EXHIBIT 4.1
Brown & Wood
Draft 8/30/96
_____________________________________________________________________________
FIRESTONE RETAIL CREDIT CORPORATION,
Transferor,
BRIDGESTONE/FIRESTONE, INC.
and
THE FUJI BANK AND TRUST COMPANY,
Trustee
on behalf of the Certificateholders
BRIDGESTONE/FIRESTONE MASTER TRUST
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of __________, 1996
to the
POOLING AND SERVICING AGREEMENT
Dated as of November 1, 1992
_____________________________________________________________________________
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
Section 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . . . 1
Section 1.02 Other Definitional Provisions . . . . . . . . . . . . . . 21
ARTICLE II CONVEYANCE; ISSUANCE OF CERTIFICATES . . . . . . . . . . . 21
Section 2.01 Conveyance . . . . . . . . . . . . . . . . . . . . . . . . 23
Section 2.02 Acceptance by Trustee . . . . . . . . . . . . . . . . . . 24
Section 2.03 Representations and Warranties of the
Transferor Relating to the Transferor . . . . . . . . . 25
Section 2.04 Representations and Warranties Relating to
the Agreement and the Receivables . . . . . . . . . . . 27
Section 2.05 Addition of Accounts . . . . . . . . . . . . . . . . . . . 29
Section 2.06 Transfer of Ineligible Receivables . . . . . . . . . . . . 30
Section 2.07 Purchase of Certificates . . . . . . . . . . . . . . . . . 31
Section 2.08 Covenants of the Transferor . . . . . . . . . . . . . . . 33
Section 2.09 Authentication of Certificates . . . . . . . . . . . . . . 37
Section 2.10 Removal of Accounts . . . . . . . . . . . . . . . . . . . 37
Section 2.11 Discount Option . . . . . . . . . . . . . . . . . . . . . 38
ARTICLE III ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01 Acceptance of Appointment and Other Matters
Relating to the Servicer . . . . . . . . . . . . . . . . 40
Section 3.02 Servicing Compensation . . . . . . . . . . . . . . . . . . 42
Section 3.03 Representations, Warranties and Covenants of
the Servicer . . . . . . . . . . . . . . . . . . . . . . 43
Section 3.04 Reports and Records for the Trustee; Bank
Account Statements . . . . . . . . . . . . . . . . . . . 46
Section 3.05 Annual Servicer's Certificate . . . . . . . . . . . . . . 47
Section 3.06 Annual Independent Public Accountants'
Servicing Report . . . . . . . . . . . . . . . . . . . . 47
Section 3.07 Tax Treatment . . . . . . . . . . . . . . . . . . . . . . 48
Section 3.08 Notices to Bridgestone/Firestone . . . . . . . . . . . . . 48
Section 3.09 Adjustments . . . . . . . . . . . . . . . . . . . . . . . 49
ARTICLE IV RIGHTS OF CERTIFICATEHOLDERS, ALLOCATION
AND APPLICATION OF COLLECTIONS AND SERVICER
AND TRANSFEROR LETTERS OF CREDIT
Section 4.01 Establishment of Collection Account and
Allocations with Respect to the Exchangeable
Transferor Certificate . . . . . . . . . . . . . . . . . 51
Section 4.01A Servicer Letter of Credit . . . . . . . . . . . . . . . . 55
Section 4.01B Transferor Letter of Credit . . . . . . . . . . . . . . . 59
ARTICLE V (ARTICLE V IS RESERVED AND MAY BE SPECIFIED IN
ANY SUPPLEMENT WITH RESPECT TO ANY SERIES)
ARTICLE VI THE CERTIFICATES
Section 6.01 The Certificates . . . . . . . . . . . . . . . . . . . . . 64
Section 6.02 Authentication of Certificates . . . . . . . . . . . . . . 64
Section 6.03 Registration of Transfer and Exchange of
Certificates . . . . . . . . . . . . . . . . . . . . . . 65
Section 6.04 Mutilated, Destroyed, Lost or Stolen
Certificates . . . . . . . . . . . . . . . . . . . . . . 67
Section 6.05 Persons Deemed Owners . . . . . . . . . . . . . . . . . . 67
Section 6.06 Appointment of Paying Agent . . . . . . . . . . . . . . . 68
Section 6.07 Access to List of Certificateholders' Names
and Addresses . . . . . . . . . . . . . . . . . . . . . 69
Section 6.08 Authenticating Agent . . . . . . . . . . . . . . . . . . . 70
Section 6.09 Tender of Exchangeable Transferor
Certificate . . . . . . . . . . . . . . . . . . . . . . 71
Section 6.10 (Reserved) . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 6.11 Book-Entry Certificates . . . . . . . . . . . . . . . . . 73
Section 6.12 Notices to Clearing Agency . . . . . . . . . . . . . . . . 74
Section 6.13 Definitive Certificates . . . . . . . . . . . . . . . . . 74
ARTICLE VII OTHER MATTERS RELATING
TO THE TRANSFEROR
Section 7.01 Liability of the Transferor . . . . . . . . . . . . . . . 76
Section 7.02 Merger or Consolidation of, or Assumption of
the Obligations of, the Transferor . . . . . . . . . . . 76
Section 7.03 Limitation on Liability of the Transferor . . . . . . . . 77
Section 7.04 Liabilities . . . . . . . . . . . . . . . . . . . . . . . 77
ARTICLE VIII OTHER MATTERS RELATING TO THE SERVICER
Section 8.01 Liability of the Servicer . . . . . . . . . . . . . . . . 78
Section 8.02 Merger or Consolidation of, or Assumption of
the Obligations of, the Servicer . . . . . . . . . . . . 78
Section 8.03 Limitation on Liability of the Servicer and
Others . . . . . . . . . . . . . . . . . . . . . . . . . 79
Section 8.04 Servicer Indemnification of the Trust and the
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 70
Section 8.05 The Servicer Not to Resign . . . . . . . . . . . . . . . . 80
Section 8.06 Access to Certain Documentation and
Information Regarding the Receivables . . . . . . . . . 80
Section 8.07 Delegation of Duties . . . . . . . . . . . . . . . . . . . 81
Section 8.08 Examination of Records . . . . . . . . . . . . . . . . . . 81
ARTICLE IX AMORTIZATION EVENTS
Section 9.01 Amortization Events . . . . . . . . . . . . . . . . . . . 82
Section 9.02 Additional Rights Upon the Occurrence of
Certain Events . . . . . . . . . . . . . . . . . . . . . 82
ARTICLE X SERVICER DEFAULTS
Section 10.01 Servicer Defaults . . . . . . . . . . . . . . . . . . . . 84
Section 10.02 Trustee to Act; Appointment of Successor . . . . . . . . . 86
Section 10.03 Notification to Certificateholders . . . . . . . . . . . . 88
Section 10.04 Waiver of Past Defaults . . . . . . . . . . . . . . . . . 88
ARTICLE XI THE TRUSTEE
Section 11.01 Duties of Trustee . . . . . . . . . . . . . . . . . . . . 89
Section 11.02 Rights of the Trustee . . . . . . . . . . . . . . . . . . 90
Section 11.03 Trustee Not Liable for Recitals in
Certificates . . . . . . . . . . . . . . . . . . . . . . 91
Section 11.04 Trustee May Own Certificates . . . . . . . . . . . . . . . 91
Section 11.05 The Servicer to Pay Trustee's Fees and
Expenses . . . . . . . . . . . . . . . . . . . . . . . . 91
Section 11.06 Eligibility Requirements for Trustee . . . . . . . . . . . 91
Section 11.07 Resignation or Removal of Trustee . . . . . . . . . . . . 92
Section 11.08 Successor Trustee . . . . . . . . . . . . . . . . . . . . 92
Section 11.09 Merger or Consolidation of Trustee . . . . . . . . . . . . 94
Section 11.10 Appointment of Co-Trustee or Separate
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 94
Section 11.11 Tax Returns . . . . . . . . . . . . . . . . . . . . . . . 96
Section 11.12 Trustee May Enforce Claims Without
Possession of Certificates . . . . . . . . . . . . . . . 96
Section 11.13 Suits for Enforcement . . . . . . . . . . . . . . . . . . 97
Section 11.14 Rights of Certificateholders to Direct
Trustee . . . . . . . . . . . . . . . . . . . . . . . . 97
Section 11.15 Representations and warranties of Trustee . . . . . . . . 97
Section 11.16 Maintenance of Office or Agency . . . . . . . . . . . . . 98
ARTICLE XII TERMINATION
Section 12.01 Termination of Trust . . . . . . . . . . . . . . . . . . . 99
Section 12.02 Optional Purchase and Final Termination Date
of Investor Certificates of any Series . . . . . . . . . 99
Section 12.03 Final Payment with Respect to any Series . . . . . . . . 100
Section 12.04 Transferor's Termination Rights . . . . . . . . . . . . 102
ARTICLE XIII MISCELLANEOUS PROVISIONS
Section 13.01 Amendment . . . . . . . . . . . . . . . . . . . . . . . 103
Section 13.02 Protection of Right, Title and Interest to
Trust . . . . . . . . . . . . . . . . . . . . . . . . . 105
Section 13.03 Limitation on Rights of Certificateholders . . . . . . . . 106
Section 13.04 Governing Law. . . . . . . . . . . . . . . . . . . . . . . 107
Section 13.05 Notices . . . . . . . . . . . . . . . . . . . . . . . . . 107
Section 13.06 Severability of Provisions . . . . . . . . . . . . . . . . 108
Section 13.07 Assignment . . . . . . . . . . . . . . . . . . . . . . . . 108
Section 13.08 Certificates Nonassessable and Fully Paid . . . . . . . . 108
Section 13.09 Further Assurances . . . . . . . . . . . . . . . . . . . . 108
Section 13.10 No Waiver; Cumulative Remedies . . . . . . . . . . . . . . 108
Section 13.11 Counterparts . . . . . . . . . . . . . . . . . . . . . . . 109
Section 13.12 Third Party Beneficiaries . . . . . . . . . . . . . . . . 109
Section 13.13 Actions by Certificateholders . . . . . . . . . . . . . . 109
Section 13.14 Merger and Integration . . . . . . . . . . . . . . . . . . 109
Section 13.15 Headings . . . . . . . . . . . . . . . . . . . . . . . . . 110
Section 13.16 Voting, Waiver and Consents . . . . . . . . . . . . . . . 110
EXHIBITS
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Exhibit A-1: Form of Exchangeable Transferor Certificate
Exhibit A-2: Form of Bridgestone/Firestone Certificate
Exhibit B: Form of Assignment of Receivables in
Additional Accounts
Exhibit C: Form of Reassignment of Receivables in
Removed Accounts
Exhibit D: Irrevocable Servicer Letter of Credit
Exhibit E: Form of Annual Servicer's Certificate
Exhibit F: Form of Opinion of Counsel - Provisions to
be Included in Opinion of Counsel Delivered
Pursuant to Subsection 2.05(b)(vi)
Exhibit G: Irrevocable Transferor Letter of Credit
No. _____
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT, dated as of
__________, 1996 to the POOLING AND SERVICING AGREEMENT, dated as of November
1, 1992, by and among FIRESTONE RETAIL CREDIT CORPORATION, a corporation
organized and existing under the laws of the Commonwealth of Massachusetts,
as Transferor; BRIDGESTONE/FIRESTONE, INC., a corporation organized and
existing under the laws of the State of Ohio, individually and as Servicer;
and THE FUJI BANK AND TRUST COMPANY, a banking corporation organized and
existing under the laws of the State of New York, as Trustee.
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other parties and for the benefit
of the Certificateholders to the extent provided herein:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
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following words and phrases shall have the following meanings:
"Account" shall mean (a) each credit card account generated or to be
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generated by the Originator in the ordinary course of its business and
existing or arising under the Credit Card Program, and (b) subject to
(Section 2.05(b)(ii)), as of each Addition Date, each Additional Account
identified in each list delivered to the Trustee by the Transferor pursuant
to Section 2.05. The definition of Account shall include each Transferred
Account into which an Account shall be transferred provided that such
transfer was made in accordance with all objective criteria of the Credit
Card Guidelines. The term "Account" shall be deemed to refer to an
Additional Account only from and after the Addition Date with respect
thereto.
"Accumulation Period" shall have, with respect to any Series, the
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meaning, if any, specified in the applicable Supplement.
"Addition Date" shall mean each date as of which Additional Accounts
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will be included as Accounts pursuant to Section 2.05.
"Addition Notice Date" shall mean, with respect to any Additional
--------------------
Account, the last day in the month preceding the month in which the Addition
Date for such Additional Account occurs.
"Additional Accounts" shall have the meaning set forth in Section 2.05.
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"Additional Receivables" shall mean Receivables arising from Additional
----------------------
Accounts.
"Adjustment Payment" shall have the meaning set forth in Section
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3.09(a).
"Affiliate" of any Person shall mean any other Person controlling,
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controlled by or under common control with such Person.
"Aggregate Invested Amount" shall mean the sum of the Invested Amounts
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with respect to all Series then issued and outstanding.
"Aggregate Invested Percentage" shall mean the sum of the applicable
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Invested Percentages with respect to all Series then issued and outstanding.
"Aggregate Receivables" shall mean, at any time, (a) the aggregate
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amount of Eligible Receivables as of the end of the prior Collection Period
for each Account minus Defaulted Receivables, minus (b)(i) an amount equal
to the finance charges billed in respect of the Receivables in such prior
Collection Period, minus (ii) finance charges credited as a rebate during
such prior Collection Period minus (iii) amounts billed with respect to
Receivables that are Discount Option Receivables.
"Agreement" shall mean this Pooling and Servicing Agreement and all
---------
amendments hereof and supplements hereto, including any Supplement.
"Alternative Programs" shall mean programs, other than the Credit Card
--------------------
Program which exists as of ______________, 1996, which may include, but are
not limited to, the establishment of private label credit card programs and
the offering of general purpose credit cards.
"Amortization Event" shall have, with respect to each Series, the
------------------
meaning specified in Section 9.01 and in any Supplement for the related
Series.
"Amortization Period" shall mean, with respect to any Series, the period
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following the Revolving Period which may be the Accumulation Period,
Controlled Amortization Period, Early Amortization Period or Rapid
Amortization Period (each as defined in any related Supplement).
"Applicants" shall have the meaning specified in Section 6.07.
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"Appointment Date" shall have the meaning specified in Section 9.02.
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"APR" shall mean the annual percentage rate or rates determined in the
---
manner described in the Credit Card Agreement applicable to each Account.
"Assignment" shall have the meaning set forth in Section 2.05(b)(ii).
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"Authorized Newspaper" shall mean any newspaper of general circulation
--------------------
in the Borough of Manhattan, the City of New York, or in such other location
as may be specified in a Supplement for a particular Series, printed in the
English language, or the official language of the country of publication, and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"Available Letter of Credit Amount" shall have, with respect to the
---------------------------------
Servicer Letter of Credit, the meaning specified in the Servicer Letter of
Credit and, with respect to the Transferor Letter of Credit, the meaning
specified in the Transferor Letter of Credit.
"Base Rate" shall mean, with respect to any Series, the amount stated
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in the applicable Supplement.
"B/F Amount" shall mean that portion of Aggregate Receivables
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represented by the B/F Percentage except as reduced pursuant to Section
2.06(c) or Section 3.09(a).
"B/F Percentage" shall mean 1%.
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"Book-Entry Certificates" shall mean an Investor Certificate,
-----------------------
registered in the name of a Clearing Agency or a nominee thereof as described
in Section 6.11; provided that after the occurrence of a condition whereupon
book-entry registration and transfer are no longer permitted and Definitive
Certificates are to be issued to the Certificate Owners, such certificates
shall no longer be "Book-Entry Certificates."
"Bridgestone/Firestone" shall mean Bridgestone/Firestone, Inc., a
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corporation organized and existing under the laws of the State of Ohio.
"Bridgestone/Firestone Certificate" shall mean the certificate executed
---------------------------------
by the Transferor and authenticated by the Trustee, substantially in the form
of Exhibit A-2.
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"Business Day" shall mean any day other than (a) a Saturday or a Sunday,
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or (b) a day on which banking institutions or trust companies in the Cities
of Cleveland, Ohio, Nashville, Tennessee, or New York, New York, or, as
specified in a Supplement for a particular Series, any other place where
payment on the Certificates is authorized for such Series, are authorized or
obligated by law, executive order or governmental decree to be closed.
"Certificate" shall mean one of any Series of Investor Certificates, the
-----------
Bridgestone/Firestone Certificate, or the Exchangeable Transferor
Certificate.
"Certificate Owner" shall mean, with respect to a Book-Entry
-----------------
Certificate, the Person who is the owner of a beneficial interest in such
Book-Entry Certificate, as reflected on the books of the Clearing Agency, or
on the books of a Person maintaining an account with such Clearing Agency.
"Certificate Rate" shall mean, with respect to any Series, the
----------------
percentage (or formula on the basis of which such rate shall be determined)
stated in the applicable Supplement.
"Certificate Register" shall mean the register maintained pursuant to
--------------------
Section 6.03, providing for the registration of the applicable Certificates
and transfer and exchange thereof.
"Certificateholder" or "Holder" shall mean the Person in whose name a
----------------- ------
Certificate is registered in the Certificate Register or, if applicable, the
Clearing Agency in whose name are registered any Book-Entry Certificates.
"Certificateholders' Interest" shall have the meaning specified in
----------------------------
Article IV of any Supplement for the related Series.
"Class" shall mean, with respect to any Series, any one of the Classes
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of Certificates of that Series as specified in the related Supplement.
"Clearing Agency" shall mean an organization registered as a "clearing
---------------
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
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financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with
the Clearing Agency.
"Closing Date" shall mean, with respect to any Series, the date of
------------
issuance of such Series, as specified in the related Supplement.
"Collection Account" shall have the meaning specified in Section 4.01.
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"Collection Period" shall mean, with respect to each Account, each
-----------------
monthly billing cycle period ending in the period commencing on the 19th
calendar day of each calendar month and ending on the 18th calendar day of
the next succeeding calendar month during the term of the Trust.
"Collections" shall mean all payments by or on behalf of Obligors
-----------
(including Recoveries, Insurance Premiums and Insurance Proceeds) received
by the Servicer, the Originator or the Transferor in respect of the
Receivables, in the form of cash, checks or any other form of payment in
accordance with the Credit Card Agreement in effect from time to time.
"Controlled Amortization Period" shall have, with respect to any Series,
------------------------------
the meaning specified in the applicable Supplement.
"Corporate Trust Office" shall mean the principal office of the Trustee
----------------------
at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Agreement is
located at Two World Trade Center, 81st Floor, New York, New York 10048
(Attn: Trust Administration Department).
"Credit Card Agreement" shall mean, with respect to each Account, and
---------------------
collectively with respect to all Accounts, the agreements between the
Originator and each Obligor, governing the terms and conditions of the
applicable revolving credit card account or any successor credit card account
designations used by the Originator, Bridgestone/Firestone or the Transferor
as such agreements may be amended, modified or otherwise changed from time
to time and as distributed (including any amendments and revisions thereto)
to holders of such consumer revolving credit card accounts. The form of
agreement relating to Accounts generated by the Originator under the Credit
Card Program is as set forth in Exhibit G (or in a form substantially similar
to Exhibit G).
"Credit Card Guidelines" shall mean the written policies and procedures
----------------------
relating to the operation of the credit card business applicable to the
Credit Card Program or any Alternative Program, including, without
limitation, the written policies and procedures for determining the
creditworthiness of credit card customers, the extension of credit to credit
card customers, and the maintenance of credit card accounts and collection
of credit card receivables, as such policies and procedures may be amended
from time to time in conformance with all Requirements of Law, the failure
to comply with which would have a material adverse effect on Investor
Certificateholders.
"Credit Card Program" shall mean the private label credit card program
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established for customers of Retail Establishments which may include certain
credit features or enhancements including cash advances or convenience
checks, existing as of __________________________.
"Credit First" shall mean Credit First National Association, a national
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banking association organized and existing under the laws of the United
States.
"Cut-Off Date" shall mean, for each Account, the billing cycle closing
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date occurring during the period commencing on October 19, 1992 and ending
on November 18, 1992.
"Date of Processing" shall mean, with respect to any transaction, the
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business day after such transaction is first output in written form, under
the Servicer's customary and usual servicing practices, from the Servicer's
computer file of consumer revolving credit card accounts (without regard to
the effective date of such recordation).
"Debtor Relief Laws" shall mean the Bankruptcy Code of the United States
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of America and all other applicable liquidation, conservatorship, bankruptcy,
moratorium, rearrangement, receivership, insolvency, reorganization,
suspension of payment or similar debtor relief laws from time to time in
effect affecting the rights of creditors generally.
"Defaulted Amount" shall mean, with respect to any Distribution Date,
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the sum for all the Accounts of the amount of Receivables which became
Defaulted Receivables in the Collection Period for such Distribution Date,
less the full amount of such Defaulted Receivables which are subject to a
transfer obligation of the Transferor under Section 2.06(b) or of the
Servicer under Section 3.03 with respect to such Distribution Date; provided,
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however, that if any of the events described in Section 9.01(a) occurs with
- - -------
respect to the Transferor or Bridgestone/Firestone, the amount of such
Defaulted Receivables which are subject to transfer pursuant to Section
2.06(b) shall not be so subtracted and if any of the events described in
Section 10.01(d) occurs with respect to the Servicer, the amount of such
Defaulted Receivables which are subject to transfer pursuant to Section 3.03
shall not be so subtracted.
"Defaulted Receivables" shall mean, with respect to any Collection
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Period, all Receivables (other than Ineligible Receivables) in any Account
which are written off as uncollectible in such Collection Period, in
accordance with the applicable Credit Card Guidelines. Notwithstanding the
foregoing sentence, a Receivable (other than an Ineligible Receivable) shall
become a Defaulted Receivable on the day on which such Receivable is recorded
as written off on the Servicer's computer master file of consumer revolving
credit card accounts but, in any event, shall be deemed a Defaulted
Receivable no later than the last day of the Collection Period following the
Collection Period in which it becomes 180 days delinquent (210 days after the
date of the initial billing statement).
"Definitive Certificates" shall have the meaning specified in Section
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6.11.
"Definitive Registered Certificates" shall mean Definitive Certificates
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issued in registered form.
"Depository Agreement" shall mean the agreement among the Transferor,
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the Trustee and the Clearing Agency, in the form attached hereto as
Exhibit H.
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"Determination Date" shall mean the 2nd Business Day preceding each
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Distribution Date.
"Discount Option Receivables" shall mean, after the date on which the
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Transferor's exercise of its discount option pursuant to Section 2.11 takes
effect, the sum of (a) the aggregate Discount Option Receivables at the end
of the prior day (which amount, prior to the date on which the Transferor's
exercise of its discount option takes effect and with respect to Receivables
generated prior to such date, shall be zero) plus (b) any New Discount Option
----
Receivables created on such day minus (c) any Discount Option Receivables
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Collections received on such Date of Processing.
"Discount Option Receivable Collections" shall mean on any Determination
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Date, on and after the date on which the Transferor's exercise of its
discount option pursuant to Section 2.11 takes effect, the product of (a) a
fraction the numerator of which is the amount of Discount Option Receivables
and the denominator of which is the sum of the Aggregate Receivables and the
Discount Option Receivables in each case (for both numerator and denominator)
at the end of the prior Date of Processing, (b) Collections of Aggregate
Receivables and Discount Option Receivables received on such Date of
Processing and (c) a fraction the numerator of which is the aggregate amount
of Aggregate Receivables arising on each Date of Processing falling on or
after the date on which the Transferor exercises its discount option and the
denominator of which is the Aggregate Receivables on such Date of Processing.
"Discount Percentage" shall mean the fixed percentage, if any,
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designated by the Transferor pursuant to Section 2.11.
"Distribution Date" shall mean unless otherwise specified in any
-----------------
Supplement for the related Series, the 1st day of each calendar month or, if
such 1st day is not a Business Day, the next succeeding Business Day,
beginning on the date specified in such Supplement.
"Dollars", "$" or "U.S.$" shall mean United States dollars.
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"Early Amortization Period" shall mean, with respect to any Series, the
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period specified in the related Supplement.
"Eligible Account" shall mean an Account (a) which has been established
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under the Credit Card Program; (b) which is denominated in Dollars; (c) the
credit card or cards related to which have not been reported lost or stolen;
(d) the Obligor on which has provided, as its most recent billing address,
an address with a zip code in the United States or its territories or
possessions; (e) which is not an account of an Obligor in bankruptcy or an
account as to which the Servicer has any confirmed record of any
fraud-related activity; and (f) the Receivables in which have not been
charged-off or the account itself has not been closed prior to its billing
cycle cut-off date.
"Eligible Additional Account" shall mean, as of the relevant Addition
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Notice Date, an Account (a) which has been established under an Alternative
Program and designated by the Transferor as an Additional Account pursuant
to Section 2.03; (b) which is denominated in Dollars; (c) the credit card or
cards related to which have not been reported lost or stolen; (d) the Obligor
on which has provided, as its most recent billing address, an address with
a zip code in the United States or its territories or possessions; (e) which
is not an account of an Obligor in bankruptcy or an account as to which the
Servicer has any confirmed record of any fraud-related activity; and (f) the
Receivables in which have not been charged-off or the account itself has not
been closed prior to its billing cycle cut-off date.
"Eligible Institution" shall mean a depository institution (which may
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be the Trustee or the Originator or an Affiliate of either) organized under
the laws of the United States or any one of the states thereof, including the
District of Columbia, which at all times has the highest short-term rating
of at least two nationally recognized statistical rating agencies one at
which is A-1+ from Standard & Poor's and which is a member of the FDIC;
provided, however, that an institution which shall have corporate trust
- - -------- -------
powers and which maintains the Collection Account, any principal funding
account, any interest funding account or any other account maintained for the
benefit of Certificateholders as a fully segregated trust account with the
trust department of such institution shall not be required to meet the
foregoing rating requirements.
"Eligible Receivable" shall mean each Receivable:
-------------------
(a) which has arisen under (1) an Eligible Account (whether such
Account was initially an Eligible Account or was deemed to be an Eligible
Account upon the receipt of rating agency approval or (2) an Eligible
Additional Account and the transfer of such Receivable by the Transferor to
the Trust, or the sale of such Receivable by the Originator to the
Transferor, does not cause the aggregate amount of Additional Receivables
arising from Eligible Additional Accounts to exceed 10% of the average amount
of Aggregate Receivables as of the last day of each of the preceding 12
Collection Periods (the "Ten Percent Maximum");
(b) which was created in compliance with all Requirements of Law
applicable to the Originator and the Servicer, other than those with respect
to which there is no reasonable likelihood that a failure to comply could
have a material adverse effect upon Investor Certificateholders and pursuant
to a Credit Card Agreement which complies with all Requirements of Law
applicable to the Originator and the Servicer, other than those with respect
to which there is no reasonable likelihood that a failure to comply could
have a material adverse effect on Investor Certificateholders;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given in connection with the
creation of such Receivable or the execution, delivery and performance of the
Credit Card Agreement pursuant to which such Receivable was created, have
been duly obtained, effected or given and are in full force and effect as of
such date of creation;
(d) as to which at all times following the transfer of such
Receivable to the Trust, the Trust will have good and marketable title
thereto free and clear of all Liens arising prior to the transfer or arising
at any time under or through the Originator, the Servicer or the Transferor
or its Affiliates (which Affiliates shall not include the Trust) other than
Liens permitted pursuant to Section 2.08(b);
(e) which has been the subject of either a valid transfer and
assignment from the Transferor to the Trust of all of the Transferor's right,
title and interest therein or the grant to the Trust of a perfected security
interest which is prior to any interest of all third parties therein (and in
the proceeds thereof), effective until the termination of the Trust;
(f) which will at all times be the legal, valid and binding
payment obligation of the Obligor thereon enforceable against such Obligor
in accordance with its terms, except as such enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws, now or hereafter in effect, affecting the enforcement of
creditors' rights in general and except as such enforceability may be limited
by general principles of equity (whether considered in a suit at law or in
equity);
(g) which constitutes either an "account" or a "general
intangible" under and as defined in Article 9 of the UCC as then in effect
in the Commonwealth of Massachusetts and the States of New York and Ohio;
(h) which, at the time of transfer to the Trust, has not been
waived or modified except as permitted in accordance with Section 3.03(i);
(i) which is not subject to any right of rescission, setoff,
counterclaim or any other defense (including defenses arising out of
violations of usury laws) of the Obligor, other than defenses arising out of
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights in general and
except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or equity) or as to which the Servicer
may, as described in Section 3.03(i), make an adjustment;
(j) as to which, at the time of transfer of such Receivable by the
Transferor to the Trust, or at the time of sale of such Receivable by the
Originator to the Transferor, each of the Transferor and the Originator has
satisfied all obligations on its part with respect to such Receivable
required to be fulfilled pursuant to the Credit Card Agreement or in
connection with the transfer and any applicable agreement pursuant to which
such transfer occurs; and
(k) as to which, at the time of transfer of such Receivable by the
Transferor to the Trust, or at the time of sale of such Receivable by the
Originator to the Transferor, each of the Transferor and the Originator has
not taken any action which would impair or failed to take any action
necessary to avoid impairing the rights of the Trust or the
Certificateholders therein.
"Eligible Servicer" shall mean the Trustee or a national banking
-----------------
association formed by Bridgestone/Firestone to own credit card accounts and
receivables or an entity which, at the time of its appointment as Servicer,
(i) is servicing a portfolio of consumer revolving credit card accounts, (ii)
is legally qualified and has the capacity to service the Accounts, (iii) has
demonstrated the ability to service professionally and completely a portfolio
of similar accounts in accordance with high standards of skill and care and
(iv) is qualified to use the software that the Servicer is then currently
using to service the Accounts or obtains the right to use or has its own
software which is adequate to perform its duties under this Agreement.
"Enhancement" shall mean, with respect to any Series, the letter of
-----------
credit, liquidity facility, guaranteed rate agreement, maturity guaranty
facility, tax protection agreement, interest rate swap or any other contract
or agreement for the benefit of Certificateholders of such Series as
designated in the applicable Supplement.
"Enhancement Provider" shall mean, with respect to any Series, that
--------------------
Person designated as such in the applicable Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
-----
as amended.
"Escrow Account" shall have the meaning specified in Section 4.01A(e).
--------------
"Exchange" shall mean either of the procedures described under Section
--------
6.09.
"Exchangeable Transferor Certificate" shall mean the certificate
-----------------------------------
executed by the Transferor and authenticated by the Trustee, substantially
in the form of Exhibit A-1 and exchangeable as provided in Section 6.09.
-----------
"Exchange Date" shall have the meaning, with respect to any Series
-------------
issued pursuant to an Exchange, specified in Section 6.09.
"Exchange Notice" shall have the meaning, with respect to any Series
---------------
issued pursuant to an Exchange, specified in Section 6.09.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
----
"Final Trust Termination Date" shall have the meaning specified in
----------------------------
Section 12.01.
"Finance Charge Collections" shall mean, with respect to any Collection
--------------------------
Period, the amount of Collections allocated as Finance Charge Collections
pursuant to Section 4.01(e).
"Fitch" shall mean Fitch Investors Service, Inc.
-----
"Fixed Allocation Percentage" shall (i) have with respect to any Series,
---------------------------
the meaning specified in the applicable Supplement and (ii) with respect to
the Bridgestone/Firestone Certificate, mean 1%.
"Floating Allocation Percentage" shall (i) have with respect to any
------------------------------
Series, the meaning specified in the applicable Supplement and (ii) with
respect to the Bridgestone/Firestone Certificate, mean 1%.
"Governmental Authority" shall mean the United States of America, any
----------------------
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of
or pertaining to government.
"Ineligible Receivable" shall have the meaning specified in Section
---------------------
2.06.
"Initial Closing Date" shall mean December 2, 1992.
--------------------
"Initial Invested Amount" shall mean, with respect to any Series, the
-----------------------
amount stated in the applicable Supplement.
"Insurance Agreement" shall mean any insurance policy for the benefit
-------------------
of the Originator or Bridgestone/Firestone covering any Obligor with respect
to Receivables under such Obligor's Account.
("Insurance Premiums" shall mean the amounts specified in the Insurance
------------------
Agreement applicable to each Account for insurance on such Account which are
retained by the Originator, the Servicer or Bridgestone/Firestone from
payments by the applicable Obligor or remitted to the Originator, the
Servicer or Bridgestone/Firestone by the applicable insurance provider.)
"Insurance Proceeds" shall mean any amounts received by the Servicer,
------------------
the Originator or the Transferor from the applicable insurance providers
pursuant to any insurance policies covering any Obligor with respect to
Receivables under such Obligor's Account.
"Interest Accrual Period" shall mean, with respect to any Series, the
-----------------------
period during which interest accrues on such Series as specified in the
related Supplement.
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
---------------------
as amended from time to time.
"Invested Amount" shall have, with respect to any Series, the meaning
---------------
specified in the applicable Supplement.
"Invested Percentage" shall have, with respect to any Series, the
-------------------
meaning specified in the applicable Supplement.
"Investor Certificate" shall mean any one of the certificates
--------------------
(including, without limitation, the Book-Entry Certificates or the Registered
Certificates) executed by the Transferor and authenticated by or on behalf
of the Trustee, substantially in the form attached to the applicable
Supplement.
"Investor Certificateholder" shall mean the holder of record of an
--------------------------
Investor Certificate.
"Investor Default Amount" shall have, with respect to any Series, the
-----------------------
meaning specified in the applicable Supplement.
"Investor Exchange" shall have the meaning specified in Section 6.09.
-----------------
"Issuance Date" shall mean, with respect to any Series, the date of
-------------
initial issuance of such Series as specified in the related Supplement.
"Late Fees" shall have the meaning specified in the Credit Card
---------
Agreement applicable to each Account for late fees or similar terms.
"Letter of Credit Bank" shall mean The Sumitomo Bank, Limited, acting
---------------------
through its New York Branch, and the issuer of any substitute Servicer Letter
of Credit delivered pursuant to Section 4.01A(c) or substitute Transferor
Letter of Credit delivered pursuant to Section 4.01B(c).
"Letter of Credit Reimbursement Agreement" shall mean the Letter of
----------------------------------------
Credit Reimbursement Agreement, dated as of December 2, 1992, between
Bridgestone/Firestone and the Letter of Credit Bank, as from time to time
amended, or any similar agreement between Bridgestone/Firestone and the
issuer of any substitute Servicer Letter of Credit delivered pursuant to
Section 4.01A(c) or Transferor Letter of Credit delivered pursuant to Section
4.01B(c).
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
----
assignment, deposit arrangement, encumbrance, lien (statutory or other),
preference, priority or other security agreement or preferential arrangement
of any kind or nature whatsoever, including, without limitation, any
conditional sale or other title retention agreement, any financing lease
having substantially the same economic effect as any of the foregoing and the
filing of any financing statement under the UCC or comparable law of any
jurisdiction to evidence any of the foregoing; provided, however, that any
-------- -------
assignment permitted by Section 7.02 shall not be deemed to constitute a
Lien; provided, further, however, that the Lien created by the Agreement
-------- ------- -------
shall not be deemed to constitute a Lien.
"Merchant Fees" shall mean all fees paid to the Originator in its
-------------
capacity as credit card issuer, by Retail Establishments in connection with
the Credit Card Program or any Alternative Program which are transferred by
the Originator to the Transferor pursuant to the Merchant Fee Transfer
Agreement.
"Merchant Fee Transfer Agreement" shall mean the Merchant Fee Transfer
-------------------------------
Agreement, dated __________, 1996, among the Transferor, the Originator and
Bridgestone/Firestone, as the same may be supplemented, modified, amended or
amended and restated from time to time.
"Minimum Transferor Interest Percentage" shall mean, with respect to any
--------------------------------------
Collection Period with respect to any Series, the percentage specified in the
Supplement in respect of such Series of Certificates.
"Monthly Periodic Rate" shall mean the APR divided by 12.
---------------------
"Monthly Servicing Fee" shall have, with respect to each Series, the
---------------------
meaning specified in Section 3.02.
"Monthly Servicer's Certificate" shall have the meaning set forth in
------------------------------
Section 3.04(b).
"Moody's" shall mean Moody's Investors Service, Inc.
-------
"Net Losses" shall mean, with respect to any Collection Period, the
----------
annualized percentage equivalent of a fraction the numerator of which is the
Defaulted Amount less the amount of Recoveries with respect to such
Collection Period and the denominator of which is the Aggregate Receivables
as of the end of the preceding Collection Period.
