Exhibit 4.1
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TRANSFER AND ASSUMPTION AGREEMENT
TRANSFER AND ASSUMPTION AGREEMENT, dated and effective as of February 25,
1998 (this "Agreement"), by and among First Omni Bank, N.A., a national banking
association (the "Bank"), in its individual capacity and as Transferor and
Servicer, The Bank of New York, a banking corporation organized and existing
under the laws of the State of New York, as Trustee ("Trustee"), and Bank of
America National Association, a national banking association ("Successor"), as
successor Transferor and Servicer pursuant to the Pooling and Servicing
Agreement referred to below.
WITNESSETH
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WHEREAS, the Bank and Trustee are parties to the Pooling and Servicing
Agreement dated as of April 1, 1996, as supplemented by the Series 1996-A
Supplement dated as of April 1, 1996, and as amended or supplemented by
Assignment No. 1 of Receivables in Additional Accounts dated as of October 1,
1997 and by Assignment No. 2 of Receivables in Additional Accounts dated as of
February 2, 1998 (the "Pooling and Servicing Agreement"); and
WHEREAS, the Bank, Trustee and The Dai-Ichi Kangyo Bank, Limited, New York
Branch ("Collateral Interest Holder") are the parties to the Loan Agreement,
dated as of April 1, 1996 ("Loan Agreement"), pursuant to which, among other
things, the Collateral Interest was issued under the Pooling and Servicing
Agreement; and
WHEREAS, pursuant to a Purchase and Sale Agreement, dated as of
December 10, 1997, Successor is purchasing from the Bank, and the Bank is
selling to Successor, all or substantially all of the Bank's assets as an
entirety, including the Transferor Interest (as represented by the Transferor
Certificate) and the Bank's rights as Servicer; and
WHEREAS, the parties wish to provide for the transfer to Successor of all
rights granted to, and the assumption by Successor of the obligations of, the
Transferor and the Servicer, as contemplated by Sections 7.2 and 8.2 of the
Pooling and Servicing Agreement,
NOW, THEREFORE, the Bank, Trustee and Successor hereby agree as follows:
1. Defined Terms. All capitalized terms used in this Agreement without
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definition and defined in the Pooling and Servicing Agreement shall have the
meanings ascribed to them in the Pooling and Servicing Agreement.
2. Assumption of Transferor Obligations. (a) On and after the date of
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this Agreement, and pursuant to Section 7.2(a)
of the Pooling and Servicing Agreement, Successor (i) expressly assumes,
undertakes and agrees to be liable for the performance of each and every
covenant and obligation of Transferor, mutatis mutandis, and (ii) shall benefit
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from all rights granted to Transferor and the Holder of the Transferor
Certificate, under the Pooling and Servicing Agreement.
(b) On and after the date of this Agreement, the Bank shall be relieved of
all of its obligations as Transferor under the Pooling and Servicing Agreement,
other than obligations arising under the Pooling and Servicing Agreement prior
to the date of this Agreement.
3. Assumption of Servicer Obligations. (a) On and after the date of
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this Agreement, and pursuant to Section 8.2 of the Pooling and Servicing
Agreement, Successor (i) expressly assumes, undertakes and agrees to be liable
for the performance of each and every covenant and obligation of Servicer,
mutatis mutandis, and (ii) shall benefit from all rights granted to Servicer,
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under the Pooling and Servicing Agreement.
(b) On and after the date of this Agreement, the Bank shall be relieved of
all of its obligations as Servicer under the Pooling and Servicing Agreement,
other than obligations arising under the Pooling and Servicing Agreement prior
to the date of this Agreement.
4. The Loan Agreement. (a) Pursuant to Section 9.9(a) of the Loan
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Agreement, the Bank hereby assigns all of its rights and obligations under the
Loan Agreement to Successor and, on and after the date of this Agreement,
Successor (i) expressly assumes, undertakes and agrees to be liable for the
performance of each and every covenant and obligation of the Bank, Transferor
and Servicer, mutatis mutandis, and (ii) shall benefit from all rights granted
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to Transferor, Servicer and the Holder of the Transferor Certificate, under the
Loan Agreement.
(b) On and after the date of this Agreement, the Bank shall be relieved of
its obligations under the Loan Agreement, other than obligations arising under
the Loan Agreement prior to the date of this Agreement.
5. Representations and Warranties.
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(a) By the Bank. The Bank hereby represents and warrants to Trustee, on
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behalf of the Trust, and to Successor as follows:
(i) This Agreement constitutes a legal, valid and binding obligation
of the Bank enforceable against the Bank in accordance with its terms (except as
such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general princi-
ples of equity (whether considered in a suit at law or in equity)).
