with the
following provisions:
(i) On each LIBOR Determination Date, the Trustee will determine
LIBOR based on the rate for deposits in United States dollars for a period
of the Designated Maturity which appears on Telerate Page 3750 as of 11:00
A.M. (London time) on such date.
(ii) If such rate does not appear on Telerate Page 3750, the Trustee
will determine LIBOR on the basis of quotations of the offered rates for
deposits in United States dollars provided by the Reference Banks at
approximately 11:00 A.M. (London time) on such LIBOR Determination Date to
prime banks in the London interbank market for a period
A-2-6
65
of the Designated Maturity. If at least two such quotations are provided,
LIBOR will be the arithmetic mean of such quotations.
(iii) If, on the LIBOR Determination Date, such rate does not appear
on Telerate Page 3750 and only one or none of the Reference Banks provides
such offered quotations, LIBOR will be the rate per annum that the Trustee
determines to be the arithmetic mean of the offered quotations that three
major banks in The City of New York selected by the Servicer are quoting
at approximately 11:00 A.M. (New York City time) on that day for loans in
United States dollars to leading European banks for a period of the
Designated Maturity.
"Designated Maturity" shall mean, one month; provided, that LIBOR
for the initial Interest Period will be determined by straight - line
interpolation (based on the actual number of days in the initial Interest
Period) between two rates determined in accordance with the definition of LIBOR,
one of which will be determined for a Designated Maturity of one month and the
other of which will be determined for a Designated Maturity of two months.
On each Distribution Date with respect to the Accumulation Period an
amount equal to the least of (a) Available Investor Principal Collections on
deposit in the Collection Account with respect to such Distribution Date, (b)
the Controlled Deposit Amount for such Distribution Date (minus the portion of
such Controlled Deposit Amount for such Distribution Date applied to Class A
Monthly Principal on such Distribution Date)) and (c) the Class B Invested
Amount, will be deposited in the Principal Funding Account for payment to the
Class B Certificateholders on the Class B Expected Final Distribution Date or
the first Distribution Date with respect to the Rapid Amortization Period
provided that no such amounts shall be paid to the Class B Certificates until
the Class A Certificates are paid in full.
On each Distribution Date during the Rapid Amortization Period
(following the payment in full of the Class A Certificates) until the Class B
Investor Amount has been paid in full or the Series Termination Date occurs, the
Class B Certificateholders will be entitled to receive Available Investor
Principal Collections (minus the portion of Available Investor Principal
Collections applied to Class A Monthly Principal on such Distribution Date) in
an amount up to the Class B Investor Amount.
On any Distribution Date occurring on or after the Investor Amount
is reduced to 5% or less of the Initial Invested Amount during the Revolving
Period, the Seller will have the option (to be exercised in their sole
discretion) to repurchase the Certificates.
This Class B Certificate does not represent an obligation of, or an
interest in, FleetBoston Financial, the Bank, any Additional Seller, the
Servicer or any Affiliate of any of them. None of the Class B Certificates, the
Accounts or the Receivables are deposits or insured or guaranteed by the Federal
Deposit Insurance Corporation or any other governmental agency. This Class B
Certificate is limited in right of payment to certain Collections respecting the
Receivables (and certain other amounts), all as more specifically set forth
herein and in the Agreement.
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66
The Agreement may be amended under certain circumstances by the
Servicer, the Seller and the Trustee, without Certificateholder consent,
provided that (i) the Seller shall have delivered to the Trustee an Officer's
Certificate to the effect that the Seller reasonably believes that such
amendment will not result in the occurrence of a Pay out Event or materially
adversely affect the amount or timing of distributions to be made to the
Investor Certificateholders of any Series or Class and (ii) written confirmation
from each Rating Agency that such amendment will not result in a reduction or
withdrawal of the rating of the Series 2001-A Certificates or the rating of any
other outstanding Series or Class with respect to which it is a Rating Agency.