"New Discount Option Receivables" shall mean, on any Date of Processing
-------------------------------
on and after the date on which the Transferor's exercise of its discount
option pursuant to Section 2.11 takes effect, the product of the amount of
any Aggregate Receivables created on such Date of Processing (without
reducing the amount of Aggregate Receivables by the amount of Receivables
attributed to finance charges which are Discount Option Receivables) and the
Discount Percentage.
"Obligor" shall mean, with respect to any Account, the Person or Persons
-------
obligated to make payments with respect to such Account, including any
guarantor thereof, but excluding any merchants.
"Officers' Certificate" shall mean, unless otherwise specified in the
---------------------
Agreement, a certificate signed by a Chairman of the Board, President or any
Vice President and a Treasurer, Secretary, Assistant Secretary, or Assistant
Treasurer or, in the case of a Successor Servicer, a certificate signed by
a Vice President and the financial controller (or an officer holding an
office with equivalent or more senior responsibilities) of such Successor
Servicer, and delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel, who may
------------------
be counsel of the Transferor and who shall be reasonably acceptable to the
Trustee; provided, however, that any opinion of counsel regarding federal
-------- -------
income tax consequences shall be rendered by independent outside counsel.
"Originator" shall mean Credit First (successor to Society National
----------
Bank) or any successor originator of Accounts as herein provided.
"Participation Agreement" shall mean the Participation Agreement by and
-----------------------
between Bridgestone/Firestone and the Transferor, as the same may be
supplemented, modified, amended or amended and restated from time to time.
"Paying Agent" shall mean any paying agent appointed pursuant to Section
------------
6.06 and shall initially be the Trustee.
"Payoff Date" shall have the meaning specified in Section 4.01A(e).
-----------
"Periodic Finance Charges" shall have the meaning specified in the
------------------------
Credit Card Agreement applicable to each Account for finance charges (based
on a periodic rate) or similar term.
"Permitted Investments" shall mean (a) negotiable instruments or
---------------------
securities represented by instruments in bearer or registered form which
evidence (i) obligations fully guaranteed as to timely payment by the United
States of America; (ii) certificates of deposit of, or bankers' acceptances
issued by, any depository institution or trust company incorporated or
licensed under the laws of the United States of America or any state thereof
and subject to supervision and examination by federal or state banking or
depository institution authorities (which may be the Trustee or the
Originator or an Affiliate of either); provided, however, that at the time
-------- -------
of the Trust's investment or reinvestment or contractual commitment to invest
or reinvest therein, such depository institution or trust company shall have
the highest short-term rating granted by each Standard & Poor's and Moody's;
(iii) commercial paper having, at the time of the Trust's investment or
reinvestment or contractual commitment to invest or reinvest therein, a
rating from each Standard & Poor's and Moody's in the highest short-term
category granted by Standard & Poor's or Moody's, as applicable; (iv)
investments in money market funds having the highest long-term rating granted
by each Standard & Poor's and Moody's and maintained by commercial banks
having unimpaired capital and unimpaired surplus of at least $500,000,000;
(v) eurodollar time deposits having the highest long-term rating granted by
each Standard & Poor's and Moody's; (vi) repurchase agreements involving any
of the Permitted Investments described in clauses (i) through (iv) above so
long as the other party to the repurchase agreement has the rating described
in clause (iii) above; and (vii) any other investment, if each Standard &
Poor's and Moody's confirms in writing that such investment will not
adversely affect any ratings with respect to any Series of Investor
Certificates, and (b) demand deposits or time deposits in the name of the
Trust or the Trustee in any depository institution or trust company referred
to in (a)(ii) above. For the purpose of this definition, "highest short-term
rating" when used in respect of Standard Poor's shall mean "A-1+".
"Person" shall mean any legal person, including any individual,
------
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, governmental entity or other entity of
similar nature.
"Pool Factor" shall mean, unless any Series is issued in more than one
-----------
Class as stated in any related Supplement, with respect to any Series and any
Record Date, a number (carried out to eight decimal places) representing the
quotient of (i) the applicable Invested Amount as of such Record Date
(determined after taking into account any reduction in the applicable
Invested Amount which will occur on the following Distribution Date) and (ii)
the applicable Initial Invested Amount.
"Portfolio Yield" shall mean, with respect to any Collection Period, the
---------------
annualized percentage equivalent of a fraction the numerator of which is the
amount of Finance Charge Collections for such Collection Period, calculated
on an accrual basis after subtracting the Defaulted Amount, and the
denominator of which is the Aggregate Receivables as of the end of the
preceding Collection Period.
"Principal Collections" shall mean that portion of Collections not
---------------------
deemed to be Finance Charge Collections.
"Principal Shortfalls" shall mean, with respect to any Collection Period
--------------------
and any outstanding Series, the amount which the related Supplement specifies
as the "Principal Shortfall" for such Business Day.
"Principal Terms" shall have the meaning, with respect to any Series
---------------
issued pursuant to an Exchange, specified in Section 6.09(c).
"Purchase and Sale Agreement" shall mean the Restated Purchase and Sale
---------------------------
Agreement by and among the Originator, Bridgestone/Firestone and the
Transferor, dated as of ________________, as the same has been and may be
further supplemented, modified, amended or amended and restated from time to
time.
"Rapid Amortization Period" shall mean, with respect to any Series of
-------------------------
Certificates, the period specified in the related Supplement.
"Rating Agency" shall mean, with respect to each Series, the rating
-------------
agency or rating agencies that rated such Series, including Fitch, Moody's
and Standard & Poor's.
"Reassignment" shall have the meaning specified in Section 2.10.
------------
"Receivables" shall mean all amounts transferred to the Transferor,
-----------
payable by Obligors on any Account, from time to time as shown on the
Servicer's records, including, without limitation, amounts payable for
purchases of goods or services and, if applicable, amounts payable for
Periodic Finance Charges, Late Fees, Returned Check Fees, returned
convenience check fees, cash advance fees and credit related insurance.
"Record Date" shall mean with respect to any Distribution Date, unless
-----------
otherwise provided in any Supplement for the related Series, the fifteenth
day of the preceding calendar month.
"Recoveries" shall mean all amounts or payments received by the Servicer
----------
with respect to Receivables which have previously become Defaulted
Receivables net of reasonable expenses.
"Registered Certificates" shall have the meaning specified in Section
-----------------------
6.01.
"REMARC Purchase Agreement" shall mean each purchase agreement with
-------------------------
respect to the Series 1992-B Class A REMARCs, as such agreements may be
amended or supplemented from time to time.
"Removal Date" shall have the meaning specified in Section 2.10.
------------
"Removal Notice Date" shall mean, with respect to any Removed Account,
-------------------
the last day in the month preceding the month in which the Removal Date for
such Removed Account occurs.
"Removed Accounts" shall have the meaning specified in Section 2.10.
----------------
"Repurchase Terms" shall mean, with respect to any Series issued
----------------
pursuant to an Exchange, the terms and conditions under which the Transferor
may repurchase such Series pursuant to Section 12.02 as modified by the
related Supplement.
"Requirements of Law" for any Person shall mean the certificate of
-------------------
incorporation and by-laws or other organizational or governing documents of
such Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable to or binding
upon such Person or to which such Person is subject, whether Federal, state
or local (including, without limitation, usury laws, the Federal Truth in
Lending Act and Regulation Z and Regulation B of the Board of Governors of
the Federal Reserve System).
"Responsible Officer" when used with respect to the Trustee shall mean
-------------------
any officer within the Corporate Trust Office (or any successor group of the
Trustee) including any vice president, assistant vice president, assistant
secretary or any other officer of the Trustee customarily performing
functions similar to those performed by the persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is
referred because of his knowledge of and familiarity with the particular
subject.
"Retail Establishments" shall mean Bridgestone/Firestone stores and
---------------------
dealers and marketers of Bridgestone/Firestone products and certain other
dealers and marketers of automotive products and services, which are
unaffiliated with Bridgestone/Firestone.
"Returned Check Fee" shall have the meaning specified in the Credit Card
------------------
Agreement applicable to each Account for returned check fees or similar
terms.
"Revolving Period" shall mean, with respect to any Series, the period
----------------
specified in the related Supplement.
"Series" shall mean any series of Investor Certificates.
------
"Series Termination Date" shall mean, with respect to any Series, the
-----------------------
date stated in the related Supplement.
"Service Transfer" shall have the meaning specified in Section 10.01.
----------------
"Servicer" shall initially mean Bridgestone/Firestone and thereafter any
--------
Person appointed as successor as herein provided to service the Receivables.
"Servicer Default" shall have the meaning specified in Section 10.01.
----------------
"Servicer Letter of Credit" shall mean a letter of credit for the
-------------------------
benefit of the Trustee issued by the Letter of Credit Bank in substantially
the form of Exhibit D hereto.
---------
"Servicing Fee" shall have the meaning specified in Section 3.02.
-------------
"Servicing Fee Percentage" shall mean, with respect to any Series, the
------------------------
percentage specified in the related Supplement.
"Servicing Officer" shall mean any officer of the Servicer involved in,
-----------------
or responsible for, the administration and servicing of the Receivables whose
name appears on a list of servicing officers furnished to the Trustee by the
Servicer, as such list may from time to time be amended.
("Shared Excess Finance Charge Collections" shall mean, with respect to
----------------------------------------
any Determination Date, the aggregate amount of Excess Finance Charge
Collections for all outstanding Series that the related Supplements specify
are to be treated as "Shared Excess Finance Charge Collections" available to
be allocated to other Series for the related Collection Period.)
"Shared Principal Collections" shall mean, with respect to any
----------------------------
Determination Date, the aggregate amount of Principal Collections for all
outstanding Series that the related Supplements specify are to be treated as
"Shared Principal Collections" available to be allocated to other Series for
the related Collection Period.
"Special Drawing" shall mean a drawing under the Servicer Letter of
---------------
Credit or Transferor Letter of Credit, as the case may be, made pursuant to
Section 4.01A or 4.01B hereof.
"Standard & Poor's" shall mean Standard & Poor's Corporation.
-----------------
"Stated Amount" shall have, with respect to the Servicer Letter of
-------------
Credit, the meaning specified in the Servicer Letter of Credit and, with
respect to the Transferor Letter of Credit, the meaning specified in the
Transferor Letter of Credit.
"Successor Servicer" shall have the meaning specified in Section 10.02.
------------------
"Supplement" shall mean, with respect to any Series, a supplement to
----------
this Agreement complying with the terms of Section 6.09, executed in
conjunction with any issuance of any Series.
"Termination Date" shall have the meaning specified in the Servicer
----------------
Letter of Credit.
"Termination Notice" shall have, with respect to any Series, the meaning
------------------
specified in Section 10.01.
"Transfer Agent and Registrar" shall have the meaning specified in
----------------------------
Section 6.03 and shall initially be the Trustee.
"Transfer Date" shall mean, with respect to any Distribution Date, the
-------------
Business Day next preceding such Distribution Date.
"Transfer Deposit Amount" shall mean, with respect to any Receivable for
-----------------------
any Distribution Date, an amount equal to the amount of the Receivable at the
end of the Collection Period for such Distribution Date, plus finance charges
at the APR on the balance for such Receivable from the last date billed
through the end of such Collection Period to the extent not included in the
amount of the Receivable.
"Transferor" shall mean Firestone Retail Credit Corporation, a
----------
corporation organized and existing under the laws of the Commonwealth of
Massachusetts.
"Transferor Amount" shall mean, with respect to any day, Aggregate
-----------------
Receivables for such day minus the Aggregate Invested Amount (less the
-----
principal amount on deposit in any principal funding accounts) and the B/F
Amount.
"Transferor Escrow Account" shall have the meaning specified in Section
-------------------------
4.01B(d).
"Transferor Exchange" shall have the meaning specified in Section 6.09.
-------------------
"Transferor Interest" shall have the meaning specified in Section
-------------------
4.01(a).
"Transferor Letter of Credit" shall mean a letter of credit for the
---------------------------
benefit of the Trustee issued by the Letter of Credit Bank in substantially
the form of Exhibit I hereto.
---------
"Transferor Percentage" shall mean when used with respect to Finance
---------------------
Charge Collections, Principal Collections and the amount of Defaulted
Receivables, 100% minus the sum of the applicable Invested Percentages with
-----
respect to all Series then issued and outstanding and the B/F Percentage.
"Transferor Retained Certificates" shall mean Investor Certificates of
--------------------------------
any Series which the Transferor is required to retain pursuant to the terms
of any Supplement.
"Transferred Account" shall mean a credit card account (including an
-------------------
account arising from an Alternative Program) with respect to which a new
credit card account number has been issued by the Servicer because (i) a
credit card was lost or stolen, (ii) separate accounts were merged into a
single joint account, (iii) multiple accounts for a single individual were
merged into a single individual account, or (iv) a joint account vas
converted to an individual account as a result of divorce or the death of a
spouse, each under circumstances not requiring standard application and
credit evaluation procedures under the Credit Card Guidelines and which can
be traced or identified by reference to or by way of the lists delivered to
the Trustee in disc or tape format pursuant to Sections 2.01 and 2.05, as an
account into which an Account has been transferred.
"Trust" shall mean the trust created by this Agreement.
-----
"Trust Assets" shall have the meaning specified in Section 2.01.
------------
"Trustee" shall mean The Fuji Bank and Trust Company, a banking
-------
corporation organized and existing under the laws of the State of New York,
and its successors and any corporation resulting from or surviving any
consolidation or merger to which it or its successors may be a party and any
successor Trustee at the time serving as successor Trustee hereunder.
"UCC" shall mean the Uniform Commercial Code, as amended from time to
---
time, as in effect in any specified or applicable jurisdiction.
"Unallocated Principal Collections" shall have the meaning described in
---------------------------------
Section ( ) 4.01(f).
"Undivided Interest" shall mean the undivided interest of any
------------------
Certificateholder in the Trust.
"Vice President" when used with respect to the Originator,
--------------
Bridgestone/Firestone or the Transferor shall mean any vice president whether
or not designated by a word or number of words added before or after the
title "vice president."
Section 1.02 Other Definitional Provisions.
-----------------------------
(a) All terms defined in any Supplement or this Agreement shall
have the defined meanings when used in any certificate or other document made
or delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document made
or delivered pursuant hereto or thereto, accounting terms not defined in
Section 1.01 of the Agreement, and accounting terms partly defined in Section
1.01 of the Agreement to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles. To
the extent that the definitions of accounting terms herein are inconsistent
with the meanings of such terms under generally accepted accounting
principles, the definitions contained herein shall control.
(c) The agreements, representations and warranties of the
Transferor and the Servicer in this Agreement shall be deemed to be the
agreements, representations and warranties of the Transferor and the
Servicer, respectively, solely in each such capacity for so long as either
of them acts in each such capacity under this Agreement.
(d) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to any Supplement or
this Agreement as a whole and not to any particular provision of such
Supplement or this Agreement, as the case may be; and Article, Section,
Subsection, Schedule and Exhibit references contained in this Agreement or
any Supplement are references to Articles, Sections, Subsections, Schedules
and Exhibits in or to this Agreement or any Supplement unless otherwise
specified.
(END OF ARTICLE I)
ARTICLE II
CONVEYANCE; ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance. By execution of this Agreement, the
----------
Transferor does hereby transfer, assign, set over and otherwise convey to the
Trust for the benefit of the Certificateholders, without recourse (except as
specifically provided herein), all of its right, title and interest in, to
and under the Receivables now existing and hereafter created in any Eligible
Accounts or any Eligible Receivables hereafter created in any Eligible
Additional Accounts whether now existing or hereafter created on or after the
Cut-off Date, all amounts due or to become due on or after the Cut-Off Date
and all amounts received with respect thereto, including all Recoveries
relating thereto (net of related expenses), Insurance Proceeds (net of
related expenses), all of its right, title and interest in, to and under the
Participation Agreement, the Purchase and Sale Agreement and any Insurance
Premiums paid under any Insurance Agreements and all proceeds of any
Insurance Agreement. Such property, together with the Collection Account and
all amounts on deposit in or credited to the Collection Account (excluding
any investment earnings on any such deposited amount) and any other account
or accounts maintained for the benefit of the Certificateholders and
available under any Enhancement to be provided by an Enhancement Provider for
any Series for payment to Certificateholders and all proceeds (as defined in
Section 9-306 of the UCC as in effect in the State of New York and the
Commonwealth of Massachusetts) of any of the foregoing shall constitute the
assets of the Trust (the "Trust Assets"). The foregoing transfer,
------------
assignment, set-over and conveyance does not constitute and is not intended
to result in a creation or an assumption by the Trust, the Trustee or any
Investor Certificateholder of any obligation of the Transferor or the
Servicer or any other Person in connection with the Accounts, the Receivables
or under any agreement or instrument relating thereto, including, without
limitation, any obligation to any merchants, Obligors or insurers.
In connection with such conveyance, the Transferor agrees to record and
file, at its own expense, any financing statements (and continuation
statements with respect to such financing statements when applicable) with
respect to the Receivables now existing and hereafter created for the
transfer of accounts meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect the transfer and
assignment of the Receivables to the Trust, and to deliver a file-stamped
copy of such financing statements or other evidence of such filings to the
Trustee on or prior to the date of issuance of the Certificates. The Trustee
shall be under no obligation whatsoever to file such financing statements or
make any other filings under the UCC in connection with such conveyance.
The Trustee shall be entitled to rely upon the filings made by the Transferor.
In connection with such conveyance, the Transferor further agrees, at
its own expense, on or prior to the Initial Closing Date (a) to indicate on
its books and records that all Receivables created in connection with the
Accounts have been conveyed to the Trust pursuant to this Agreement for the
benefit of the Certificateholders and (b) to deliver to the Trustee a true
and complete list of all such Accounts specifying for each such Account, as
of the Cut-Off Date its account number. Such list shall be marked as
Schedule 1 to this Agreement and is hereby incorporated into and made a part
- - ----------
of this Agreement. The Transferor shall subsequently deliver to the Trustee
on each Transfer Date a true and complete listing of all new Accounts and
account numbers as of the last day of the Collection Period ending
immediately prior to such date. Each such list shall be added as an addendum
to this Agreement and is hereby incorporated by reference.
Section 2.02 Acceptance by Trustee.
---------------------
(a) The Trustee hereby acknowledges its acceptance on behalf of
the Trust of all right, title and interest to the Trust Assets, now existing
and hereafter created, conveyed to the Trust pursuant to Section 2.01, and
declares that it shall maintain such right, title and interest, upon the
trust herein set forth, for the benefit of all Certificateholders. The
Trustee further acknowledges that, prior to or simultaneously with the
execution and delivery of this Agreement, the Transferor delivered to the
Trustee the list described in the last paragraph of Section 2.01.
(b) The Trustee hereby agrees not to disclose to any Person any
of the account numbers or other information, if any, contained in the lists
marked as Schedule 1 delivered to the Trustee by the Transferor pursuant to
----------
Section 2.01 or Section 2.05, except as may be required by law, as is
required in connection with the performance of its duties hereunder or in
enforcing the rights of the Certificateholders or to a Successor Servicer
appointed pursuant to Section 10.02. The Trustee agrees to take such
measures as shall be reasonably requested by the Transferor to protect and
maintain the security and confidentiality of such information, and, in
connection therewith, shall allow the Transferor to inspect the Trustee's
security and confidentiality arrangements from time to time during normal
business hours. The Trustee shall make reasonable efforts to provide the
Transferor with written notice five days prior to any disclosure pursuant to
this Section 2.02(b).
(c) The Trustee shall have no power to create, assume or incur
indebtedness, beneficial interests or other liabilities in the name of the
Trust other than as contemplated in this Agreement.
(d) Without prejudice to Section 2.01, the parties hereto intend
that this Agreement, which constitutes a security agreement under the UCC,
is a grant of a "security interest" (as defined in the UCC as in effect in
the State of New York) in the Receivables and the proceeds thereof to the
Trust.
Section 2.03 Representations and Warranties of the Transferor Relating
---------------------------------------------------------
to the Transferor. The Transferor hereby represents and warrants to the
- - -----------------
Trustee, on behalf of the Trust, with respect to any Series, as of its
Closing Date, unless otherwise stated in such Supplement, that:
(a) Organization and Good Standing. The Transferor is a
------------------------------
corporation duly organized and validly existing in good standing under the
laws of the Commonwealth of Massachusetts, and has the corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and the transactions contemplated under this Agreement and to
execute and deliver to the Trustee pursuant hereto the Certificates and, in
all material respects, to own its property and conduct its business as such
properties are presently owned and such business is presently conducted.
(b) Due Qualification. The Transferor is duly qualified to do
-----------------
business and is in good standing as a foreign corporation (or is exempt from
such requirements), and has obtained all necessary licenses and approvals
with respect to the Transferor, in each jurisdiction in which failure to so
qualify or to obtain such licenses and approvals could reasonably be expected
to render any Credit Card Agreement relating to an Account or any Receivable
unenforceable by the Transferor or the Trust or could reasonably be expected
to have a material adverse effect on the Certificateholders; provided that
--------
no representation or warranty is made with respect to any qualifications,
licenses or approvals which the Trustee would have to obtain to do business
in any state in which the Trustee seeks to enforce any Account or any
Receivable.
(c) Due Authorization. The execution and delivery of the Purchase
-----------------
and Sale Agreement, the Participation Agreement and this Agreement and the
execution and delivery to the Trustee of the Certificates by the Transferor
and the consummation of the transactions provided for in this Agreement have
been duly authorized by the Transferor by all necessary corporate action on
the part of the Transferor.
(d) Binding Obligation. The Purchase and Sale Agreement, the
------------------
Participation Agreement and this Agreement each constitutes a legal, valid
and binding obligation of the Transferor, enforceable in accordance with its
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or
hereinafter in effect affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in equity).
(e) No Violation. The execution and delivery of the Purchase and
------------
Sale Agreement, the Participation Agreement and this Agreement and the
Certificates, the performance of the transactions contemplated by the
Purchase and Sale Agreement, the Participation Agreement and this Agreement
and the fulfillment of the terms hereof will not conflict with, violate,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any Requirement of Law applicable to the Transferor or any
indenture, contract, agreement, mortgage, deed of trust, or other instrument
to which the Transferor is a party or by which it or its properties is bound.
(f) No Proceedings. There are no proceedings or investigations
--------------
pending or, to the best knowledge of the Transferor, threatened against the
Transferor, before any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality (i) asserting the invalidity
of the Purchase and Sale Agreement, this Agreement, the Participation
Agreement or the Certificates, (ii) seeking to prevent the issuance of the
Certificates or the consummation of any of the transactions contemplated by
the Purchase and Sale Agreement, this Agreement, the Participation Agreement
or the Certificates, (iii) seeking any determination or ruling that, in the
reasonable judgment of the Transferor, could materially and adversely affect
the performance by the Transferor of its obligations under the Purchase and
Sale Agreement, the Participation Agreement or this Agreement (other than a
ruling or determination with respect to which there is no reasonable
likelihood of such an effect), (iv) seeking any determination or ruling that
could materially and adversely affect the validity or enforceability of this
Agreement, the Participation Agreement or the Certificates (other than a
ruling or determination with respect to which there is no reasonable
likelihood of such an effect), or (v) seeking to affect adversely the income
tax attributes of the Trust.
(g) All Consents Required. All approvals, authorizations,
---------------------
consents, orders or other actions of any Person or of any governmental body
or official required in connection with the execution and delivery by the
Transferor of the Purchase and Sale Agreement, the Participation Agreement,
this Agreement and the Certificates, the performance by the Transferor of the
transactions contemplated by the Purchase and Sale Agreement, this Agreement
and the fulfillment by the Transferor of the terms hereof have been obtained.
The representations and warranties set forth in this Section 2.03 shall
survive the transfer and assignment of the Trust Assets to the Trust, and the
termination of the rights and obligations of the Servicer pursuant to Section
10.01. Upon discovery by the Transferor, the Servicer or the Trustee of a
breach of any of the foregoing representations and warranties, the party
discovering such breach shall give prompt written notice to the other
parties.
Section 2.04 Representations and Warranties Relating to the Agreement
--------------------------------------------------------
and the Receivables.
- - -------------------
(a) Representations and Warranties. The Transferor and
------------------------------
Bridgestone/Firestone hereby, jointly and severally represent and warrant to
the Trustee, on behalf of the Trust, with respect to any Series, as of the
date of its related Supplement and Closing Date, unless otherwise stated in
such Supplement, and, with respect to any Series and matters involving
Additional Accounts, as of the related Addition Date that:
(i) the Purchase and Sale Agreement, the Participation
Agreement, this Agreement and, in the case of Additional Accounts, the
related Assignment, each constitutes legal, valid and binding obligations of
the Transferor enforceable against the Transferor in accordance with their
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter
in effect affecting the enforcement of creditors' rights in general and
except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(ii) as of the Initial Closing Date, Schedule 1 to this
----------
Agreement is and, as of the applicable Addition Date with respect to
Additional Accounts added pursuant to Sections 2.05(a) and 2.05(b), will be,
an accurate and complete listing of all the Accounts in all material respects
as of the Cut-Off Date or the applicable Addition Notice Date, as the case
may be, and the information contained therein with respect to the identity
of such Accounts and the Receivables existing thereunder is and will be true
and correct in all material respects as of such applicable Cut-Off Date or
Addition Notice Date; as of the ______________, the amount of Aggregate
Receivables was $____________; no selection procedures believed by the
Transferor or Bridgestone/Firestone to be adverse to the interests of
Certificateholders has or shall have been used in selecting the Accounts;
(iii) each Receivable existing on the Initial Closing Date
or thereafter arising or, in the case of Additional Accounts, on the Addition
Date and thereafter arising, has been conveyed to the Trust free and clear
of any Lien other than Liens permitted by Section 2.08(b);
(iv) with respect to each Receivable existing on the Initial
Closing Date or, in the case of Additional Accounts, on the Addition Date,
all consents, licenses, approvals or authorizations of or registrations or
declarations with any Governmental Authority required to be obtained,
effected or given by the Transferor in connection with the conveyance of such
Receivable to the Trust have been duly obtained, effected or given and are
in full force and effect;
(v) this Agreement and, in the case of Additional Accounts,
the related Assignment, either constitutes a valid transfer and assignment
to the Trust of all right, title and interest of the Transferor in the
Receivables and the proceeds thereof, or, if this Agreement and, in the case
of Additional Accounts, the related Assignment, does not constitute a valid
transfer and assignment of such property of the Transferor, it constitutes
a grant of a "security interest" (as defined in the UCC as in effect in the
State of New York and the Commonwealth of Massachusetts) in such property of
the Transferor to the Trust, which, in the case of existing Receivables and
the proceeds thereof, is enforceable upon execution and delivery of this
Agreement, and which will be enforceable with respect to such Receivables
hereafter created and the proceeds thereof upon such creation and which will
be enforceable with respect to Additional Accounts upon execution and
delivery of the related Assignment. Upon the filing of any financing
statements described in Section 2.01 and, in the case of the Receivables
hereafter created or transferred to the Trust and the proceeds thereof, upon
the creation or transfer thereof, the Trust shall have a first priority
perfected security or ownership interest in such property of the Transferor
except for Liens permitted under Section 2.08(b); provided, however, that
-------- -------
such security interest in proceeds shall remain perfected after 10 days from
their receipt by the Transferor only to the extent that such proceeds are
identifiable cash proceeds or come into the Trust's possession within the
applicable 10-day period; and provided, further, that the Transferor makes no
-------- -------
representation or warranty with respect to the effect of Section 9-306(4) of
the UCC on the rights of the Trust to proceeds held by the Transferor at the
time proceedings under any Debtor Relief Laws are instituted by or against the
Transferor. Except as otherwise provided in this Agreement, neither the
Transferor nor any Person claiming through or under the Transferor has any
claim to or interest in the Collection Account; and
(vi) as of the (Initial Closing Date), each Receivable
existing on such date is (or if such Receivable comes into existence in the
future, will be) an Eligible Receivable in all material respects and, in the
case of Additional Accounts, as of the Addition Date, each Receivable
transferred to the Trust with respect to such Additional Account is (or if
such Receivable comes into existence in the future, will be) an Eligible
Receivable.
(b) Notice of Breach. The representations and warranties set
----------------
forth in this Section 2.04 shall survive the transfer and assignment of the
Trust Assets to the Trust. Upon discovery by the Transferor,
Bridgestone/Firestone, the Servicer or the Trustee of a breach of any of the
representations and warranties set forth in this Section 2.04, the party
discovering such breach shall give prompt written notice to the others.
Section 2.05 Addition of Accounts.
--------------------
(a) The Transferor may, but shall not be obligated to, designate
from time to time additional credit card accounts with respect to receivables
arising from Alternative Programs ("Additional Accounts") to be included as
Accounts and convey the Additional Receivables arising from such Additional
Accounts to the Trust.
(b) The Transferor shall be permitted to designate and assign
Receivables from Additional Accounts only upon satisfaction of the following
conditions:
(i) The Transferor shall designate only Eligible Additional
Accounts;
(ii) On or prior to each Addition Date in respect of
Additional Accounts, the Transferor shall have executed and delivered to the
Trustee a written assignment (including an acceptance by the Trustee for the
benefit of the Certificateholders) in substantially the form of Exhibit B
---------
(the "Assignment") and a true and complete list identifying all such
----------
Additional Accounts specifying for each such Account, as of the Addition
Notice Date, its account number. Such list shall be as of the Addition Date
with respect to such Assignment and shall be incorporated into and made part
of such Assignment and this Agreement; in the event that the Servicer is then
required to make daily deposits into the Collection Account pursuant to
Section 4.01(h), the Transferor on or prior to each Addition Date will
deposit into the Collection Account an amount equal to the Collections which
have been processed on the Additional Accounts from their applicable Addition
Notice Date through the Business Day preceding such Addition Date;
(iii) The Transferor represents and warrants (x) as of
each Addition Date with respect to Additional Accounts added pursuant to
Sections 2.05(a) and 2.05(b) that (a) the list of Additional Accounts, as of
the Addition Notice Date, complies in all material respects with the
requirements of paragraph (ii) above and (b) no selection procedure was
utilized by the Transferor in selecting the Eligible Additional Accounts
which is adverse to the interests of the Investor Certificateholders; and (y)
as of the Addition Notice Date and as of the Addition Date, the Transferor
is not insolvent; and
(iv) On or before each Addition Date, the Transferor shall
deliver a certificate of a Vice President or more senior officer confirming
the items set forth in paragraphs (ii) and (iii) above. The Trustee may
conclusively rely on such certificate, shall have no duty to make inquiries
with regard to matters set forth therein and shall incur no liability in so
relying.
Upon satisfaction of the above conditions, the Transferor shall execute
and deliver the Assignment to the Trustee, and the Additional Receivables
from the Additional Accounts shall be conveyed to the Trust as provided in
the Assignment.
(c) In lieu of satisfying the conditions set forth in Section
2.05(b) above, the Transferor may assign all accounts relating to an
Alternative Program and all Additional Receivables relating to such accounts
upon receipt by the Trustee of written confirmation from each Moody's & S&P
that such rating agency will not reduce or withdraw its rating on any
outstanding Series as a result of including all Accounts relating to such
designated Alternative Program and all Receivables relating to such
Alternative Program in the Trust.
Upon receipt of such notice, all existing and future accounts
relating to such Alternative Program are deemed to be Eligible Accounts and
all existing and future receivables arising under such newly designated
Eligible Accounts may be sold into the Trust as Eligible Receivables and will
no longer be subject to the Ten Percent Maximum.
Section 2.06 Transfer of Ineligible Receivables.
----------------------------------
(a) In the event of a breach with respect to a Receivable of any
representations and warranties set forth in Section 2.04(a)(iii) or in the
event that a Receivable is not an Eligible Receivable as a result of the
failure to satisfy the conditions set forth in clause (d) of the definition
of Eligible Receivable:
(i) if the Lien of the subject Receivable is not of the type
otherwise described in clause (ii) below, and as a result of such breach or
event such Receivable becomes a Defaulted Receivable or the Trust's rights
in, to or under such Receivable or its proceeds are impaired or the proceeds
of such Receivable are not available for any reason to the Trust free and
clear of any Lien, then each such Receivable shall be automatically removed
from the Trust on the terms and conditions set forth below; or
(ii) if such Lien meets any of the following conditions: (1)
such Lien arises in favor of the United States of America or any state or any
agency or instrumentality thereof and involves taxes or liens arising under
Title IV of ERISA or (2) such Lien has been consented to by the Transferor,
then in the case of clause (1) upon the earlier to occur of the discovery of
such breach or event by the Transferor or the Servicer or receipt by the
Transferor and the Servicer of written notice of such breach or event given
by the Trustee or in the case of clause (2), immediately upon the occurrence
of such breach, each such Receivable shall be automatically removed from the
Trust on the terms and conditions set forth below.
(b) In the event of a breach of any representations and warranties
set forth in Section 2.04(a)(iv) or 2.04(a)(vi) or in the event any
Receivable is not at any time an Eligible Receivable for any reason other
than the failure to satisfy the conditions set forth in clause (d) of the
definition of Eligible Receivable then, upon the expiration of 60 days from
the earlier to occur of the discovery of any such event by the Transferor or
Bridgestone/Firestone, or receipt by the Transferor or Bridgestone/Firestone
of written notice of any such event given by the Trustee, the Servicer or the
Originator each such Receivable shall be removed from the Trust on the terms
and conditions set forth below; provided, however, that no such removal shall
-------- -------
be required to be made with respect to a Receivable which is not an Eligible
Receivable to be removed pursuant to this sentence if the event giving rise
to the obligation to remove such Receivable from the Trust and any material
adverse effect on the interests of Investor Certificateholders in such
Receivable shall be cured by the Servicer.
(c) When required with respect to a Receivable (an "Ineligible
----------
Receivable") by the provisions of Section 2.06(a) or 2.06(b), such Receivable
- - ----------
shall be automatically removed from the Trust by deducting the amount of each
such Ineligible Receivable from the amount of Receivables in the Trust, and
the Transferor shall immediately make a deposit in the Collection Account in
immediately available funds in an amount equal to the Transfer Deposit
Amount. Such deposit shall be considered a payment in full of the Ineligible
Receivable and shall be applied as a Finance Charge Collection or Principal
Collection, as applicable, in accordance with Article IV. On and after the
date of such removal, each Ineligible Receivable so removed shall not be
included in the calculation of any Invested Percentage, the Transferor
Percentage or the Transferor Amount. In the event that the exclusion of an
Ineligible Receivable from the calculation of the Transferor Amount would
cause the Transferor Amount to be a negative number or would otherwise not
be permitted by law, such Ineligible Receivable shall not be included in the
calculation of the B/F Amount. In the event that such exclusion would cause
the B/F Amount to be a negative number, such Ineligible Receivable shall not
be removed from the Trust. Upon each removal of an Ineligible Receivable
from the Trust, the Trust shall automatically and without further action be
deemed to transfer, assign, set-over and otherwise convey to the Transferor,
without recourse, representation or warranty, all the right, title and
interest of the Trust in and to such Ineligible Receivable, all monies due
or to become due with respect thereto and all proceeds thereof, provided that
any Periodic Finance Charges relating to such Ineligible Receivable accrued
through the date of removal of such Ineligible Receivable and not otherwise
included in the Transfer Deposit Amount shall continue to be property of the
Trust. The Trustee shall execute such documents and instruments of transfer
or assignment and take such other actions as shall reasonably be requested
by the Transferor to effect the conveyance of such Ineligible Receivable
pursuant to this Section. In the event that on any day within 60 days of the
date on which the removal of an Ineligible Receivable from the Trust pursuant
to this Section is effected, the applicable representations and warranties
shall be true and correct in all material respects on such date, the
Transferor may, but shall not be required to, direct the Servicer to include
such Receivable in the Trust by adding such Receivable to the Receivables in
the Trust. Upon addition of a Receivable to the Trust pursuant to this
Section, the Transferor and Bridgestone/Firestone shall have been deemed to
have made the applicable representations and warranties in Section 2.04(a)
as of the date of such addition, as if the Receivable had been created on
such date, and shall execute all such necessary documents and instruments of
transfer or assignment and take such other actions as shall be necessary to
effect and perfect the reconveyance of such Receivable to the Trust. The
obligation of the Transferor set forth in this Section, or the automatic
removal of such Receivable from the Trust, as the case may be, shall
constitute the sole remedy respecting any breach of the representations and
warranties set forth in the above-referenced Sections with respect to such
Receivable available to Certificateholders or the Trustee on behalf of
Certificateholders.
