EXECUTION COPY
FLEET BANK (RI), NATIONAL ASSOCIATION
Seller and Servicer
and
BANKERS TRUST COMPANY
Trustee
on behalf of the Series 2001-C Certificateholders
SERIES 2001-C SUPPLEMENT
Dated as of October 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-C
TABLE OF CONTENTS
PAGE
ARTICLE I
Creation of the Series 2001-C 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-C 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
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-C Certificateholders
Section 5.1 Distributions............................................... 33
Section 5.2 Certificates and Statements................................. 34
ARTICLE VI
Series 2001-C Pay Out Events
Section 6.1 Series 2001-C 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
ii
TABLE OF CONTENTS
(continued)
PAGE
ARTICLE IX
Certificates
Section 9.1 Book-Entry 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
Section 10.9. Additional Representations and Warranties of the Sellers.... 41
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 Form of Monthly Certificateholders' Statement
EXHIBIT D Form of Investment Letter
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SERIES 2001-C SUPPLEMENT, dated as of October 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-C 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-C." The Series of Investor Certificates
created hereby shall be issued in two Classes. The first Class shall be known as
the "Class A 3.86% Asset-Backed Certificates, Series 2001-C," and the second
Class shall be known as the "Class B 4.19% Asset-Backed Certificates, Series
2001-C." 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-C." The Collateral Interest Holder shall be the Series
Enhancer for Series 2001-C.
(b) Series 2001-C shall be included in Group One. Series 2001-C
shall be a Principal Sharing Series with respect to Group One only. Series
2001-C 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-C shall be the December 2001
Distribution Date, and references herein to the Monthly Period relating to the
December 2001 Distribution Date shall mean the period from the Closing Date
through the end of November 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.
(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 November 30,
2003.
"Accumulation Period" shall mean, unless a Pay Out Event with
respect to Series 2001-C 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-C 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-C 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-C (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 3.86% 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.
"Class A Expected Final Distribution Date" shall mean the September
2004 Distribution Date.
3
"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 $684,000,000.
"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 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
4
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-C (including any amounts
that are to be treated as Collections of Finance Receivables in accordance with
the Agreement).
"Class B Certificate Rate" shall mean 4.19% per annum.
"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 September
2004 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 $48,000,000.
"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 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
5
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).
"Class B Servicing Fee" shall have the meaning specified in Section
3.1.
"Closing Date" shall mean October 23, 2001.
6
"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-C (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 October
2004 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 $68,000,000.
"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 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.
7
"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.
"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 one twelfth of the product of (i) the Class A
Certificate Rate and (ii) the Principal Funding Account
8
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.
"Distribution Date" shall have the meaning assigned thereto in the
Agreement, except that with respect to the Series 2001-C Certificates, the first
Distribution Date shall be December 17, 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 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
9
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 1996-A, Series 1996-B,
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,
Series 2001-A, Series 2001-B, Series 2001-C 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-C 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-C 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(a).
"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.
"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 October 19, 2001 with respect
to the period from the Closing Date through December 16, 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
December 2001 Distribution Date.
10
"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 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
11
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-C 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.
"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.
12
"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-C 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-C 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-C 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 Distribution Date and any
Monthly Interest previously due but not distributed to the Series 2001-C 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-C Holders on a prior Distribution Date.
13
"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-C 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-C.
"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.
"Series 2001-C" 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.
14
"Series 2001-C Certificate" shall mean a Class A Certificate or a
Class B Certificate.
"Series 2001-C Certificateholder" shall mean a Class A
Certificateholder or a Class B Certificateholder.
"Series 2001-C Holder" shall mean a Class A Certificateholder, a
Class B Certificateholder or the Collateral Interest Holder.
"Series 2001-C Pay Out Event" shall have the meaning specified in
Section 6.1.
"Series 2001-C 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
March 2007 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.
"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 October 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-C, Moody's, Standard &
Poor's and Fitch; provided, 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.
15
(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-C
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 December 2001 Distribution Date, the Monthly Servicing Fee shall be
$1,055,556.
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 December 2001 Distribution Date, the
Class A Servicing Fee shall be $902,500. 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 December 2001
Distribution Date, the Class B Servicing Fee shall be $63,333. 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 December 2001 Distribution Date, the Collateral Servicing
Fee shall be $89,722. In no event shall the Trust, the Trustee, or the Series
2001-C Holders be liable for the share of the Servicing Fee to be paid by the
Holders of the Seller Certificates 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).
16
ARTICLE IV
Rights of Series 2001-C 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-C
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-C 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-C 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 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 Seller Certificates.
17
(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-C 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-C 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 the
Monthly Period immediately preceding the Collateral Expected
Final Distribution Date, 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:
(i) Allocate to the Series 2001-C 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-C Holders and
deposit and retain in the Collection Account an amount equal
to the product of (A) the Principal
18
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-C 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 one twelfth
of the product of (i) 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 December 2001
Distribution Date, Class A Monthly Interest shall be equal to $3,813,680.
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 one twelfth of the
product of (i) 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
19
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 one twelfth
of the product of (i) 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 December 2001
Distribution Date, Class B Monthly Interest shall be equal to $290,507.