The Agreement may be amended by the Servicer, the Seller and the
Trustee, with the consent of the Holders of Investor Certificates evidencing not
less than 66-2/3% of the aggregate Investor Amount of the Investor Certificates
of all adversely affected Series, for the purpose of adding any provisions to,
changing in any manner or eliminating any of the provisions of the Agreement or
of modifying in any manner the rights of Investor Certificateholders of any
Series then issued and outstanding; provided, however, that no such amendment
shall (a) reduce in any manner the amount of, or delay the timing of,
distributions to Investor Certificateholders or deposits of amounts to be so
distributed or the amount available under any Series Enhancement without the
consent to any such amendment of each affected Certificateholder, (b) change the
definition of or the manner of calculating the interest of any Investor
Certificateholder without the consent of each affected Investor
Certificateholder, (c) reduce the aforesaid percentage required to consent to
any such amendment without the consent of each Investor Certificateholder or (d)
adversely affect the rating of any Series or Class by each Rating Agency without
the consent of the Holders of Investor Certificates of such Series or Class
evidencing not less than 66-2/3% of the aggregate Investor Amount of the
Investor Certificates of such Series or Class.
The Class B Certificates are issuable only in denominations of
$100,000 and integral multiples of $1,000 in excess thereof. The transfer of
this Class B Certificate shall be registered in the Certificate Register upon
surrender of this Class B Certificate for registration of transfer at any office
or agency maintained by the Transfer Agent and Registrar accompanied by a
written instrument of transfer, in a form satisfactory to the Trustee and the
Transfer Agent and Registrar, duly executed by the Holder or his attorney and
duly authorized in writing, and thereupon one or more new Class B Certificates
of authorized denominations and for the same aggregate fractional undivided
interest will be issued to the designated transferee or transferees.
As provided in the Agreement and subject to certain limitations
therein set forth, this Class B Certificate is exchangeable for a new Class B
Certificate evidencing a like aggregate fractional undivided interest, as
requested by the Holder surrendering this Class B Certificate. No service charge
may be imposed for any such exchange, but the Transfer Agent and Registrar may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection therewith.
This Class B Certificate may not be acquired by or for the account
of (a) an "employee benefit plan" (as defined in Section 3(3) of ERISA) which is
subject to ERISA, (b) any "plan" (as defined in Section 4975(e)(1) of the Code),
including individual retirement accounts and Keogh plans, which is subject to
Section 4975 of the Code or (c) any other entity
A-2-8
67
whose underlying assets include "plan assets" (within the meaning of Department
of Labor Regulation Section 2510.3-101 or otherwise under ERISA) by reason of
any such plan's investment in the entity (a "Benefit Plan"), other than an
insurance company which is investing assets of its general account and satisfies
the conditions applicable under Sections I and III of U.S. Department of Labor
Prohibited Transaction Class Exemption 95-60. By accepting and holding this
Class B Certificate, the Holder hereof shall be deemed to have represented and
warranted that it is not a Benefit Plan or that it is an insurance company which
satisfies the conditions specified above. By acquiring any interest in this
Class B Certificate, the applicable Certificate Owner or Owners shall be deemed
to have represented and warranted that it or they are not Benefit Plans or that
it is an insurance company which satisfies the conditions specified above.
Prior to due presentation of this Class B Certificate for
registration of transfer, the Transfer Agent and Registrar, the Paying Agent and
the Trustee and any agent of any of them may treat the person in whose name this
Class B Certificate is registered as the owner hereof for all purposes, and
neither the Trustee, the Paying Agent or the Transfer Agent and Registrar nor
any agent of any of them shall be affected by notice to the contrary except in
certain circumstances described in the Agreement.
This Class B Certificate shall be construed in accordance with and
governed by the laws of the State of New York, without reference to its conflict
of law provisions.
Unless the certificate of authentication hereon has been executed by
or on behalf of the Trustee, by manual signature, or by an authenticating agent
appointed by the Trustee, this Class B Certificate shall not be entitled to any
benefit under the Agreement, or be valid for any purpose.
A-2-9
68
IN WITNESS WHEREOF, the Seller has caused this Class B Certificate
to be duly executed.
FLEET BANK (RI), NATIONAL ASSOCIATION
By:______________________________
Vice President
This is one of the Class B Certificates referred to in the
within-mentioned Agreement.
BANKERS TRUST COMPANY,
as Trustee,
By:______________________________
Authorized Officer
Dated:
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69
ASSIGNMENT
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE(S)
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
__________________________
: :
: :
: :
__________________________ _____________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS OF ASSIGNEE)
____________________ the within certificate and all rights thereunder, and
hereby irrevocably constitutes and appoints ____________________ Attorney, with
full power of substitution in the premises, to transfer said certificate on the
books kept for registration thereof.