Section 2.07 Purchase of Certificates. In the event of any breach of
------------------------
any of the representations and warranties set forth in Sections 2.03(d) and
(g) or 2.04(a)(i) through 2.04(a)(v) and such event could have a material
adverse effect on Investor Certificateholders, either the Trustee, or the
Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Invested Amount of all Series, by notice then given in
writing to the Transferor (and to the Trustee and the Servicer if given by
the Investor Certificateholders), may direct the Transferor to purchase all
Certificates of all Series outstanding within 60 days of such notice, or
within such longer period as may be specified in such notice and the
Transferor shall be obligated to make such purchase on a Distribution Date
occurring within such period on the terms and conditions set forth below;
provided, however, that no such purchase shall be required to be made if,
- - -------- -------
during such applicable period, the breached representations and warranties
contained shall be satisfied in all material respects and any material
adverse effect on the Investor Certificateholders caused thereby shall have
been cured. The Transferor shall deposit in the Collection Account on a
Transfer Date occurring within the applicable period an amount equal to the
purchase price (as described in the next succeeding sentence) for the
Investor Certificates. The purchase price for any such purchase will be
equal to the sum of (a) the Invested Amount of such Series at the end of the
day on the Record Date preceding the date such deposit is made, plus (b) an
----
amount equal to all monthly interest accrued but unpaid on the Investor
Certificates of such Series for the related Interest Accrual Period for the
Distribution Date on which the distribution of such deposit is scheduled to
be made pursuant to Section 12.03 and all prior Distribution Dates.
Notwithstanding anything to the contrary in this Agreement, the entire amount
of the purchase price deposited in the Collection Account shall be
distributed to the Investor Certificateholders of such Series on such
Distribution Date pursuant to Section 12.03. Payment of such purchase price
into the Collection Account in immediately available funds shall otherwise
be considered a prepayment of Receivables. If the Trustee or the Investor
Certificateholders give notice directing the Transferor to purchase the
Investor Certificates of any Series as provided above, the obligation of the
Transferor to purchase the Investor Certificates of such Series pursuant to
this Section 2.07 shall constitute the sole remedy respecting an event of the
type specified in the first sentence of this Section 2.07 available to such
Investor Certificateholders (or the Trustee on behalf of such Investor
Certificateholders).
Section 2.08 Covenants of the Transferor. The Transferor hereby
---------------------------
covenants that:
(a) Receivables Not to be Evidenced by Promissory Notes or Chattel
--------------------------------------------------------------
Paper. The Transferor will take no action to cause any Receivable to be
- - -----
evidenced by any instrument (as defined in the UCC as in effect in the States
of New York and Ohio or the Commonwealth of Massachusetts). Each Receivable
shall be payable pursuant to a contract which does not create a Lien on any
goods purchased thereunder.
(b) Security Interests. Except for the conveyances hereunder, the
------------------
Transferor will not sell, pledge, assign or transfer to any other Person, or
grant, create, incur, assume or suffer to exist any Lien on any Receivable,
whether now existing or hereafter created, or any interest therein, and the
Transferor shall defend the right, title and interest of the Trust in, to and
under the Receivables, whether now existing or hereafter created, against all
claims of third parties claiming through or under the Transferor; provided,
--------
however, that nothing in this Section 2.08(b) shall prevent or be deemed to
- - -------
prohibit the Transferor from suffering to exist upon any of the Receivables
any Liens for municipal or other local taxes if such taxes shall not at the
time be due and payable or if the Transferor shall currently be contesting
the validity thereof in good faith by appropriate proceedings and shall have
set aside on its books adequate reserves with respect thereto.
(c) Periodic Finance Charges. The Transferor hereby agrees that,
------------------------
except as otherwise required by any Requirement of Law applicable to the
Transferor or as is deemed by the Originator to be necessary in order for the
Originator to maintain its business on a competitive basis based on a good
faith assessment by the Originator of the nature of its competition in its
business, it shall not at any time reduce the APR of the Periodic Finance
Charges assessed on the Receivables and/or any fees charged on any of the
Accounts, if as a result of any such reduction, the Transferor's reasonable
expectation of the Portfolio Yield as of such date would be less than the
Base Rate of any Series.
(d) Credit Card Agreements and Guidelines. The Transferor shall
-------------------------------------
ensure compliance with the obligations under the Credit Card Agreements
relating to the Accounts and the Credit Card Guidelines except insofar as any
failure so to comply or perform would not materially and adversely affect the
rights of the Trust or the Certificateholders hereunder or under the
Certificates. Subject to compliance with all Requirements of Law the failure
to comply with which would have a material adverse effect on the Investor
Certificateholders, the Transferor shall not agree to any change in the terms
and provisions of the Credit Card Agreement or the Credit Card Guidelines in
any respect (including, without limitation, the calculation of the amount, or
the timing, of charge-offs and the periodic finance charge to be assessed
thereon) unless in the reasonable judgment of the Transferor (a) if it owns
a comparable segment of credit card accounts, then such change is made
applicable to such comparable segment which has characteristics the same as,
or substantially similar to, the Accounts which are the subject of such
change and which were existing on the Cut-Off Date and (b) if it does not own
such a comparable segment, it will not make any such change with the intent
to materially benefit the Transferor over the Investor Certificateholders.
(e) Account Allocations. In the event that the Transferor is
-------------------
unable for any reason to transfer Receivables to the Trust in accordance with
the provisions of this Agreement (including, without limitation, by reason
of the application of the provisions of Section 9.02, any Governmental
Authority having authority over the Transferor or any court of competent
jurisdiction ordering that the Transferor not transfer any additional
Receivables to the Trust) then, in any such event, (A) the Transferor agrees
(except as prohibited by any such order) to allocate and pay to the Trust,
after the date of such inability, all Principal Collections, and all amounts
which would have constituted Collections, including Finance Charge
Collections, with respect to such Receivables which would have been
Receivables allocable to Principal Collections but for the Transferor's
inability to transfer such Receivables (up to an aggregate amount equal to
the amount of Receivables in the Trust on such date), (B) the Transferor
agrees to have such amounts applied as Collections in accordance with Article
IV and (C) for only so long as the allocation and application of all
Collections and all amounts which would have constituted Collections are made
in accordance with clauses (A) and (B) above, Receivables allocable to
Principal Collections (and all amounts which would have constituted
Receivables allocable to Principal Collections but for the Transferor's
inability to transfer Receivables to the Trust) which are written off as
uncollectible in accordance with this Agreement shall be allocated in
accordance with the related Supplement and all amounts which would have
constituted Receivables allocable to Principal Collections but for the
Transferor's inability to transfer Receivables to the Trust shall be deemed
to be Receivables allocable to Principal Collections for purposes of
calculating the Invested Percentage thereunder. If the Transferor is unable
pursuant to any Requirement of Law to allocate Collections as described
above, the Transferor agrees that it shall, in any such event, allocate,
after the date that the Transferor becomes unable to do so, payments on each
Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account and to have such payments applied as
Collections in accordance with Article IV. The parties hereto agree that
Receivables allocable to Finance Charge Collections, whenever created,
accrued in respect of Receivables which have been conveyed to the Trust
shall continue to be a part of the Trust notwithstanding any cessation
of the transfer of additional Receivables to the Trust and Collections with
respect thereto shall continue to be allocated and paid in accordance with
Article IV.
(f) Delivery of Collections. In the event that the Transferor
-----------------------
receives Collections, the Transferor agrees to pay the Servicer or any
Successor Servicer all payments received by the Transferor in respect of the
Receivables as soon as practicable after receipt thereof by the Transferor,
but in no event later than two Business Days after the receipt by the
Transferor thereof.
(g) Notice of Liens. The Transferor shall notify the Trustee
---------------
promptly after becoming aware of any Lien on any Receivable other than the
conveyances hereunder.
(h) Status of Accounts and Receivables. The Transferor hereby
----------------------------------
agrees to comply with all Requirements of Law applicable to the Transferor
the failure to comply with which would have a material adverse effect on the
Investor Certificateholders.
(i) Other Debt; Receivables. The Transferor will not create,
-----------------------
incur, assume or suffer to exist any indebtedness, whether current or funded,
or any other liability except (i) indebtedness of the Transferor representing
fees, expenses and indemnities payable pursuant to this Agreement, (ii)
indebtedness of the Transferor representing fees, indemnities or expenses
payable to J.H. Holdings, Inc., (iii) indebtedness of the Transferor
representing fees, indemnities or expenses payable to any remarketing agent,
the placement agent or the underwriter of any certificates issued by the
Trust from time to time, (iv) indebtedness of the Transferor representing
fees, indemnities or expenses payable pursuant to the REMARC Purchase
Agreement, (v) indebtedness of the Transferor representing fees, expenses or
other amounts payable to the Originator under the Purchase and Sale
Agreement, (vi) indebtedness of the Transferor representing amounts payable
in respect of SWAPs, (vii) fees of the Rating Agencies in connection with
rating any Series of certificates issued by the Trust and (viii) indebtedness
or other liability on account of incidentals or services supplied or
furnished to the Transferor (including reasonable accountants' and attorneys'
fees); provided that the aggregate amount of the indebtedness or liabilities
--------
described in this subpart (viii) shall not exceed $4,750 at any one time
outstanding.
Section 2.09 Authentication of Certificates. Pursuant to the request
------------------------------
of the Transferor, the Trustee shall cause Certificates in authorized
denominations evidencing the entire ownership of the Trust to be duly
authenticated and delivered to or upon the order of the Transferor pursuant
to Section 6.02.
Section 2.10 Removal of Accounts.
-------------------
(a) On each Determination Date that the Transferor Amount (plus
the B/F Amount and any amount available under the Transferor Letter of
Credit) for the related Collection Period exceeds 7% of the Aggregate
Invested Amount with respect to such Determination Date, the Trustee shall
be deemed to have offered to the Transferor automatically and without any
notice to or action by or on behalf of the Trustee, as of such Determination
Date, the right to remove from the Trust all of the Trust's right, title and
interest in, to and under the Receivables now existing and hereafter created,
all monies due or to become due and all amounts received with respect thereto
and all proceeds thereof in or with respect to those Accounts designated by
the Transferor (the "Removed Accounts") in an aggregate amount not greater
----------------
than the excess of the Transferor Amount (plus amounts available to be drawn
under the Transferor Letter of Credit or the Transferor Escrow Account solely
to cover obligations of the Transferor under Section 3.09(a) plus the B/F
Amount) over the Minimum Transferor Interest Percentage of the Aggregate
Invested Amount. To accept such offer, the Transferor is required to
furnish to the Trustee and each Rating Agency written notice by the fifth
Business Day after the Determination Date specifying the approximate
aggregate amount of Receivables covered by the offer that the Transferor
intends to accept.
(b) In addition to the foregoing provisions, the Transferor shall
be permitted to accept reassignment to it of the Receivables from Removed
Accounts only upon satisfaction of the following conditions:
(i) On each date specified by the Transferor for removal of
the Removed Accounts (a "Removal Date"), the Trustee shall deliver to
------------
the Transferor a written reassignment in substantially the form of Exhibit C
---------
(the "Reassignment") and the Transferor shall deliver to the Trustee a
------------
true and complete list identifying all Accounts the Receivables of which
remain in the Trust, specifying for each such Account, as of the Removal
Notice Date, its account number. Such list shall be incorporated into and
made a part of this Agreement as of the date of such Reassignment;
(ii) The Transferor represents and warrants as of each Removal
Date that (a) the list of the Accounts not removed from the Trust, as of the
Removal Notice Date, complies in all material respects with the requirements
of paragraph (i) above; and (b) no selection procedure used by the Transferor
which is adverse to the interests of the Investor Certificateholders was
utilized in selecting the Removed Accounts;
(iii) The removal of any Receivables in any Removed
Accounts on any Removal Date shall not, in the reasonable belief of the
Transferor, cause an Amortization Event to occur;
(iv) The Transferor shall have delivered 20 days' prior
written notice (which may be given prior to the Determination Date in
expectation that the Trustee will make the offer described in Section
2.10(a)) of such removal to each Rating Agency which has rated any
outstanding Series and the Trustee shall have received written confirmation
from each Rating Agency that such Rating Agency will not reduce or withdraw
its rating on any outstanding Series as a result of such removal; and
(v) The Transferor shall have delivered to the Trustee a
certificate of a Vice President or more senior officer confirming the items
set forth in paragraphs (i) through (iv) above. The Trustee may conclusively
rely on such certificate, shall have no duty to make inquiries with regard
to the matters set forth therein and shall incur no liability in so relying.
Upon satisfaction of the above conditions, the Trustee shall
execute and deliver the Reassignment to the Transferor, and the Receivables
from the Removed Accounts shall no longer constitute a part of the Trust.
Section 2.11 Discount Option.
---------------
(a) The Transferor shall have the option to designate a
percentage, which may be a fixed percentage or a variable percentage based
on a formula (the "Discount Percentage"), of Aggregate Receivables, without
giving effect to any discounting pursuant to this Section 2.11, arising on
or after the date of such designation, to be treated as Receivables which
give rise to Finance Charge Collections. The Transferor shall provide to the
Servicer, the Trustee, any Enhancement Provider and any Rating Agency 15
days' prior written notice of such designation, and such designation shall
become effective on the date designated therein (i) unless such designation
in the reasonable belief of the Transferor would cause an Amortization Event
to occur, or an event which, with notice or the lapse of time or both, would
constitute an Amortization Event and (ii) only if each Rating Agency shall
have delivered a letter to the Transferor and the Trustee confirming that its
then current rating of the Investor Certificates of any Series then
outstanding will not be reduced or withdrawn as a result of such designation.
(b) After the date on which the Transferor's exercise of its
discount option takes effect, and with respect to Receivables generated on
and after such date, the Transferor shall deposit into the Collection Account
in immediately available funds an amount equal to the amount of the Discount
Option Receivable Collections processed on such day. The deposit made by the
Transferor into the Collection Account under the preceding sentence shall be
considered a payment of such Discount Option Receivables and shall be applied
as Finance Charge Collections in accordance with Article IV.
(END OF ARTICLE II)
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.01 Acceptance of Appointment and Other Matters Relating to
-------------------------------------------------------
the Servicer.
- - ------------
(a) Bridgestone/Firestone agrees to act as the Servicer under this
Agreement and any Investor Certificateholders and the Transferor by its
acceptance of the Certificates consents to Bridgestone/Firestone acting as
Servicer.
(b) The Servicer shall service and administer the Receivables and
shall collect payments due under the Receivables in accordance with its
customary and usual servicing procedures for servicing the Receivables and
in accordance with the Credit Card Guidelines and shall have full power and
authority, acting alone or through any party properly designated by it
hereunder, to do any and all things in connection with such servicing and
administration which it may deem necessary or desirable. Without limiting
the generality of the foregoing and subject to Section 10.01, the Servicer
is hereby authorized and empowered, unless such power and authority is
revoked by the Trustee (i) to make withdrawals and payments and to instruct
the Trustee to make withdrawals and payments from the Collection Account or
any other account or accounts maintained for the benefit of Certificate-
holders as set forth in this Agreement, (ii) to instruct the Trustee to take
any action permitted or required under any Enhancement at such time as set
forth in this Agreement, (iii) to execute and deliver, on behalf of the Trust
for the benefit of the Certificateholders, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Receivables and, after
the delinquency of any Receivable and to the extent permitted under and in
compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivables and (iv) to make any filings,
reports, notices, applications, registrations with, and to seek any consent
or authorizations from the Securities and Exchange Commission and any state
securities authority on behalf of the Trust as may be necessary or advisable
to comply with any Federal or state securities or reporting requirements or
laws.
(c) In the event that the Transferor is unable for any reason to
transfer Receivables to the Trust in accordance with the provisions
(including, without limitation, by reason of the application of the
provisions of Section 9.02 or any Governmental Authority having regulatory
authority over the Transferor or any court of competent jurisdiction ordering
that the Transferor not transfer any additional Receivables to the Trust)
then, in any such event (except as prohibited by such order), (A) the
Transferor agrees that the Servicer shall allocate, after such date, all
Principal Collections and all amounts which would have constituted
Collections (including Finance Charge Collections) with respect to such
Receivables which would have been Receivables allocable to Principal
Collections but for the Transferor's inability to transfer such Receivables
(up to an aggregate amount equal to the amount of Receivables in the Trust
as of such date) in accordance with Section 2.08(e), (B) the Transferor
agrees to have such amounts applied as Collections in accordance with Article
IV and (C) for only so long as all Collections and all amounts which would
have constituted Collections are allocated and applied in accordance with
clauses (A) and (B) above, Receivables allocable to Principal Collections and
all amounts which would have constituted Receivables allocable to Principal
Collections but for the Transferor's inability to transfer Receivables to the
Trust which are written off as uncollectible in accordance with this
Agreement shall continue to be allocated in accordance with the related
Supplement and all amounts which would have constituted Receivables allocable
to Principal Collections but for the Transferor's inability to transfer
Receivables to the Trust shall be deemed to be Receivables allocable to
Principal Collections for purposes of calculating the Invested Percentage
thereunder. If the Servicer is unable pursuant to any Requirement of Law to
allocate Collections, as described above, the Transferor agrees that the
Servicer shall, in any such event, allocate, after the date that the Servicer
becomes unable to do so, payments on each Account with respect to the
principal balance of such Account first to the oldest principal balance of
such Account and to have such payments applied as Collections in accordance
with Article IV. The parties hereto agree that Receivables allocable to
Finance Charge Collections, whenever created, accrued in respect of
Receivables allocable to Principal Collections which have been conveyed to
the Trust shall continue to be a part of the Trust notwithstanding any
cessation of the transfer of additional Receivables allocable to Principal
Collections to the Trust and Collections with respect thereto shall continue
to be allocated and paid in accordance with Article IV.
(d) If Transferor accepts reassignment of an Ineligible Receivable
pursuant to subsection 2.06(c) then, in any such event, Servicer agrees to
account for payments received with respect to such Ineligible Receivable
separately from its accounting for Collections on Principal Receivables
retained by the Trust. If payments received from or on behalf of an Obligor
are not specifically applicable either to an Ineligible Receivable of such
Obligor reassigned to Transferor or to receivables of such
Obligor retained in the Trust, then Servicer agrees to allocate payments
proportionately based on the total amount of Principal Receivables of such
Obligor retained in the Trust and the total amount owing by such Obligor or
any Ineligible receivables purchased by Transferor, and the portion
allocable to any Principal Receivables retained in the Trust shall be treated
as Collection and deposited in accordance with the provisions of Article IV.
(e) The Servicer shall not be obligated to use separate servicing
procedures, offices, employees or accounts for servicing the Receivables from
the procedures, offices, employees and accounts used by the Servicer in
connection with servicing other credit card receivables.
(f) The Servicer shall maintain fidelity bond coverage insuring
against losses through wrongdoing of its officers and employees who are
involved in the servicing of credit card receivables covering such actions
and in such amounts as the Servicer believes to be reasonable from time to
time.
(g) The Servicer shall comply with and perform its servicing
obligations with respect to the Accounts and Receivables in accordance with
the Credit Card Agreements relating to the Accounts and the Credit Card
Guidelines.
Section 3.02 Servicing Compensation. As compensation for its servicing
----------------------
activities hereunder and reimbursement for its expenses as set forth in the
immediately following paragraph, the Servicer shall be entitled to receive
a monthly servicing fee in respect of any Collection Period (or portion
thereof) prior to the termination of the Trust pursuant to Section 12.01 (the
"Servicing Fee"), payable in arrears on each Distribution Date, equal to the
-------------
sum of, with respect to each Series, one-twelfth of the product of (a) the
applicable Servicing Fee Percentage with respect to each Series, and (b) the
sum of (x) an allocable portion (based on the relative percentages of the
Invested Amounts) of the Transferor Amount and the B/F Amount and (y) the
aggregate invested Amount with respect to each Series on the last day of the
second preceding Collection Period after giving effect to any payment of
principal on the related Distribution Date for such Collection Period (or,
in the case of the first Distribution Date, the Initial Invested Amount).
The share of the Servicing Fee allocable to each Series with respect to any
Distribution Date shall be equal to one-twelfth of the product of (A) the
related Servicing Fee Percentage and (B) the Invested Amount of such Series
on the last day of the second preceding Collection Period after giving effect
to any payment of principal on the related Distribution Date for such
Collection Period (or, in the case of the first Distribution Date, the
Initial Invested Amount) (with respect to any such Series, the "Monthly
-------
Servicing Fee"). The remainder of the Servicing Fee shall be paid by the
- - -------------
Holder of the Exchangeable Transferor Certificate and by Bridgestone/
Firestone as holder of the Bridgestone/Firestone Certificate. Any such
amount not paid by the Holders of the Exchangeable Transferor Certificate and
the Bridgestone/ Firestone Certificate may be withheld by the Servicer from
other amounts payable to the Holders of the Exchangeable Transferor
Certificate and the Bridgestone/Firestone Certificate under this Agreement.
In no event shall the Trustee or the Investor Certificateholders be liable
for the share of the Servicing Fee to be paid by the Holders of the
Exchangeable Transferor Certificate and the Bridgestone/Firestone
Certificate. Any Monthly Servicing Fees shall be payable to the Servicer
solely pursuant to the terms of, and to the extent amounts are available for
payment under, Article IV.
The Servicer's expenses include the amounts due to the Trustee pursuant
to Section 11.05 and the reasonable fees and disbursements of independent
accountants and all other expenses incurred by the Servicer in connection
with its activities hereunder, and including all other fees and expenses of
the Trust not expressly stated herein to be for the account of the
Certificateholders; provided that in no event shall the Servicer be liable
--------
for any Federal, state or local income or franchise tax, or any interest or
penalties with respect thereto, assessed on the Trust, the Trustee or the
Certificateholders except as expressly provided herein. So long as
Bridgestone/Firestone is acting as Servicer hereunder, in the event that the
Servicer fails to pay the amounts due to the Trustee pursuant to Section
11.05, the Trustee shall be entitled to receive such amounts from the
Servicing Fee, prior to the payment thereof to the Servicer. The Servicer
shall be required to pay expenses for its own account and shall not be
entitled to any payment therefor other than the Servicing Fee.
Section 3.03 Representations Warranties and Covenants of the Servicer.
--------------------------------------------------------
Bridgestone/Firestone, as initial Servicer, hereby makes, and any Successor
Servicer by its appointment hereunder shall make, the following
representations, warranties and covenants with respect to any Series as of
the date of the related Supplement and its Closing Date or, in the case of
any Successor Servicer, the date of its appointment, unless otherwise stated
in such Supplement, on which the Trustee shall be deemed to have relied in
accepting the Receivables in trust and in authenticating the Certificates;
(a) Organization and Good Standing. The Servicer is a corporation
------------------------------
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, and has the corporate power and authority
to execute, deliver and perform its obligations under this Agreement and, in
all material respects, to own its property and conduct its business as such
properties are presently owned and as such business is presently conducted.
(b) Due Qualification. The Servicer is duly qualified to do
-----------------
business and is in good standing as a foreign corporation (or is exempt from
such requirements) and has obtained all necessary licenses and approvals in
each jurisdiction in which the failure to so qualify or to obtain such
license or approval would have a material adverse effect upon the
Certificateholders.
(c) Due Authorization. The execution, delivery, and performance
-----------------
of this Agreement, and the consummation of the transactions provided in this
Agreement, have been duly authorized by the Servicer by all necessary
corporate action on the part of the Servicer.
(d) Binding Obligations. This Agreement constitutes the legal,
-------------------
valid, and binding obligations of the Servicer, enforceable in accordance
with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws nov
or hereinafter in effect affecting the enforcement of creditors' rights in
general and except as such enforceability may be limited by general
principles of equity (whether considered in a proceeding at law or in
equity).
(e) No Violation. The execution and delivery of this Agreement
------------
by the Servicer, and the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof applicable to the Servicer,
will not conflict with, violate, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of
time or both) a material default under, any Requirement of Law applicable to
the Servicer or any indenture, contract, agreement, mortgage, deed of trust,
or other instrument to which the Servicer is a party or by which it is bound.
(f) No Proceedings. There are no proceedings or investigations,
--------------
pending or, to the best knowledge of the Servicer, threatened against the
Servicer before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality (i) seeking to prevent the issuance
of the Certificates or the consummation of any of the transactions
contemplated by this Agreement, (ii) seeking any determination or ruling
that, in the reasonable judgment of the Servicer, would materially and
adversely affect the performance by the Servicer of its obligations under
this Agreement, or (iii) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this
Agreement.
(g) Compliance with Requirements of Law. The Servicer shall duly
-----------------------------------
satisfy all obligations on its part to be fulfilled under or in connection
with the Receivables or Accounts, will maintain in effect all qualifications
required under Requirements of Law in order to properly service the
Receivables and the Accounts and will comply in all material respects with
all Requirements of Law in connection with servicing the Receivables
and the Accounts the failure to comply with which would have a material
adverse effect on Certificateholders.
(h) No Rescission or Cancellation. Subject to the provision set
-----------------------------
forth in Section 3.03(i), the Servicer shall not permit any rescission or
cancellation of Receivable except as ordered by a court of competent
jurisdiction or other Governmental Authority.
(i) Protection of Certificateholders' Rights. The Servicer shall
----------------------------------------
not take any action which could reasonably be expected to impair or omit to
take any action necessary to avoid impairment of the rights of
Certificateholders in the Receivables, nor shall it reschedule, revise or
defer Collections due on the Receivables, nor take any action to cause
Receivables to be evidenced by a promissory note: provided, however, the
-------- -------
Servicer may, in accordance with the Credit Card Guidelines and with prudent
servicing practices, make customer service adjustments and adjustments in
payment schedules in the ordinary course of business.
(j) All Consents Required. All approvals, authorizations,
---------------------
consents, orders or other actions of any Person or of any governmental body
or official required in connection with the execution and delivery by the
Servicer of this Agreement, the performance by the Servicer of the
transactions contemplated by this Agreement and the fulfillment by the
Servicer of the terms hereof, have been obtained.
In the event (x) there is any breach of any of the representations,
warranties or covenants of the Servicer contained in Section 3.03(g), (h) or
(j) with respect to any Receivable or (y) the Servicer has failed to comply
in all material respects with all Requirements of Law applicable to any
Receivable or the Account relating to any Receivable, and as a result of such
breach or failure such Receivable becomes a Defaulted Receivable or the
rights of the Trust in, to or under such Receivable or its proceeds are
impaired or the proceeds of such Receivable are not available to the Trust,
then if in either case such noncompliance has not been cured within 60 days
(or with the prior consent of a Responsible Officer of the Trustee, such
longer period specified in such consent but not to exceed an additional 60
days) of the earlier to occur of the discovery of such event by the Servicer,
or receipt by the Servicer of written notice of such event given by the
Trustee, an Enhancement Provider or the Transferor, the Servicer shall accept
the transfer of all the Receivables in each Account as to which such event
relates on the terms and conditions set forth below; provided, however, that
-------- -------
no such transfer shall be required to be made with respect to such Receivable
if, within such 60-day period, the event giving rise to the obligation to
accept the transfer of such Receivable and any material adverse effect on
the interests of Certificateholders in such Receivable shall be cured by the
Servicer. The Servicer shall accept the transfer of a Receivable by making
a deposit into the Collection Account in immediately available funds by the
Transfer Date following the expiration of the 60-day period set forth in this
Section in an amount equal to the Transfer Deposit Amount for such
Receivable. Upon each such transfer to the Servicer, the Trustee shall
automatically and without further action be deemed to transfer, assign, and
set over, and otherwise convey to the Servicer, without recourse,
representation or warranty, all right, title and interest of the Trust in and
to such Receivable, all monies due or to become due with respect thereto and
all proceeds thereof; and such Receivable shall be treated by the Trustee as
collected in full as of the Collection Period to which such Transfer Deposit
Amount relates. The Trustee shall execute such documents and instruments of
transfer or assignment prepared by the Servicer in form reasonably
satisfactory to the Trustee and take such other actions as shall be
reasonably requested by the Servicer to effect the conveyance of any
Receivable pursuant to this Section. The obligation of the Servicer to
accept the transfer of any such Receivables shall constitute the sole remedy
respecting any breach of the representations, warranties and covenants set
forth in Section 3.03(g), (h) or (j) with respect to such Receivables
available to Certificateholders or the Trustee on behalf of
Certificateholders.
Section 3.04 Reports and Records for the Trustee: Bank Account
-------------------------------------------------
Statements.
- - ----------
(a) Daily Records. Upon two Business Days prior notice by the
-------------
Trustee, the Servicer shall make available at an office of the Servicer
selected by the Servicer for inspection by the Trustee on a business day
during the Servicer's normal business hours a record setting forth (i) the
Collections processed by the Servicer on the preceding Business Day on each
Account and (ii) the amount of Receivables as of the close of business on the
second preceding Business Day in all Accounts. The Servicer shall, at all
times, maintain its computer files with respect to the Accounts in such a
manner so that the Accounts may be specifically identified and, upon prior
request of the Trustee, shall make available to the Trustee at an office of
the Servicer selected by the Servicer on any Business Day during the
Servicer's normal business hours any computer programs necessary to make such
identification.
(b) Monthly Servicer's Certificate. Unless otherwise stated in
------------------------------
the relating Supplement with respect to any Series, no later than the
Determination Date prior to each Distribution Date, the Servicer shall
forward by facsimile (to be followed by original confirmation in writing) or
overnight delivery service to the Trustee, the Paying Agent, any Enhancement
Provider and each Rating Agency a certificate of a Servicing Officer
substantially in the form attached as an exhibit to the applicable
Supplement. Such certificate shall include a certification that to the best
of such officer's knowledge, the Servicer has fully performed all of its
obligations under the Agreement throughout such preceding month, or, if there
has been a default in the performance of any such obligation, specifying each
such default known to such officer and the nature and status thereof.
(c) Rating Agency Requests for Information. The Servicer shall
--------------------------------------
provide each Rating Agency such information with respect to the Trust as such
Rating Agency shall reasonably request.
Section 3.05 Annual Servicer's Certificate. The Servicer will deliver
-----------------------------
to the Trustee, any Enhancement Provider and each Rating Agency on or before
March 31 of each calendar year, beginning with March 31, 1993, an Officers'
Certificate substantially in the form of Exhibit E stating that (a) a review
---------
of the activities of the Servicer during the preceding calendar year (or
portion thereof, as applicable) and of its performance under this Agreement
was made under the supervision of the officers signing such certificate and
(b) to the be t of such officers' knowledge, based on such review, the
Servicer has fully performed all of its obligations under this Agreement
throughout such period, or, if there has been a default in the performance
of any such obligation, specifying each such default known to each such
officer and the nature and status thereof. A copy of such certificate may
be obtained by any Certificateholder by a request in writing to the Trustee
addressed to the Corporate Trust Office.
Section 3.06 Annual Independent Public Accountants' Servicing Report.
-------------------------------------------------------
(a) On or before March 31 of each calendar year, beginning with
March 31, 1994, the Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to the
Servicer or the Transferor) to furnish a report (which report shall cover the
period from January 1 to and including December 31 of the prior calendar year
or for the report due March 31, 1994 from the Initial Closing Date to
December 31, 1993) to the Trustee, each Rating Agency and any Enhancement
Provider to the effect that they have applied certain procedures agreed upon
with the Servicer and examined certain documents and records relating to the
servicing of Accounts under this Agreement, and that, based upon such agreed-
upon procedures, nothing has come to the attention of such accountants that
caused them to believe the servicing (including, without limitation, the
allocation of Collections) has not been conducted in compliance with the
terms and conditions set forth in Sections 3.01, 3.04, 3.05, 3.09 and 12.01
and Article IV and any Supplement, except for such exceptions as they believe
to be immaterial and such other exceptions as shall be set forth in such
statement. In addition, each report shall set forth the agreed upon
procedures performed. A copy of such report may be obtained by any
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
(b) On or before March 31 of each calendar year, beginning with
March 31, 1994, the Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to the
Servicer or the Transferor) to furnish a report to the Trustee, each Rating
Agency and any Enhancement Provider to the effect that they have compared the
mathematical calculations of each amount set forth in the monthly
certificates forwarded by the Servicer pursuant to Section 3.04(b) during the
period covered by such report (which shall be the period from January 1 to
and including December 31 of the prior calendar year or for the calendar year
ending December 31, 1993 from the Initial Closing Date to December 31, 1993)
with the Servicer's computer reports which were the source of such amounts
and that on the basis of such comparison, such accountants are of the opinion
that such amounts are in agreement, except for such exceptions as they
believe to be immaterial and such other exceptions as shall be set forth in
such statement. A copy of such report may be obtained by any
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
Section 3.07 Tax Treatment. The Transferor has entered into this
-------------
Agreement and the Investor Certificates (other than those held by the
Transferor) have been (or will be) issued with the intention that such
Investor Certificates will qualify under applicable tax law as indebtedness.
The Transferor, the Trustee, each such Investor Certificateholder by
acceptance of its Certificate and each Certificate Owner by acquiring an
interest in such an Investor Certificate agree to treat the Investor
Certificates as debt of Bridgestone/Firestone for purposes of Federal, state
and local income or franchise taxes and other tax imposed on or measured by
income. Furthermore, the Trustee shall treat the Trust as a security device
only, and shall not file tax returns or obtain an employer identification
number on behalf of the Trust.
Section 3.08 Notices to Bridgestone/Firestone. In the event that
--------------------------------
Bridgestone/Firestone is no longer acting as Servicer, any Successor Servicer
appointed pursuant to Section 10.02 shall deliver or make available to
Bridgestone/Firestone each certificate and report required to be prepared,
forwarded or delivered thereafter pursuant to Sections 3.04, 3.05 and 3.06.
Section 3.09 Adjustments.
-----------
(a) If the Servicer adjusts downward the amount of any Receivable
because of a rebate, refund, unauthorized charge or billing error to an
Obligor, or because such Receivable was created in respect of merchandise
which was refused or returned by an Obligor, or if the Servicer otherwise
adjusts downward the amount of any Receivable without either receiving
Collections therefor or charging off such amount as uncollectible or any
Receivable is discovered as having been created through a fraudulent or
counterfeit charge, then, in any such case, the Transferor shall make a
deposit into the Collection Account in immediately available funds in an
amount equal to the amount of any such adjustment or the amount of any such
fraudulent or counterfeit charge on the Transfer Date following the
Collection Period in which such adjustment obligation arises. In the event
that the Transferor shall fail to deposit any amount required to be deposited
in the Collection Account pursuant to the preceding sentence, the Trustee
shall make a proper demand under the Transferor Letter of Credit pursuant to
Section 4.01B hereof, up to the amount available thereunder, in the amount
required to be so deposited by the Transferor which the Transferor failed to
so deposit. Any deposit into the Collection Account in connection with the
adjustment of a Receivable (including the proceeds of any drawing under the
Transferor Letter of Credit) shall be considered an "Adjustment Payment,"
------------------
shall be treated as Finance Charge Collections or Principal Collections, as
applicable, and shall be applied in accordance with Article IV. If proceeds
from the Transferor Letter of Credit are not available to pay such adjustment
obligation in full, then the amount of Receivables used to calculate the
Transferor Amount, any Invested Percentage, the B/F Amount and the Transferor
Percentage will be reduced by the amount of the adjustment. Any adjustment
required pursuant to the preceding sentence in the amount of Receivables used
in the calculation of the Transferor Amount, any Invested Percentage, the B/F
Amount and the Transferor Percentage shall be made on or prior to the end of
the Collection Period in which such adjustment obligation arises. In the
event that the exclusion of such Receivables from the calculation of the
Transferor Amount would cause the Transferor Amount to be a negative number,
the B/F Amount shall be reduced by the amount by which the Transferor Amount
would be reduced below zero.
(b) If (i) the Servicer makes a deposit into the Collection
Account in respect of a Collection of a Receivable and such Collection was
received by the Servicer in the form of a check which is not honored for any
reason or (ii) the Servicer makes a mistake with respect to the amount of any
Collection and deposits an amount that is less or more than the actual amount
of such Collection, the Servicer shall appropriately adjust the amount
subsequently deposited into the Collection Account to reflect such dishonored
check or mistake. Any Receivable in respect of which a dishonored check is
received shall be deemed not to have been paid. Nothing in this
Section 3.09(b) shall be interpreted to require or permit the Servicer to
recover any such adjustment from Certificateholders.
(END OF ARTICLE III)
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS, ALLOCATION
AND APPLICATION OF COLLECTIONS AND SERVICER
AND TRANSFEROR LETTERS OF CREDIT
Section 4.01 Establishment of Collection Account and Allocations with
--------------------------------------------------------
Respect to the Exchangeable Transferor Certificate.