(ii) Successor is a Person eligible to assume the obligations of
Transferor and Servicer under the Pooling and Servicing Agreement.
(iii) As of the date of this Agreement, the Bank is not insolvent.
No Servicer Default, Trust Pay Out Event or Series 1996-A Pay Out Event, and no
event that with the giving of notice, the passage of time or both would
constitute a Servicer Default, Trust Pay Out Event or Series 1996-A Pay Out
Event, has occurred and is continuing or will occur as a result of the
transactions contemplated by this Agreement.
(iv) There are no proceedings or investigations pending or, to the
best knowledge of the Bank, threatened against the Bank before any court,
regulatory body, administrative agency or other tribunal or governmental
instrumentality asserting the invalidity of this Agreement or seeking to prevent
the consummation of any of the transactions contemplated by this Agreement.
(v) All authorizations, consents, orders or approvals or other
actions of any Person or of any court or other governmental authority required
to be obtained by the Bank in connection with the execution and delivery of
this Agreement by the Bank and the performance of the transactions contemplated
by this Agreement by the Bank, have been obtained.
(vi) Other than the Series 1996-A Supplement, the Assignment No. 1 of
Receivables in Additional Accounts dated as of October 1, 1997, the Assignment
No. 2 of Receivables in Additional Accounts dated as of February 2, 1998, the
Loan Agreement and the Irrevocable Letter of Credit No. 5960153, dated April 23,
1996, of The First National Bank of Maryland in favor of Trustee, there are no
amendments, supplements or agreements relating to, or forming a part of, the
Pooling and Servicing Agreement or the Loan Agreement.
(b) By Successor. Successor hereby represents and warrants to Trustee, on
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behalf of the Trust, and to the Bank as follows:
(i) This Agreement constitutes a legal, valid and binding obligation
of Successor, enforceable against Successor in accordance with its terms (except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and the rights of
creditors of national banking associations, and except as such enforceability
may be limited by general principles of equity (whether considered in a suit at
law or in equity)).
(ii) Successor is a national banking association duly organized,
validly existing and in good standing under the laws
of the United States of America, has the power and authority to execute and
deliver this Agreement and is a Person eligible to assume and perform the
obligations of Transferor and Servicer under the Pooling and Servicing
Agreement.
6. Acceptance by Trustee. Trustee hereby accepts the assumption by
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Successor of rights and obligations of the Bank as Transferor and Servicer under
the Pooling and Servicing Agreement, and from and after the date of this
Agreement, Successor shall be the Transferor and Servicer thereunder.
7. Further Assurances. The Bank agrees to do or take, or cause to be
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done or taken, all such things and actions as Successor or Trustee may
reasonably request in order to effect more fully the transfers contemplated by
this Agreement.
8. Ratification of Agreements. As supplemented and amended by this
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Agreement, the Pooling and Servicing Agreement and the Loan Agreement are in all
respects ratified and confirmed and each such agreement, as so supplemented and
amended by this Agreement, shall be read, taken and construed as one and the
same instrument.
9. Governing Law. To the extent that this Agreement relates to (i) the
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Pooling and Servicing Agreement, this Agreement shall be construed in
accordance with the laws of the State of Delaware, without giving effect to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws; provided,
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however, that the immunity and standard of care of the Trustee in the
administration of the Trust hereunder shall be governed by the laws of the State
of New York without reference to its conflict of law provisions, and (ii) the
Loan Agreement, this Agreement shall be governed by and construed in accordance
with the laws of the State of New York without giving effect to its conflict of
law provisions.
10. Counterparts. This Agreement may be executed in two or more
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counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the Bank, Trustee, Successor and Collateral Interest
Holder have caused this Agreement to be duly executed by their respective
officers as of the day and year first written above.
FIRST OMNI BANK, N.A., as Transfer or and Servicer
and in its individual capacity
By: ROBERT F. RAY
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Robert F. Ray
Vice President
THE BANK OF NEW YORK, Trustee
By: WUHAN DANSBY
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Wuhan Dansby
Assistant Vice President
BANK OF AMERICA NATIONAL ASSOCIATION,
Successor Transferor and Servicer
By: STEPHEN B. GALASSO
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Stephen B. Galasso
President and CEO
By: MARGARET A. SPRUDE
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Margaret A. Sprude
Senior Vice President and
Chief Financial Officer
CONSENTED TO BY THE MAJORITY INVESTORS
UNDER THE LOAN AGREEMENT:
THE DAI-ICHI KANGYO BANK,
LIMITED, NEW YORK BRANCH,
acting as Majority Investor
By: GREGG SILVER
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Gregg Silver
Vice President and Group
Leader