Dated: ________________________
______________________________________________
Note: The signature(s) to this Assignment must
correspond with the name(s) as written on the face
of the within certificate in every particular,
without alteration or enlargement or any change
whatever.
(1) An assignee which is not a United States
Person as defined in the Internal Revenue
Code of 1986, as amended (the "Code") must
certify to the Transfer Agent and Registrar
in writing as to such status and such
further information as may be required under
the Code or reasonably requested by the
Transfer Agent and Registrar.
A-2-11
70
EXHIBIT B
TO SUPPLEMENT
MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO THE TRUSTEE
FLEET BANK (RI), NATIONAL ASSOCIATION
------------------------------
FLEET CREDIT CARD MASTER TRUST II
Series 2001-A
------------------------------
The undersigned, a duly authorized representative of Fleet Bank (RI), National
Association, (the "Bank"), as successor in interest to Advanta National Bank
(formerly known as Advanta National Bank USA and prior to that known as Colonial
National Bank USA and successor in interest to the former Advanta National
Bank), as Seller and Servicer pursuant to the Amended and Restated Pooling and
Servicing Agreement dated as of December 1, 1993, (as amended and restated on
May 23, 1994, and as amended by Amendment Number 1, dated as of July 1, 1994, as
further amended by Amendment Number 2, dated as of October 6, 1995, as further
amended by Amendment Number 3, dated as of February 20, 1998, and as further
amended by Amendment Number 4, dated May 14, 1999, as further amended by
Amendment Number 5, dated as of December 29, 2000, and as assigned by Advanta
National Bank to the Bank pursuant to an Assignment and Assumption Agreement,
dated as of February 20, 1998, among Advanta National Bank, the Bank, Fleet
Credit Card, LLC, and Bankers Trust Company, as trustee, the "Amended and
Restated Pooling and Servicing Agreement") between the Bank, as seller (in such
capacity, together with its predecessors as sellers during such period as any
such predecessors were sellers, the "Seller") and servicer (in such capacity,
the "Servicer") and Bankers Trust Company, as trustee (the "Trustee"), as
supplemented by the Series 2001-A Supplement, dated as of February 23, 2001, by
and between the Bank, as Seller and Servicer, and the Trustee does hereby
certify as follows:
A) Capitalized terms used in this Certificate have their respective
meanings set forth in the Agreement. References herein to certain sections are
references to the respective sections of the Agreement.
B) The Bank is Servicer under the Agreement.
C) The undersigned is a Servicing Officer.
D) The date of this notice is a Determination Date under the
Agreement.
71
I. APPLICATION OF CLASS A AVAILABLE FUNDS, CLASS B AVAILABLE FUNDS,
COLLATERAL AVAILABLE FUNDS AND AVAILABLE INVESTOR PRINCIPAL
COLLECTIONS.