- - --------------------------------------------------
(a) The Collection Account. The Trustee, for the benefit of the
----------------------
Certificateholders, shall establish and maintain or cause to be established
and maintained in the name of the Trustee, on behalf of the Trust, with an
Eligible Institution a segregated account (the "Collection Account"), bearing
------------------
a designation clearly indicating that the funds deposited therein are held
in trust for the benefit of the Certificateholders. The Trustee shall
possess all right, title and interest in all funds on deposit from time to
time in the Collection Account and in all proceeds thereof. The Collection
Account shall be under the sole dominion and control of the Trustee for the
benefit of the Certificateholders. If, at any time, the institution holding
the Collection Account ceases to be an Eligible Institution, the Trustee (or
the Servicer on its behalf) shall within 10 Business Days establish a new
Collection Account meeting the conditions specified above with an Eligible
Institution, transfer any cash and/or any investments to such new Collection
Account and from the date such new Collection Account is established, it
shall be the Collection Account for all purposes hereof. Pursuant to the
authority granted to the Servicer in Section 3.01(b), the Servicer shall have
the power, revocable by the Trustee, to make withdrawals and payments from
the Collection Account and to instruct the Trustee to make withdrawals and
payments from the Collection Account for the purposes of carrying out the
Servicer's or Trustee's duties hereunder.
Each Series shall represent interests in the Trust including the
benefits of any Enhancement to be provided by an Enhancement Provider issued
with respect to such Series as indicated in the Supplement relating to such
Series and the right to receive Collections and other amounts at the times
and in the amounts specified in this Article IV to be deposited in the
Collection Account and any other accounts maintained for the benefit of the
Certificateholders or paid to the Investor Certificate Holders. The
Exchangeable Transferor Certificate shall represent the interests in the
Trust not represented by any Series then outstanding or the Bridgestone/
Firestone Certificate, including the right to receive Collections and other
amounts at the times and in the amounts specified in this Article IV to be
paid to the Transferor (the "Transferor Interest"), provided, however, that
------------------- -------- -------
such certificate shall not represent any interest in the Collection Account
and any other accounts maintained for the benefit of the Certificateholders
or the benefits of any Enhancement to be provided by an Enhancement Provider
issued with respect to any Series, except as specifically provided in this
Article IV.
(b) Administration of the Collection Account. At the direction
----------------------------------------
of the Servicer, funds on deposit in the Collection Account to be so invested
shall be invested by the Trustee in Permitted Investments. All such
Permitted Investments shall be held by the Trustee for the benefit of the
Certificateholders. Investments of funds representing Collections collected
during any Collection Period shall be invested in Permitted Investments that
will mature so that such funds will be available at the close of business on
the Transfer Date following such Collection Period. Any funds on deposit in
the Collection Account to be so invested shall be invested solely in
Permitted Investments. All such Permitted Investments shall be held to
maturity. Funds deposited in the Collection Account on a Transfer Date with
respect to the next following Distribution Date are not required to be
invested overnight. The Eligible Institution maintaining the Collection
Account shall maintain possession of the negotiable instruments or
securities, if any, evidencing the Permitted Investments described in clause
(a) of the definition thereof from the time of purchase thereof until the
time of maturity. On each Distribution Date, all interest and other
investment earnings (net of losses and investment expenses) on funds on
deposit in the Collection Account shall be paid to Transferor.
(c) Identification of Account. Schedule 2, which is hereby
------------------------- ----------
incorporated into and made a part of this Agreement, identifies the
Collection Account by setting forth the account number of such account, the
account designation of such account and the name of the institution with
which such account has been established.
(d) Allocations For the Exchangeable Transferor Certificate and
-----------------------------------------------------------
the Bridgestone/Firestone Certificate. Throughout the existence of the
- - -------------------------------------
Trust, the Servicer shall allocate on a daily basis to (x) the Holder of the
Exchangeable Transferor Certificate an amount equal to the product (A) of the
Transferor Percentage and (B) the aggregate amount of Principal Collections
in respect of such Collection Period and (y) to Bridgestone/Firestone as
Holder of the Bridgestone/Firestone Certificate an amount equal to the
product of (A) the B/F Percentage and (B) the aggregate amount of Finance
Charge Collections and Principal Collections in respect of such Collection
Period. Unless specified in any Supplement, the Servicer need not deposit
into the Collection Account any such amounts allocated to the Transferor or
Bridgestone/Firestone and any other amounts allocated to the Exchangeable
Transferor Certificate pursuant to any Supplement and shall pay such amounts
allocated to Bridgestone/Firestone as collected and shall pay such amounts
allocated to the Transferor as collected to the Transferor as long as the
Transferor Amount is greater than or equal to zero.
(e) Allocations of Collections. At all times prior to the
--------------------------
delivery of an Officers Certificate to the Trustee certifying that the
Servicer can allocate Finance Charge Collections and Principal Collections
on an actual basis for all of the Receivables for all purposes of this
Agreement the Servicer shall allocate Collections processed with respect to
the Receivables for any day during a Collection Period to Finance Charge
Collections to the extent of the amount of Periodic Finance Charges billed
on the Accounts during the prior Collection Period minus the amount of any
-----
finance charges being credited as a rebate during such prior Collection
Period for which an allocation is being made divided by the number of days
in such Collection Period. The balance of the Collections processed for any
day during a Collection Period shall be allocated to Principal Collections.
After delivery to the Trustee of the Officers' Certificate referred to above
Finance Charge Collections and Principal Collections shall be allocated on
an actual basis. The allocations provided for in this Section shall not
apply to Recoveries and Merchant Fees, which shall be treated as Finance
Charge Collections for all purposes of this Agreement.
(f) Shared Principal Collections. On each Business Day, Shared
----------------------------
Principal Collections shall be allocated to each outstanding Series pro rata
based on the Principal Shortfall, if any, for each such Series. The Servicer
shall pay any remaining Shared Principal Collections on such Business Day to
the Transferor; provided, that if an Amortization Period has commenced and
--------
is continuing with respect to more than one outstanding Series, such
remaining Shared Principal Collections shall be allocated to such Series pro
rata based on the Invested Percentage for Aggregate Receivables applicable
for such Series.
(g) Collections. Bridgestone/Firestone, as Servicer, will apply
-----------
all Collections with respect to the Receivables for each Collection Period
as described in this Article IV. The Servicer shall pay Collections to the
Holder of the Exchangeable Transferor Certificate and Bridgestone/Firestone
as Holder of the Bridgestone/Firestone Certificate to the extent such
Collections are allocated to the Exchangeable Transferor Certificate and the
Bridgestone/Firestone Certificate, respectively, pursuant to Section 4.01(d)
and as otherwise provided in Article IV. Subject to Section 4.01(h), the
Servicer may deposit into the Collection Account on any Business Day, and
shall deposit into the Collection Account on or prior to the Transfer Date
Collections with respect to the prior Collection Period to the extent such
Collections are allocated to any Series in accordance with Article IV, except
that the Servicer may distribute any amount determined to be payable to the
Holder of any subordinated Certificate (e.g. the Series 1992-A Class B
Certificate and the Series 1992-B Class B Certificates) pursuant to any
Supplement in respect of a Collection Period at any time after the related
Determination Date.
(h) Daily Collections. While Bridgestone/Firestone is the
-----------------
Servicer, and subject to the availability of a Servicer Letter of Credit, it
may hold for its own benefit all Collections, subject further, however, to
this subsection 4.01(h). The Servicer shall deposit all Collections
(including Collections then held by it) directly into the Collection Account
as soon as possible after the Date of Processing thereof, but in no event
later than two Business Days following such Date of Processing thereof,
commencing in the event of any of the following:
(i) the termination of Bridgestone/Firestone as Servicer;
(ii) 35 days shall have passed from the date the Servicer
received notice pursuant to Section 4.01A(b) of the downgrading of the short-
term unsecured debt ratings of the Letter of Credit Bank below A-1+ or F-1+
by the applicable Rating Agency and either (A) there shall not have been
delivered to the Trustee a substitute Servicer Letter of Credit in accordance
with Section 4.01A(c) or (B) the Trustee shall not have made a demand for a
Special Drawing under the Servicer Letter of Credit pursuant to Section
4.01A(e);
(iii) the Servicer shall have received notice pursuant to
Section 4.01A(b) of the downgrading of the short-term unsecured debt ratings
of the Letter of Credit Bank to or below A-2 or F-2 by the applicable Rating
Agency and either (A) there shall not have been delivered to the Trustee a
substitute Servicer Letter of Credit in accordance with Section 4.01(c) or
(B) the Servicer shall not have instructed the Trustee to make a demand for
a Special Drawing under the Servicer Letter of Credit pursuant to Section
4.01A(e); or
(iv) five Business Days remain to the expiry or termination
of the Servicer Letter of Credit and there shall not have been delivered to
the Trustee a substitute Servicer Letter of Credit in accordance with Section
4.01A(c).
Should the Servicer be required to make daily deposits of
Collections into the Collection Account pursuant to this Section, the
Servicer may make an estimated allocation of Finance Charge Collections and
Principal Collections for the purposes of determining the amount of
Collections to be so deposited as long as the Trustee received confirmation
from each Rating Agency that such method does not cause a downgrading or
withdrawal of the then current rating of any Series; provided, however,
-------- -------
that as soon as practical thereafter, the Servicer shall reconcile the
estimated allocation of Collections with the actual allocation required
under this Agreement.
If at any time Bridgestone/Firestone is the Servicer, Collections
held by Bridgestone/Firestone allocable to all Series and not previously used
to purchase receivables exceed the Available Letter of Credit Amount under
the Servicer Letter of Credit (for the avoidance of doubt, it is agreed that
the Available Letter of Credit Amount shall be zero after the return of the
funds on deposit in the Escrow Account pursuant to Section 4.01A(e) unless
a substitute Servicer Letter of Credit is provided to the Trustee pursuant
to Section 4.01A(c)) then the Servicer shall deposit all Collections directly
into the Collection Account; provided, however, that Bridgestone/Firestone
shall be required to deposit Collections directly into the Collection Account
pursuant to this paragraph only for so long as Collections held by
Bridgestone/Firestone exceed the Available Letter of Credit Amount.
Section 4.01A Servicer Letter of Credit. In accordance with Section
-------------------------
4.01(h), the following provisions shall apply so long as Bridgestone/
Firestone is the Servicer hereunder:
(a) Servicer Letter of Credit. If with respect to any Collection
-------------------------
Period the Servicer shall have failed to make in full the remittance of
Collections or any other payment required to be made pursuant to Section
4.01(9), the Trustee shall draw on the Servicer Letter of Credit, in
accordance with the terms thereof, in the amount of the shortfall between the
amount of funds that are required to be remitted by the Servicer to the
Collection Account as set forth in the Monthly Servicer's Certificate and the
amount of funds actually so remitted. Any such draw on the Servicer Letter
of Credit shall be made after receipt of the related Monthly Servicer's
Certificate but on or before 1:00 P.M. (New York City time) on the Transfer
Date for such Collection Period, provided the Trustee has received such
Monthly Servicer's Certificate prior to such time. Upon receipt of the
proceeds of any drawing under the Servicer Letter of Credit, the Trustee
shall deposit such proceeds into the Collection Account. Amounts so
deposited by the Trustee pursuant to this Section 4.01A(a) shall not be
deemed to constitute amounts deposited pursuant to Section 2.06(c), 2.07 or
12.01(b). The Servicer shall include in each Monthly Servicer's Certificate,
or in an Officer's Certificate provided to the Trustee with each Monthly
Servicer's Certificate, the Stated Amount (as defined in the Servicer Letter
of Credit) of the Servicer Letter of Credit as of the related Determination
Date.
(b) Downgrade of Letter of Credit Bank or Expiration of Term of
-----------------------------------------------------------
Servicer Letter of Credit.
- - -------------------------
(i) On the fifth Business Day prior to the expiry date of
the Servicer Letter of Credit (as such letter of credit may have been renewed
or extended), the Trustee shall give written notice thereof to the Servicer.
(ii) In the event that a Responsible Officer of the Trustee
obtains actual knowledge that the short-term unsecured debt rating of the
Letter of Credit Bank has been withdrawn or reduced below A-1+ or F-1+ by the
applicable Rating Agency, the Trustee shall promptly give written notice
thereof to the Servicer. Within 35 (thirty-five) days (or immediately if the
short-term debt rating of the Letter of Credit Bank has been reduced to or
below A-2 or F-2 by the applicable Rating Agency) of receipt of such notice,
the Servicer shall either (x) deliver to the Trustee a substitute Servicer
Letter of Credit in accordance with Section 4.01A(c), (y) instruct the
Trustee in writing to make a demand for a Special Drawing under the Servicer
Letter of Credit pursuant to Section 4.01A(e) or (z) commence depositing
Collections directly into the Collection Account pursuant to Section 4.01(h).
(c) Substitute Servicer Letter of Credit. The Trustee shall
------------------------------------
accept delivery of a letter of credit in substitution for the Servicer Letter
of Credit and shall deliver the Servicer Letter of Credit to the Letter of
Credit Bank for cancellation upon the satisfaction of the following
conditions:
(i) The substitute letter of credit shall be irrevocable
and shall be issued by a bank or other financial institution whose short term
unsecured debt is rated A-1+ and F-1+ by the applicable Rating Agency, and
the substitute letter of credit shall provide that drawings thereunder may
be made on substantially the same terms and conditions as the initial
Servicer Letter of Credit, and the substitute letter of credit shall have
been delivered to the Trustee.
(ii) The Trustee shall have received written confirmation
from each Rating Agency with an outstanding rating on any Series to the
effect that the delivery of the substitute letter of credit to the Trustee
and the termination of the initial Servicer Letter of Credit will not result
in the downgrade or withdrawal of any outstanding rating on any then
outstanding Series.
(iii) The amount available to be drawn under, and the Stated
Amount of, the substitute letter of credit shall be at least equal to the
amount which was available to be drawn under, and the Stated Amount of, the
Servicer Letter of Credit being replaced.
(iv) The Trustee shall have received written opinions of
counsel (acceptable to the Trustee) (including domestic and foreign counsel,
if applicable) to the issuer of the substitute letter of credit, which
opinions shall be reasonably satisfactory to the Trustee and the Transferor
and their respective counsel, substantially to the same effect as the
opinions delivered to the Trustee on the date of issuance of the Servicer
Letter of Credit with respect to the Servicer Letter of Credit.
(v) The Servicer shall have delivered to the Trustee an
Officer's Certificate confirming the items set forth in (i) through (iii)
above. The Trustee may conclusively rely on such certificate, shall have no
duty to make inquiries with regard to the matters set forth therein and shall
incur no liability in so relying.
Upon the delivery to the Trustee of a substitute letter of credit
in accordance with this Section 4.01A(e), such substitute letter of credit
shall be the Servicer Letter of Credit and the issuer thereof shall be a
Letter of Credit Bank for all purposes hereof.
(d) Daily Remittances. If the Servicer elects to begin daily
-----------------
remittances of Collections to the Collection Account pursuant to Section
4.01A(b) above, the Servicer shall instruct the Trustee in writing to submit
the Servicer Letter of Credit to the Letter of Credit Bank for cancellation
and the Servicer shall begin such daily remittances in accordance with
Section 4.01(h) hereof.
(e) Special Drawing. If the Servicer elects to instruct the
---------------
Trustee to make a Special Drawing pursuant to Section 4.01A(b) above, the
Servicer shall provide two Business Days' notice to the Letter of Credit Bank
and shall instruct the Trustee in writing to promptly draw upon the Servicer
Letter of Credit to the full extent of the Available Letter of Credit Amount
thereunder and deposit such amount into the Escrow Account (as defined
below). On the Closing Date, the Trustee for the benefit of the Holders of
the Investor Certificates shall establish or cause to be established with the
Trustee in the name of the Trustee, on behalf of the Servicer, a segregated
trust account (the "Escrow Account"), bearing a designation clearly
--------------
indicating that the funds deposited therein are held for the benefit of such
Certificateholders. Such account shall be maintained in the corporate trust
department of the Trustee if the short-term unsecured debt rating of the
Trustee is below A-1+ from Standard & Poor's. All funds on deposit in the
Escrow Account shall, at the direction of the Servicer, be invested by
the Trustee in Permitted Investments which will be held to maturity and which
will mature so that all funds on deposit therein will be available prior to
the Distribution Date next following such investment. The Trustee shall
maintain possession of the negotiable instruments or securities, if any,
evidencing the Permitted Investments described in clause (a) of the
definition thereof from the time of purchase thereof until maturity. Until
the earlier of (a) the date on which all Series are paid in full and (b) the
termination of the Trust (the "Payoff Date"), if a drawing under the Servicer
-----------
Letter of Credit is called for under Section 4.01 (a), a withdrawal in the
same amount from the Escrow Account shall instead be made and the related
funds applied as provided therein. Any reimbursement with respect to any
drawing which would otherwise have been applied to reinstate the Servicer
Letter of Credit shall be deposited in the Escrow Account. If, as evidenced
by an Officers' Certificate of the Servicer, on any Distribution Date the
amount on deposit in the Escrow Account (excluding any investment earnings
on deposit therein) exceeds the unpaid balance of all Series plus interest
accrued and unpaid thereon through the then current applicable interest
accrual period, the Trustee shall withdraw such excess amount on such
Distribution Date and pay such excess to the Letter of Credit Bank for
application in accordance with the agreement pursuant to which the Letter of
Credit was issued. From and after the date of such Special Drawing the term
"Available Letter of Credit Amount" with respect to the Servicer Letter of
---------------------------------
Credit shall be deemed to refer to the amount on deposit in the Escrow
Account (excluding any investment earnings thereon). On the first Business
Day after the earlier of the Payoff Date and the scheduled expiration date
of the Servicer Letter of Credit, all funds in the Escrow Account shall be
paid to the Letter of Credit Bank for application in accordance with the
agreement pursuant to which the Servicer Letter of Credit was issued. Any
investment earnings on the Escrow Account shall be remitted monthly on each
Distribution Date to the Letter of Credit Bank for application by the Letter
of Credit Bank in accordance with the agreement pursuant to which the
Servicer Letter of Credit was issued. All funds on deposit in the Escrow
Account shall be the sole and exclusive property of the Trustee for the
benefit of the Holders of all Series, subject to the rights of the Letter of
Credit Bank as provided herein. Neither the Transferor nor the Servicer
shall at any time have any ownership or other interest in such funds or any
right to withdraw or to receive such funds. In the event that,
notwithstanding the intention of the parties hereto, such funds are deemed
to be the property of the Servicer, the Servicer hereby grants to the
Trustee, for the benefit of the Holders of the Investor Certificates, a first
priority security interest in and to all of the Servicer's right, title and
interest in such funds for the purpose of securing the rights of the Trustee
for the benefit of the Holders of the Investor Certificates hereunder subject
to the rights of the Letter of Credit Bank and the Trustee's obligations to
remit funds on deposit in the Escrow Account to the Letter of Credit Bank as
described herein.
In the event that the Servicer delivers to the Trustee a substitute
letter of credit meeting the requirements of Section 4.01A(c), the Trustee
shall release to the initial Letter of Credit Bank any funds on deposit in
the Escrow Account for application pursuant to the agreement pursuant to
which the initial Servicer Letter of Credit was issued.
Section 4.01B Transferor Letter of Credit.
---------------------------
(a) Transferor Letter of Credit. If with respect to any
---------------------------
Collection Period the Servicer adjusts downward the amount of any Receivable
pursuant to Section 3.09(a) and the Transferor fails to make any deposit to
the Collection Account in respect thereof as required pursuant to Section
3.09(a), the Trustee shall draw on the Transferor Letter of Credit, in
accordance with the terms thereof, in the amount of the adjustment. Any such
draw on the Transferor Letter of Credit shall be made after receipt of the
related Monthly Servicer's Certificate but on or before 1:00 P.M. (New York
City time) on the Transfer Date for such Collection Period provided such
Monthly Servicer's Certificate is received by the Trustee prior to such time.
Upon receipt of the proceeds of any drawing under the Transferor Letter of
Credit, the Trustee shall deposit such proceeds into the Collection Account.
The Servicer shall include in each Monthly Servicer's Certificate, or in an
Officer's Certificate provided to the Trustee with each Monthly Servicer's
Certificate, the Stated Amount (as defined in the Transferor Letter of
Credit) of the Transferor Letter of Credit as of the related Determination
Date.
(b) Downgrade Credit of Transferor Letter of Credit Bank or
-------------------------------------------------------
Expiration of Term of Transferor Letter of Credit.
- - -------------------------------------------------
(i) On the fifth Business Day prior to the expiry date of
the Transferor Letter of Credit (as such letter of credit may have been
renewed or extended), the Trustee shall give written notice thereof to the
Transferor.
(ii) In the event that a Responsible Officer of the Trustee
obtains actual knowledge that the short-term unsecured debt rating of the
Letter of Credit Bank has been withdrawn or reduced below A-1+ or F-1+ by the
applicable Rating Agency, the Trustee shall promptly give written notice
thereof to the Transferor. Within 35 (thirty-five) days (or immediately if
the short-term debt rating of the Letter of Credit Bank has been reduced to
or below A-2 or F-2 by the applicable Rating Agency) of receipt of such
notice, the Transferor shall either (x) deliver to the Trustee a substitute
Transferor Letter of Credit in accordance with Section 4.01B(c) or (y)
instruct the Trustee in writing to make a demand for a Special Drawing under
the Transferor Letter of Credit pursuant to Section 4.01B(d).
(c) Substitute Transferor Letter of Credit. The Trustee shall
--------------------------------------
accept delivery of a letter of credit in substitution for the Transferor
Letter of Credit and shall deliver the Transferor Letter of Credit to the
Letter of Credit Bank for cancellation upon the satisfaction of the following
conditions:
(i) The substitute letter of credit shall be irrevocable
and shall be issued by a bank or other financial institution whose short term
unsecured debt is rated A-1+ and F-1+ by the applicable Rating Agency, and
the substitute letter of credit shall provide that drawings thereunder may
be made on substantially the same terms and conditions as the initial
Transferor Letter of Credit, and the substitute letter of credit shall have
been delivered to the Trustee.
(ii) The Trustee shall have received written confirmation
from each Rating Agency with an outstanding rating on any Series to the
effect that the delivery of the substitute letter of credit to the Trustee
and the termination of the initial Transferor Letter of Credit will not
result in the downgrade or withdrawal of any outstanding rating on any then
outstanding Series.
(iii) The amount available to be drawn under, and the Stated
Amount of, the substitute letter of credit shall be at least equal to the
amount which was available to be drawn under, and the Stated Amount of, the
Transferor Letter of Credit being replaced.
(iv) The Transferor Amount (plus the B/F Amount and the
Available Letter of Credit Amount) expressed as a percentage of the aggregate
invested amount of all outstanding Series issued by the Trust with respect
to the Transferor Letter of Credit shall be at least equal to the Minimum
Transferor Interest Percentage.
(v) The Trustee shall have received written opinions of
counsel (acceptable to the Trustee) (including domestic and foreign counsel,
if applicable) to the issuer of the substitute letter of credit, which
opinions shall be reasonably satisfactory to the Trustee and the Transferor
and their respective counsel, substantially to the same effect as the
opinions delivered to the Trustee on the date of issuance of the Transferor
Letter of Credit with respect to the Transferor Letter of Credit.
(vi) The Transferor shall have delivered to the Trustee an
Officer's Certificate confirming the items set forth in (i) through (iv)
above. The Trustee may conclusively rely on such certificate, shall have no
duty to make inquiries with regard to the matters set forth therein and shall
incur no liability in so relying.
Upon the delivery to the Trustee of a substitute letter of credit
in accordance with this Section 4.01B(c), such substitute letter of credit
shall be the Transferor Letter of Credit and the issuer thereof shall be a
Letter of Credit Bank for all purposes hereof.
(d) Special Drawing. If the Transferor elects to instruct the
---------------
Trustee to make a Special Drawing pursuant to Section 4.01B(b) above, the
Transferor shall provide two Business Days notice to the Letter of Credit
Bank and shall instruct the Trustee in writing to promptly draw upon the
Transferor Letter of Credit to the full extent of the Available Letter of
Credit Amount thereunder and deposit such amount into the Transferor Escrow
Account (as defined below). On the Closing Date, the Trustee for the benefit
of the Holders of the Investor Certificates shall establish or cause to be
established with the Trustee in the name of the Trustee, on behalf of the
Transferor, a segregated trust account (the "Transferor Escrow Account"),
-------------------------
bearing a designation clearly indicating that the funds deposited therein are
held for the benefit of such Certificateholders. Such account shall be
maintained in the corporate trust department of the Trustee if the short-term
unsecured debt rating of the Trustee is below A-1+ from Standard & Poor's.
All funds on deposit in the Transferor Escrow Account shall, at the direction
of the Transferor, be invested by the Trustee in Permitted Investments which
will be held to maturity and which will mature so that all funds on deposit
therein will be available prior to the Distribution Date next following such
investment. The Trustee shall maintain possession of the negotiable
instruments or securities, if any, evidencing the Permitted Investments
described in clause (a) of the definition thereof from the time of purchase
thereof until maturity. Until the earlier of (a) the date on which all
Series are paid in full and (b) the Payoff Date, if a drawing under the
Transferor Letter of Credit is called for under Section 4.01B(a), a
withdrawal in the same amount from the Transferor Escrow Account shall
instead be made and the related funds applied as provided therein. Any
reimbursement with respect to any drawing which would otherwise have been
applied to reinstate the Transferor Letter of Credit shall be deposited in
the Transferor Escrow Account. If, as evidenced by an Officers' Certificate
of the Transferor, on any Distribution Date the amount on deposit in the
Transferor Escrow Account (excluding any investment earnings on deposit
therein) exceeds the unpaid balance of all Series plus interest accrued and
unpaid thereon through the then current applicable interest
accrual period, the Trustee shall withdraw such excess amount on such
Distribution Date and pay such excess to the Letter of Credit Bank for
application in accordance with the agreement pursuant to which the Transferor
Letter of Credit was issued. From and after the date of such Special
Drawing, the term "Available Letter of Credit Amount" with respect to the
---------------------------------
Transferor Letter of Credit shall be deemed to refer to the amount on deposit
in the Transferor Escrow Account (excluding any investment earnings thereon).
On the first Business Day after the earlier of the Payoff Date and the
scheduled expiration date of the Transferor Letter of Credit, all funds in
the Transferor Escrow Account shall be paid to the Letter of Credit Bank for
application in accordance with the agreement pursuant to which the Transferor
Letter of Credit was issued. Any investment earnings on the Transferor
Escrow Account shall be remitted monthly on each Distribution Date to the
Letter of Credit Bank for application by the Letter of Credit Bank in
accordance with the agreement pursuant to which the Transferor Letter of
Credit was issued. All funds on deposit in the Transferor Escrow Account
shall be the sole and exclusive property of the Trustee for the benefit of
the Holders of all Series, subject to the rights of the Letter of Credit Bank
as provided herein. Neither the Transferor nor the Servicer shall at any
time have any ownership or other interest in such funds or any right to
withdraw or to receive such funds. In the event that, notwithstanding the
intention of the parties hereto, such funds are deemed to be the property of
the Transferor, the Transferor hereby grants to the Trustee, for the benefit
of the Holders of the Investor Certificates, a first priority security
interest in and to all of the Transferor's right, title and interest in such
funds for the purpose of securing the rights of the Trustee for the benefit
of the Holders of the Investor Certificates hereunder subject to the rights
of the Letter of Credit Bank and the Trustee's obligations to remit funds on
deposit in the Transferor Escrow Account to the Letter of Credit Bank as
described herein.
In the event that the Transferor delivers to the Trustee a substitute
letter of credit meeting the requirements of Section 4.01B(c), the Trustee
shall release to the initial Letter of Credit Bank any funds on deposit in
the Transferor Escrow Account for application pursuant to the agreement
pursuant to which the initial Transferor Letter of Credit was issued.
(THE REMAINDER OF ARTICLE IV IS RESERVED
AND MAY BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES)
ARTICLE V
(ARTICLE V IS RESERVED AND MAY BE SPECIFIED IN
ANY SUPPLEMENT WITH RESPECT TO ANY SERIES)
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. Subject to Section 6.11 of the
----------------
Agreement, the Investor Certificates of each Series shall be issued in fully
registered form (the "Registered Certificates"), and shall be substantially
-----------------------
in the form of the exhibits with respect thereto attached to the applicable
Supplement. The Exchangeable Transferor Certificate shall be substantially
in the form of Exhibit A-1. The Investor Certificates and the Exchangeable
-----------
Transferor Certificate shall, upon issuance pursuant hereto or to Section
6.09 or Section 6.11 of the Agreement, be executed and delivered by the
Transferor to the Trustee for authentication and redelivery as provided in
Sections 2.09 and 6.02 of the Agreement. Any Investor Certificates shall be
issued in minimum denominations of $1,000 and in integral multiples of $1,000
in excess thereof, unless otherwise specified in any Supplement. If
specified in the related Supplement for any Series, the Investor Certificates
shall be issued upon initial issuance as a single certificate in an original
principal amount equal to the Initial Invested Amount as described in Section
6.10 of the Agreement. The Exchangeable Transferor Certificate shall be
issued to the Transferor as a single certificate. The Bridgestone/Firestone
Certificate shall be issued to Bridgestone/Firestone as a single certificate
in substantially the form of Exhibit A-2. Each Certificate shall be executed
-----------
by manual or facsimile signature on behalf of the Transferor by its President
or any Vice President. Certificates bearing the manual or facsimile (in the
case of the Transferor) signature of the individual who has, at the time when
such signature was affixed, authorized to sign on behalf of the Transferor
or the Trustee shall not be rendered invalid, notwithstanding that such
individual has ceased to be so authorized prior to the authentication and
delivery of such Certificates or does not hold such office at the date of
such Certificates. No Certificate shall be entitled to any benefit under
this Agreement or any applicable Supplement, or be valid for any purpose,
unless there appears on such Certificate a certificate of authentication
substantially in the form provided for herein executed by or on behalf of the
Trustee by the manual signature of a duly authorized signatory, and such
certificate upon any Certificate shall be conclusive evidence, and the only
evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication.
Section 6.02 Authentication of Certificates. Contemporaneously with
------------------------------
the assignment and transfer of the Receivables, whether now existing or
hereafter created, and the other Trust Assets to the Trust, the Trustee shall
authenticate and deliver the initial Series of Investor Certificates upon the
order of the Transferor. The Trustee shall authenticate and deliver the
Bridgestone/Firestone Certificates upon the order of the Transferor. The
Trustee shall authenticate and deliver the Exchangeable Transferor
Certificate, upon the order of the Transferor, to the Transferor
simultaneously with the delivery of the initial Series of Investor
Certificates. Upon an Exchange as provided in Section 6.09 of the Agreement
and the satisfaction of certain other conditions specified therein, the
Trustee shall authenticate and deliver the Investor Certificates of
additional Series (with the designation provided in the applicable
Supplement), upon the order of the Transferor, to the persons designated in
such Supplement. Upon the order of the Transferor, the Certificates of any
Series shall be duly authenticated by or on behalf of the Trustee, in
authorized denominations equal to (in the aggregate) the Initial Invested
Amount of such Series of Investor Certificates. If specified in the related
Supplement for any Series, the Trustee shall authenticate Book-Entry
Certificates or Certificates in physical form that are issued upon original
issuance thereof, upon the written order of the Transferor, to a Clearing
Agency or its nominee as provided in Section 6.11 of the Agreement against
payment of the purchase price thereof.
Section 6.03 Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
(a) The Trustee shall cause to be kept at the office or agency to
be maintained by a transfer agent and registrar (which may be the Trustee)
(the "Transfer Agent and Registrar") in accordance with the provisions of
----------------------------
Section 6.03(c) of the Agreement a register (the "Certificate Register") in
--------------------
which, subject to such reasonable regulations as it may prescribe, the
Transfer Agent and Registrar shall provide for the registration of the
Registered Certificates and of transfers and exchanges of the Registered
Certificates as herein provided. The Trustee is hereby initially appointed
Transfer Agent and Registrar for the purpose of registering the Registered
Certificates and transfers and exchanges of the Registered Certificates as
herein provided. The Trustee shall be permitted to resign as Transfer Agent
and Registrar upon 30 days' written notice to the Transferor and the
Servicer; provided, however, that such resignation shall not be effective and
-------- -------
the Trustee shall continue to perform its duties as Transfer Agent and
Registrar until the Transferor has appointed a successor Transfer Agent and
Registrar acceptable to the Transferor and the Trustee. If specified in the
related Supplement for any Series of Certificates, the Transferor shall
appoint any co-transfer agent and co-registrar chosen by the Transferor, and
acceptable to the Trustee. If specified in such related Supplement, so long
as the Registered Certificates relating to such Supplement are outstanding,
the Transferor shall maintain a co-transfer agent and co-registrar in New
York City or any other city designated in such Supplement and any reference
in this Agreement to the Transfer Agent and Registrar shall include
any co-transfer agent and co-registrar unless the context requires otherwise.
Upon surrender for registration of transfer of any Registered
Certificate at any office or agency of the Transfer Agent and Registrar
maintained for such purpose and compliance with applicable requirements of
the Transfer Agent and Registrar, the Transferor shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Certificates in
authorized denominations of the same Series representing like aggregate
Undivided Interests in the Trust.
At the option of any Registered Certificateholder, Registered
Certificates may be exchanged for other Registered Certificates of the same
Series in authorized denominations of like aggregate Undivided Interests in
the Trust, upon surrender of the Registered Certificates to be exchanged at
any office or agency of the Transfer Agent and Registrar maintained for such
purpose.
The preceding provisions of this Section 6.03 notwithstanding, the
Trustee or the Transfer Agent and Registrar, as the case may be, shall not
be required to register the transfer of or exchange any Certificate of any
Series for a period of 15 days preceding the due date for any payment with
respect to the Certificates of such Series.
Whenever any Investor Certificates of any Series are so surrendered
for exchange the Transferor shall execute and the Trustee shall authenticate
and (unless the Transfer Agent and Registrar is different from the Trustee
in which case the Transfer Agent and Registrar shall) deliver the Investor
Certificates of such Series which the Certificateholder making the exchange
is entitled to receive. Every Investor Certificate presented or surrendered
for registration of transfer or exchange shall be accompanied by a written
instrument of transfer in a form satisfactory to the Trustee and the Transfer
Agent and Registrar duly executed by the Certificateholder thereof or his
attorney duly authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Investor Certificates but the Transfer Agent and Registrar and
the Trustee or any co-transfer agent and co-registrar or co-trustee may
require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of Investor
Certificates.
All Investor Certificates surrendered for registration of transfer
or exchange shall be cancelled by the Transfer Agent and Registrar and
destroyed by the Trustee.
The Transferor shall execute and deliver to the Trustee or the
Transfer Agent and Registrar, as applicable, and Registered Certificates in
such amounts and at such times as are necessary to enable the Trustee to
fulfill its responsibilities under this Agreement and the Certificates.
Any Series Supplement may set forth additional restrictions on the
transfer of Certificates.
(b) Except as provided in any Supplement or in Sections 6.09 and
7.02 of the Agreement, the Transferor's interest in the Exchangeable
Transferor Certificate shall not be sold, transferred, assigned, exchanged,
pledged, participated or otherwise conveyed except that the Transferor
Interest may be participated to Bridgestone/Firestone pursuant to the
Participation Agreement. The Bridgestone/Firestone Certificate may not be
sold, assigned, pledged or otherwise conveyed.
(c) The Transfer Agent and Registrar will maintain at its expense
in the Borough of Manhattan, the City of New York (or subject to Section
6.03(a) of the Agreement any other city designated in such Supplement), an
office or offices or agency or agencies where Investor Certificates may be
surrendered for registration of transfer or exchange.
(d) Any Supplement may provide for restrictions applicable to the
transfer of a particular Series of Certificates.
Section 6.04 Mutilated, Destroyed, Lost or Stolen Certificates.