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 one twelfth of the
product of (i) 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 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 December 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 December 16,
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
20
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 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,
21
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-C 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-C 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-C (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 Excess Finance Charges allocated to Series 2001-C 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
22
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;
(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
23
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 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-C 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
24
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-C 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
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
25
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-C 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;
(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;
26
(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:
(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-C
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
27
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-C 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-C 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-C 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-C 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-C 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-C for such Distribution Date and the
denominator of which is the aggregate amount of Principal Shortfalls for all the
Series which are Principal Sharing Series in Group One for such Distribution
Date. The "Principal Shortfall" for Series 2001-C 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
28
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-C 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-C
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-C
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. 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-C 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.
29
(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-C
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-C 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, 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
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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-C
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-C 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-C 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).
(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-C 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-C 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-C. 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.
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(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-C 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, after the prior payment of all amounts owing to
the Series 2001-C 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-C 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
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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).
(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-C
Certificateholders hereunder shall be made by check mailed to each Series 2001-C
Certificateholder at such Series 2001-C Certificateholder's address appearing in
the Certificate Register without presentation or surrender of any Series 2001-C
Certificate or the making of any notation thereon; provided, however, that with
respect to Series 2001-C Certificates registered in the name of a Clearing
Agency, such distributions shall be made to such Clearing Agency in immediately
available funds.
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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 Series 2001-C Certificateholder a statement
substantially in the form of Exhibit C 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-C Certificateholder
or any Certificate Owner thereof by a request in writing to the Servicer.
(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-C Certificateholder, a statement
prepared by the Servicer containing the information which is required to be
contained in the statement to Series 2001-C 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-C 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
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-C Pay Out Events
Section 6.1 Series 2001-C Pay Out Events. If any one of the
following events (each, a "Series Pay Out Event") shall occur with respect to
Series 2001-C:
(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-C 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-C Holders aggregating not less than 50% of the outstanding
principal balance of the Series 2001-C;
(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
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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-C
Certificates aggregating not less than 50% of the outstanding principal balance
of the Series 2001-C Certificates and (B) as a result of which the interests of
the Series 2001-C 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 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-C 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-C 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-C) may declare that a Pay Out Event
has occurred with respect to Series 2001-C as of the date of such notice, and,
in the case of any event described in subparagraph (c), (d) or
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(f) a Pay Out Event shall occur with respect to Series 2001-C 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-C 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-C 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 January 2007 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 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-C 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 January 2007 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.
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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-C 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-C 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 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-C Certificateholders
shall be deemed distributed in full to the Series 2001-C 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.
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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 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
38
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-C Certificateholders
shall be distributed in full to the Series 2001-C 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-C 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. 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.
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.
Section 10.4 GOVERNING LAW. THIS SUPPLEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
39
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-C 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 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-C Certificates.
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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 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-C to the Indenture
Trustee (as defined in the Transfer Agreement) pursuant to the Indenture (as
defined in the Transfer Agreement).
Section 10.9. Additional Representations and Warranties of the
Sellers. Each Seller hereby makes the following representations and warranties.
Such representations and warranties shall survive until the termination of this
Supplement. Such representations and warranties speak as of the date that the
Receivables (as defined below) are transferred to the Trustee but shall not be
waived by any of the parties to this Supplement unless the Rating Agency
Condition shall have been satisfied with respect to such waiver.
(a) The Agreement creates a valid and continuing security
interest (as defined in the applicable UCC) in favor of the Trustee in the
Receivables described in Section 2.01 of the Agreement (the "Receivables"),
which security interest is prior to all other liens, and is enforceable as such
against creditors of and purchasers from such Seller.
(b) The Receivables constitute "accounts" within the meaning
of the applicable UCC.
(c) At the time of its transfer of any Receivable to the
Trustee pursuant to the Agreement, such Seller owned and had good and marketable
title to such Receivables free and clear of any Lien, claim or encumbrance of
any Person.
(d) Such Seller has caused or will have caused, within ten
(10) days of the initial execution of the Agreement, the filing of all
appropriate financing statements in the proper filing office in the appropriate
jurisdictions under applicable law in order to perfect the security interest in
the Receivables granted to the Trustee pursuant to the Agreement.
(e) Other than the security interest granted to the Trustee
pursuant to the Agreement or an Assignment, such Seller has not pledged,
assigned, sold, granted a security
41
interest in, or otherwise conveyed the Receivables. Such Seller has not
authorized the filing of and is not aware of any financing statements against
such Seller that cover such Receivables other than any financing statement
relating to the transfer and security interest granted to the Trustee pursuant
to the Agreement or an Assignment or that has been terminated. Such Seller is
not aware of any judgment or tax lien filings against such Seller.
[Signature Page to Follow]
42
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:
-----------------------------------------------
Name: Jeffrey A. Lipson
Title: Vice President
BANKERS TRUST COMPANY,
Trustee
By:
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Name: Peter Becker
Title: Assistant Vice President
[Signature Page for Series 2001-C Supplement]