Pursuant to the Supplement, the Servicer does hereby instruct the
Trustee (i) to make the following withdrawals from the Collection
Account with respect to the Distribution Date and (ii) to apply the
proceeds of such withdrawals in accordance with referenced Sections of
the Supplement:
A) Class A Available Funds (Section 4.5(a)):
(1) Class A Monthly Interest........... $__________
(2) Overdue Class A Monthly Interest... $__________
(3) Class A Additional Interest........ $__________
(4) Class A Servicing Fee.............. $__________
(5) Overdue Class A Servicing Fee...... $__________
(6) Class A Investor Default Amount
(to be treated as Available
Investor Principal Collections).... $__________
(7) Excess Spread...................... $__________
B) Class B Available Funds (Section 4.5(b)):
(1) Class B Monthly Interest........... $__________
(2) Overdue Class B Monthly Interest... $__________
(3) Class B Additional Interest........ $__________
(4) Class B Servicing Fee.............. $__________
(5) Overdue Class B Servicing Fee...... $__________
(6) Excess Spread...................... $__________
C) Collateral Available Funds (Section 4.5(c))
(1) If the Bank or Trustee is not the
Servicer, Collateral Servicing
Fee, if any........................ $__________
(2) Overdue Collateral Servicing Fee,
if any............................. $__________
(3) Excess Spread...................... $__________
B-1-2
72
D) Available Investor Principal Collections (Sections 4.5(d) and
(e)):
(1) Class A Monthly Principal.......... $__________
(2) Class B Monthly Principal.......... $__________
(3) Collateral Monthly Principal....... $__________
(4) Shared Principal Collections
(available for other Series in
Group One or the Holders of the
Seller Certificates)............... $__________
E) Excess Spread (Section 4.7):
(1) Class A Required Amount, if any.... $__________
(2) Class A Investor Charge-Offs (to
be treated as Available Investor
Principal Collections)............. $__________
(3) Portion of Class B Required
Amount, if any..................... $__________
(4) Class B Investor Default Amount
(to be treated as Available
Investor Principal Collections).... $__________
(5) Reimbursement of prior reductions
in Class B Invested Amount (to be
treated as Available Investor
Principal Collections)............. $__________
(6) Collateral Minimum Monthly
Interest, Overdue Collateral
Minimum Monthly Interest and
Collateral Additional Interest..... $__________
(7) Any Collateral Servicing Fee and
any unpaid Collateral Servicing Fee $__________
(8) Collateral Default Amount (to be
treated as Available Investor
Principal Collections)............. $__________
(9) Reimbursement of prior reductions
in Collateral Invested Amount (to
be treated as Available Investor
Principal Collections)............. $__________
(10) Excess of Required Reserve Account
Amount over the amount on deposit
in Reserve Account................. $__________
(11) Amounts due to Collateral Interest
Holder ............................ $__________
B-1-3
73
F) Reallocated Principal Collections (Section 4.8):
(1) Payable in respect of Class A
Required Amount.................... $__________
(2) Payable in respect of Class B
Required Amount.................... $__________
(3) Balance (to be treated as
Available Investor Principal
Collections)....................... $__________
G) Excess Finance Charges (Section 4.9):
(1) Finance Charge Shortfall for
Series 2001-A...................... $__________
(2) Excess Finance Charges from other
Series in Group One allocated to
Series 2001-A...................... $__________
H) Shared Principal Collections (Section 4.10):
(1) Principal Shortfall for Series
2001-A............................. $__________
(2) Shared Principal Collections from
other Series in Group One
allocated to Series 2001-A......... $__________
I) Distributions to Holders of Class A Certificates, Class B
Certificates and Collateral Interest (Sections 4.5 and 5.1)
(1) Interest Distributable to Holders
of the Class A Certificates on
Distribution Date.................. $__________
(2) Interest Distributable to Holders
of the Class B Certificates on
Distribution Date.................. $__________
(3) Amount Distributable as interest
to the Collateral Interest Holders
on the Transfer Date (Collateral
Minimum Monthly Interest under
Section 4.7(f) plus other amounts
payable to the Collateral Interest
Holder under 4.7(k) and 4.14)...... $__________
(4) Principal Distributable to the
Class A Certificateholders on
Distribution Date.................. $__________
(5) Principal Distributable to the
Class B Certificateholder on
Distribution Date.................. $__________
- ---------------------
* Set forth in Supplemental Instructions.
B-1-4
74
(6) Principal Distributable to the
Collateral Interest Holder on
Transfer Date...................... $__________
(7) Principal Collections
distributable to Fleet Bank (RI),
National Association as holder of
the Sellers Certificate on
Distribution Date.................. $__________
J) Distributions to Noteholders and to Fleet Bank (RI), National
Association under the Transfer Agreement (Section 3.02 of
Transfer Agreement)
(1) Interest Distributable to
Noteholders on Payment Date........ $__________
(2) Principal Distributable to
Noteholders on Payment Date........ $__________
(3) Amount Distributable to Fleet Bank
(RI), National Association, as
Transferor on Payment Date
(Section 3.02(a)(vi) of the
Transfer Agreement; amounts
remaining after satisfying
3.02(a)(i) through (v))............ $__________
B-1-5
75
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate this ____ day of __________, ____.