-------------------------------------------------
If (a) any mutilated Certificate is surrendered to the Transfer Agent and
Registrar, or the Transfer Agent and Registrar receives evidence to its
satisfaction of the destruction, loss or theft of any Certificate and
(b) there is delivered to the Transfer Agent and Registrar, the Trustee and
the Transferor such security or indemnity as may be required by them to save
each of them harmless, then, in the absence of notice to the Trustee that
such Certificate has been acquired by a bona fide purchaser, the Transferor
shall execute and the Trustee shall authenticate and (unless the Transfer
Agent and Registrar is different from the Trustee, in which case the Transfer
Agent and Registrar shall) deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and aggregate Undivided Interest, if applicable. In connection with
the issuance of any new Certificate under this Section 6.04, the Trustee or
the Transfer Agent and Registrar may require the payment by the
Certificateholder of a sum sufficient to cover any tax or other governmental
expenses (including the fees and expenses of the Trustee and Transfer Agent
and Registrar) connected therewith. Any Certificate issued pursuant to this
Section 6.04 shall constitute complete and indefeasible evidence of ownership
in the Trust, as if originally issued, whether or not the lost, stolen or
destroyed Certificate shall be found at any time.
Section 6.05 Persons Deemed Owners. Prior to due presentation of a
---------------------
Certificate for registration of transfer, the Trustee, the Paying Agent, the
Transfer Agent and Registrar and any agent of any of them may treat the
person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Article
IV hereof and for all other purposes whatsoever, and neither the Trustee, the
Paying Agent, the Transfer Agent and Registrar nor any agent of any of them
shall be affected by any notice to the contrary. Notwithstanding the
foregoing provisions of this Section 6.05, in determining whether the holders
of the requisite Undivided Interests have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Certificates
owned by the Transferor, the Servicer or any affiliate thereof (as defined
in Rule 405 under the Securities Act of 1933, as amended), shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only
Certificates which the Trustee knows to be so owned shall be so disregarded.
Certificates so owned which have been pledged in good faith shall not be
disregarded and may be regarded as outstanding if the pledgee establishes to
the satisfaction of the Trustee the pledgee's right so to act with respect
to such Certificates and that the pledgee is not the United States, the
Servicer or an affiliate thereof (as defined above).
Section 6.06 Appointment of Paying Agent. The Paying Agent shall make
---------------------------
distributions to Investor Certificateholders from the Collection Account (or
any other account or accounts maintained for the benefit of
Certificateholders as specified in the related Supplement for any Series)
pursuant to Articles IV and V hereof. Any Paying Agent shall have the
revocable power to withdraw funds from the Collection Account (or any other
account or accounts maintained for the benefit of Certificateholders as
specified in the related Supplement for any Series for the purpose of making
distributions referred to above. The Trustee may revoke such power and
remove the Paying Agent if the Trustee determines in its sole discretion that
the Paying Agent shall have failed to perform its obligations under this
Agreement in any material respect. The Paying Agent shall initially be the
Trustee and any co-paying agent chosen by the Transferor and acceptable to
the Trustee. The Trustee shall be permitted to resign as Paying Agent upon
30 days' written notice to the Trustee and the Transferor. In the event that
the Trustee shall no longer be the Paying Agent, the Transferor shall appoint
a successor to act as Paying Agent and such successor shall be
acceptable to the Trustee. The Trustee shall cause the initial Paying Agent
and each successor Paying Agent or any additional Paying Agent appointed by
the Transferor to execute and deliver to the Trustee an instrument in which
such initial or successor Paying Agent or additional Paying Agent shall agree
with the Trustee that, as Paying Agent, such initial or successor Paying
Agent or additional Paying Agent will hold all sums, if any, held by it for
payment to the Investor Certificateholders in trust for the benefit of the
Investor Certificateholders entitled thereto until such sums shall be paid
to such Certificateholders. The Paying Agent shall return all unclaimed
funds to the Trustee and upon removal of a Paying Agent shall also return all
funds in its possession to the Trustee. The provisions of Sections 11.01,
11.02 and 11.03 shall apply to the Trustee also in its role as Paying Agent,
for so long as the Trustee shall act as Paying Agent. Any reference in this
Agreement to the Paying Agent shall include any co-paying agent unless the
context requires otherwise.
Section 6.07 Access to List of Certificateholders' Names and
-----------------------------------------------
Addresses. The Transfer Agent and Registrar shall furnish to the Servicer
- - ---------
(or the Paying Agent or any agent thereof), within five Business Days after
receipt by the Trustee of a request therefor from the Servicer or the Paying
Agent, respectively, in writing, a list in such form as the Servicer or the
Paying Agent may reasonably require, of the names and addresses of the
Investor Certificateholders. If three or more Holders of Investor
Certificates of any Class of any Series or holders representing Undivided
Interests in the Trust aggregating not less than 5% of the Invested Amount
of the Investor Certificates of any Class of any Series (the "Applicants")
----------
apply in writing to the Trustee, and such application states that the
Applicants desire to communicate with other Investor Certificateholders of
any Series with respect to their rights under this Agreement or under the
Investor Certificates and is accompanied by a copy of the communication which
such Applicants propose to transmit, then the Trustee, after having been
adequately indemnified by such Applicants for its costs and expenses shall
afford or shall cause the Transfer Agent and Registrar to afford such
Applicants access during normal business hours to the most recent list of
Certificateholders held by the Trustee, within five Business Days after the
receipt of such application. Such list shall be as of a date no more than
30 days prior to the date of receipt of such Applicants' request.
Every Certificateholder agrees with the Trustee that neither the
Trustee, the Transfer Agent and Registrar, nor any of their respective agents
shall be held accountable by reason of the disclosure of any such information
as to the names and addresses of the Certificateholders hereunder, regardless
of the sources from which such information was derived.
Section 6.08 Authenticating Agent.
--------------------
(a) The Trustee may appoint one or more authenticating agents with
respect to the Certificates which shall be authorized to act on behalf of the
Trustee in authenticating the Certificates in connection with the issuance,
delivery, registration of transfer, exchange or repayment of the
Certificates. Whenever reference is made in this Agreement to the
authentication of Certificates by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication
on behalf of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an authenticating agent.
Each authenticating agent must be reasonably acceptable to the Transferor.
(b) Any institution succeeding to the corporate agency business
of an authenticating agent shall continue to be an authenticating agent
without the execution or filing of any paper or any further act on the part
of the Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving
written notice of resignation to the Trustee and to the Transferor. The
Trustee may at any time terminate the agency of an authenticating agent by
giving notice of termination to such authenticating agent and to the
Transferor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to
be acceptable to the Trustee or the Transferor, the Trustee promptly may
appoint a successor authenticating agent. Any successor authenticating agent
upon acceptance of its appointment hereunder shall become agent ted with all
the rights, powers and duties of its predecessor hereunder, with like effect
as if originally named as an authenticating agent. No successor
authenticating agent shall be appointed unless acceptable to the Trustee and
the Transferor.
(d) The Servicer agrees to pay, on behalf of the Trust, to each
authenticating agent from time to time reasonable compensation for its
services under this Section 6.08.
(e) The provisions of Sections 11.01, 11.02 and 11.03 shall be
applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 6.08, the
Certificate, may have endorsed thereon, in lieu of the Trustee's certificate
of authentication, an alternate certificate of authentication in
substantially the following form:
This is one of the Certificates described in the within mentioned
Pooling and Servicing Agreement.
_________________________
_________________________
as Authenticating Agent for
the Trustee,
By: _____________________
Authorized Officer
Section 6.09 Tender of Exchangeable Transferor Certificate.
---------------------------------------------
(a) Upon any Exchange, the Trustee shall issue to the Transferor
under Section 6.01 for execution and redelivery to the Trustee for
authentication under Section 6.02 one or more new Series of Investor
Certificates. Any such Series of Investor Certificates shall be
substantially in the form specified in the applicable Supplement and shall
bear, upon its face, the designation for such Series to which it belongs so
selected by the Transferor. Except as specified in any Supplement for a
related Series, all Investor Certificates of any Series shall be equally and
ratably entitled as provided herein to the benefits hereof without
preference, priority or distinction on account of the actual time or times
of authentication and delivery, all in accordance with the terms and
provisions of this Agreement and the applicable Supplement.
(b) The Transferor may tender the Exchangeable Transferor
Certificate to the Trustee in exchange for (i) one or more newly issued
Series of Investor Certificates and (ii) a reissued Exchangeable Transferor
Certificate (any such tender a "Transferor Exchange"). In addition, to the
-------------------
extent permitted for any Series of Investor Certificates as specified in the
related Supplement, the Transferor may tender the Investor Certificates of
any Series and the Exchangeable Transferor Certificate to the Trustee
pursuant to the terms and conditions set forth in such Supplement in exchange
for, respectively (i) one or more newly issued Series of Investor
Certificates and (ii) a reissued Exchangeable Transferor Certificate (an
"Investor Exchange"). The Transferor Exchange and Investor Exchange are
-----------------
referred to collectively herein as an "Exchange." The Transferor may perform
--------
an Exchange by notifying the Trustee, in writing, at least five days in
advance (an "Exchange Notice") of the date upon which the Exchange is to
---------------
occur (an "Exchange Date"). Any Exchange Notice shall state the designation
-------------
of any Series to be newly issued on the Exchange Date and, with respect to
each such Series: (a) its Initial Invested Amount (or the method for
calculating such Initial Invested Amount), if any, which, in the aggregate,
at any time, may not be greater than the current principal amount of the
Exchangeable Transferor Certificate less the current required Transferor
Amount, if any, at such time (or in the case of an Investor Exchange, the sum
of the Invested Amount of the Series of Investor Certificates to be exchanged
plus the current principal amount of the Exchangeable Transferor
Certificate), and (b) its Certificate Rate (or the method for allocating
interest payments or other cash flow to such newly issued Series), if any.
On the Exchange Date, the Trustee shall only authenticate and deliver the
Certificates of any such Series upon delivery to it of the following: (a) a
Supplement in form satisfactory to the Trustee executed by the Transferor and
specifying the Principal Terms of such Series, (b) the applicable
Enhancement, if any, (c) an Opinion of Counsel to the effect that the newly
issued Series of Investor Certificates will be characterized as either
indebtedness or an interest in a partnership under existing law for Federal
income tax purposes and that the issuance of the newly issued Series of
Investor Certificates will not have any material adverse impact on the
Federal income tax characterization of any outstanding Series of Investor
Certificates that have been the subject of a previous opinion of tax counsel,
(d) an agreement, if any, pursuant to which the Enhancement Provider agrees
to provide Enhancement, (e) written confirmation from each Rating Agency that
the Exchange will not result in the Rating Agency's reducing or withdrawing
its rating or otherwise adversely affect any rating on any then outstanding
Series rated by it and (f) the existing Exchangeable Transferor Certificate
or applicable Investor Certificates, as the case may be. Upon satisfaction
of such conditions, the Trustee shall cancel the existing Exchangeable
Transferor Certificate or applicable Investor Certificates, as the case may
be and issue, as provided above, such Series of Investor Certificates and a
new Exchangeable Transferor Certificate, dated the Exchange Date.
(c) In conjunction with an Exchange, the parties hereto shall
execute a Supplement, which shall specify the relevant terms with respect to
any Series of Investor Certificates, which may include, without limitation:
(i) its name or designation, (ii) an Initial Invested Amount or the method
of calculating the Initial Invested Amount, (iii) a Certificate Rate (or
formula for the determination thereof), (iv) the rights of the Transferor as
Holder of the Exchangeable Transferor Certificate that have been transferred
to the Holders of such Series pursuant to such Exchange (including any rights
to allocations of Collections), (v) the interest payment date or dates and
the date or dates from which interest shall accrue, (vi) the method of
allocating Principal Collections for such Series and, if applicable, with
respect to other Series and the method by which the principal amount of
Investor Certificates of such Series shall amortize or accrete and the method
for allocating Finance Charge Collections and Defaulted Receivables,
(vii) the names of any accounts to be used by such Series and the
terms governing the operation of any such accounts, (viii) the Servicing Fee
Percentage, (ix) the Minimum Transferor Interest Percentage, (x) Minimum
Aggregate Receivables, (xi) the Series Termination Date, (xii) the terms of
any Enhancement, (xiii) the Enhancement Provider, (xiv) the Base Rate,
(xv) the Repurchase Terms or the terms on which the Certificates of such
Series may be remarketed to other investors, (xvi) any deposit into any
account provided for such Series, (xvii) the number of Classes of such
Series, and if more than one Class, the rights and priorities of each such
Class, (xviii) whether the Certificates may be issued in bearer form and any
limitations imposed thereon, (xix) the priority of any Series with respect
to any other Series, and (xx) any other relevant terms of such Series (all
such terms, the "Principal Terms" of such Series). If on the date of the
---------------
issuance of such Series there is issued and outstanding no Series of Investor
Certificates which is currently rated by a Rating Agency, then as a condition
to such Exchange a nationally recognized investment banking firm or
commercial bank shall also deliver to the Trustee an officer's certificate
stating, in substance, that the Exchange will not have an adverse effect on
the timing or distribution of payments to such other Series of Investor
Certificates then issued and outstanding.
Section 6.10 (Reserved)
--------
Section 6.11 Book-Entry Certificates. Unless otherwise provided in
-----------------------
any related Supplement, the Investor Certificates, upon original issuance,
will be issued in the form of the requisite number of typewritten
Certificates representing the Book-Entry Certificates, to be delivered to The
Depository Trust Company, the initial Clearing Agency, by, or on behalf of,
the Transferor. The Investor Certificates shall initially be registered on
the Certificate Register in the name of CEDE & Co., the nominee of the
Depository Trust Company, and no Certificate Owner will receive a definitive
certificate representing such Certificate Owner's interest in the Investor
Certificates, except as provided in Section 6.13 of the Agreement. Unless
and until definitive, fully registered Investor Certificates (the "Definitive
----------
Certificates") have been issued to Certificate Owners pursuant to Section
- - ------------
6.13 of the Agreement:
(i) the provision of this Section 6.11 shall be in full
force and effect;
(ii) all payments and notices to the Certificate Owners
shall be made to the Clearing Agency;
(iii) to the extent that the provisions of this Section 6.11
conflict with any other provisions of this Agreement, the provisions of this
Section 6.11 shall control but shall be subject to the provisions of Section
6.05;
(iv) the rights of Certificate Owners shall be exercised
only through the Clearing Agency and the Clearing Agency Participants and
shall be limited to those established by law and agreements between such
Certificate Owners and the Clearing Agency and for the Clearing Agency
Participants. Pursuant to the Depository Agreement, unless and until
Definitive Certificates are issued pursuant to Section 6.13 of the Agreement,
the initial Clearing Agency will make book-entry transfers among the Clearing
Agency Participants and receive and transmit distributions of principal and
interest on the Investor Certificates to such Clearing Agency Participants;
and
(v) whenever this Agreement requires or permits actions to
be taken based upon instructions or directions of a specified percentage of
the Invested Amount of any or all Series of Certificates outstanding, the
Clearing Agency shall be deemed to represent such percentage only to the
extent that it has received instructions to such effect from Certificate
Owners and/or Clearing Agency Participants owning or representing,
respectively, such required percentage of the beneficial interest in Investor
Certificates.
Section 6.12 Notice to Clearing Agency. Whenever notice or other
-------------------------
communication to the Investor Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued
to Certificate Owners pursuant to Section 6.13 of the Agreement, the Trustee,
the Servicer and the Paying Agent shall give all such notices and
communications specified herein to be given to Holders of the Investor
Certificates to the Clearing Agency or Agencies.
Section 6.13 Definitive Certificates. If Book-Entry Certificates have
-----------------------
been issued pursuant to Section 6.11 and if (i)(A) the Transferor advises the
Trustee in writing that the Clearing Agency is no longer willing or able to
discharge properly its responsibilities under the Depository Agreement, and
(B) the Trustee or the Transferor is unable to locate a qualified successor,
(ii) the Transferor at its option, advises the Trustee in writing that it
elects to terminate the book-entry system through the Clearing Agency or
(iii) after the occurrence of a Servicer Default, Certificate Owners
representing beneficial interests aggregating not less than 50% of the
Invested Amount of any Series advise the Trustee and the Clearing Agency
through the Clearing Agency Participants in writing that the continuation of
a book-entry system through the Clearing Agency is no longer in the best
interests of the Certificate Owners, the Trustee shall notify all Certificate
Owners, through each applicable Clearing Agency, of the occurrence of any
such event and of the availability of Definitive Certificates to Certificate
Owners requesting the same. Upon surrender to the Trustee of the
Investor Certificates by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration, the Trustee shall
issue the Definitive Certificates. Neither the Transferor, the Transfer
Agent and Registrar nor the Trustee shall be liable for any delay in delivery
of such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions.
(END OF ARTICLE VI)
ARTICLE VII
OTHER MATTERS RELATING
TO THE TRANSFEROR
Section 7.01 Liability of the Transferor. The Transferor shall be
---------------------------
liable for each obligation, covenant, representation and warranty of the
Transferor, arising under or related to this Agreement or any Supplement.
Except as provided in the preceding sentence, the Transferor shall be liable
only to the extent of the obligations specifically undertaken by the
Transferor in its capacity as Transferor hereunder.
Section 7.02 Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, the Transferor.
- - ------------------------------
(a) The Transferor shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person unless:
(i) the corporation formed by such consolidation or into
which the Transferor is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Transferor substantially as an
entirety shall be, if the Transferor is not the surviving entity, organized
and existing under the laws of the United States of America or any state or
the District of Columbia, and shall be a corporation, a savings and loan
association, national association, a bank or other entity and, if the
Transferor is not the surviving entity, shall expressly assume, by an
agreement supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the performance of every covenant and obligation
of the Transferor hereunder; and
(ii) the Transferor has delivered to the Trustee an
officers' certificate signed by a Vice President (or any more senior officer)
of the Transferor and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental agreement
comply with this Section 7.02 and that all conditions precedent herein
provided for relating to such transaction have been complied with; and
(iii) the Transferor has delivered notice to each Rating
Agency of such consolidation, merger, conveyance or transfer and shall have
received written confirmation from each Rating Agency that such
consolidation, merger, conveyance or transfer would not cause a reduction or
withdrawal of the rating of any Series of Certificates then outstanding.
(b) The obligations of the Transferor hereunder shall not be
assignable nor shall any Person succeed to the obligations of the Transferor
hereunder except in each case in accordance with the provisions of the
foregoing paragraph.
Section 7.03 Limitation on Liability of the Transferor. Subject to
-----------------------------------------
Sections 7.01 and 7.04 of the Agreement, neither the Transferor nor any of
its directors or officers or employees or agents in its capacity as
Transferor shall be under any liability to the Trust, the Trustee, the
Certificateholders or any other Person for any action taken or for refraining
from the taking of any action in the capacity as Transferor pursuant to this
Agreement whether arising from express or implied duties under this Agreement
or any Supplement; provided, however, that this provision shall not protect
-------- -------
the Transferor against any liability which would otherwise be imposed by
reason of willful misfeasance, bad faith or gross negligence in the
performance of duties or by reason of reckless disregard of obligations and
duties hereunder. The Transferor and any director or officer or employee or
agent of the Transferor may rely in good faith on any document of any kind
prima facie properly executed and submitted by any Person respecting any
- - ----- -----
matters arising hereunder.
Section 7.04 Liabilities. Notwithstanding Sections 7.01 and 7.03 of
-----------
the Agreement, by entering into this Agreement, the Transferor and
Bridgestone/Firestone agree to indemnify the Trust for the entire amount of
any losses, claims, damages or liabilities (other than investment losses
incurred by a Certificateholder in the capacity of an investor in the
Investor Certificates of any Series) asserted against the Trust by parties
other than the Transferor, the Servicer, the Trustee or Certificateholders,
and arising out of or based on the arrangement created by this Agreement or
any Supplement and the actions of the Servicer taken pursuant hereto as
though the Agreement and any Supplement created a partnership under the
Uniform Partnership Act. The Transferor and Bridgestone/FireStone agree to
pay, indemnify and hold harmless each Investor Certificateholder of any
Series against and from any and all such losses, claims, damages and
liabilities except to the extent that they arise from any action by such
Investor Certificateholder causing such losses, claims, damages or
liabilities. The Servicer will indemnify and hold harmless the Transferor
and Bridgestone/Firestone for any losses, claims, damages and liabilities of
the Transferor or Bridgestone/Firestone arising under this Section 7.04 from
the actions or omissions of the Servicer. The amount of the Transferor's
liability under this Section 7.04 shall be subordinate to the security
interest of the Trust in the Receivables and shall be payable from the assets
of the Transferor at the time such liability is asserted and at any time
thereafter.
(END OF ARTICLE VII)
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
Section 8.01 Liability of the Servicer. The Servicer shall be liable
-------------------------
under this Agreement only to the extent of the obligations specifically
undertaken by the Servicer in its capacity as Servicer.
Section 8.02 Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, the Servicer. The Servicer shall not consolidate with or
- - ----------------------------
merge into any other corporation or convey or transfer its properties and
assets substantially as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into
which the Servicer is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Servicer substantially as an
entirety shall be a corporation organized and existing under the laws of the
United States of America or any State or the District of Columbia, and shall
be a corporation, a savings and loan association, a national association, a
bank or other entity and, if the Servicer is not the surviving entity, such
corporation shall expressly assume, by an agreement supplemental hereto
executed and delivered to the Trustee in a form satisfactory to the Trustee,
the performance of every covenant and obligation of the Servicer hereunder
(provided that this Section 8.02(i) shall not be construed to extend to
mergers of subsidiaries of the Servicer into the Servicer as long as the
Servicer is the surviving entity); and
(ii) the Servicer has delivered to the Trustee an officer's
certificate signed by a Vice President (or more senior officer) of the
Servicer stating that such consolidation, merger, conveyance or transfer
comply with this Section 8.02 and that all conditions precedent herein
provided for relating to such transaction have been complied with and if an
agreement supplemental hereto has been executed as contemplated by clause (i)
above, an Opinion of Counsel stating that such supplemental agreement is a
legal, valid and standing obligation of the Servicer enforceable against the
Servicer in accordance with its terms; and
(iii) the Servicer has delivered notice to each Rating Agency
of such consolidation, merger, conveyance or transfer and shall have received
written confirmation from each Rating Agency that such consolidation, merger,
conveyance or transfer would not cause a reduction or withdrawal of the
rating of any Series of Certificates then outstanding.
Section 8.03 Limitation on Liability of the Servicer and Others.
--------------------------------------------------
Except as provided in Section 8.04 of the Agreement with respect to the Trust
and the Trustee, neither the Servicer nor any of the directors or officers
or employees or agents of the Servicer shall be under any liability to the
Trust, the Trustee, the Certificateholders or any other person for any action
taken or for refraining from the taking of any action in its capacity as
Servicer pursuant to this Agreement or any Supplement; provided, however,
-------- -------
that this provision shall not protect the Servicer against any liability
which would otherwise be imposed by reason of willful misfeasance, bad faith
or gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Servicer and any director
or officer or employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any
----- -----
Person respecting any matters arising hereunder. The Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action which
is not incidental to its duties to service the Receivables in accordance with
this Agreement or any Supplement which in its reasonable opinion may involve
it in any expense or liability.
Section 8.04 Servicer Indemnification of the Trust and the Trustee.
-----------------------------------------------------
The Servicer shall indemnify and hold harmless the Trust, for the benefit of
the CertificatehoLders, and the Trustee, including its officers, directors
and employees from and against any loss (excluding any investment loss),
liability, expense, damage or injury suffered or sustained in connection with
the acceptance of performance of the trusts and duties herein contained in
any Supplement, including those arising from acts or omissions of the
Servicer pursuant to this Agreement or any Supplement, including but not
limited to any judgment, award, settlement, reasonable attorneys' fees and
expenses and other costs or expenses incurred in connection with the defense
of any actual or threatened action, proceeding or claim, provided that except
in the case of any proceeding, action or claim which may involve a conflict
between the interests on the Servicer and those of the Trustee, Trustee or
Certificateholders, such attorneys to be reasonably acceptable to the
Servicer provided, however, that the Servicer shall not indemnify the Trust
-------- -------
or the Trustee or its officers, directors or employees for such loss,
liability, expense, damage or injury to the extent such loss, liability,
expense, damage or injury shall be due to the fraud, negligence or willful
misconduct by the Trustee or its officers, directors or employees; provided,
--------
further, that the Servicer shall not indemnify the Trust, the Trustee or its
- - -------
officers, directors or employees or the Investor Certificateholders for any
liability, cost or expense of the Trust or the Trustee or its officers,
directors or employees with respect to any action taken by the Trustee at the
request of the Investor Certificateholders nor with respect to any Federal,
state or local income or franchise taxes (or any interest or penalties with
respect thereto) required to be paid by the Trust or the Investor
Certificateholders in connection herewith to any taxing authority. Subject
to Sections 7.01 and 7.04 and Section 10.02(b) of the Agreement, any
indemnification pursuant to this Section shall be only from the assets of the
Servicer. The provisions of this indemnity shall run directly to and be
enforceable by an injured party subject to the limitations hereof and shall
survive the termination of the Agreement and payment in full of the
Certificates.
Section 8.05 The Servicer Not to Resign. The Servicer shall not
--------------------------
resign from the obligations and duties hereby imposed on it except (a) upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action which
the Servicer could take to make the performance of its duties hereunder
permissible under applicable law or (b) upon the satisfaction of the
following conditions, (i) upon the assumption, by an agreement supplemental
hereto, executed by and delivered to the Trustee in form satisfactory to the
Trustee, of the obligations and duties of the Servicer hereunder by the
proposed Successor Servicer, (ii) the written confirmation by Rating Agencies
that the then rating of the Certificates will not, solely as a result of such
transfer, be reduced or withdrawn, (iii) the delivery to the Trustee of an
Opinion of Counsel to the effect that such transfer will not have any
material adverse impact on the Federal income tax characterization of any
outstanding Series of Investor Certificates that have been the subject of a
previous opinion of tax counsel and (iv) the proposed Successor Servicer has
a net worth of not less than $100,000,000 and its regular business includes
the servicing of credit card receivables. If the Trustee is unable within
120 days of the date of such determination to appoint a Successor Servicer
pursuant to Section 10.02, the Trustee shall serve as Successor Servicer
hereunder but shall have continued authority to appoint another Person as
Successor Servicer. Any such determination permitting the resignation of the
Servicer shall be evidenced as to clause (a) above by an Opinion of Counsel
to such effect delivered to the Trustee. No such resignation shall become
effective until the Trustee or a Successor Servicer shall have assumed the
responsibilities and obligations of the Servicer in accordance with Section
10.02 of the Agreement as if a Termination Notice had been given.
Section 8.06 Access to Certain Documentation and Information Regarding
---------------------------------------------------------
the Receivables. The Servicer shall provide to the Trustee reasonable access
- - ---------------
to the documentation regarding the Accounts and the Receivables in such cases
where the Trustee is required in connection with the performance of its
obligation under this Agreement or any Supplement, the enforcement of the
rights of the Investor Certificateholders, or by applicable statutes or
regulations to review such documentation, such access being
afforded without charge but only (i) upon reasonable request,
(ii) during normal business hours, (iii) subject to the Servicer's normal
security and confidentiality procedures and (iv) at offices designated by the
Servicer. Nothing in this Section 8.06 shall derogate from the obligation
of the Transferor, the Trustee or the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors and the failure
of the Servicer to provide access as provided in this Section 8.06 as a
result of such obligation shall not constitute a breach of this Section 8.06.
Section 8.07 Delegation of Duties. In the ordinary course of
--------------------
business, the Servicer may at any time delegate any duties hereunder to any
Person who agrees to conduct such duties in accordance with the Credit Card
Guidelines and this Agreement; however, if such delegation is not in the
ordinary course of the Servicer's business, written notice shall be given to
the Trustee and each Rating Agency of such delegation. Any delegation shall
not relieve the Servicer of its liability and responsibility with respect to
such duties, and shall not constitute a resignation within the meaning of
Section 8.05 of the Agreement.
Section 8.08 Examination of Records. Each of the Transferor and the
----------------------
Servicer shall indicate clearly and unambiguously in its computer files or
other records that the Receivables arising in the Accounts have been
transferred to the Trust pursuant to this Agreement for the benefit of the
Investor Certificateholders. Each of the Transferor and the Servicer shall,
prior to the sale or transfer to a third party of any receivable held in its
custody, examine its computer and other records to determine that such
receivable is not a Receivable.
(END OF ARTICLE VIII)
ARTICLE IX
AMORTIZATION EVENTS
Section 9.01 Amortization Events. Unless modified with respect to any
-------------------
Series of Investor Certificates by any related Supplement, if any one of the
following events shall occur:
(a) the Originator, Bridgestone/Firestone or the Transferor
voluntarily seeks, consents to or acquiesces in the benefit or benefits of
any Debtor Relief Law or becomes a party to (or is made the subject of) any
proceeding provided for by any Debtor Relief Law, other than as creditor or
claimant, and in the event such proceeding is involuntary, the petition
instituting same is not dismissed within 90 days of its filing or the
Originator or the Transferor shall become unable for any reason to transfer
Receivables to the Trust in accordance with the provisions of this Agreement;
or
(b) the Trust shall become an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
then an "Amortization Event" with respect to all Series of Certificates shall
occur without any notice or other action on the part of the Trustee or
Investor Certificateholders.
Upon the occurrence and during the continuance of any involuntary
proceeding under any Debtor Relief Law with respect to the Transferor or the
Originator, the Transferor shall not transfer any Receivables hereunder to
the Trust.
Section 9.02 Additional Rights Upon the Occurrence of Certain Events.
-------------------------------------------------------
(a) If either the Transferor or Bridgestone/Firestone (i) seeks,
consents to or acquiesces in the benefit or benefits of any Debtor Relief Law
or becomes a party to (or is made the subject of) any proceeding provided for
by any Debtor Relief Law, other than as creditor or claimant, and in the
event such proceeding is involuntary, the petition instituting the same is
not dismissed within (90) days of its filing or (ii) goes into liquidation
or any other Person shall be appointed as a bankruptcy trustee or receiver
or conservator of the Transferor or Bridgestone/Firestone, the Transferor
shall on the day of such appointment (the "Appointment Date") immediately
----------------
cease to transfer Receivables to the Trust and the Transferor or Bridgestone/
Firestone as applicable, shall promptly give notice to the Trustee of such
appointment. Notwithstanding any cessation of the transfer to the Trust of
additional Receivables, Receivables transferred to the Trust prior to the
occurrence of any such voluntary or involuntary event and all Collections
thereof, including Finance Charge Collections (other than Discount Option
Receivable Collections), whenever created or accrued in respect of such
Receivables shall continue to be a part of the Trust. Within 15 days of the
Appointment Date, the Trustee shall (i) publish a notice in an Authorized
Newspaper that a bankruptcy trustee or receiver, as the case may be, of the
Transferor has been appointed and that the Trustee intends to sell, dispose
of or otherwise liquidate the Receivables or interest therein (as described
below) on commercially reasonable terms and in a commercially reasonable
manner and (ii) send written notice to the Investor Certificateholders
describing the provisions of this Section 9.02 and requesting instructions
from such Holders. Unless otherwise prohibited by law or unless within 60
days from the day notice pursuant to clause (i) above is first published, the
Trustee shall have received written instructions of Holders of Investor
Certificates representing Undivided Interests aggregating more than 50% of
the Invested Amount of each Series (or, with respect to Series having more
than one class, each class of such Series) to the effect that such
Certificateholders disapprove of the liquidation of the Receivables or
interest therein (as described below) and wish to continue receiving
Receivables under the Trust as before such appointment, the Trustee shall
proceed to sell, dispose of, or otherwise liquidate the Receivables, in a
commercially reasonable manner and on commercially reasonable terms, which
shall include the solicitation of competitive bids. The Trustee may obtain
a prior determination from such bankruptcy trustee or receiver that the terms
and manner of any proposed sale, disposition or liquidation are commercially
reasonable. The provisions of Section 9.01 and this Section 9.02 are not
mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of the
Receivables or interest therein pursuant to Section (a) above shall be
treated as Collections on the Receivables and shall be allocated in
accordance with the provisions of Article IV with respect to any Series as
to which such sale, disposition or liquidation relates; provided that the
--------
Trustee shall determine conclusively the amount of such proceeds which are
allocable to Finance Charge Collections and the amount of such proceeds which
are allocable to Principal Collections; provided, however, that any amounts
-------- -------
payable to the Holder of the Exchangeable Transferor Certificate shall be
payable to the Trustee to the extent of the reasonable costs, fees and
expenses incurred by the Trustee in connection with such sale, liquidation
or other disposition. On the day following the Distribution Date on which
such proceeds are distributed to the Investor Certificateholders, the Trust
shall terminate.
(END OF ARTICLE IX)
ARTICLE X
SERVICER DEFAULTS
Section 10.01 Servicer Defaults. If any one of the following events
-----------------
(a "Servicer Default") shall occur and be continuing:
----------------
(a) failure by the Servicer to make any payment, transfer or
deposit or to give instructions or to give notice to the Trustee to make such
payment, transfer or deposit or any withdrawal or to give notice to the
Trustee as to any required drawing or payment under any Enhancement on or
before the date occurring five Business Days after the date such payment,
transfer or deposit or such instruction or notice is required to be made or
given, as the case may be, under the terms of this Agreement or any
Supplement;
(b) failure on the part of the Servicer duly to observe or perform
any other covenants or agreements of the Servicer set forth in this Agreement
or any Supplement which could reasonably have a material adverse effect on
the Certificateholders (other than a failure with respect to which there is
no reasonable likelihood of such an effect), which continues unremedied for
a period of 60 days after the earlier of discovery by the Servicer or the
date on which written notice of such failure, requiring the same to be
remedied, shall have been given to the Servicer by the Trustee, or to the
Servicer and the Trustee by the Holders of Investor Certificates evidencing
Undivided Interests in the Trust aggregating not less than 50% of the
Invested Amount of any Series adversely affected thereby; or the Servicer
shall assign its duties under this Agreement, except as permitted by Section
8.07;
(c) any representation, warranty or certification made by the
Servicer in this Agreement, any Supplement or in any certificate delivered
pursuant to this Agreement or any Supplement shall prove to have been
incorrect when made, which could reasonably have a material adverse effect
on the rights of the Certificateholders and which material adverse effect
continues for Certificateholders for a period of 60 days after the date on
which written notice thereof, requiring the same to be remedied, shall have
been given to the Servicer by the Trustee, or to the Servicer and the Trustee
by the Holders of Investor Certificates evidencing Undivided Interests in the
Trust aggregating not less than 50% of the Invested Amount of any Series
adversely affected thereby; or
(d) the Servicer voluntarily seeks, consents to or acquiesces in
the benefit or benefits of any Debtor Relief Law or becomes a party to (or
is made the subject of) any proceeding provided for by any Debtor Relief Law,
other than as creditor or claimant, and in the event such proceeding is
involuntary, the petition instituting the same is not dismissed within 90
days of its filing;
then, in the event of any Servicer Default, so long as the Servicer Default
shall not have been remedied, either the Trustee, or the Holders of Investor
Certificates evidencing Undivided Interests aggregating more than 50% of the
Aggregate Invested Amount, by notice then given in writing to the Servicer
(and to the Trustee if given by the Investor Certificateholders) (a
"Termination Notice"), may terminate all but not less than all of the rights
------------------
and obligations of the Servicer as Servicer under this Agreement and in and
to the Receivables and the proceeds thereof. After receipt by the Servicer
of a Termination Notice, and on the date that a Successor Servicer shall have
been appointed by the Trustee pursuant to Section 10.02 of the Agreement, all
authority and power of the Servicer under this Agreement shall pass to and
be vested in a Successor Servicer (a "Service Transfer"); and, without
----------------
limitation, the Trustee is hereby authorized and empowered (upon the failure
of the Servicer to cooperate) to execute and deliver, on behalf of the
Servicer, as attorney-in-fact or otherwise, all documents and other
instruments upon the failure of the Servicer to execute or deliver such
documents or instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such Service Transfer.
The Trustee shall, as soon as practicable, notify the Servicer Letter of
Credit Bank of such Service Transfer and surrender the Servicer Letter of
Credit to the Servicer Letter of Credit Bank for cancellation. The Servicer
agrees to cooperate with the Trustee and such Successor Servicer in effecting
the termination of the responsibilities and rights of the Servicer to conduct
servicing hereunder, including, without limitation, the transfer to such
Successor Servicer of all authority of the Servicer to service the
Receivables provided for under this Agreement, including, without limitation,
all authority over all Collections which shall on the date of transfer be
held by the Servicer for deposit, or which have been deposited by the
Servicer, in the Collection Account, or which shall thereafter be received
with respect to the Receivables, and in assisting the Successor Servicer.