FLEET BANK (RI), NATIONAL ASSOCIATION,
as Servicer
By:______________________________
Servicing Officer
B-1-6
76
EXHIBIT C-1
TO SUPPLEMENT
FORM OF MONTHLY CERTIFICATEHOLDER'S STATEMENT
(To be delivered by the Paying Agent on behalf
of the Trustee on each Distribution Date
pursuant to Section 5.2(b) of the Supplement)
FLEET BANK (RI), NATIONAL ASSOCIATION
------------------------------
FLEET CREDIT CARD MASTER TRUST II
SERIES 2001-A
------------------------------
Under the Amended and Restated Pooling and Servicing Agreement dated
as of December 1, 1993, (as amended and restated on May 23, 1994, and as amended
by Amendment Number 1, dated as of July 1, 1994, as further amended by Amendment
Number 2, dated as of October 6, 1995, as further amended by Amendment Number 3,
dated as of February 20, 1998, as further amended by Amendment Number 4, dated
as of May 14, 1999, as further amended by Amendment Number 5 dated as of
December 29, 2000, and as assigned by Advanta National Bank to the Bank pursuant
to an Assignment and Assumption Agreement, dated as of February 20, 1998, among
Advanta National Bank, the Bank, Fleet Credit Card, LLC, and Bankers Trust
Company, as trustee, the "Amended and Restated Pooling and Servicing Agreement")
between the Bank, as seller (in such capacity, together with its predecessors as
sellers during such period as any such predecessors were sellers, the "Seller")
and servicer (in such capacity, the "Servicer") and Bankers Trust Company, as
trustee (the "Trustee"), as supplemented by the Series 2001-A Supplement, dated
as of February 23, 2001, by and between the Bank, as Seller and Servicer, and
the Trustee, the Bank, as Servicer, is required to prepare certain information
each month regarding current distributions to all Series 2001-A
Certificateholders. This statement relates to the Distribution Date (the
"Distribution Date") and the performance of the Fleet Credit Card Master Trust
II (the "Trust") during the prior Monthly Period (the "Monthly Period"). Certain
of the information is presented on the basis of an original principal amount of
$1,000 per Series 2001-A Certificate. Certain other information is presented
based on the aggregate amounts for the Trust as a whole. All capitalized terms
used herein shall have the respective meanings set forth in the Agreement.
1. The total amount of the distribution on the
Distribution Date per $1,000 original principal
amount of the Class A Certificates................ $__________
77
2. The total amount of the distribution on the
Distribution Date per $1,000 original principal
amount of the Class B Certificates................ $ *
----------
3. The amount of the distribution set forth in
paragraph 1 above in respect of principal per
$1,000 original principal amount of the Class A
Certificates...................................... $
----------
4. The amount of the distribution set forth in
paragraph 2 above in respect of principal per
$1,000 original principal amount of the Class B
Certificates...................................... $
----------
C-1-2
78
5. The amount of the distribution set forth in
paragraph 1 above in respect of interest per
$1,000 original principal amount of the Class A
Certificates...................................... $
-----------
6. The amount of the distribution set forth in
paragraph 2 above in respect of interest per
$1,000 original principal amount of the Class B
Certificates...................................... $ *
------------
7. The aggregate amount of Collections of
Receivables processed for the prior Monthly
Period which were allocated in respect of Series
2001-A............................................ $
-----------
8. The aggregate amount of Collections of Principal
Receivables processed during the prior Monthly
Period and allocated in respect of Series 2001-A.. $
-----------
9. The aggregate amount of Reallocated Principal
Collections with respect to the prior Monthly
Period............................................ $
-----------
10. The aggregate amount of Collections of Finance
Charge Receivables processed during the prior
Monthly Period and allocated in respect of the
Class A Certificates.............................. $
-----------
11. The aggregate amount of Collections of Finance
Charge Receivables processed during the prior
Monthly Period and allocated in respect of the
Class B Certificates.............................. $
-----------
12. The Principal Allocation Percentage(s) during the
prior Monthly Period.............................. % [Dates]
---
% [Dates]
---
13. The Floating Allocation Percentage(s) during the
prior Monthly Period.............................. % [Dates]
---
% [Dates]
---
- ---------------------
* Set forth in Supplemental Monthly Certificateholder's Statement.