The Servicer shall promptly transfer its electronic records relating to the
Receivables to the Successor Servicer in such electronic form as the
Successor Servicer may reasonably request and shall promptly transfer to the
Successor Servicer all other records, correspondence and documents necessary
for the continued servicing of the Receivables in the manner and at such
times as the Successor Servicer shall reasonably request. To the extent that
compliance with this Section 10.01 shall require the Servicer to disclose to
the Successor Servicer information of any kind which the Servicer reasonably
deems to be confidential, the Successor Servicer shall be required to enter
into such customary licensing and confidentiality and nondisclosure agreements
as the Servicer shall deem reasonably necessary to protect its interest.
Notwithstanding the foregoing, a delay in or failure of performance
under Section 10.01(a) of the Agreement for a period of 10 Business Days or
under Section 10.01(b) or (c) of the Agreement for a period of 60 Business
Days, shall not constitute a Servicer Default, if such delay or failure could
not be prevented by the exercise of reasonable diligence by the Servicer and
such delay or failure was caused by an Act of God or the public enemy, acts
of declared or undeclared war, public disorder, rebellion or sabotage,
epidemics, landslides, lightning, fire, hurricanes, earthquakes, floods or
similar causes. The preceding sentence shall not relieve the Servicer from
using its best efforts to perform its respective obligations in a timely
manner in accordance with the terms of this Agreement and the Servicer shall
provide the Trustee, any Enhancement Provider, the Transferor and the
Investor Certificateholders with an Officers' Certificate giving prompt
notice of such failure or delay by it, together with a description of its
efforts to so perform its obligations. The Servicer shall immediately notify
the Trustee in writing of any Servicer Default.
Section 10.02 Trustee to Act; Appointment of Successor.
----------------------------------------
(a) On and after the receipt by the Servicer of a Termination
Notice pursuant to Section 10.01, the Servicer shall continue to perform all
servicing functions under this Agreement until the date specified in the
Termination Notice or otherwise specified by the Trustee in writing or, if
no such date is specified in such Termination Notice, or otherwise specified
by the Trustee, until a date mutually agreed upon by the Servicer and
Trustee. The Trustee shall as promptly as possible after the giving of a
Termination Notice, and with the consent of any Enhancement Provider (unless
the applicable Supplement specifies otherwise) and the Originator, which
consent shall not be unreasonably withheld, appoint an Eligible Servicer a
successor servicer (the "Successor Servicer"), and such Successor Servicer
------------------
shall accept its appointment by a written assumption in a form acceptable to
the Trustee. In the event that a Successor Servicer has not been appointed
or has not accepted its appointment at the time when the Servicer ceases to
act as Servicer, the Trustee without further action shall automatically be
appointed the Successor Servicer. The Trustee may delegate any of its
servicing obligations to an affiliate or agent in accordance with Section
3.01(b) of the Agreement. Notwithstanding the above, the Trustee shall, if
it is unable so to act, petition a court of competent jurisdiction to appoint
any established institution having a net worth of not less than $100,000,000
and whose regular business includes the servicing of credit card receivables
as the Successor Servicer hereunder. The Servicer shall immediately give
notice to each Rating Agency upon the appointment of a Successor Servicer.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing functions
under this Agreement and shall be subject to all the responsibilities, duties
and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof, and all references in this Agreement to the Servicer shall
be deemed to refer to the Successor Servicer except for the references in
Sections 8.04 and 11.05 of the Agreement which shall continue to refer to
Bridgestone/Firestone; provided, however, that (i) Bridgestone/Firestone
-------- -------
shall not indemnify the Trust or the Trustee if the acts, omissions or
alleged acts or omissions upon which a claim for indemnification arises
pursuant to Section 8.04 of the Agreement constitute fraud, gross negligence,
breach of fiduciary duty or willful misconduct by a Successor Servicer (which
obligation shall be assumed by the Successor Servicer) and (ii)
Bridgestone/Firestone shall not pay or reimburse the Trustee pursuant to
Section 11.05 of the Agreement for any expense, disbursement or advance of
the Trustee related to or arising as a result of the gross negligence or bad
faith of the Successor Servicer (which obligation shall be assumed by the
Successor Servicer). The Successor Servicer shall expressly be authorized,
subject to Section 8.07 of the Agreement, to delegate any of its duties
hereunder to Bridgestone/Firestone for a reasonable period on and after the
date of any Servicer Transfer pursuant to this Article X. Any Successor
Servicer, by its acceptance of its appointment, will automatically agree to
be bound by the terms and provisions of any agreement under which an
Enhancement Provider agrees to provide Enhancement for a Series.
(c) In connection with any Termination Notice, the Trustee will
review any bids which it obtains from Eligible Servicers and shall be
permitted to appoint any Eligible Servicer submitting such a bid as a
Successor Servicer for servicing compensation not in excess of the Servicing
Fee; provided, however, that no such monthly compensation paid out of
-------- -------
Collections shall be in excess of the Monthly Servicing Fee permitted to the
Servicer pursuant to Section 3.02.
(d) All authority and power granted to the Successor Servicer
under this Agreement shall automatically cease and terminate upon termination
of the Trust pursuant to Section 12.01, and shall pass to and be vested in
the Transferor and, without limitation, the Transferor is hereby authorized
and empowered to execute and deliver, on behalf of the Successor Servicer,
as attorney-in-fact or otherwise, all documents and other instruments, and
to do and accomplish all other acts or things necessary or appropriate to
effect the purposes of such transfer of servicing rights. The Successor
Servicer agrees to cooperate with the Transferor in effecting the termination
of the responsibilities and rights of the Successor Servicer to conduct
servicing on the Receivables. The Successor Servicer shall transfer its
electronic records relating to the Receivables to the Transferor in such
electronic form as the Transferor may reasonably request and shall transfer
all other records, correspondence and documents to the Transferor in the
manner and at such times as the Transferor shall reasonably request. To the
extent that compliance with this Section 10.02 shall require the Successor
Servicer to disclose to the Transferor information of any kind which the
Successor Servicer deems to be confidential, the Transferor shall be required
to enter into such customary licensing and confidentiality agreements as the
Successor Servicer shall deem necessary to protect its interests.
Section 10.03 Notification to Certificateholders. Upon the occurrence
----------------------------------
of any Servicer Default, the Servicer shall give prompt written notice
thereof to the Trustee, any Enhancement Provider and each Rating Agency and
the Trustee shall give notice to the Investor Certificateholders at their
respective addresses appearing in the Certificate Register. Upon any
termination or appointment of a Successor Servicer pursuant to this Article
X, the Trustee shall give prompt written notice thereof to each Rating
Agency, any Enhancement Provider and to Investor Certificateholders at their
respective addresses appearing in the Certificate Register.
Section 10.04 Waiver of Past Defaults. The Holders of Investor
-----------------------
Certificates evidencing Undivided Interests aggregating more than 66-2/3% of
the Invested Amount of each Series affected by any default by the Servicer
may, on behalf of all Certificateholders, waive any default by the Servicer
in the performance of its obligations hereunder and its consequences, except
a default in the failure to make any required deposits or payments of
interest or principal with respect to any Series of Certificates. Upon any
such waiver of a past default, such default shall cease to exist, and any
default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
(END OF ARTICLE X)
ARTICLE XI
THE TRUSTEE
Section 11.01 Duties of Trustee.
-----------------
(a) The Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement. If a Servicer
Default to the actual knowledge of a Responsible Officer of the Trustee has
occurred (which has not been cured or waived), the Trustee shall exercise
such of the rights and powers vested in it by this Agreement or any
Supplement, as the case may be, and use the same degree of care and skill in
their exercise, as a prudent man would exercise or use under the
circumstances in the conduct of his own affairs.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement or any Supplement, shall examine
them to determine whether they substantially conform to the requirements of
this Agreement or any Supplement.
(c) Subject to Section 11.01(a), no provision of this Agreement
or any Supplement shall be construed to relieve the Trustee from liability
for its own negligent action, its own negligent failure to act or its own
willful misconduct; provided, however, that:
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(i) The Trustee shall not be liable for an error of judgment
made in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(ii) The Trustee shall not be liable with respect to any
action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Investor Certificates
evidencing Undivided Interests in the Trust aggregating more than 50% or such
other amount as may be set forth in any Supplement for a Series of the
Invested Amount of any Series pursuant to Section 11.14; and
(iii) The Trustee shall not be charged with knowledge of any
failure by the Servicer to comply with any of its obligations, including the
obligations of the Servicer referred to in clauses (a), (b) and (c) of
Section 10.01, unless a Responsible Officer of the Trustee obtains actual
knowledge of such failure.
(d) The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if there
is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it, and none of the provisions contained in this Agreement or any
Supplement shall in any event require the Trustee to perform, or be
responsible for the manner of performance of, any obligations of the Servicer
under this Agreement or any Supplement except during such time, if any, as
the Trustee shall be the successor to, and be vested with the rights, duties,
powers and privileges of, the Servicer in accordance with the terms of this
Agreement or any Supplement.
(e) Except for actions expressly authorized by this Agreement or
any Supplement, the Trustee shall take no action reasonably likely to impair
the interests of the Trust in any Receivable now existing or hereafter
created or to impair the value of any Receivable now existing or hereafter
created.
(f) Except as specifically provided in this Agreement, the Trustee
shall have no power to vary the corpus of the Trust.
(g) In the event that the Paying Agent or the Transfer Agent and
Registrar shall fail to perform any obligation, duty or agreement in the
manner or on the day required to be performed by the Paying Agent or the
Transfer Agent and Registrar, as the case may be, under this Agreement, the
Trustee shall be obligated as soon as possible upon actual knowledge of a
Responsible Officer thereof and receipt of appropriate records, if any, to
perform such obligation, duty or agreement in the manner so required.
(h) Any action, suit or proceeding brought in respect of one or
more particular Series shall have no effect on the Trustee's rights, duties
and obligations hereunder with respect to any one or more Series not the
subject of such action, suit or proceeding.
Section 11.02 Rights of the Trustee. Except as otherwise provided in
---------------------
Section 11.01:
(a) The Trustee may rely on and shall be protected in acting on,
or in refraining from acting in accord with, any resolution, Officers'
Certificate, Opinion of Counsel, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request,
consent, order, appraisal, bond or other paper or document believed by it to
be genuine and to have been signed or presented to it pursuant to this
Agreement or any Supplement by the proper party or parties;
(b) The Trustee may reasonably consult with counsel and any
Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken or suffered or omitted by it hereunder in good
faith and in accordance with such Opinion of Counsel;
(c) Subject to Section 11.01(a), the Trustee shall be under no
obligation to exercise any of the rights or powers vested in it by this
Agreement or any Supplement, or to institute, conduct or defend any
litigation hereunder or in relation hereto, at the request, order or
direction of any of the Certificateholders, pursuant to the provisions of
this Agreement or any Supplement, unless such Certificateholders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which may be incurred therein or thereby;
(d) The Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or within
the discretion or rights or powers conferred upon it by this Agreement or any
Supplement;
(e) The Trustee shall not be bound to make any investigation into
the facts of matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond
or other paper or document, unless requested in writing so to do by Holders
of Investor Certificates evidencing Undivided Interests aggregating more than
50% of the Invested Amount of any Series which could be adversely affected
if the Trustee does not perform such acts;
(f) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys or custodians, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any such agent, attorney or custodian
appointed with due care by it hereunder;
(g) Except as may be required by Section 11.01(a) of the
Agreement, the Trustee shall not be required to make any initial or periodic
examination of any documents or records related to the Receivables or the
Accounts for the purpose of establishing the presence or absence of defects,
the compliance by the Transferor and Servicer with their representations and
warranties or for any other purpose; and
(h) Whether or not therein expressly so provided, every provision
of this Agreement relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of
this Section 11.02.
Section 11.03 Trustee Not Liable for Recitals in Certificates. The
-----------------------------------------------
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates (other than the certificate of
authentication on the Certificates). Except as set forth in Section 11.15
of the Agreement, the Trustee makes no representations as to the validity or
sufficiency of this Agreement or any Supplement or of the Certificates (other
than the certificate of authentication on the Certificates) or of any
Receivable or related document. The Trustee shall not be accountable for the
use or application by the Transferor of any of the Certificates or of the
proceeds of such Certificates, or for the use or application of any funds
paid to the Transferor in respect of the Receivables or deposited in the
Collection Account or other Accounts now or hereafter established to
effectuate the transactions contemplated herein and in accordance with the
terms hereof.
Section 11.04 Trustee May Own Certificates. The Trustee in its
----------------------------
individual or any other capacity may become the owner or pledgee of Investor
Certificates with the same rights as it would have if it were not the
Trustee.
Section 11.05 The Servicer to Pay Trustee's Fees and Expenses. The
-----------------------------------------------
Servicer covenants and agrees to pay to the Trustee from time to time, and
the Trustee shall be entitled to receive, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust) for all services rendered by it in the
execution of the trust hereby created and in the exercise and performance of
any of the powers and duties hereunder of the Trustee, and, subject to
Section 8.04, the Servicer will pay or reimburse the Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by
the Trustee in accordance with any of the provisions of this Agreement or any
Supplement (including the reasonable fees and expenses of its agents and
counsel) except any such expense, disbursement or advance as may arise from
its negligence or bad faith and except as provided in the following sentence.
If the Trustee is appointed Successor Servicer pursuant to Section 10.02, the
provision of this Section 11.05 shall not apply to expenses, disbursements
and advances made or incurred by the Trustee in its capacity as Successor
Servicer, which shall be covered out of the Servicing Fee.
Section 11.06 Eligibility Requirements for Trustee. The Trustee
------------------------------------
hereunder shall at all times be a corporation organized and doing business
under the laws of the United States of America or any state thereof
authorized under such laws to exercise corporate trust powers, having a
combined capital and surplus of at least $50,000,000 and subject to
supervision or examination by Federal or state authority. If such
corporation publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purpose of this Section 11.06, the combined capital and surplus
of such corporation shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time the Trustee shall cease to be eligible in accordance with the provisions
of this Section 11.06, the Trustee shall resign immediately in the manner and
with the effect specified in Section 11.07.
Section 11.07 Resignation or Removal of Trustee.
---------------------------------
(a) The Trustee may at any time resign and be discharged from the
trust hereby created by giving written notice thereof to the Transferor and
the Servicer. Upon receiving such notice of resignation, the Transferor
shall promptly appoint a successor trustee by written instrument, in
duplicate, one copy of which instrument shall be delivered to the resigning
Trustee and one copy to the successor trustee. If no successor trustee shall
have been so appointed and have accepted appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.06 of the Agreement and shall
fail to resign after written request therefor by the Servicer, or if at any
time the Trustee shall be legally unable to act, or shall be adjudged a
bankrupt or insolvent, or if a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Servicer may remove the Trustee and
promptly appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the Trustee so removed and one
copy to the successor trustee.
(c) Any resignation or removal of the Trustee and appointment of
a successor trustee pursuant to any of the provisions of this Section 11.07
shall not become effective until acceptance of appointment by the successor
trustee as provided in Section 11.08.
Section 11.08 Successor Trustee.
-----------------
(a) Any successor trustee appointed as provided in Section 11.07
of the Agreement shall execute, acknowledge and deliver to the Transferor and
to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor
Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder and under
any Supplement with like effect as if originally named as Trustee herein. The
predecessor Trustee shall deliver to the successor trustee at the expense of
the Servicer, all documents or copies thereof, and statements held by it
hereunder; and the Transferor and the predecessor Trustee shall execute and
deliver such instruments and do such other things as may reasonably be
required for fully and certainly vesting and confirming in the successor
trustee all such rights, power, duties and obligations. The Servicer shall
immediately give notice to each Rating Agency upon the appointment of a
successor trustee.
(b) No successor trustee shall accept appointment as provided in
this Section 11.08 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 11.06.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 11.08, such successor trustee shall mail notice of
such succession hereunder to all Certificateholders at their addresses as
shown in the Certificate Register.
Section 11.09 Merger or Consolidation of Trustee. Any Person into
----------------------------------
which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding
to the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 11.06, without the execution or filing of any paper or
any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding. The Trustee shall deliver notice to the
Servicer, and each Rating Agency of any such merger, conversion,
consolidation or succession.
Section 11.10 Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
(a) Notwithstanding any other provisions of this Agreement or any
Supplement, at any time, for the purpose of meeting any legal requirements
of any jurisdiction in which any part of the Trust may at the time be
located, the Trustee shall have the power and may execute and deliver all
instruments to appoint one or more persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part of
the Trust, and to vest in such Person or Persons, in such capacity and for
the benefit of the Certificateholders, such title to the Trust, or any part
thereof, and, subject to the other provisions of this Section 11.10, such
powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under
Section 11.06 and no notice to Certificateholders of the appointment of any
co-trustee or separate trustee shall be required under Section 11.08.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) All rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and exercised or
performed by the Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Trustee joining in such act), except to the
extent that under any law of any jurisdiction in which any particular act
or acts are to be performed (whether as Trustee hereunder or as successor to
the Servicer hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties and
obligations (including the holding of title to the Trust Assets or any
portion thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the direction
of the Trustee;
(ii) No trustee hereunder shall be personally liable by reason
of any act or omission of any other trustee hereunder; and
(iii) The Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement
and the conditions of this Article XI. Each separate trustee and co-trustee,
upon its acceptance of the trusts conferred, shall be vested with the estates
or property specified in its instrument of appointment, either jointly with
the Trustee or separately, as may be provided therein, subject to all the
provisions of this Agreement or any Supplement, specifically including every
provision of this Agreement or any Supplement relating to the conduct of,
affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee and a copy thereof given to
the Servicer.
(d) Any separate trustee or co-trustee may at any time constitute
the Trustee, its agent or attorney-in-fact with full power and authority, to
the extent not prohibited by lay, to do any lawful act under or in respect
to this Agreement or any Supplement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts
shall vest in and be exercised by the Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee.
Section 11.11 Tax Returns. In accordance with Section 3.07 hereof, the
-----------
Trustee shall not file any Federal income tax return for the Trust. In the
event of any Special Drawing pursuant to Section 4.01A(e) or 4.01B(d), the
Servicer shall report the investment earnings thereon as its income for
federal income tax purposes. In the event the Trust shall be required to
file state tax returns or pursuant to an audit or administrative proceeding
or change in applicable regulations to file Federal tax returns, the Servicer
shall prepare or shall cause to be prepared any tax returns required to be
filed by the Trust and shall remit such returns to the Trustee for signature
at least five days before such returns are due to be filed; the Trustee shall
promptly sign such returns and deliver such returns after signature to the
Servicer and such returns shall be filed by the Servicer. The Servicer in
accordance with the provisions of any supplement of the Agreement shall also
prepare or shall cause to be prepared all tax information required by law to
be distributed to Investor Certificateholders. The Trustee, upon request,
will furnish the Servicer with all such information known to the Trustee as
may be reasonably required in connection with the preparation of all tax
returns of the Trust, and shall, upon request, execute such returns. In no
event shall the Trustee, the Servicer or the Transferor be liable for any
liabilities, costs or expenses of the Trust, the Investor Certificateholders
or the Certificate Owners arising under any tax law, including without
limitation Federal, state or local income or excise taxes or any other tax
imposed on or measured by income (or any interest or penalty with respect
thereto or arising from a failure to comply therewith).
Section 11.12 Trustee May Enforce Claims Without Possession of
------------------------------------------------
Certificates. All rights of act (i) on and claims under this Agreement or
- - ------------
any Supplement or the Certificates may be prosecuted and enforced by the
Trustee without the possession of any of the Certificates or the production
thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee. Any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Certificateholders in respect
of which such judgment has been obtained.
Section 11.13 Suits for Enforcement. If a Servicer Default shall occur
---------------------
and be continuing, the Trustee, in its discretion may, subject to the
provisions of Section 10.01 of the Agreement, proceed to protect and enforce
its rights and the rights of the Certificateholders under this Agreement or
any Supplement by suit, action or proceeding in equity or at law or
otherwise, whether for the specific performance of any covenant or agreement
contained in this Agreement or any Supplement or in aid of the execution of
any power granted in this Agreement or any Supplement or for the enforcement
of any other legal, equitable or other remedy as the Trustee, being advised
by counsel, shall deem most effectual to protect and enforce any of the
rights of the Trustee or the Certificateholders. Nothing herein contained
shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Certificateholder any plan of reorganization,
arrangement, adjustment or composition affecting the Certificates or the
rights of any Holder thereof, or authorize the Trustee to vote in respect of
the claim of any Certificateholder in any such proceeding.
Section 11.14 Rights of Certificateholders to Direct Trustee. Except
----------------------------------------------
for those actions taken pursuant to Section 9.02, holders of Investor
Certificates evidencing Undivided Interests in the Trust aggregating more
than 50% of the Invested Amount of any Series or such other amount as may be
set forth in any Supplement for a Series affected by the conduct of any
proceeding or the exercise of any right conferred on the Trustee shall have
the right to direct the time, method, and place of conducting such proceeding
for any remedy available to the Trustee, or exercising any such trust or
power; provided, however, that, subject to Section 11.01, the Trustee shall
-------- -------
have the right to decline to follow any such direction if the Trustee being
advised by counsel determines that the action so directed may not lawfully
be taken, or if the Trustee in good faith shall, by a Responsible Officer or
Responsible Officers of the Trustee, determine that the proceedings so
directed would be illegal or involve it in personal liability or be unduly
prejudicial to the rights of Certificateholders not parties to such
direction; and provided further that nothing in this Agreement or any
--------
Supplement shall impair the right of the Trustee to take any action deemed
proper by the Trustee and which is not inconsistent with such direction of
the Certificateholders.
Section 11.15 Representations and Warranties of Trustee. The Trustee
-----------------------------------------
represents and warrants that:
(i) The Trustee is a banking corporation organized and
existing under the laws. of the State of New York and authorized to conduct
and engage in a banking and trust business under such laws;
(ii) The Trustee has full power, authority and right to
execute, deliver and perform this Agreement, and has taken all necessary
action to authorize the execution, delivery and performance by it of this
Agreement; and
(iii) This Agreement has been duly executed and delivered by
the Trustee.
Section 11.16 Maintenance of Office or Agency. The Trustee will
-------------------------------
maintain at its expense in the Borough of Manhattan, The City of New York,
an office or offices or agency or agencies where notices and demands to or
upon the Trustee in respect of the Certificates and this Agreement may be
served. The Trustee initially appoints the Corporate Trust Office as its
office for such purposes in New York. The Trustee will give prompt written
notice to the Servicer and to Certificateholders of any change in the
location of the Certificate Register or any such office or agency.
(END OF ARTICLE XI)
ARTICLE XII
TERMINATION
Section 12.01 Termination of Trust.
--------------------
(a) The respective obligations and responsibilities of the
Transferor, the Servicer and the Trustee created hereby (other than the
obligation of the Trustee to make payments to Certificateholders as hereafter
set forth) shall terminate, except with respect to the duties described in
Section 12.03(b), upon the earlier of (i) the day after the day on which
funds shall have been deposited in the Collection Account sufficient to pay
the Aggregate Invested Amount plus interest accrued at the applicable
Certificate Rates through the end of the applicable Interest Accrual Period
in full on all Series of Investor Certificates and paid to the Holders of
such Certificates and (ii) a day which is September 15, 2092 (the "Final
-----
Trust Termination Date"); provided, however, that in no event shall the trust
- - ---------------------- -------- -------
created by the Agreement continue beyond the expiration of 21 years from the
death of the last survivor of the descendants, living on the date of this
Agreement, of Joseph P. Kennedy, of the Commonwealth of Massachusetts,
formerly United States representative at the Court of St. James. The
Servicer shall promptly notify the Trustee of any respective termination
pursuant to this Section 12.01.
(b) If on the Transfer Date in the month immediately preceding the
month in which the Final Trust Termination Date occurs in the case of
Subsection (a)(ii) above, (after giving effect to all transfers, withdrawals,
deposits and drawings to occur on such date and the payment of principal on
any Series of Certificates to be made on the related Distribution Date
pursuant to Article IV) the Invested Amount of any Series would be greater
than zero, the Servicer shall sell within 30 days of such Transfer Date all
of the Receivables. The proceeds of such sale shall be treated as
Collections on the Receivables and shall be allocated in accordance with
Article IV; provided, however, that the Trustee in its sole discretion shall
-------- -------
determine conclusively the amount of such proceeds which are allocable to
Finance Charge Collections and the amount of such proceeds which are
allocable to Principal Collections. During such 30-day period, the Servicer
shall continue to collect Collections on the Receivables and allocate such
payments in accordance with the provisions of Article IV.
Section 12.02 Optional Purchase and Final Termination Date of Investor
--------------------------------------------------------
Certificates of any Series.
- - --------------------------
(a) If provided in any Supplement on a Distribution Date the
Transferor may, but shall not be obligated to, purchase any such Series of
Investor Certificates by depositing into the Collection Account, on the
preceding Transfer Date, an amount equal to the Invested Amount thereof plus
interest accrued and unpaid thereon at the applicable Certificate Rate
through the Interest Accrual Period related to such Distribution Date on
which the purchase will be made; provided, however, that no such purchase
-------- -------
of any Series of Investor Certificates shall occur unless the Transferor
shall deliver an Opinion of Counsel reasonably acceptable to the Trustee,
that such purchase of any Series of Investor Certificates would not
constitute a fraudulent conveyance of the Transferor.
(b) The amount deposited pursuant to Section 12.02(a) shall be
paid to the Investor Certificateholders of the related Series pursuant to
Article IV on the Distribution Date following the date of such deposit. All
Certificates of a Series which are purchased by the Transferor pursuant to
Section 12.02(a) shall be delivered by the Transferor upon such purchase to,
and be cancelled by, the Transfer Agent and Registrar and be disposed of in
a manner satisfactory to the Trustee and the Transferor.
(c) All principal or interest with respect to any Series of
Investor Certificates shall be due and payable no later than the Series
Termination Date with respect to such Series. Unless otherwise provided in
a Supplement, in the event that the Invested Amount of any Series of
Certificates is greater than zero on its Series Termination Date (after
giving effect to all transfers, withdrawals, deposits and drawings to occur
on such date and the payment of principal to be made on such Series on such
date), the Trustee will sell or cause to be sold, and pay the proceeds to all
Certificateholders of such Series pro rata in final payment of all principal
of and accrued interest on such Series of Certificates, an amount of
Receivables or interests in Receivables up to 110% of the Invested Amount of
such Series at the close of business on such date (but not more than an
amount of Receivables equal to the sum of (1) the product of (A) the current
Transferor Percentage, (B) Aggregate Receivables and (C) a fraction the
numerator of which is the related Invested Percentage with respect to Finance
Charge Collections and the denominator of which is the sum of all Invested
Percentages with respect to Finance Charge Collections of all Series
outstanding and (2) the Invested Amount of such Series). Any proceeds of
such sale in excess of such principal and interest paid shall be paid to the
Holder of the Exchangeable Transferor Certificate. Upon such Series
Termination Date with respect to the applicable Series of Certificates, final
payment of all amounts allocable to any Investor Certificates of such Series
shall be made in the manner provided in Section 12.03.
Section 12.03 Final Payment with Respect to any Series.
----------------------------------------
(a) Written notice of any termination, specifying the Distribution
Date upon which the Investor Certificateholders of any Series may surrender
their Certificates for payment of the final distribution with respect to such
Series and cancellation, shall be given (subject to at least two days'
prior notice from the Servicer to the Trustee) by the Trustee to
Investor Certificateholders of such Series mailed not later than such
final distribution specifying (a) the Distribution Date (which
shall be the Distribution Date in the month in which the deposit is made
pursuant to Section 2.07 or Section 12.02(a)) upon which final payment of
such Investor Certificates will be made upon presentation and surrender of
such Investor Certificates at the office or offices therein designated, (b)
the amount of any such final payment and (c) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made
only upon presentation and surrender of the Investor Certificates at the
office or offices therein specified. The Servicer's notice to the Trustee
in accordance with the preceding sentence shall be accompanied by an
Officers' Certificate setting forth the information specified in the
applicable Supplement covering the period during the then current calendar
year through the date of such notice and setting forth the date of such final
distribution. The Trustee shall give such notice to the Transfer Agent and
Registrar and the Paying Agent at the time such notice is given to such
Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to
Section 12.01(a) or the occurrence of the Series Termination Date with
respect to any Series pursuant to Section 12.02 of the Agreement, all funds
then on deposit in the Collection Account shall continue to be held in trust
for the benefit of the Certificateholders and the Paying Agent or the Trustee
shall pay such funds to the Certificateholders upon surrender of their
Certificates. In the event that all of the Investor Certificateholders of
such Series shall not surrender their Certificates for cancellation within
six months after the date specified in the above-mentioned notice, the
Trustee shall give a second written notice to the remaining Investor
Certificateholders of such Series upon receipt of the appropriate records
from the Transfer Agent and Registrar to surrender their Certificates for
cancellation and receive the final distribution with respect thereto. If
within one and one-half years after the second notice all the Investor
Certificates of such Series shall not have been surrendered for cancellation,
the Trustee may take appropriate steps, or may appoint an agent to take
appropriate steps, to contact the remaining Investor Certificateholders of
such Series concerning surrender of their Certificates, and the cost thereof
shall be paid out of the funds in the Collection Account held for the benefit
of such Investor Certificateholders.
(c) All Certificates surrendered for payment of the final
distribution with respect to such Certificates and cancellation shall be
cancelled by the Transfer Agent and Registrar and be disposed of in a manner
satisfactory to the Trustee and the Transferor.
Section 12.04 Transferor's Termination Rights. Upon the termination
-------------------------------
of the Trust pursuant to Section 12.01 and the surrender of the Exchangeable
Transferor Certificate, the Trustee shall return to the Transferor (without
recourse, representation or warranty) all right, title and interest of the
Trust in the Receivables, then existing or thereafter created, all moneys due
or to become due with respect thereto (including all accrued interest
theretofore posted as Periodic Finance Charges), and all proceeds thereof,
including all Recoveries relating thereto and all proceeds thereof and all
right, title and interest of the Transferor in, to and under the Purchase and
Sale Agreement, except for amounts held by the Trustee pursuant to Subsection
12.03(b). The Trustee shall execute and deliver such instruments of transfer
and assignment, in each case without recourse, as shall be reasonably
requested by the Transferor to vest in the Transferor all right, title and
interest which the Trust had in the Receivables.
(END OF ARTICLE XII)
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment.
---------
(a) This Agreement and any Supplement may be amended from time to
time by the Servicer, the Transferor and the Trustee, without the consent of
any of the Certificateholders, to cure any ambiguity, to correct or
supplement any provisions herein which may be inconsistent with any other
provisions herein or to add any other provisions with respect to matters or
questions raised under this Agreement which shall not be inconsistent with
the provisions of this Agreement, provided, however, that such action shall
-------- -------
not, as evidenced by an Opinion of Counsel, adversely affect in any material
respect the interests of any of the Investor Certificateholders. The Trustee
may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's rights, duties or immunities under this Agreement or
otherwise.
This Agreement and any Supplement may also be amended from time to time
by the Servicer, the Transferor and the Trustee, without the consent of any
of the Certificateholders, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this
Agreement, or of modifying, in any manner the rights of the Holders of
Certificates; provided that (i) the Servicer shall have provided an Officer's
--------
Certificate to the Trustee and any Enhancement Provider to the effect that
such amendment will not materially and adversely affect the interests of the
Certificateholders, (ii) such amendment shall not, as evidenced by an Opinion
of Counsel, cause the Trust to be characterized for Federal income tax
purposes as an association taxable as a corporation or otherwise have any
material adverse impact on the Federal income taxation of any outstanding
Series of Investor Certificates or any Certificate Owner and (iii) the Rating
Agencies shall confirm that such amendment shall not cause a reduction or
withdrawal of the rating of any outstanding Series of Certificates; provided,
--------
further, that such amendment shall not reduce in any manner the amount of,
- - -------
or delay the timing of, distributions which are required to be made on any
Investor Certificate of such Series without the consent of the related
Investor Certificateholder, change the definition of or the manner of
calculating the interest of any Investor Certificateholder of such Series
without the consent of the related Investor Certificateholder or reduce the
percentage pursuant to clause (b) required to consent to any such amendment,
in each case without the consent of all such Investor Certificateholders;
provided, further, that (w) the transfer of the Accounts and/or the servicing
- - -------- -------
functions with respect thereto to a national banking association established
and owned by Bridgestone/Firestone to own the Originator's credit
card accounts and receivables and to act as Servicer shall require the prior
written consent of the Rating Agencies, (x) the transfer of the Accounts to
any national bank to own the Originator's credit card accounts and
receivables shall require written consent of the applicable Rating Agencies
and an opinion of counsel stating that the transfer will not result in the
transfer of the Receivables for federal tax purposes, (y) any transaction
effected in accordance with Section 8.02 hereof and (z) any other
transactions related, supplemental or incidental thereto (including any
transaction effected pursuant to clause (x) above) shall be deemed not to
materially and adversely affect the interests of the Certificateholders and
shall not require the delivery of an Officer's Certificate of the Servicer
pursuant to clause (i) above.
(b) This Agreement and any Supplement may also be amended from
time to time by the Servicer, the Transferor and the Trustee with the consent
of the Holders of Investor Certificates evidencing Undivided Interests
aggregating not less than 66-2/3% of the Invested Amount of each and every
Series affected, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement or of
modifying in any manner the rights of the Investor Certificateholders of any
Series then issued and outstanding; provided, however, that no such amendment
-------- -------
under this Subsection (b) shall (i) reduce in any manner the amount of, or
delay the timing of, distributions which are required to be made on any
Investor Certificate of such Series without the consent of the related
Investor Certificateholders; (ii) change the definition of or the manner of
calculating the interest of any Investor Certificateholder of such Series
without the consent of the related Investor Certificateholder or (iii) reduce
the aforesaid percentage required to consent to any such amendment, in each
case without the consent of all such Investor Certificateholders.
(c) Promptly after the execution of any amendment described in
this Section the Trustee shall furnish written notification of the substance
of such amendment to each Investor Certificateholder, and the Servicer shall
furnish written notification of the substance of such amendment to any
related Enhancement Provider and each Rating Agency.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section 13.01 to approve the particular form
of any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Investor
Certificateholders shall be subject to such reasonable requirements as the
Trustee may prescribe.
(e) Any Assignment or Reassignments regarding the addition to or
removal of Receivables from the Trust respectively, as provided in Sections
2.05 and 2.10, respectively, of the Agreement executed in accordance with the
provisions hereof shall not be considered amendments to this Agreement,
including, without limitation, for the purpose of Sections 13.01(a) and (b).
Section 13.02 Protection of Right, Title and Interest to Trust.
------------------------------------------------
(a) The Servicer shall cause this Agreement, any Supplement, all
amendments hereto and/or all financing statements and continuation statements
and any other necessary documents covering the Certificateholders and the
Trustee's right, title and interest to the Trust Assets, and the Transferor's
rights in and to the Receivables to be promptly recorded, registered and
filed, and at all times to be kept recorded, registered and filed, all in
such manner and in such places as may be required by law fully to preserve
and protect the right, title and interest of the Trustee hereunder to all
property comprising the Trust Assets and to preserve and protect the right,
title and interest of the Transferor to the Receivables. The Servicer shall
deliver to the Trustee file-stamped copies of, or filing receipts for, any
document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing. The Transferor
shall Cooperate fully with the Servicer in connection with the obligations
set forth above and will execute any and all documents reasonably required
to fulfill the intent of this Section 13.02(a).
(b) Within 30 days after the Transferor makes any change in its
name identity or corporate structure which would make any financing statement
or continuation statement filed in accordance with paragraph (a) above
seriously misleading within the meaning of Section 9-402(7) of the UCC as in
effect in the Commonwealth of Massachusetts the Transferor shall give the
Trustee and the Servicer notice of any such change and shall file such
financing statements or amendments as may be necessary to continue the
perfection of the Trust's security interest in the Receivables and the
proceeds thereof.
(c) The Transferor and the Servicer will give the Trustee prompt
written notice of any relocation of any office from which the Servicer
services Receivables or in which the Transferor and the Servicer keep
records concerning the Receivables or of the relocation of the Transferor's
and the Servicer's principal executive offices and whether, as a result of
such relocation, the applicable provisions of the UCC would require the
filing of any amendment of any previously filed financing or continuation
statement or of any new financing statement and shall file such financing
statements or amendments as may be necessary to perfect or to continue the
perfection of the Trust's security interest in the Receivables and the
proceeds thereof. The Servicer will at all times maintain each office from
which it services Receivables, and the Transferor and the Servicer will at
all times maintain their principal executive offices within the United States
of America.