14. The aggregate outstanding balance of Accounts $
which are 30, 60, 90, 120, 150 and 180 or more -----------
days delinquent as of the end of the prior $
Monthly Period is................................. -----------
$
-----------
$
-----------
$
-----------
$
-----------
15. The Class A Investor Default Amount for the prior
Monthly Period is................................. $
-----------
16. The Class B Investor Default Amount for the prior
Monthly Period is................................. $
-----------
C-1-3
79
17. The Collateral Default Amount for the prior
Monthly Period.................................... $__________
18. The aggregate amount of Class A Investor
Charge-Offs for the prior Monthly Period is....... $__________
19. The aggregate amount of Class B Investor
Charge-Offs for the prior Monthly Period is....... $__________
20. The aggregate amount of Collateral Charge-Offs
for the prior Monthly Period...................... $__________
21. The aggregate amount of Class A Investor
Charge-Offs reimbursed on the Distribution Date is $__________
22. The aggregate amount of Class B Investor
Charge-Offs reimbursed on the Distribution Date is $__________
23. The aggregate amount of Collateral Charge-Offs
reimbursed on the Distribution Date .............. $__________
24. The amount of the Class A Servicing Fee for the
prior Monthly Period is........................... $__________
25. The amount of the Class B Servicing Fee for the
prior Monthly Period is........................... $__________
26. The amount of the Collateral Servicing Fee for
the prior Monthly Period is....................... $__________
27. The Class A Investor Amount after giving effect
to any payments on the Distribution Date is....... $__________
28. The Class A Invested Amount after giving effect
to any payments on the Distribution Date is....... $__________
29. The Class B Investor Amount after giving effect
to any payments on the Distribution Date is....... $__________
30. The Class B Invested Amount after giving effect
to any payments on the Distribution Date is....... $__________
31. The amount, if any, by which the outstanding
principal balance of the Class A Certificates
exceeds the Class A Investor Amount after giving
effect to any activity on the Distribution Date is $__________
32. The amount, if any, by which the outstanding
principal balance of the Class B Certificates
exceeds the Class B Investor Amount after giving
effect to any activity on the Distribution Date is $__________
33. The Collateral Invested Amount as of the close of
business on the Distribution Date................. $__________
C-1-4
80
34. The amount on deposit in the Principal Funding
Account as of the close of business on the
Distribution Date is ............................. $__________
35. The amount on deposit in the Reserve Account as
of the close of business on the Distribution Date
is................................................ $__________
36. The amount by which the Net Portfolio Yield for
the prior Monthly Period exceeds the Base Rate
for such Monthly Period........................... $__________
37. The Net Portfolio Yield for the prior Monthly
Period is......................................... ____%
38. The Base Rate for the Prior Monthly Period is..... ____%
39. The amount of Interchange with respect to the
prior Monthly Period is........................... $__________
40. The Deficit Controlled Accumulation Amount (after
giving effect to any activity on the Distribution
Date)............................................. $__________
FLEET BANK (RI), NATIONAL ASSOCIATION,
as Servicer
By:______________________________
Title
C-1-5
81
EXHIBIT C-2
TO SUPPLEMENT
FORM OF SUPPLEMENT
TO MONTHLY CERTIFICATEHOLDER'S STATEMENT
(To be delivered by the Paying Agent on behalf of the Trustee on each
Distribution Date
pursuant to Section 5.2(b) of the Supplement
together with the Monthly Certificateholder's Statement;
provided that this Supplement is to be made available only to the Trustee and
the Paying Agent and the Class B Certificateholders and Class B Certificate
Owners.)
FLEET BANK (RI), NATIONAL ASSOCIATION
FLEET CREDIT CARD MASTER TRUST II
SERIES 2001-A
These instructions are supplemental to and are delivered simultaneously
with the Monthly Certificateholders Statement (the "Monthly Certificate")
delivered to or on behalf of the Bankers Trust Company, as Trustee, under the
terms of an Amended and Restated Pooling and Servicing Agreement dated as of
December 1, 1993 (as amended and restated on May 23, 1994 and as thereafter
amended) relating to the Fleet Credit Card Master Trust II and the Series 2001-A
Supplement thereto dated as of February 23, 2001.
This Supplemental Certificate is delivered to the Trustee or the Paying
Agent and otherwise may only be delivered to the holders of the Class B
Certificateholders or any Class B Certificate Owner.
The following provision relates to item 2 of the Monthly Certificate:
2. The total amount of the distribution on the
Distribution Date per $1,000 original principal
amount of the Class B Certificates................ $__________
The following provision relates to item 6 of the Monthly Certificate:
6. The amount of the distribution set forth in
paragraph 2 above in respect of interest per
$1,000 original principal amount of the Class B
Certificates...................................... $__________
FLEET BANK (RI), NATIONAL ASSOCIATION,
as Servicer
By:______________________________
Title
82
EXHIBIT D
TO SUPPLEMENT
FORM OF INVESTMENT LETTER
[Date]
Re: Fleet Credit Card Master Trust II;
Purchases of Series 2001-A Collateral Interest
Ladies and Gentlemen:
This letter (the "Investment Letter") is delivered by the
undersigned (the "Purchaser") pursuant to Section 10.8 of the Series 2001-A
Supplement, dated as of February 23, 2001 (the "Series Supplement") to the
Pooling and Servicing Agreement, dated as of December 1, 1993 (as amended and
supplemented, the "Agreement"), each among Bankers Trust Company, as Trustee,
and Fleet Bank (RI), National Association, as Seller and Servicer. Capitalized
terms used herein without definition shall have the meanings set forth in the
Agreement. The Purchaser represents to and agrees with the Seller as follows:
(a) The Purchaser has such knowledge and experience in financial
and business matters as to be capable of evaluating the merits
and risks of its investment in the Collateral Interest and is
able to bear the economic risk of such investment.
(b) The Purchaser is an "accredited investor," as defined in
Rule 501, promulgated by the Securities and Exchange
Commission (the "Commission") under the Securities Act of
1933, as amended (the "Securities Act"), or is a
sophisticated institutional investor. The Purchaser
understands that the offering and sale of the Collateral
Interest has not been and will not be registered under the
Securities Act and has not and will not be registered or
qualified under any applicable "Blue Sky" law, and that the
offering and sale of the Collateral Interest has not been
reviewed by, passed on or submitted to any federal or state
agency or commission, securities exchange or other
regulatory body.
(c) The Purchaser is acquiring an interest in the Collateral
Interest without a view to any distribution, resale or
other transfer thereof except, with respect to any
Collateral Interest or any interest or participation
therein, as contemplated in the following sentence. The
Purchaser will not resell or otherwise transfer any
interest or participation in the Collateral Interest,
except in accordance with Section 10.8 of the Series
Supplement and (i) in a transaction exempt from the
registration requirements of the Securities Act of 1933, as
amended, and applicable state securities or "blue sky"
laws; (ii) to the Seller or any affiliate of the Seller; or
(iii) to a person who the Purchaser reasonably believes is
a qualified institutional buyer (within the meaning thereof
in Rule 144A under the Securities Act) that is aware
83
that the resale or other transfer is being made in reliance
upon Rule 144A. In connection therewith, the Purchaser hereby
agrees that it will not resell or otherwise transfer the
Collateral Interest or any interest therein unless the
purchaser thereof provides to the addressee hereof a letter
substantially in the form hereof.
(d) No portion of the Collateral Interest or any interest
therein may be transferred, and each Assignee will certify
that it is not, (a) an "employee benefit plan" (as defined
in Section 3(3) of ERISA) which is subject to ERISA, (b)
any "plan" (as defined in Section 4975(e)(1) of the Code),
including individual retirement accounts and Keogh plans
which is subject to Section 4975 of the Code, or (c) any
other entity whose underlying assets include "plan assets"
(within the meaning of Department of Labor Regulation
Section 2510.3-101 or otherwise under ERISA) by reason of
any such plan's investment in the entity, including,
without limitation, an insurance company general account.
(e) This Investment Letter has been duly executed and delivered
and constitutes the legal, valid and binding obligation of
the Purchaser, enforceable against the Purchaser in
accordance with its terms, except as such enforceability
may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws or equitable principles
affecting the enforcement of creditors' rights generally
and general principles of equity.
Very truly yours,
[NAME OF PURCHASER]
By:
--------------------------
Name:
Title:
AGREED TO AS OF THE DATE FIRST
ABOVE WRITTEN:
FLEET BANK (RI), NATIONAL
ASSOCIATION
By:
-----------------------------
Name:
Title:
D-2