(d) The Servicer will deliver to the Trustee: (i) upon the
execution and delivery of each amendment of the Agreement or any Supplement
(provided, however, that the adoption of a Supplement pursuant to Section
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6.09 which supplements or modifies Article IV for a particular new Series
shall not be considered an amendment) other than amendments pursuant to
Section 13.01(a) and upon each date that any Additional Accounts are to be
included in the Accounts pursuant to Section 2.05 hereof, an Opinion of
Counsel substantially in the form of Exhibit F; and (ii) on or before March
---------
31 of each year, beginning with March 31, 1994, an Opinion of Counsel, dated
on or after January 1 of such year, stating to the effect that no filing or
other action, except such action as shall be described therein, is necessary
from the date thereof through March 31 of the following year to continue the
perfected status of the interest of the Trust in the collateral described in
the financing statements referred to in such opinion.
(e) If at any time the Servicer is no longer
Bridgestone/Firestone, the Transferor shall deliver to the Successor Servicer
powers-of-attorney such that such Successor Servicer may perform the
obligations set forth in Sections 13.02(a), 13.02(b) and 13.02(c).
Section 13.03 Limitation on Rights of Certificateholders.
------------------------------------------
(a) The death or incapacity of any Investor Certificateholder
shall not operate to terminate this Agreement or the Trust, nor shall such
death or incapacity entitle such Investor Certificateholders' legal
representatives or heirs to claim an accounting or to take any action or
commence any proceeding in any court for a partition or winding up of the
Trust, nor otherwise affect the rights, obligations and liabilities of the
parties hereto or any of them.
(b) No Investor Certificateholder shall have any right to vote
(except as specifically provided in this Agreement) or in any manner
otherwise control the operation and management of the Trust, or the
obligations of the parties hereto, nor shall any Investor Certificateholder
be under any liability to any third person by reason of any action taken by
the parties to this Agreement pursuant to any provision hereof (other than
the Holder of the Exchangeable Transferor Certificate, to the extent
provided herein).
(c) No Certificateholder shall have any right by virtue of any
provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or under or with respect to this Agreement, unless such
Certificateholder previously shall have given to the Trustee, and unless the
Holders of Investor Certificates evidencing Undivided Interests in the Trust
aggregating more than 50% of the Invested Amount of any Series which may be
adversely affected but for the institution of such suit, action or proceeding
shall have made, written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have
offered to the Trustee such reasonable indemnity as it may require against
the costs, expenses and liabilities to be incurred therein or thereby, and
the Trustee, for 60 days after its receipt of such notice, request and offer
of indemnity, shall have neglected or refused to institute any such action,
suit or proceeding; it being understood and intended, and being expressly
covenanted by each Certificateholder with every other Certificateholder and
the Trustee, that no one or more Certificateholders shall have any right in
any manner whatsoever by virtue or by availing itself or themselves of any
provisions of this Agreement to affect, disturb or prejudice the rights of
the Investor Certificateholders of any other of the Investor Certificates,
or to obtain or seek to obtain priority over or preference to any other such
Certificateholder, or to enforce any right under this Agreement, except in
the manner herein provided and for the equal, ratable and common benefit of
all Certificateholders. For the protection and enforcement of the provisions
of this Section 13.03, each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 13.04 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS.
Section 13.05 Notices. All demands, notices and communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at, or sent by overnight courier or facsimile to, or
mailed by registered mail, return receipt requested, to (a) in the case of
Firestone Retail Credit Corporation to c/o JH Management Company, One
International Place, Boston, Massachusetts 02110, Attention: ______________;
(b) in the case of Bridgestone/Firestone, Inc., 50 Century Boulevard,
Nashville, Tennessee 37214, Attention: Treasurer and (c) in the case of the
Trustee, to the Corporate Trust Office; or, as to each party, at such other
address as shall be designated by such party in a written notice to each
other party. Any notice required or permitted to be mailed to a
Certificateholder shall be given by first-class mail, postage prepaid, at the
address of such Certificateholder as shown in the Certificate Register.
Any notice so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Copies of all notices, reports, certificates and amendments delivered
hereunder shall be mailed to the Rating Agency as follows: (a) Standard &
Poor's Corporation, 25 Broadway, New York, NY 10004, Attention: Structured
Finance, (b) Moody's Investor Services, 99 Church Street, New York, N.Y.
10007, Attention: Structured Finance and (c) Fitch Investors Service, Inc.,
One State Street Plaza, New York, NY 10004, Attention: Structured
Surveillance Department.
Section 13.06 Severability of Provisions. If any one or more of the
--------------------------
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement or
of the Certificates or rights of the Certificateholders thereof.
Section 13.07 Assignment. Notwithstanding anything to the contrary
----------
contained herein, except as provided in Section 8.02, this Agreement,
including any Supplement, may not be assigned by the Servicer without the
prior consent of Holders of Investor Certificates evidencing Undivided
Interests aggregating not less than 66-2/3% of the Invested amount of the
Investor Certificates of each Series on a Series by Series basis.
Section 13.08 Certificates Nonassessable and Fully Paid. It is the
-----------------------------------------
intention of the parties to this Agreement that the Investor
Certificateholders shall not be personally liable for obligations of the
Trust, that the interests in the Trust represented by the Investor
Certificates shall be nonassessable for any losses or expenses of the Trust
or for any reason whatsoever, and that Certificates upon authentication
thereof by the Trustee pursuant to Sections 2.09 and 6.02 are and shall be
deemed fully paid.
Section 13.09 Further Assurances. The Transferor and the Servicer
------------------
agree to do and perform, from time to time, any and all acts and to execute
any and all further instruments required or reasonably requested by the
Trustee more fully to effect the purposes of this Agreement, including,
without limitation, the execution of any financing statements or continuation
statements relating to the Receivables for filing under the provisions of the
UCC of any applicable jurisdiction.
Section 13.10 No Waiver; Cumulative Remedies. No failure to exercise
------------------------------
and no delay in exercising, on the part of the Trustee or the Investor
Certificateholders, any right, remedy, power or privilege hereunder,
shall operate as a waiver thereof; nor shall any single or partial exercise
of any right, remedy, power or privilege hereunder preclude any other
or further exercise thereof or the exercise of any other right, remedy,
power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of any rights, remedies, powers
and privileges provided by law.
Section 13.11 Counterparts. This Agreement and any 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 together
shall constitute one and the same instrument.
Section 13.12 Third Party Beneficiaries. This Agreement and any
-------------------------
Supplement will inure to the benefit of and be binding upon the parties
hereto, and, in addition, shall inure to the benefit of the
Certificateholders and their respective successors and permitted assigns.
Except as otherwise provided in this Article XIII or Section 7.04, no other
person will have any right or obligation hereunder; provided, however, that
-------- -------
if so specified in the applicable Supplement, an Enhancement Provider may be
deemed to be a third party beneficiary of this Agreement.
Section 13.13 Actions by Certificateholders.
-----------------------------
(a) Wherever in this Agreement or any Supplement, a provision is
made that an action may be taken or a notice, demand or instruction given by
Investor Certificateholders, such action, notice or instruction may be taken
or given by any Investor Certificateholder of any Series, unless such
provision requires a specific percentage of Investor Certificateholders of
a certain Series or all Series.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind such
Certificateholder and every subsequent holder of such Certificate issued upon
the registratiOn of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done or omitted to be done by the Trustee or
the Servicer in reliance thereon, whether or not notation of such action is
made upon such Certificate.
Section 13.14 Merger and Integration. Except as specifically stated
----------------------
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not
be modified, amended, waived or supplemented except as provided herein.
Section 13.15 Headings. The headings herein are for purposes of
--------
reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
Section 13.16 Voting, Waiver and Consents. Notwithstanding anything
---------------------------
herein to the contrary, any certificate held by, or on behalf of, the
Transferor or any of its Affiliates shall not be entitled to vote for, or
give its consent to, or grant a waiver with respect to, any matter required,
permitted or authorized hereby to be voted upon, consented to or waived. For
the purposes of calculating the percentage of any Certificates so voting,
consenting or granting such waiver, such Certificate held by, or on behalf
of, the Transferor or any of it. Affiliates shall be deemed not to be
outstanding and it interest shall not be reflected in either the numerator
or denominator of the fraction by which such percentage is derived.
(END OF ARTICLE XIII)
IN WITNESS WHEREOF, the Transferor, Bridgestone/Firestone, the Servicer
and the Trustee have caused this Agreement to be duly executed by their
respective officers as of the day and year first above written.
FIRESTONE RETAIL CREDIT CORPORATION,
as Transferor
By
-----------------------------------------------
Name:
Title:
BRIDGESTONE/FIRESTONE, INC.
as Servicer and individually
By
-----------------------------------------------
Name:
Title:
THE FUJI BANK AND TRUST COMPANY,
as Trustee
By
-----------------------------------------------
Name:
Title:
IN WITNESS WHEREOF, the Transferor, Bridgestone/Firestone, the Servicer
and the Trustee have caused this Agreement to be duly executed by their
respective officers as of the day and year first above written.
FIRESTONE RETAIL CREDIT CORPORATION,
as Transferor
By
-----------------------------------------------
Name:
Title:
BRIDGESTONE/FIRESTONE, INC.
as Servicer and individually
By
-----------------------------------------------
Name:
Title:
THE FUJI BANK AND TRUST COMPANY,
as Trustee
By
-----------------------------------------------
Name:
Title:
Exhibit A-1
-----------
FORM OF EXCHANGEABLE TRANSFEROR CERTIFICATE
One Unit
BRIDGESTONE/FIRESTONE MASTER TRUST
EXCHANGEABLE TRANSFEROR CERTIFICATE
THIS CERTIFICATE REPRESENTS THE TRANSFEROR INTEREST
IN THE BRIDGESTONE/FIRESTONE MASTER TRUST
Evidencing an undivided interest in a trust, the corpus of which
consists of receivables generated or to be generated under a private label
credit card program (the "Credit Card Program") established by Credit First
National Association ("Credit First") and all monies due or to become due in
respect thereof.
(Not an interest in or obligation of
Credit First, Bridgestone/Firestone, Inc. or
Firestone Retail Credit Corporation or
any affiliate thereof)
This certifies that FIRESTONE RETAIL CREDIT CORPORATION is the
registered owner of an undivided interest (the "Transferor Interest") in the
Bridgestone/Firestone Master Trust (the "Trust") not represented by the
Investor Certificates and the Bridgestone/Firestone Certificate issued
pursuant to the Amended and Restated Pooling and Servicing Agreement, dated
as of ________________ (the "Agreement"; such term to include any Supplement
thereto) by and among Firestone Retail Credit Corporation, as transferor (the
"Transferor"), Bridgestone/Firestone, Inc., as servicer (the "Servicer") and
The Fuji Bank and Trust Company, as trustee (the "Trustee"). The corpus of
the Trust consists of all of the Transferor's right, title and interest in
a portfolio of receivables (the "Receivables") existing in consumer revolving
credit card accounts identified in the Agreement from time to time (the
"Accounts") as of the Cut-Off Date, all Receivables generated under the
Accounts from time to time thereafter, all monies due or to become due and
all amounts received with respect to the Receivables in existence in the
Accounts on the Cut-Off Date or generated thereafter including all Recoveries
relating thereto (net of related expenses) insurance proceeds (net of related
expenses), all right, title and interest of the Transferor in, to and under
the Participation Agreement, Purchase and Sale Agreement and any Insurance
Premiums paid under any Insurance Agreement, all monies on deposit in the
Collection Account (excluding any investment earnings on such deposited
amounts), any other account or accounts maintained for the benefit of
Certificateholders and available under any Enhancement to be provided by an
Enhancement Provider for any Series for payment to Certificateholders, the
Servicer Letter of Credit and all other assets and interests constituting the
Trust and all proceeds of the foregoing.
Although a summary of certain provisions of the Agreement is set forth
below, this Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. A copy of the
Agreement may be requested from the Trustee by writing to the Trustee at The
Fuji Bank and Trust Company, Two World Trade Center, 81st Floor, New York,
New York 10048, Attention: Trust Administration Department. To the extent
not defined herein, the capitalized terms used herein have the meanings
ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Transferor by virtue of the
acceptance hereof assents and by which the Transferor is bound.
This Certificate is not permitted to be transferred, assigned, exchanged
or otherwise pledged or conveyed except in compliance with the terms of the
Agreement .
The Receivables consist of amounts transferred to the Transferor,
payable by Obligors on any Account, from time to time as shown on the
Servicer's records, including, without limitation, amounts payable for the
purchases of goods or services and amounts payable for Periodic Finance
Charges, Late Fees, Returned Check Fees, returned convenience check fees,
cash advance fees and credit related insurance, as more fully specified in
the Agreement.
This Certificate is the Exchangeable Transferor Certificate (the
"Certificate"), which represents an undivided interest in the Trust,
-----------
including the right to receive the Collections and other amounts at the times
and in the amounts specified in the Agreement to be paid to the holder of the
Exchangeable Transferor Certificate. The aggregate interest represented by
this Certificate at any time in the Receivables in the Trust shall not exceed
the Transferor Interest at such time. In addition to this Certificate,
Investor Certificates will be issued to investors pursuant to the Agreement,
which will represent the interests of Investor Certificateholders in the
Trust and the Bridgestone/Firestone Certificate will be issued to
Bridgestone/Firestone, pursuant to the Agreement, which will represent the
interest of Bridgestone/Firestone in the Trust. This Certificate shall not
represent any interest in the Collection Account or other account or any
Enhancement except as provided in the Agreement.
Subject to certain conditions in the Agreement, the obligations created
by the Agreement and the Trust created thereby shall terminate upon the
earlier of (i) September 15, 2092 and (ii) the day after the date on which
funds shall have been deposited in the Collection Account sufficient to pay
the Aggregate Invested Amount plus interest accrued at the applicable
Certificate Rates through the end of the applicable Interest Accrual Period
in full on all Series of Investor Certificates; provided, however, that in
-------- -------
no event shall the trust created by the Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the
descendants, living on the date of the Agreement, of Joseph P. Kennedy, of
the Commonwealth of Massachusetts, formerly United States representative at
the Court of St. James.
Upon termination of the Trust pursuant to Article XII of the Agreement,
subject to the provisions of the Agreement and the surrender of this
Certificate, the Trustee shall assign and convey to the Transferor (without
recourse, representation or warranty) all right, title and interest of the
Trust in the Receivables, whether then existing or thereafter created, and
all proceeds thereof, except for amounts held by the Trustee pursuant to
Subsection 12.03(b). The Trustee shall execute and deliver such instruments
of transfer and assignment, in each case without recourse, as shall be
reasonably requested by the Transferor to vest in the Transfer or all right,
title and interest which the Trust has in the Receivables.
Unless the certificate of authentication herein has been executed by or
on behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Transferor has caused this Certificate to be
duly executed.
FIRESTONE RETAIL CREDIT CORPORATION
By:
----------------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is the Exchangeable Transferor Certificate referred to in the
within mentioned Pooling and Servicing Agreement.
THE FUJI BANK AND TRUST COMPANY,
as Trustee
By:
----------------------------------------------
Authorized Signatory
Exhibit A- 2
------------
FORM OF BRIDGESTONE/FIRESTONE CERTIFICATE
One Unit
BRIDGESTONE/FIRESTONE MASTER TRUST
BRIDGESTONE/FIRESTONE CERTIFICATE
THIS CERTIFICATE REPRESENTS THE B/F ALLOCATION PERCENTAGE
IN THE BRIDGESTONE/FIRESTONE MASTER TRUST
Evidencing an undivided interest in a trust, the corpus of which
consists of receivables generated or to be generated under a private label
credit card program established by Credit First National Association ("Credit
First") and all monies due or to become due in respect thereof.
(Not an interest in or obligation of
Credit First, Bridgestone/Firestone, Inc. or
Firestone Retail Credit Corporation or
any affiliate thereof)
This certifies that BRIDGESTONE/FIRESTONE, INC. is the registered owner
of an undivided one percent interest (the "B/F Allocation Percentage") in the
Bridgestone/Firestone Master Trust (the "Trust"). This Certificate, the
Investor Certificates and the Exchangeable Transferor Certificate were issued
pursuant to the Amended and Restated Pooling and Servicing Agreement, dated
as of ________________ (the "Agreement"; such term to include any Supplement
thereto) by and among Firestone Retail Credit Corporation, as transferor (the
"Transferor"), Bridgestone/Firestone, Inc., as servicer (the "Servicer") and
The Fuji Bank and Trust Company, as trustee (the "Trustee"). The corpus of
the Trust consists of all of the Transferor's right, title and interest in
a portfolio of receivables (the "Receivables") existing in consumer revolving
credit card accounts identified in the Agreement from time to time (the
"Accounts") as of the Cut-Off Date, all Receivables generated under the
Accounts from time to time thereafter, all monies due or to become due and
all amounts received with respect to the Receivables in existence in the
Accounts on the Cut-Off Date or generated thereafter including all Recoveries
relating thereto (net of related expenses) insurance proceeds (net of related
expenses), all right, title and interest of the Transferor in, to and under
the Participation Agreement, the Purchase and Sale Agreement and any
Insurance Premiums paid under any Insurance Agreement, all monies on deposit
in the Collection Account (excluding any investment earnings on such
deposited amounts), any other account or accounts maintained for the benefit
of Certificateholders and available under any Enhancement to be provided by an
Enhancement Provider for any Series for payment to Certificateholders,
Servicer Letter of Credit and all other assets and interests constituting the
Trust and all proceeds of the foregoing.
Although a summary of certain provisions of the Agreement is set forth
below, this Certificate does not purport to summarize the Agreement and
reference is made to the Agreement for information with respect to the
interests, rights, benefits, obligations, proceeds, and duties evidenced
hereby and the rights, duties and obligations of the Trustee. A copy of the
Agreement may be requested from the Trustee by writing to the Trustee at The
Fuji Bank and Trust Company, Two World Trade Center, 81st Floor, New York,
New York 10048, Attention: Trust Administration Department. To the extent
not defined herein, the capitalized terms used herein have the meanings
ascribed to them in the Agreement. This Certificate is issued under and is
subject to the terms, provisions and conditions of the Agreement, to which
Agreement, as amended from time to time, the Transferor by virtue of the
acceptance hereof assents and by which the Transferor is bound.
This Certificate is not permitted to be transferred, assigned, exchanged
or otherwise pledged or conveyed except in compliance with the terms of the
Agreement.
The Receivables consist of amounts transferred to the Transferor,
payable by Obligors on any Account, from time to time as shown on the
Servicer's records, including, without limitation, amounts payable for
purchases of goods or services and amounts Payable for Periodic Finance
Charges, Late Fees, Returned Check Fees, returned convenience check fees,
cash advance fees and credit related insurance, as more fully specified in
the Agreement.
This Certificate is the Bridgestone/Firestone Certificate (the
"Certificate"), which represents an undivided one percent interest in the
-----------
Trust, including the right to receive the Collections and other amounts at
the times and in the amounts specified in the Agreement to be paid to the
holder of the Bridgestone/Firestone Certificate. The aggregate interest
represented by this Certificate at any time in the Receivables in the Trust
shall not exceed the B/F Allocation Percentage. In addition to this
Certificate, Investor Certificates will be issued to investors pursuant to
the Agreement, which will represent the interests of Investor
Certificateholders in the Trust and the Exchangeable Transferor Certificate
will be issued to the Transferor, pursuant to the Agreement, which will
represent the interest of the Transferor in the Trust. This Certificate
shall not represent any interest in the Collection Account or other account
or any Enhancement except as provided in the Agreement.
Subject to certain conditions in the Agreement, the obligations created
by the Agreement and the Trust created thereby shall terminate upon the
earlier of (i) September 15, 2092 and (ii) the day after the date on which
funds shall have been deposited in the Collection Account sufficient to pay
the Aggregate Invested amount plus interest accrued at the applicable
Certificate Rates through the end of the applicable Interest Accrual Period
in full on all Series of Investor Certificates; provided, however, that in
-------- -------
no event shall the trust created by the Agreement continue beyond the
expiration of 21 years from the death of the last survivor of the
descendants, living on the date of the Agreement, of Joseph P. Kennedy, of
the Commonwealth of Massachusetts, formerly United States representative at
the Court of St. James.
Unless the certificate of authentication herein has been executed by or
on behalf of the Trustee, by manual signature, this Certificate shall not be
entitled to any benefit under the Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, the Transferor has caused this Certificate to be
duly executed.
FIRESTONE RETAIL CREDIT CORPORATION
By:
----------------------------------------------
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is the BRIDGESTONE/FIRESTONE Certificate referred to in the within
mentioned Pooling and Servicing Agreement.
THE FUJI BANK AND TRUST COMPANY,
as Trustee
By:
----------------------------------------------
Authorized Signatory
EXHIBIT B
---------
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
(As required by Subsection 2.05(b)(ii) of
the Pooling and Servicing Agreement)
ASSIGNMENT No. _____ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, dated as of
_________________, by and between FIRESTONE RETAIL CREDIT CORPORATION (the
"Transferor"), a Massachusetts corporation, as Transferor, and THE FUJI BANK
AND TRUST COMPANY, a banking corporation organized and existing under the
laws of the State of New York, as Trustee (the "Trustee") pursuant to the
Pooling and Servicing Agreement referred to below.
W I T N E S E T H:
- - - - - - - - -
WHEREAS, the Transferor, Bridgestone/Firestone, Inc.
("Bridgestone/Firestone"), as Servicer, and the Trustee are parties to the
Amended and Restated Pooling and Servicing Agreement, dated as of November
1, 1992 (hereinafter as such agreement may have been or may from time to time
be, amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the Transferor
pursuant to Section 2.05(a) of the Pooling and Servicing Agreement, may
designate Additional Accounts of the Transferor to be included as Accounts
and to convey the Receivables of such Additional Accounts, whether now
existing or hereafter created, to the Trust as part of the corpus of the
Trust (as each such term is defined in the Pooling and Servicing Agreement);
and
WHEREAS, the Trustee is willing to accept such designation and
conveyance of the Receivables in the Additional Accounts subject to the terms
and conditions hereof;
NOW, THEREFORE, the Transferor and the Trustee hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall have the
-------------
meanings ascribed to them in the Pooling and Servicing Agreement unless
otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional Accounts
-------------
designated hereby, (___________________, 199__).
"Addition Notice Date" shall mean, with respect to the Additional
--------------------
Accounts, the last day in the month preceding the month in which the Addition
Date occurs.
2. Designation of Additional Accounts. The Transferor does hereby
----------------------------------
deliver herewith a list or computer file containing a true and complete
schedule identifying all such Additional Accounts specifying for each such
Account, as of the Addition Notice Date, its account number. Such list or
computer file shall be as of the date of this Assignment incorporated into
and made part of this Assignment and is marked as Schedule 1 to this
----------
Assignment.
3. Conveyance of Receivables.
-------------------------
(a) The Transferor does hereby transfer, assign, set over and otherwise
convey to the Trust for the benefit of Certificateholders, without recourse
all of its right, title and interest in, to and under the Receivables now
existing and hereafter created designated on Schedule 1 hereof, all monies
----------
due or to become due and all amounts received with respect thereto, including
all Recoveries related thereto (net of related expenses), insurance proceeds
(net of related expenses), and any Insurance Premiums paid under any
Insurance Agreement and all proceeds thereof. The foregoing transfer,
assignment, set-over and conveyance does not constitute and is not intended
to result in a creation or an assumption by the Trust, the Trustee or any
Investor Certificateholder of any obligation of the Servicer, the Transferor
or any other Person in connection with the Accounts, the Receivables or under
any agreement or instrument relating thereto, including, without limitation,
any obligation to any Obligors, merchants, Society National Bank or Credit
First National Association and any affiliate thereof, or insurers.
(b) In connection with such transfer, the Transferor agrees to record
and file, at its own expense, a financing statement (and continuation
statements with respect to such financing statements when applicable) with
respect to the Receivables now existing and hereafter created for the
transfer of accounts meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect the transfer and
assignment of the Receivables to the Trust, and to deliver a file-stamped
copy of such financing statement or other evidence of such filing to the
Trustee on or prior to the date of issuance of the Certificates. The Trustee
shall be under no obligation whatsoever to file such financing statement, or
a continuation statement to such financing statement, or make any other
filing under the UCC in connection with such transfer.
(c) In connection with such transfer, the Transferor further agrees,
at its own expense, on or prior to the date of this Assignment to indicate
in its books and records that all Receivables created in connection with the
Additional Accounts designated hereby have been conveyed to the Trust
pursuant to this Assignment for the benefit of the Certificateholders.
4. Acceptance by Trustee. Subject to the satisfaction of the
---------------------
conditions set forth in Section 6, the Trustee hereby acknowledges its
acceptance on behalf of the Trust for the benefit of all Certificateholders
of all right, title and interest to the property, now existing and hereafter
created, conveyed to the Trust pursuant to Section 3(a) of this Assignment,
and declares that it shall maintain such right, title and interest, upon the
trust set forth in the Pooling and Servicing Agreement. The Trustee further
acknowledges that, prior to or simultaneously with the execution and delivery
of this Assignment, the Transferor delivered to the Trustee the written list
described in Section 2 of this Assignment.
5. Representations and Warranties of the Transferor. The Transferor
------------------------------------------------
hereby represents and warrants to the Trustee, on behalf of the Trust, as of
the date of this Assignment and as of the Addition Date that:
(a) Legal, Valid and Binding Obligation. This Assignment constitutes
-----------------------------------
a legal, valid and binding obligation of the Transferor enforceable against
the Transferor in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now and hereafter in effect affecting the
enforcement of creditors' rights in general and except as such enforceability
may be limited by general principles of equity (whether considered in a suit
at law or in equity);
(b) Eligibility of Accounts: As of the Addition Notice Date, to the
-----------------------
best knowledge of the Transferor, each Additional Account designated hereby
is an Eligible Additional Account in all material respects;
(c) Selection Procedures. No selection procedure adverse to the
--------------------
interests of the Investor Certificateholders was utilized in selecting the
Additional Accounts designated hereby from the available Eligible Additional
Accounts;
(d) Insolvency. The Transferor is not insolvent and, after giving
----------
effect to the conveyance set forth in Section 3 of the Assignment, will not
be insolvent; and
(e) Security Interest. This Assignment constitutes a valid transfer
-----------------
and assignment to the Trust of all right, title and interest of the
Transferor in the Receivables including all Recoveries relating thereto and
the proceeds thereof (including insurance proceeds to the extent that the
Seller is entitled thereto) relating thereto or, if this Assignment does not
constitute a valid transfer and assignment of such property, it constitutes
a grant of a "security interest" (as defined in the UCC as in effect in the
State of New York) in such property to the Trust, which, in the case of
existing Receivables and the proceeds thereof, is enforceable upon execution
and delivery of this Assignment, and which will be enforceable with respect
to such Receivables hereafter created and the proceeds thereof upon such
creation. Upon the filing of the financing statement described in Section
3 of the Assignment and, in the case of the Receivables hereafter created and
the proceeds thereof, upon the creation thereof, the Trust shall have a first
priority perfected security or ownership interest in such property except for
Liens permitted under subsection 2.08(b) of the Pooling and Servicing
Agreement; provided, however, that such security interest in proceeds shall
-------- -------
remain perfected after 10 days from their receipt by the Servicer (so long
as Bridgestone/Firestone is the Servicer) or the Transferor only to the
extent that such proceeds are identifiable cash proceeds or that come into
the Trust's possession within the applicable 10-day period; and provided,
--------
further, that the Transferor makes no representation or warranty with respect
- - -------
to the effect of Section 9-306(4) of the UCC on the rights of the Trust to
proceeds held by the Transferor at the time insolvency proceedings are
instituted by or against the Transferor.
6. Conditions Precedent. The acceptance of the Trustee set forth in
--------------------
Section 4 hereof and the amendment of the Pooling and Servicing Agreement as
set forth in Section 7 hereof are subject to the satisfaction, on or prior
to the Addition Date, of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
------------------------------
warranties made by the Transferor in Section 5 shall be true and correct as
of the Addition Notice Date or as of the Addition Date as applicable.
(b) Officer's Certificate. The Transferor shall have delivered to the
---------------------
Trustee a certificate of a Vice President or more senior officer confirming
the items set forth in Section 2.05(b)(v) of the Pooling and Servicing
Agreement.
(c) Opinion of Counsel. The Transferor shall have delivered to the
------------------
Trustee an Opinion of Counsel with respect to the Additional Accounts
designated hereby substantially in the form of Exhibit F to the Pooling and
---------
Servicing Agreement.
(d) Additional Information. The Transferor shall have delivered to the
----------------------
Trustee such information, if any, as was reasonably requested by the Trustee
to satisfy itself as to the accuracy of the representation and warranty set
forth in Section 5(b) of this Agreement.
7. Amendment of the Pooling and Servicing Agreement. The Pooling and
------------------------------------------------
Servicing Agreement is hereby amended by providing that all references to the
"Pooling and Servicing Agreement," to "this Agreement" and "herein" shall
be deemed from and after the Addition Date to be a dual reference to the
Pooling and Servicing Agreement as supplemented by this Assignment. Except
as expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Pooling and Servicing Agreement shall remain
unamended and shall continue to be, and shall remain, in full force and
effect in accordance with its terms and except as expressly provided herein
shall not constitute or be deemed to constitute a waiver of compliance with
or consent to noncompliance with any term or provision of the Pooling and
Servicing Agreement.
8. Counterparts. This Assignment may be executed in any number of
------------
counterparts, all of which taken together shall constitute one and the same
instrument.
9. Governing Law. THIS ASSIGNMENT SHALL BE GOVERNED BY AND CONSTRUED
-------------
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO ITS
CONFLICTS OF LAW PROVISIONS.
IN WITNESS WHEREOF, the undersigned have caused this Assignment of
Receivables in Additional Accounts to be duly executed and delivered by their
respective duly authorized officers on the day and the year first above
written.
FIRESTONE RETAIL CREDIT CORPORATION,
as Transferor
By
-----------------------------------------------
Title:
THE FUJI BANK AND TRUST COMPANY,
as Trustee
By
-----------------------------------------------
Title:
EXHIBIT C
---------
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(As required by Subsection 2.10(b)(i) of
the Pooling and Servicing Agreement)
REASSIGNMENT No. ___ OF RECEIVABLES, dated as of ___________, __, by and
between FIRESTONE RETAIL CREDIT CORPORATION, as Transferor (the
"Transferor"), a Massachusetts corporation, and THE FUJI BANK AND TRUST
COMPANY, a banking corporation organized and existing under the laws of the
State of New York, as Trustee (the "Trustee") pursuant to the Pooling and
Servicing Agreement referred to below.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Transferor, Bridgestone/Firestone, Inc.
("Bridgestone/Firestone"), as servicer and the Trustee are parties to the
Amended and Restated Pooling and Servicing Agreement, dated as of
______________ (hereinafter as such agreement may have been, or may from time
to time be, amended, supplemented or otherwise modified, the "Pooling and
Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the Transferor
wishes to remove all Receivables from certain designated Accounts of the
Transferor (the "Removed Accounts.) and to cause the Trustee to reconvey the
Receivables of such Removed Accounts, whether now existing or hereafter
created, from the Trust to the Transferor; and
WHEREAS, the Trustee is willing to accept such designation and to
reconvey the Receivables in the Removed Accounts subject to the terms and
conditions hereof;
NOW, THEREFORE, the Transferor and the Trustee hereby agree as follows:
1. Defined Terms. All terms defined in the Pooling and Servicing
-------------
Agreement and used herein shall have such defined meanings when used herein,
unless otherwise defined herein.
"Removal Date" shall mean, with respect to the Removed Accounts
------------
designated hereby, ___________, 19__.
"Removal Notice Date" shall mean, with respect to the Removed Account,
-------------------
the billing date for such Removed Account in the month preceding the month
in which the Removal Date for such Removed Account occurs, (which shall be
a date on or prior to the fifth Business Day prior to the Removal Date).
2. Designation of Removed Accounts. The Transferor shall deliver to
-------------------------------
the Trustee herewith a list or computer file containing a true and complete
schedule identifying all Accounts the Receivables of which have not been
removed from the Trust specifying for each such Account, as of the Removal
Notice Date, its account number. Such schedule shall be marked as Schedule 1
----------
to this Reassignment and shall be incorporated into and made a part of this
Reassignment as of the Removal Date.
3. Conveyance of Receivables.
-------------------------
(a) The Trustee does hereby transfer, assign, set-over and otherwise
convey to the Transferor, without recourse on and after the Removal Date, all
right, title and interest of the Trust in, to and under the Receivables now
existing and hereafter created in the Removed Accounts designated hereby, all
amounts due or to become due and all amounts received with respect thereto,
including all Recoveries relating thereto (net of related expenses),
insurance proceeds (net of related expenses), all of its right, title and
interest in, to and under the Participation Agreements, Purchase and Sale
Agreement and any Insurance Premiums paid under any Insurance Agreement and
all proceeds of any Insurance Agreement.
(b) In connection with such transfer, the Trustee agrees to execute and
deliver to the Transferor, on or prior to the date of this Reassignment, a
termination statement prepared by the Transferor in form satisfactory to the
Trustee with respect to the Receivables now existing and hereafter created
in the Removed Accounts reassigned hereby (which may be a single termination
statement with respect to all such Receivables) evidencing the release by the
Trust of its lien on the Receivables in the Removed Accounts, and meeting the
requirements of applicable state law, in such manner and such jurisdictions
as are necessary to remove such lien.
4. Acceptance by Trustee. The Trustee hereby acknowledges that, prior
---------------------
to or simultaneously with the execution and delivery of this Reassignment,
the Transferor delivered to the Trustee the computer file or microfiche list
described in Section 2 of this Reassignment.
5. Representations and Warranties of the Transferor. The Transferor
------------------------------------------------
hereby represents and warrants to the Trustee, on behalf of the Trust, as of
the date of this Agreement and as of the Removal Date:
(a) Legal, Valid and Binding Obligation. This Reassignment constitutes
-----------------------------------
a legal, valid and binding obligation of the Transferor enforceable against
the Transferor, in accordance with its terms, except as such enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general and except as such enforceability
may be limited by general principles of equity (whether considered in a suit
at law or in equity); and
(b) Selection Procedures. No selection procedures believed by the
--------------------
Transferor to be materially adverse to the interests of the Investor
Certificateholders of any Series were utilized in selecting the Removed
Accounts designated hereby.
6. Conditions Precedent. The amendment of the Pooling and Servicing
Agreement set forth in Section 7 hereof is subject to the satisfaction, on
or prior to the Removal Date, of the following condition precedent:
(a) Officers' Certificate. The Transferor shall have delivered to the
---------------------
Trustee an Officers' Certificate certifying that (i) as of the Removal Date,
all requirements set forth in Section 2.10 of the Pooling and Servicing
Agreement for designating Removed Accounts and reconveying the Receivables
of such Removed Accounts, whether now existing or hereafter created, have
been satisfied, and (ii) each of the representations and warranties made by
the Transferor in Section 5 hereof is true and correct as of the Removal
Date. The Trustee may conclusively rely on such Officers' Certificate, shall
have no duty to make inquiries with regard to the matters set forth therein
and shall incur no liability in so relying.
7. Amendment of the Pooling and Servicing Agreement. The Pooling and
------------------------------------------------
Servicing Agreement is hereby amended to provide that all references therein
to the "Pooling and Servicing Agreement," to "this Agreement" and "herein"
shall be deemed from and after the Removal Date to be a dual reference to the
Pooling and Servicing Agreement as supplemented by this Reassignment. Except
as expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Pooling and Servicing Agreement shall remain
unamended and shall continue to be, and shall remain, in full force and
effect in accordance with its terms and except as expressly provided herein
shall not constitute or be deemed to constitute a waiver of compliance with
or a consent to non-compliance with any term or provision of the Pooling and
Servicing Agreement.
8. Counterparts. This Reassignment may be executed in two or more
------------
counterparts (and by different parties on separate counterparts), each of
which shall be an original, but all of which together shall constitute one
and the same instrument.
9. Governing Law. THIS REASSIGNMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REFERENCE TO ITS CONFLICTS OF LAW PROVISIONS.
IN WITNESS WHEREOF, the undersigned have caused this Reassignment of
Receivables to be duly executed and delivered by their respective duly
authorized officers on the day and year first above written.
FIRESTONE RETAIL CREDIT CORPORATION,
as Transferor
By
-----------------------------------------------
Title:
THE FUJI BANK AND TRUST COMPANY,
as Trustee
By
-----------------------------------------------
Title:
EXHIBIT D
---------
Date: ______________, 1992
IRREVOCABLE SERVICER LETTER OF CREDIT NO. _________
The Fuji Bank and Trust Company
Two World Trade Center
81st Floor
New York, New York 10048
Attention: Trust Administration Department
Gentlemen:
At the request and for the account of our customer,
Bridgestone/Firestone, an Ohio corporation (the "Corporation"), we (the
"Bank") hereby establish in your favor this Irrevocable Letter of Credit No.
________________________ wherein you, as trustee (the "Trustee") under the
Amended and Restated Pooling and Servicing Agreement, as supplemented
(collectively, the "Pooling and Servicing Agreement") among the Corporation,
as servicer, Firestone Retail Credit Corporation, as transferor and you,
pursuant to which the Bridgestone/Firestone Master Trust, Series 1992-A and
Series 1992-B Certificates (the "Certificates") have been issued, are hereby
irrevocably authorized, to draw (i) as required under Section 4.01A(a) of the
Pooling and Servicing Agreement or (ii) Section 4.01A(e) of the Pooling and
Servicing Agreement (a "Special Drawing"), upon the terms and conditions
hereinafter set forth, in an aggregate amount not exceeding $45,000,000
(hereinafter, as reduced from time to time in accordance with the provisions
hereof, the "Stated Amount").
Funds under this Letter of Credit are available to you only against your
written certificate signed by a person purporting to be your authorized
officer, appropriately completed, in the form of Annex 1 or Annex 2 hereto
for payment of certain amounts due from, but unpaid by, the Corporation under
the Pooling and Servicing Agreement.
We hereby agree that each demand made under and in compliance with the
terms of this Letter of Credit will be duly honored by us upon due delivery
of the certificate(s), as specified above, appropriately completed (together
with the enclosures, if any, required thereby), if presented as specified
on or before the expiration date hereof. If a presentation in respect of
payment is made by you hereunder at or prior to 12:00 P.M., New York City
time, on a Business Day, and provided that the documents so presented conform
to the terms and conditions hereof, payment shall be made to you of the
amount specified, in immediately available funds, not later than 3:00 P.M.,
New York City time, on the same Business Day. If a presentation in respect
of payment is made by you hereunder after 3:00 P.M., New York City time, on
a Business Day, such presentation shall be deemed to have been made prior to
3:00 P.M., New York City time, on the next succeeding Business Day. You
agree to use your best efforts to provide us telephonic notice at the time
any presentation in respect of payment is made hereunder; provided, however,
-------- -------
that failure to provide such telephonic notice shall not affect our
obligation to make payment in respect of any such presentation in respect of
payment. If requested by you, payment under this Letter of Credit will be
wire transferred to an account in New York, New York specified in the related
certificate. As used herein, "Business Day" shall mean any day other than
a Saturday, a Sunday, or a day on which banking institutions in New York, New
York shall be authorized or obligated by law, executive order or governmental
decree to be closed.
If a drawing made by you hereunder does not, in any instance, conform
to the terms and conditions of this Letter of Credit, we shall give you
prompt notice that the purported drawing was not effected in accordance with
the terms and conditions of this Letter of Credit, stating the reasons
therefor and that we are holding any documents presented in connection
therewith at your disposal or are returning the same to you, as we may elect.
Except as otherwise specified in Annex 2, each drawing under this Letter
of Credit shall be verified to Account No. ________ maintained by the Trustee
(the "Collection Account").
Only you, as Trustee, may make a drawing under this Letter of Credit.
Upon the payment of the amount specified in the related certificate(s)
presented hereunder, we shall be fully discharged of our obligation under
this Letter of Credit with respect to such certificate(s) and we shall not
thereafter be obligated to make any further payments under this Letter of
Credit in respect of such certificate(s) to you or any other person. By
paying to you an amount demanded in accordance herewith, we make no
representation as to the correctness of the amount demanded.
This Letter of Credit shall expire at our close of business in New York,
New York on the first to occur of the following dates (the "Termination
Date"): (x) ______________ ___, 199_ or, if said date shall not be a Business
Day, on the Business Day next succeeding said date, or (y) the date the
Corporation ceases to be the Servicer under the Pooling and Servicing
Agreement, as provided in a written notice to us from the Trustee, or (z) the
date of receipt by us of your written certificate signed by a person
purporting to be your authorized officer, appropriately completed, in the
form of Annex 3 hereto. This Letter of Credit shall be promptly surrendered
to us upon expiration.
Drawings in respect of payments hereunder honored by us shall not, in
the aggregate, exceed the Stated Amount in effect immediately prior to such
drawing. Each drawing honored by us hereunder shall pro tanto reduce the
--- -----
Stated Amount in effect immediately prior to such drawing.
This Letter of Credit is subject to, and shall be governed by, the
Uniform Customs and Practice for Documentary Credits (1983 Revision),
International Chamber of Commerce, Publication No. 400 (the "Uniform
Customs"). This Letter of Credit shall be deemed to be made under the laws
of the State of New York, including Article 5 of the Uniform Commercial Code
of such State, and shall, as to matters not governed by the Uniform Customs,
be governed by and construed in accordance with the laws of the State of New
York.
Notwithstanding anything in Article 54(e) of the Uniform Customs to the
contrary, this Letter of Credit is transferable in its entirety (but not in
part) only to a successor Trustee under the Pooling and Servicing Agreement
upon presentation to us of this Letter of Credit accompanied by the transfer
form attached hereto as Annex 4, to the transferee specified therein.
All documents presented to us in connection with any demand for payment
hereunder, as well as all notices and other communications to us in respect
of this Letter of Credit, shall be in writing and addressed and presented to
us at our office at One World Trade Center, New York, New York 10048
Attention: Loan Administration and shall make specific reference to this
Letter of Credit by number. Such documents, notices and other communication
shall be personally delivered to us, or may be sent to us by tested telex or
over a telecopier (promptly confirmed by delivery of the written document,
notice or other communication, as the case may be, provided that such
confirmation shall not be a condition to the effectiveness of such demand for
payment, notice or other communication) to the following numbers, as
applicable:
Telex No.: 420575 (Answerback: SMTBK)
Telecopier No.: (212) 524-0612
This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or limited
by reference to any document, instrument or agreement referred to herein
(including, without limitation, the certificates), except only Annex
1 through 4 hereto; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or agreement except
as set forth above.
Very truly yours,
The Sumitomo Bank, Limited
By:
----------------------------------------------
Name:
Title:
ANNEX 1 T0
LETTER OF CREDIT NO.
------------------------------------
CERTIFICATE FOR "ANNEX 1 DRAWING"
---------------------------------
The undersigned, as Trustee (the "Trustee"), acting through the
undersigned duly authorized officer of the Trustee, hereby certifies to The
Sumitomo Bank, Limited (the "Bank"), with reference to the Bank's Irrevocable
Letter of Credit No. ______________ (the "Letter of Credit"; any capitalized
term used herein and not defined shall have its respective meaning as set
forth in the Letter of Credit) issued in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Pooling and Servicing
Agreement.
(2) The Corporation, as servicer (the "Servicer") under the
Pooling and Servicing Agreement, has notified us, as Trustee under the
Pooling and Servicing Agreement, pursuant to a Monthly Servicer's Certificate
(as defined in the Pooling and Servicing Agreement) (a copy of which is
attached hereto) furnished pursuant to Section 3.04(b) of the Pooling and
Servicing Agreement, that the following amount was required to be remitted
by the Corporation to the Collection Account pursuant to Section 4.01(g) of
the Pooling end Servicing Agreement with respect to the Distribution Date (as
defined in the Pooling and Servicing Agreement) occurring on (insert
------
applicable Distribution Date): $(insert amount required to be remitted
- - ----------------------------- -------------------------------------
pursuant to Section 4.01(g)).
- - ---------------------------
(3) The Corporation has failed to deposit the following portion
of amounts owed by it with respect to such Distribution Date as set forth in
paragraph (2) above: $(insert amount of deficiency).
---------------------------
(4) The Trustee is making a drawing under the Letter of Credit in
the amount of $_________ which amount equals the lesser of (a) the amount set
forth in paragraph (3) and (b) the amount identified by the Servicer in the
Monthly Servicer's Certificate referred to in paragraph (2) above as being
available on the date hereof (and after giving effect to any contemporaneous
demand for payment under the Letter of Credit being made by the Trustee) to
be drawn under the Letter of Credit.
(5) The Trustee has not received notice from the Corporation or any
other person or entity contesting the accuracy of such Monthly Servicer's
Certificate.
(6) The account to which payment under the Letter of Credit is to
be wire transferred is Account No. 30492-01/0.1, maintained at The Fuji Bank
and Trust Company.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
certificate as of the _____ day of _____________.
THE FUJI BANK, AND
TRUST COMPANY, as Trustee
By
-----------------------------------------------
Name:
Title:
ANNEX 2 TO
LETTER OF CREDIT NO.
-------------------------------------
CERTIFICATE FOR "SPECIAL DRAWING"
---------------------------------
___________, 19__
The Sumitomo Bank, Limited
One World Trade Center, 95th Floor
New York, New York 10048
Attention:
Re: Irrevocable Letter of Credit No. ________________
Gentlemen:
The undersigned, a duly authorized officer of The Fuji Bank and Trust
Company (the "Trustee"), hereby certifies to The Sumitomo Bank, Limited with
reference to irrevocable Letter of Credit No. ________________ (the "Letter
of Credit") (any capitalized term used herein and not defined shall have the
meaning set forth in the Letter of Credit) issued by The Sumitomo Bank,
Limited (the "Bank"), in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Pooling and Servicing
Agreement.
(2) The Trustee has been instructed by the Servicer to make a Special
Drawing.
(3) A Responsible Officer of the Trustee has obtained knowledge that the
short-term debt rating of the Bank has been reduced, suspended or withdrawn.
(4) The Trustee hereby demands payment under the Letter of Credit in the
amount of $_____, which amount equals the Available Letter of Credit Amount
on the Business Day preceding the date hereof, as specified in the Monthly
Servicer's Certificate delivered by the Servicer pursuant to Section 3.04(b)
of the Pooling and Servicing Agreement (and after giving effect to any
contemporaneous demand for payment under the Letter of Credit being made with
respect to such date).
(5) All amounts received by the Trustee from the Bank in respect of this
certificate shall be applied in accordance with Section 4.01A(e) of the
Pooling and Servicing Agreement.
(6) The Trustee directs that such amounts be deposited in Account No.
____________ at The Fuji Bank and Trust Company.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
certificate as of this _____ day of ____________, 19__.
THE FUJI BANK AND
TRUST COMPANY, as Trustee
By:
----------------------------------------------
Authorized Signatory
ANNEX 3 TO
LETTER OF CREDIT NO.
-------------------------------------
CERTIFICATE FOR THE TERMINATION
OF LETTER OF CREDIT NO. ______________
The Sumitomo Bank, Limited
One World Trade Center
New York, New York 10048
Attention:
The undersigned, a duly authorized officer of The Fuji Bank and Trust
Company (the "Trustee"), hereby certifies to The Sumitomo Bank, Limited, with
reference to Irrevocable Letter of Credit No. ________________ (the "Letter
of Credit"; any capitalized terms used herein and not defined shall have the
meaning set forth in the Letter of Credit) issued by The Sumitomo Bank,
Limited in favor of the Trustee, that the Letter of Credit shall terminate
on _________________. Accordingly, we herewith return to you for
cancellation the Letter of Credit, which is terminated, as of the date
hereof, pursuant to its terms.
Date: _______________ THE FUJI BANK AND TRUST COMPANY,
as Trustee
By _________________________________________
Authorized Officer
ANNEX 4 TO
LETTER OF CREDIT NO.
-------------------------------------
___________, 19__
The Sumitomo Bank, Limited
One World Trade Center
New York, New York 10048
Attention: Loan Administration
Re: Irrevocable Letter of Credit No.
_______________
of The Sumitomo Bank, Limited
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
_________________________________________
(Name of Transferee)
_________________________________________
(Address)
all rights of the undersigned beneficiary to draw under the above-captioned
Letter of Credit (the "Letter of Credit"). The transferee has succeeded the
undersigned as Trustee under the Pooling and Servicing Agreement (as defined
in the Letter of Credit).
By this transfer, all rights of the undersigned beneficiary in the
Letter of Credit are transferred to the transferee and the transferee shall
hereafter have the sole rights as beneficiary thereof; provided, however,
-------- -------
that no rights shall be deemed to have been transferred to the transferee
until such transfer complies with the requirements of the Letter of Credit
pertaining to transfers.
The Letter of Credit is returned herewith and in accordance therewith
we ask that this transfer be effective and that you cause the transfer of the
Letter of Credit to our transferee or that, if so requested by the
transferee, you cause the issuance of a new irrevocable Letter of Credit in
favor of the transferee with provisions consistent with the Letter of Credit.
Very truly yours,
________________________________________
as predecessor Trustee
By ________________________________________
(Name and Title)
EXHIBIT E
---------
FORM OF ANNUAL SERVICER'S CERTIFICATE
(As required to be delivered on or before
March 31 of each calendar year, beginning
with March 31, 1993, pursuant to Section
3.05 of the Pooling and Servicing Agreement)
BRIDGESTONE/FIRESTONE, INC.
_____________________________________________________________________________
BRIDGESTONE/FIRESTONE MASTER TRUST
_____________________________________________________________________________
The undersigned, duly authorized representatives of
Bridgestone/Firestone, Inc. ("Bridgestone/Firestone"), as Servicer pursuant
to the Amended and Restated Pooling and Servicing Agreement dated as of
_______________ by and between Firestone Retail Credit Corporation, as
Transferor, Bridgestone/Firestone, as Servicer, and The Fuji Bank and Trust
Company, as Trustee, do hereby certify that:
1. Bridgestone/Firestone is, as of the date hereof, the Servicer under
the Pooling and Servicing Agreement.
2. The undersigned are duly authorized pursuant to the Pooling and
Servicing Agreement to execute and deliver this Certificate to the Trustee.
3. A review of the activities of the Servicer during the calendar year
ended December 31, 19_ and of its performance under the Pooling and Servicing
Agreement was conducted under our supervision.
4. Based on such review, the Servicer has, to the best of our
knowledge, fully performed all its obligations under the Pooling and
Servicing Agreement and no default in the performance of such obligations has
occurred or is continuing except as set forth in paragraph 5 below.
5. The following is a description of each default in the performance
of the Servicer's obligations under the provisions of the Pooling and
Servicing Agreement known to us to have been made by the Servicer noted
during the year ended December 31, 19__, which sets forth in detail the (i)
nature of each such default, (ii) the action taken by the Servicer, if any,
to remedy each such default and (iii) the current status of each default:
(If applicable, insert "None.")
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate
this __ day of ________, 19__.
BRIDGESTONE/FIRESTONE, INC.,
as Servicer
By _____________________________________________
Name:
Title:
By _____________________________________________
Name:
Title:
EXHIBIT F
---------
(FORM OF OPINION OF COUNSEL
PROVISIONS TO BE INCLUDED IN
OPINION OF COUNSEL TO BE
DELIVERED PURSUANT TO
SUBSECTION 2.05(b)(vi)
----------------------------
The opinion set forth below may be subject to certain qualifications,
assumptions, limitations and exemptions (including, without limitation, with
respect to the consideration given for the Additional Accounts and the
insolvency of the Transferor at the time of the conveyance of such Accounts)
taken or made in the opinion of ____________________________ with respect to
similar matters delivered on the Closing Date.
Pursuant to the Assignment No. __ of Receivables in Additional Accounts
(the "Assignment"), the Transferor will transfer, assign, set-over and
----------
otherwise convey to the Trust all of its right, title and interest in, to and
under the Receivables now existing and hereafter created in the Additional
Accounts ("Receivables in Additional Accounts"). If the assignment, transfer
and conveyance of the Receivables in Additional Accounts is determined to be
a sale of the Receivables in Additional Accounts and such sale is a sale of
accounts (as defined in the Code), the Assignment together with the filing
of a UCC-1 financing statement with the Secretary of State of the
Commonwealth of Massachusetts, is effective to transfer the Transferor's
interest therein on the terms and conditions set forth in the Assignment,
prior to all liens. If the assignment, transfer and conveyance of the
Receivables in Additional Account is determined to be a sale of general
intangibles, then, assuming the applicability of Massachusetts law the
Assignment is effective to transfer the Transferor's interest in the
Receivables in Additional Accounts. If the assignment, transfer and
conveyance of the Receivables in Additional Accounts is determined to be the
granting of a security interest in the Receivables in Additional Accounts,
the Assignment, together with the filing (which has been completed) of a
UCC-1 financing statement with the Secretary of State of the Commonwealth of
Massachusetts is effective to grant to and create in favor of the Trust a
first priority perfected security interest in the Receivables in Additional
Accounts.)
EXHIBIT G
---------
Date: ___________, 1992
IRREVOCABLE TRANSFEROR LETTER OF CREDIT NO. _____
The Fuji Bank and Trust Company
Two World Trade Center
81st Floor
New York, New York 10048
Attention: Trust Administration Department
Gentlemen:
At the request and for the account of our customer,
Bridgestone/Firestone, an Ohio corporation (the "Corporation"), we (the
"Bank") hereby establish in your favor this Irrevocable Letter of Credit No.
______ wherein you, as trustee (the "Trustee") under the Pooling and
Servicing Agreement, as supplemented by the Series 1992-A and Series 1992-B
Supplements, each dated as of November 1, 1992 (collectively, the "Pooling
and Servicing Agreement") among the Corporation, as servicer, Firestone
Retail Credit Corporation, as transferor and you, pursuant to which the
Bridgestone/Firestone Master Trust, Series 1992-A and Series 1992-B
Certificates (the "Certificates") have been issued, are hereby irrevocably
authorized, to draw (i) as required under Section 4.01B(a) of the Pooling and
Servicing Agreement or (ii) Section 4.01B(d) of the Pooling and Servicing
Agreement (a "Special Drawing"), upon the terms and conditions hereinafter
set forth, in an aggregate amount not exceeding $15,000,000 (hereinafter, as
reduced from time to time in accordance with the provisions hereof, the
"Stated Amount").
Funds under this Letter of Credit are available to you only against your
written certificate signed by a person purporting to be your authorized
officer, appropriately completed, in the form of Annex 1 or Annex 2 hereto
for payment of certain amounts due from, but unpaid by, the Corporation under
the Pooling and Servicing Agreement.
We hereby agree that each demand made under and in compliance with the
terms of this Letter of Credit will be duly honored by us upon due delivery
of the certificate(s), as specified above, appropriately completed (together
with the enclosures, if any, required thereby), if presented as specified on
or before the expiration date hereof. If a presentation in respect of
payment is made by you hereunder at or prior to 12:00 P.M., New York City
time, on a Business Day, and provided that the documents so presented conform
to the terms and conditions hereof, payment shall be made to you of the amount
specified, in immediately available funds, not later than 3:00 P.M., New York
City time, on the same Business Day. If a presentation in respect of payment
is made by you hereunder after 3:00 P.M., New York City time, on a Business
Day, such presentation shall be deemed to have been made prior to 3:00 P.M.,
New York City time, on the next succeeding Business Day. You agree to use
your best efforts to provide us telephonic notice at the time any
presentation in respect of payment is made hereunder; provided, however, that
-------- -------
failure to provide such telephonic notice shall not affect our obligation to
make payment in respect of any such presentation in respect of payment. If
requested by you, payment under this Letter of Credit will be wire
transferred to an account in New York, New York specified in the related
certificate. As used herein, "Business Day" shall mean any day other than
a Saturday, a Sunday, or a day on which banking institutions in New York, New
York shall be authorized or obligated by law, executive order or governmental
decree to be closed.
If a drawing made by you hereunder does not, in any instance, conform
to the terms and conditions of this Letter of Credit, we shall give you
prompt notice that the purported drawing was not effected in accordance with
the terms and conditions of this Letter of Credit, stating the reasons
therefor and that we are holding any documents presented in connection
therewith at your disposal or are returning the same to you, as we may elect.
Except as otherwise specified in Annex 2, each drawing under this Letter
of Credit shall be verified to Account No. _____ maintained by the Trustee
(the "Collection Account").
Only you, as Trustee, may make a drawing under this Letter of Credit.
Upon the payment of the amount specified in the related certificate(s)
presented hereunder, we shall be fully discharged of our obligation under
this Letter of Credit with respect to such certificate(s) and we shall not
thereafter be obligated to make any further payments under this Letter of
Credit in respect of such certificate(s) to you or any other person. By
paying to you an amount demanded in accordance herewith, we make no
representation as to the correctness of the amount demanded.
This Letter of Credit shall expire at our close of business in New York,
New York on the first to occur of the following dates (the "Termination
Date"): (x) ________, 199__ or, if said date shall not be a Business Day, on
the Business Day next succeeding said date, or (y) the date the Corporation
ceases to be the Servicer under the Pooling and Servicing Agreement, as
provided in a written notice to us from the Trustee, or (z) the date of
receipt by us of your written certificate signed by a person purporting to be
your authorized officer, appropriately completed, in the form of Annex 3
hereto. This Letter of Credit shall be promptly surrendered to us upon
expiration.
Drawings in respect of payments hereunder honored by us shall not, in
the aggregate, exceed the Stated Amount in effect immediately prior to such
drawing. Each drawing honored by us hereunder shall pro tanto reduce the
--- -----
Stated Amount in effect immediately prior to such drawing.
This Letter of Credit is subject to, and shall be governed by, the
Uniform Customs and Practice for Documentary Credits (1983 Revision),
International Chamber of Commerce, Publication No. 400 (the "Uniform
Customs"). This Letter of Credit shall be deemed to be made under the laws
of the State of New York, including Article 5 of the Uniform Commercial Code
of such State, and shall, as to matters not governed by the Uniform Customs,
be governed by and construed in accordance with the laws of the State of New
York.
Notwithstanding anything in Article 54(e) of the Uniform Customs to the
contrary, this Letter of Credit is transferable in its entirety (but not in
part) only to a successor Trustee under the Pooling and Servicing Agreement
upon presentation to us of this Letter of Credit accompanied by the transfer
form attached hereto as Annex 4, to the transferee specified therein.
All documents presented to us in connection with any demand for payment
hereunder, as well as all notices and other communications to us in respect
of this Letter of Credit, shall be in writing and addressed and presented to
us at our office at One World Trade Center, New York, New York 10048
Attention: Loan Administration and shall make specific reference to this
Letter of Credit by number. Such documents, notices and other communication
shall be personally delivered to us, or may be sent to us by tested telex or
over a telecopier (promptly confirmed by delivery of the written document,
notice or other communication, as the case may be, provided that such
confirmation shall not be a condition to the effectiveness of such demand for
payment, notice or other communication) to the following numbers, as
applicable:
Telex No.: 420575 (Answerback: SMTBK)
Telecopier No.: (212) 524-0612
This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or limited
by reference to any document, instrument or agreement referred to herein
(including, without limitation, the Certificates), except only Annex 1
through 4 hereto; and any such reference shall not be deemed to incorporate
herein by reference any document, instrument or agreement except as set forth
above.
Very truly yours,
The Sumitomo Bank, Limited
By: _____________________________________________
Name:
Title:
ANNEX 1 TO
LETTER OF CREDIT NO.
---------------------------------
CERTIFICATE FOR "ANNEX 1 DRAWING"
---------------------------------
The undersigned, as Trustee (the "Trustee"), acting through the
undersigned duly authorized officer of the Trustee, hereby certifies to The
Sumitomo Bank, Limited (the "Bank"), with reference to the Bank's Irrevocable
Letter of Credit No. ____________ (the "Letter of Credit"; any capitalized
term used herein and not defined shall have its respective meaning as set
forth in the Letter of Credit) issued in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Pooling and Servicing
Agreement.
(2) The Corporation, a servicer (the "Servicer") under the Pooling
and Servicing Agreement, has notified us, as Trustee under the Pooling and
Servicing Agreement, pursuant to a Monthly Servicer's Certificate (as
defined in the Pooling and Servicing Agreement) (a copy of which is attached
hereto) furnished pursuant to Section 3.04(b) of the Pooling and Servicing
Agreement, that the following amount was required to be remitted by the
Corporation to the Collection Account pursuant to Section 3.09(a) of the
Pooling and Servicing Agreement with respect to the Distribution Date (as
defined in the Pooling and Servicing Agreement) occurring on (insert
applicable Distribution Date): $(insert amount required to be remitted
-------------------------------------
pursuant to Section 3.09(a)).
- - ---------------------------
(3) The Corporation has failed to deposit the following portion
of amounts owed by it with respect to such Distribution Date as set forth in
paragraph (2) above: $(insert amount of deficiency).
---------------------------
(4) The Trustee is making a drawing under the Letter of Credit in
the amount of $_________ which amount equals the lesser of (a) the amount set
forth in paragraph (3) and (b) the amount identified by the Servicer in the
Monthly Servicer's Certificate referred to in paragraph (2) above as being
available on the date hereof (and after giving effect to any contemporaneous
demand for payment under the Letter of Credit being made by the Trustee) to
be drawn under the Letter of Credit.
(5) The Trustee has not received notice from the Corporation or
any other person or entity contesting the accuracy of such Monthly Servicer's
Certificate.
(6) The account to which payment under the Letter o(Pound
Sterling) Credit is to be wire transferred is Account No. 30492-01/0.1,
maintained at The Fuji Bank and Trust Company.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
certificate as of the _____ day of _____________.
THE FUJI BANK, AND TRUST COMPANY,
as Trustee
By _____________________________________________
Name:
Title:
ANNEX 2 TO
LETTER OF CREDIT NO.
---------------------------------
CERTIFICATE FOR "SPECIAL DRAWING"
---------------------------------
___________, 19__
The Sumitomo Bank, Limited
One World Trade Center
New York, New York 10048
Attention:
Re: Irrevocable Letter of Credit No.____________
Gentlemen:
The undersigned, a duly authorized officer of The Fuji Bank and Trust
Company (the "Trustee"), hereby certifies to The Sumitomo Bank, Limited with
reference to irrevocable Letter of Credit No. ______________ (the "Letter of
Credit") (any capitalized term used herein and not defined shall have the
meaning set forth in the Letter of Credit) issued by The Sumitomo Bank,
Limited (the "Bank"), in favor of the Trustee, that:
(1) The Trustee is the Trustee under the Pooling and Servicing
Agreement.
(2) The Trustee has been instructed by the Servicer to make a Special
Drawing.
(3) A Responsible Officer of the Trustee has obtained knowledge that the
short-term debt rating of the Bank has been reduced, suspended or withdrawn.
(4) The Trustee hereby demands payment under the Letter of Credit in the
amount of $_____, which amount equals the Available Letter of Credit Amount
on the Business Day preceding the date hereof, as specified in the Monthly
Servicer's Certificate delivered by the Servicer pursuant to Section 3.04(b)
of the Pooling and Servicing Agreement (and after giving effect to any
contemporaneous demand for payment under the Letter of Credit being made with
respect to such date).
(5) All amounts received by the Trustee from the Bank in respect of this
certificate shall be applied in accordance with Section 4.01A(e) of the
Pooling and Servicing Agreement.
(6) The Trustee directs that such amounts be deposited in Account No.
______________ at The Fuji Bank and Trust Company.
IN WITNESS WHEREOF, the Trustee has executed and delivered this
certificate as of this _____ day of ________, 19__.
THE FUJI BANK AND TRUST COMPANY,
as Trustee
By: _____________________________________________
Authorized Signatory
ANNEX 3 TO
LETTER OF CREDIT NO.
---------------------------------
CERTIFICATE FOR THE TERMINATION
OF LETTER OF CREDIT NO. _________________
The Sumitomo Bank, Limited
One World Trade Center
New York, New York 10048
Attention: Loan Administration
The undersigned, a duly authorized officer of The Fuji Bank and Trust
Company (the "Trustee"), hereby certifies to The Sumitomo Bank, Limited, with
reference to Irrevocable Letter of Credit No. _______________ (the "Letter
of Credit"; any capitalized terms used herein and not defined shall have the
meaning set forth in the Letter of Credit) issued by The Sumitomo Bank,
Limited in favor of the Trustee, that the Letter of Credit shall terminate
on _________________. Accordingly, we herewith return to you for
cancellation the Letter of Credit, which is terminated, as of the date
hereof, pursuant to its terms.
Date: ____________ THE FUJI BANK AND
TRUST COMPANY, as Trustee
By _____________________________________________
Authorized Officer
ANNEX 4 TO
LETTER OF CREDIT NO.
-------------------------------------
___________, 19__
The Sumitomo Bank, Limited
One World Trade Center
New York, New York 10048
Attention: Loan Administration
Re: Irrevocable Letter of Credit No._________
of The Sumitomo Bank, Limited
Gentlemen:
For value received, the undersigned beneficiary hereby irrevocably
transfers to:
______________________________
(Name of Transferee)
______________________________
(Address)
all rights of the undersigned beneficiary to draw under the above-captioned
Letter of Credit (the "Letter of Credit"). The transferee has succeeded the
undersigned as Trustee under the Pooling and Servicing Agreement (as defined
in the Letter of Credit).
By this transfer, all rights of the undersigned beneficiary in the
Letter of Credit are transferred to the transferee and the transferee shall
hereafter have the sole rights as beneficiary thereof; provided, however,
-------- -------
that no rights shall be deemed to have been transferred to the transferee
until such transfer complies with the requirements of the Letter of Credit
pertaining to transfers.
The Letter of Credit is returned herewith and in accordance therewith
we ask that this transfer be effective and that you cause the transfer of the
Letter of Credit to our transferee or that, if so requested by the
transferee, you cause the issuance of a new irrevocable Letter of Credit in
favor of the transferee with provisions consistent with the Letter of Credit.
Very truly yours,
_____________________________________________
as predecessor Trustee
By _____________________________________________
(Name and Title)
=============================================================================
Telegraphic Address One World Trade
"SUMITBANK, New York" THE SUMITOMO BANK, LIMITED Center
Telephone No. Suite 9651,
(212)553-0100 New York Branch New York,
New York 10048
=============================================================================
Date: December 2, 1992
IRREVOCABLE TRANSFEROR LETTER OF
CREDIT NO. LG/MIS/NY-430647
The Fuji Bank and Trust Company
Two World Trade Center
81st Floor
New York, New York 10048
Attention: Trust Administration Department
Gentlemen:
At the request and for the account of our customer,
Bridgestone/Firestone, an Ohio corporation (the "Corporation"), we (the
"Bank") hereby establish in your favor this irrevocable Letter of Credit No.
LG/MIS/NY-430647 wherein you, as trustee (the "Trustee') under the Pooling
and Servicing Agreement, as supplemented by the Series 1992-A and Series
1992-B Supplements, each dated as of November 1, 1992 (collectively, the
"Pooling and Servicing Agreement") among the Corporation, as servicer,
Firestone Retail Credit Corporation, as transferor and you, pursuant to which
the Bridgestone/Firestone Master Trust, Series 1992-A and Series 1992-B
Certificates (the "Certificates") have been issued, are hereby irrevocably
authorized, to draw (i) as required under Section 4.01B(a) of the Pooling and
Servicing Agreement or (ii) Section 4.01B(d) of the Pooling and Servicing
Agreement (a "Special Drawing"), upon the terms and conditions hereinafter
set forth, in an aggregate amount not exceeding $15,000,000 (hereinafter, as
reduced from time to time in accordance with the provisions hereof, the
"Stated Amount").
Funds under this Letter of Credit are available to you only against your
written certificate signed by a person purporting to be your authorized
officer, appropriately completed, in the form of Annex 1 or Annex 2 hereto
for payment of certain amounts due from, but unpaid by, the Corporation under
the Pooling and Servicing Agreement.
We hereby agree that each demand made under and in compliance with the
terms of this Letter of Credit will be duly honored by us upon due delivery
of the certificate(s), as specified above, appropriately completed (together
with the enclosures, if any, required thereby), if presented as specified on
or before the expiration date hereof. If a presentation in respect of
payment is made by you hereunder at or prior to 1:00 P.M., New York City
time,on a Business Day, and provided that the documents so presented conform
to the terms and conditions hereof, payment shall be made to you of the
amount specified, in immediately available funds, not later than 4:00 P.M.,
New York City time, on the same Business Day. If a presentation in respect
of payment is made by you hereunder after 1:00 P.M., New York City time, on
a Business Day, such presentation shall be deemed to have been made prior to
1:00 P.M., New York City time, on the next succeeding Business Day. You
agree to use your best efforts to provide us telephonic notice at the time
any presentation in respect of payment is made hereunder; provided, however,
that failure to provide such telephonic notice shall not affect our
obligation to make payment in respect of any such presentation in respect of
payment. If requested by you, payment under this Letter of Credit will be
wire transferred to an account in New York, New York specified in the related
certificate. As used herein, "Business Day" shall mean any day other than
a Saturday, a Sunday, or a day on which banking institutions in New York, New
York shall be authorized or obligated by law, executive order or governmental
decree to be closed.
If a drawing made by you hereunder does not, in any instance, conform
to the terms and conditions of this Letter of Credit, we shall give you
prompt notice that the purported drawing was not effected in accordance with
the terms and conditions of this Letter of Credit, stating the reasons
therefor and that we are holding any documents presented in connection
therewith at your disposal or are returning the same to you, as we may elect.
Except as otherwise specified in Annex 2, each drawing under this Letter
of Credit shall be verified to Account No. 30492-01/0.1 maintained by the
Trustee (the "Collection Account").
=============================================================================
Telegraphic Address One World Trade
"SUMITBANK, New York" THE SUMITOMO BANK, LIMITED Center
Telephone No. Suite 9651,
(212)553-0100 New York Branch New York,
New York 10048
=============================================================================
Only you, as Trustee, may make a drawing under this Letter of Credit.
Upon the payment of the amount specified in the related certificate(s)
presented hereunder, we shall be fully discharged of our obligation under
this Letter of Credit with respect to such certificate(s) and we shall not
thereafter be obligated to make any further payments under this Letter of
Credit in respect of such certificate(s) to you or any other person. By
paying to you an amount demanded in accordance herewith, we make no
representation as to the correctness of the amount demanded.
This Letter of Credit shall expire at our close of business in New York,
New York on the first to occur of the following dates (the "Termination
Date"): (x) November 30, 1993 or, if said date shall not be a Business Day,
on the Business Day next succeeding said date, or (y) the date of receipt by
us of your written certificate signed by a person purporting to be your
authorized officer, appropriately completed, in the form of Annex 3 hereto.
This Letter of Credit shall be promptly surrendered to us upon expiration.
Drawings in respect of payments hereunder honored by us shall not in the
aggregate, exceed the Stated Amount in effect immediately prior to such
drawing. Each drawing honored by us hereunder shall pro tanto reduce the
--- -----
Stated Amount in effect immediately prior to such drawing.
This Letter of Credit is subject to, and shall be governed by, the
Uniform Customs and Practice for Documentary Credits (1983 Revision),
International Chamber of Commerce, Publication No. 400 (the "Uniform
Customs"). This Letter of Credit shall be deemed to be made under the laws
of the State of New York, including Article 5 of the Uniform Commercial Code
of such State, and shall, as to matters not governed by the Uniform Customs,
be governed by and construed in accordance with the laws of the State of New
York.
Notwithstanding anything in Article 54(e) of the Uniform Customs to the
contrary, this Letter of Credit is transferable in its entirety (but not in
part) only to a successor Trustee under the Pooling and Servicing Agreement
upon presentation to us of this Letter of Credit accompanied by the transfer
form attached hereto as Annex 4, to the transferee specified therein.
All documents presented to us in connection with any demand for payment
hereunder, as well as all notices and other communications to us in respect
of this Letter of Credit, shall be in writing and addressed and presented to
us at our office at One World Trade Center, New York, New York 10048
Attention: Loan Administration and shall make specific reference to this
Letter of Credit by number. Such documents, notices and other communication
shall be personally delivered to us, or may be sent to us by tested telex or
over a telecopier (promptly confirmed by delivery of the written document,
notice or other communication, as the case may be, provided that such
confirmation shall not be a condition to the effectiveness of such demand for
payment, notice or other communication) to the following numbers, as
applicable:
Telex No.: 420615 (Answerback: SMTBK)
Telecopier No.: (212) 524-0612
This Letter of Credit sets forth in full our undertaking, and such
undertaking shall not in any way be modified, amended, amplified or
__________________ by reference to any document, instrument or agreement
referred to herein (including, without limitation, the Certificates), except
only Annex 1 through 4 hereto; and any such reference shall not be deemed to
incorporate herein by reference any document, instrument or agreement except
as set forth above.
Very Truly yours,
The Sumitomo Bank, Limited
By:_____________________________________
Name:
Title: