As filed with the Securities and Exchange Commission on May 20, 2004
Registration Nos. 333-107495 and 333-107495-01
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1 TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
GE Capital Credit Card Master Note Trust
(Issuer of the Notes)
(Exact name of registrant as specified in its charter)
Approximate date of commencement of proposed sale to the public: From time to time after this Registration Statement becomes effective as determined by market conditions.
If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, check the following box. o
If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. ý
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If delivery of the prospectus is expected to be made pursuant to Rule 434, check the following box. o
CALCULATION OF REGISTRATION FEE
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||||||||
Title of Each Class of
Securities to be Registered |
Amount to
be Registered |
Proposed Maximum
Offering Price Per Unit(1) |
Proposed Maximum
Aggregate Offering Price(1) |
Amount of
Registration Fee |
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Asset Backed Notes | $5,000,000,000 | 100% | $5,000,000,000 | $633,454.20(3) | ||||
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Note Trust Certificate(2) | $5,000,000,000 | | | | ||||
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The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until this registration statement shall become effective on such date as the Commission, acting pursuant to said Section 8(a), may determine.
Introductory Note
This registration statement includes:
The information in this prospectus supplement and the accompanying prospectus is not complete and may be amended. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus supplement and the accompanying prospectus are not an offer to sell and are not soliciting an offer to buy these securities in any state where the offer or sale is not permitted.
Subject to Completion, dated May 20, 2004
Prospectus Supplement to Prospectus dated , 200
GE Capital Credit Card Master Note Trust
Issuer
RFS Holding, L.L.C.
Transferor |
Monogram Credit Card Bank of Georgia
Servicer |
Series 200 - Asset Backed Notes
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Class A Notes
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Class B Notes
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Class C Notes
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|||
---|---|---|---|---|---|---|
Principal amount |
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$ |
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$ |
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$ |
Interest rate |
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[One-month LIBOR plus] [ ]% per year |
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[One-month LIBOR plus] [ ]% per year |
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[One-month LIBOR plus] [ ]% per year |
Interest payment dates |
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monthly on the 15th, beginning , 200 |
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monthly on the 15th, beginning , 200 |
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monthly on the 15th, beginning , 200 |
Expected principal payment date |
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200 |
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200 |
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200 |
Final maturity date |
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200 |
|
200 |
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200 |
Price to public |
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$ (or %) |
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$ (or %) |
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$ (or %) |
Underwriting discount |
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$ (or %) |
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$ (or %) |
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$ (or %) |
Proceeds to issuer |
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$ (or %) |
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$ (or %) |
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$ (or %) |
The notes will be paid from the issuer's assets consisting primarily of an interest in receivables in a portfolio of private label revolving credit card accounts owned by Monogram Credit Card Bank of Georgia.
We expect to issue your series of notes in book-entry form on or about , 200 .
You should consider carefully the risk factors beginning on page S-11 in this prospectus supplement and page 2 in the prospectus.
A note is not a deposit and neither the notes nor the underlying accounts or receivables are insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmental
agency. The notes are obligations of GE Capital Credit Card Master Note Trust only and are not obligations of RFS Holding, L.L.C., RFS Funding Trust, Monogram Credit Card Bank of Georgia, GE Consumer
Card Co., General Electric Capital Corporation or any other person. This prospectus supplement may be used to offer and sell the notes only if accompanied by the prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved these notes or determined that this prospectus supplement or the prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
Underwriters of the Class A notes
Underwriters of the Class B notes
Underwriters of the Class C notes
, 200
Important Notice about Information Presented in this
Prospectus Supplement and the Accompanying Prospectus
We (RFS Holding, L.L.C.) provide information to you about the notes in two separate documents: (a) the accompanying prospectus, which provides general information, some of which may not apply to your series of notes, and (b) this prospectus supplement, which describes the specific terms of your series of notes.
Whenever the information in this prospectus supplement is more specific than the information in the accompanying prospectus, you should rely on the information in this prospectus supplement.
You should rely only on the information provided in this prospectus supplement and the accompanying prospectus, including the information incorporated by reference. We have not authorized anyone to provide you with different information. We are not offering the notes in any state where the offer is not permitted.
We include cross references in this prospectus supplement and the accompanying prospectus to captions in these materials where you can find further related discussions. The following Table of Contents and the Table of Contents in the accompanying prospectus provide the pages on which these captions are located.
i
Page
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SUMMARY OF TERMS | S-1 | |||
SERIES 200 - | S-1 | |||
OFFERED NOTES | S-2 | |||
STRUCTURAL SUMMARY | S-3 | |||
The Issuer | S-3 | |||
Collateral for the Notes | S-3 | |||
Other Claims on the Transferred Receivables | S-3 | |||
Other Series of Notes | S-4 | |||
Equity Amount | S-4 | |||
Allocations of Collections and Losses | S-4 | |||
Application of Finance Charge Collections | S-5 | |||
Application of Principal Collections | S-6 | |||
Revolving Period | S-6 | |||
Controlled Accumulation Period | S-6 | |||
Early Amortization Period | S-6 | |||
Reallocation of Principal Collections | S-6 | |||
Extra Principal Collections | S-7 | |||
Credit Enhancement | S-7 | |||
Subordination | S-7 | |||
Spread Account | S-7 | |||
[Interest Rate Swaps] | S-8 | |||
Early Amortization Events | S-8 | |||
Events of Default | S-9 | |||
Optional Redemption | S-9 | |||
Tax Status | S-9 | |||
ERISA Considerations | S-9 | |||
Risk Factors | S-10 | |||
Ratings | S-10 | |||
[Exchange Listing] | S-10 | |||
RFS Holding, L.L.C. | S-10 | |||
RISK FACTORS | S-11 | |||
RECEIVABLES PERFORMANCE | S-12 | |||
Delinquency and Loss Experience | S-12 | |||
Revenue Experience | S-14 | |||
THE TRUST PORTFOLIO | S-15 | |||
MATURITY CONSIDERATIONS | S-18 | |||
Controlled Accumulation Period | S-18 | |||
Early Amortization Period | S-18 | |||
Payment Rates | S-18 | |||
DESCRIPTION OF SERIES PROVISIONS | S-19 | |||
General | S-19 | |||
Collateral Amount | S-20 | |||
Allocation Percentages | S-20 | |||
Interest Payments | S-21 | |||
[Interest Rate Swaps] | S-22 | |||
[Interest Rate Swap Counterparty] | S-22 | |||
Principal Payments | S-22 | |||
Controlled Accumulation Period | S-23 | |||
Early Amortization Period | S-24 | |||
Subordination | S-24 | |||
Application of Finance Charge Collections | S-25 | |||
Reallocation of Principal Collections | S-26 | |||
Investor Charge-Offs | S-26 | |||
Sharing Provisions | S-27 | |||
Principal Accumulation Account | S-27 | |||
Excess Collateral Amount | S-28 | |||
Reserve Account | S-29 | |||
Spread Account | S-30 | |||
Spread Account Distributions | S-31 | |||
Early Amortization Events | S-31 | |||
Events of Default | S-32 | |||
Servicing Compensation and Payment of Expenses | S-33 | |||
UNDERWRITING | S-33 | |||
LEGAL MATTERS | S-35 | |||
GLOSSARY OF TERMS FOR PROSPECTUS SUPPLEMENT | S-36 | |||
OTHER SERIES OF NOTES ISSUED AND OUTSTANDING | A-1-1 | |||
OTHER BENEFICIAL INTERESTS ISSUED BY RFS FUNDING TRUST | A-2-1 |
ii
Issuer: |
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GE Capital Credit Card Master Note Trust |
Transferor: |
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RFS Holding, L.L.C. |
Servicer: |
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Monogram Credit Card Bank of Georgia |
Indenture Trustee: |
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Deutsche Bank Trust Company Americas |
Owner Trustee: |
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The Bank of New York (Delaware) |
Expected Closing Date: |
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, 200 |
Commencement of Accumulation Period (subject to adjustment): |
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, 200 |
Expected Principal Payment Date |
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, 200 |
Final Maturity Date: |
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, 200 |
Clearance and Settlement: |
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DTC/Clearstream/Euroclear |
Minimum Denominations: |
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$1,000 |
Servicing Fee Rate: |
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2% per year |
Initial Collateral Amount: |
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Required Retained Transferor Percentage: |
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[ ]% |
Primary Assets of the Issuer: |
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An interest in receivables in a portfolio of private label revolving credit card accounts owned by Monogram Credit Card Bank of Georgia |
Offered Notes: |
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The Class A, Class B and Class C notes are offered by this prospectus supplement and the accompanying prospectus |
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Class
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Amount
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% of Initial Collateral Amount
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Class A notes | $ | ||||||
Class B notes | |||||||
Class C notes | |||||||
Excess collateral amount | |||||||
Initial collateral amount | $ | $ | 100 | % |
S-1
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Class A
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Class B
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Class C
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Principal Amount: |
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$ |
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$ |
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$ |
Anticipated Ratings: 1 (Moody's/S&P/Fitch) |
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Aaa/AAA/AAA |
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A2/A/A |
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Baa2/BBB/BBB |
Credit Enhancement: |
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subordination of Class B and Class C and excess collateral amount |
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subordination of Class C and excess collateral amount |
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excess collateral amount and spread account |
Interest Rate: |
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[One-month LIBOR plus] [ ]% per year |
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[One-month LIBOR plus] [ ]% per year |
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[One-month LIBOR plus] [ ]% per year |
Interest Accrual Method: |
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[30] [actual]/360 |
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[30] [actual]/360 |
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[30] [actual]/360 |
Interest Payment Dates: |
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monthly (15th), beginning , 200 |
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monthly (15th), beginning , 200 |
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monthly (15th), beginning , 200 |
[Interest Rate Index Reset Date:] |
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[2 London business days before each interest payment date] |
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[2 London business days before each interest payment date] |
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[2 London business days before each interest payment date] |
ERISA eligibility: |
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Yes, subject to important considerations described under " ERISA Considerations " in the accompanying prospectus. |
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Debt for United States Federal Income Tax Purposes: |
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Yes, subject to important considerations described under " Federal Income Tax Consequences " in the accompanying prospectus. |
S-2
This summary is a simplified presentation of the major structural components of Series 200 - . It does not contain all of the information that you need to consider in making your investment decision. You should carefully read this entire document and the accompanying prospectus before you purchase any notes.
The Issuer
The notes will be issued by GE Capital Credit Card Master Note Trust, a Delaware statutory trust, under an indenture supplement to an indenture, each between the issuer and the indenture trustee. The issuer's principal offices are at the following address: c/o General Electric Capital Corporation, as administrator, 1600 Summer Street, Stamford, CT 06927. The issuer's phone number is (203) 585-6586.
The indenture trustee is Deutsche Bank Trust Company Americas.
Collateral for the Notes
The notes are secured by a beneficial ownership interest in a pool of receivables that arise under certain of Monogram Credit Card Bank of Georgia's private label revolving credit card accounts.
Initially, the primary asset of the issuer will be a note trust certificate that RFS Funding Trust will issue to us, and we will transfer to the issuer. The note trust certificate represents a beneficial ownership interest in a designated pool of the credit card receivables that are owned by RFS Funding Trust and other related designated assets of RFS Funding Trust. We refer to the receivables in which the note trust certificate represents a beneficial ownership interest as the transferred receivables, and we refer to the accounts that have been designated as trust accounts as the trust portfolio.
In the future, we expect RFS Funding Trust to terminate, at which time the transferred receivables remaining in RFS Funding Trust will be transferred to the issuer and held directly by the issuer. Thereafter, we will transfer newly arising receivables directly to the issuer. References to the transferred receivables in this prospectus supplement and the prospectus also include any receivables that we transfer directly to the issuer in the future. We refer to the entityeither RFS Funding Trust or the issuerthat holds the transferred receivables at any given time as the trust.
The transferred receivables in RFS Funding Trust as of , 200 were approximately as follows:
Other Claims on the Transferred Receivables
RFS Funding Trust has obtained a loan that is secured by an undivided beneficial interest in the transferred receivables. RFS Funding Trust may in the future issue additional beneficial interests in the transferred receivables. Collections on the transferred receivables, as well as defaulted receivables and dilution, will be allocated among the issuer and the holders of any other beneficial interests in the transferred receivables issued by RFS Funding Trust, from time to time, including the beneficial interest securing the current loan to RFS Funding Trust.
S-3
The allocations will be based on the respective interests of each holder of a beneficial interest in the transferred receivables as described in the accompanying prospectus under the caption " The Trust Portfolio. " The issuer's percentage interest in the transferred principal receivables is referred to as the note trust percentage and is calculated as described in the " Glossary of Terms For Prospectus " in the accompanying prospectus. Neither you nor any other noteholder will have the right to consent to the issuance by RFS Funding Trust of future beneficial interests in the transferred receivables.
Other Series of Notes
Series 200 - is the [ ] series of notes issued by the issuer. The issuer may issue other series of notes from time to time in the future. A summary of the outstanding series of notes is in " Annex I: Other Securities Issued and Outstanding " included at the end of this prospectus supplement. Neither you nor any other noteholder will have the right to consent to the issuance of future series of notes.
Equity Amount
We refer to the excess of the total amount of principal receivables held by the issuer directly or through the note trust certificate, or any participation interests held by the issuer, plus any balance in the excess funding account, over the aggregate outstanding principal amount of all of the issuer's notes as the equity amount. To provide support for your notes, we are required to maintain a minimum equity amount in the issuer equal to the excess collateral amount for your notes. The excess collateral amount provides credit enhancement by absorbing losses and uncovered dilution on the transferred receivables allocated to your series to the extent not covered by finance charge collections available to your series.
The equity amount at any time may exceed the excess collateral amount for your series and any excess collateral amounts required to be maintained for other series of notes. We refer to this excess amount, if any, as the free equity amount.
The excess collateral amount for your series, and a portion of the free equity amount, if any, also enhance the likelihood of timely payment of principal on your notes through cash flow subordination because of two features of your series.
Allocations of Collections and Losses
Your notes represent the right to receive principal and interest, which is secured in part by the right to payments from a portion of the collections on the transferred receivables. The servicer, on behalf of the issuer, will allocate to the collateral amount for your series a portion of defaulted receivables and would also allocate a portion of the dilution on the transferred receivables to the collateral amount for your series if the dilution is not offset by the free equity amount and we fail to comply with our obligation to reimburse the trust for the dilution. Dilution means any reduction to the principal balances of the transferred receivables because of merchandise returns or any other reason except losses or payments.
The portion of collections, defaulted receivables and uncovered dilution allocated to the collateral amount for your series will be based mainly upon the ratio of the collateral amount for your series to the aggregate amount of principal receivables securing the notes. The way this ratio is calculated will vary during each of three periods that will or may apply to your notes:
S-4
For most purposes, the collateral amount used in determining these ratios will be reset no less frequently than at the end of each month. However, for allocations of principal collections during the controlled accumulation period or the early amortization period, the collateral amount as of the end of the revolving period will be used.
The initial collateral amount for your series will equal $[ ]. The collateral amount will thereafter be reduced by:
Any reduction to the collateral amount because of reallocated principal collections, defaults or uncovered dilution will be reversed to the extent that your series has finance charge collections and investment earnings available for this purpose in future periods.
Application of Finance Charge Collections
The issuer will apply your series' share of collections of finance charge receivables, net swap receipts, recoveries and investment earnings each month in the following order of priority:
S-5
and uncovered dilution allocated to your series and from reallocated principal collections, in each case that have not been previously reversed;
Similar amounts that are initially allocated to another series will be used to cover any shortfalls to the extent those amounts are not needed by those other series and the excess funds are allocated to your series as described in " Description of the NotesShared Excess Finance Charge Collections " in the accompanying prospectus.
Application of Principal Collections
The issuer will apply your series' share of collections of principal receivables each month as follows:
Revolving Period
During the revolving period, no principal will be paid to, or accumulated for, your series.
Controlled Accumulation Period
During the controlled accumulation period, your series' share of principal collections will be deposited in a principal accumulation account, up to a specified deposit amount on each payment date. Unless an early amortization event occurs, amounts on deposit in that account will be paid on the expected principal payment date first to the Class A noteholders, then to the Class B noteholders and then to the Class C noteholders, in each case until the specified class of notes is paid in full or the amounts available are depleted.
Early Amortization Period
An early amortization period for your series will start if an early amortization event occurs. The early amortization events for your series are described below in this summary and under " Description of Series ProvisionsEarly Amortization Events " in this prospectus supplement. During the early amortization period, your series' share of principal collections will be paid monthly first to the Class A noteholders, then to the Class B noteholders and then to the Class C noteholders, in each case until the specified class of notes is paid in full.
Reallocation of Principal Collections
During any of the above periods, principal collections allocated to your series may be reallocated, if necessary, to make required payments of interest on the Class A notes, the Class B notes and the Class C notes, net swap payments due from the issuer and monthly servicing fee payments not made from your series' share of finance charge collections and other amounts treated as finance charge collections and excess finance charge collections available from other series that share with your series. This reallocation is one of the ways that the notes obtain the benefit of subordination, as described in the next section of this summary. The amount of reallocated principal collections is limited by the amount of available subordination.
S-6
Extra Principal Collections
At all times, collections of principal receivables allocated to your series that are not needed for payments on your series will be: first, made available to other series, second, deposited in the excess funding account if needed to maintain the minimum free equity amount for the issuer and third, distributed to us or our assigns.
Credit Enhancement
Credit enhancement for your series includes subordination and a spread account, which provides credit enhancement primarily for the benefit of the Class C notes.
Credit enhancement for your series is for your series' benefit only, and you are not entitled to the benefits of credit enhancement available to other series.
Subordination
Credit enhancement for the Class A notes includes the subordination of the Class B notes, the Class C notes and the excess collateral amount.
Credit enhancement for the Class B notes includes the subordination of the Class C notes and the excess collateral amount.
Credit enhancement for the Class C notes includes the subordination of the excess collateral amount.
Subordination serves as credit enhancement in the following way. The more subordinated, or junior, classes of notes will not receive payment of interest or principal until required payments have been made to the more senior classes. As a result, subordinated classes will absorb any shortfalls in collections or deterioration in the collateral for the notes prior to senior classes. The excess collateral amount for your series is subordinated to all of the classes of notes, so it will absorb shortfalls and collateral deterioration before any class of notes.
Spread Account
A spread account will provide additional credit enhancement for your series, primarily for the benefit of the Class C notes. The spread account initially will not be funded. After the 200 - notes are issued, deposits into the spread account will be made each month from finance charge collections allocated to your series, other amounts treated as finance charge collections and excess finance charge collections available from other series up to the required spread account amount.
The spread account will be used to make interest payments on the Class C notes [and net swap payments due from the issuer under the Class C interest rate swap] if finance charge collections allocated to your series, other amounts treated as finance charge collections and excess finance charge collections available from other series are insufficient to make those payments.
Unless an early amortization event occurs, the amount, if any, remaining on deposit in the spread account on the expected principal payment date for the Class C notes, after making the payments described in the preceding paragraph, will be applied to pay principal on the Class C notes, to the extent that the Class C notes have not been paid in full after application of all principal collections on that date. Except as provided in the following paragraph, if an early amortization event occurs, the amount, if any, remaining on deposit in the spread account, after making the payments described in the preceding paragraph, will be applied to pay principal on the Class C notes on the earlier of the final maturity date and the first payment date on which the outstanding principal amount of the Class A and Class B notes has been paid in full.
In addition, on any day after the occurrence of an event of default with respect to Series 200 - and the acceleration of the maturity date, the indenture trustee will withdraw from the spread account the outstanding amount on deposit in the spread account and deposit that amount in the distribution account for distribution to the Class C noteholders, Class A noteholders and Class B noteholders, in that order of priority, to fund any shortfalls in amounts owed to those noteholders.
S-7
[Interest Rate Swaps
The issuer will enter into an interest rate swap for the Class A notes, an interest rate swap for the Class B notes and an interest rate swap for the Class C notes, each covering the period from the closing date through the [expected principal payment date] [final maturity date].
The notional amounts of the Class A interest rate swap, the Class B interest rate swap and the Class C interest rate swap will, for each interest period, equal the outstanding principal balances of the Class A, Class B and Class C notes, respectively, as of the end of the first day of the related interest period. Under each swap, on each payment date, if one-month LIBOR for the related interest period exceeds a specified fixed rate the issuer will receive payments from the swap counterparty equal to:
rate | Class A, B or C | days in interest period | ||||||
differential | x | principal balance, | x |
|
||||
as applicable | 360 |
where the rate differential equals one-month LIBOR for the related interest period minus the specified fixed rate. Alternatively, if one-month LIBOR for the related interest period is less than the applicable specified fixed rate, the issuer will be required to make a payment to the swap counterparty equal to the result of the equation shown above, where the rate differential equals the specified fixed rate minus one-month LIBOR for the related interest perio. The specified fixed rate for the Class A interest rate swap is [ ]% per year. The specified fixed rate for the Class B interest rate swap is [ ]% per year. The specified fixed rate for the Class C interest rate swap is [ ]% per year.
The interest rate swaps are more fully described in " Description of Series ProvisionsInterest Rate Swaps ."]
Early Amortization Events
The issuer will begin to repay the principal of the notes before the expected principal payment date if an early amortization event occurs. An early amortization event will occur if the finance charge collections on the receivables are too low or if defaults on the receivables are too high. The minimum amount that must be available for payments to your series in any monthly period, referred to as the base rate, is the result, expressed as a percentage, of the sum of the interest payable on the Series 200 - notes and any net swap payments due from the issuer for the related interest period, plus your series' share of the servicing fee for the related monthly period divided by the sum of collateral amount and amounts on deposit in the principal accumulation account, each as of the last day of that period. If the average net yield for the trust portfolio, after deducting defaulted receivables net of recoveries and your series' share of uncovered dilution and adding net swap receipts, for any three consecutive monthly periods is less than the average base rate for the same three consecutive monthly periods, an early amortization event will occur.
The other early amortization events are:
S-8
Events of Default
The Series 200 - notes are subject to events of default described under " The IndentureEvents of Default; Rights upon Event of Default " in the accompanying prospectus. These include, among other things, the failure to pay interest for 35 days after it is due or to pay all amounts due on the final maturity date.
In the case of an event of default involving bankruptcy, insolvency or similar events relating to the issuer, the principal amount of the Series 200 - notes automatically will become immediately due and payable. If any other event of default occurs and continues with respect to the Series 200 - notes, the indenture trustee or holders of not less than a majority of the then-outstanding principal balance of the Series 200 - notes may declare the principal amount of the Series 200 - notes to be immediately due and payable. These declarations may be rescinded by holders of not less than a majority of the then-outstanding principal balance of the Series 200 - notes if the related event of default has been cured, subject to the conditions described under " The IndentureEvents of Default; Rights upon Event of Default " in the accompanying prospectus.
After an event of default and the acceleration of the 200 - notes, funds allocated to the 200 - notes and on deposit in the collection account, the excess funding account and the other trust accounts will be applied to pay principal of and interest on the 200 - notes to the extent permitted by law. Principal collections and finance charge collections allocated to Series 200 - will be applied to make monthly principal and interest payments on the 200 - notes until the earlier of the date those notes are paid in full or the final maturity date of those notes.
If the 200 - notes are accelerated or the issuer fails to pay the principal of the 200 - notes on the final maturity date, subject to the conditions described in the prospectus under " The IndentureEvents of Default; Rights upon Event of Default ", the indenture trustee may, if legally permitted, cause the trust to sell principal receivables in an amount equal to the collateral amount for 200 - and the related finance charge receivables.
Optional Redemption
We have the option to purchase the collateral amount for your series when the outstanding principal amount for your series has been reduced to 10% or less of the initial principal amount, but only if the purchase price paid to the issuer is sufficient to pay in full all amounts owing to the noteholders and any swap counterparty. The purchase price for your series will equal the collateral amount for your series plus the applicable allocation percentage of finance charge receivables. See " Description of the NotesFinal Payment of Principal " in the accompanying prospectus.
Tax Status
Subject to important considerations described under " Federal Income Tax Consequences " in the accompanying prospectus, Mayer, Brown, Rowe & Maw LLP as tax counsel to the issuer, is of the opinion that under existing law the Class A, Class B and Class C notes will be characterized as debt for federal income tax purposes and that neither RFS Funding Trust nor the issuer will be classified as an association or constitute a publicly traded partnership taxable as a corporation for U.S. federal income tax purposes. By your acceptance of a 200 - note, you will agree to treat your 200 - notes as debt for federal, state and local income and franchise tax purposes. See " Federal Income Tax Consequences " in the accompanying prospectus for additional information concerning the application of federal income tax laws.
ERISA Considerations
Subject to important considerations described under " ERISA Considerations " in the accompanying prospectus, the Class A, Class B and Class C notes are eligible for purchase by persons investing assets of employee benefit plans or individual retirement accounts. Each purchaser will be deemed to represent that its purchase and holding of the notes will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Internal Revenue
S-9
Code which is not covered by a prohibited transaction exemption. If you are contemplating purchasing the Series 200 - notes on behalf of or with plan assets of any plan or account, we suggest that you consult with counsel regarding whether the purchase or holding of the Series 200 - notes could give rise to a prohibited transaction under ERISA or Section 4975 of the Internal Revenue Code.
Risk Factors
There are material risks associated with an investment in the Series 200 - notes, and you should consider the matters set forth under " Risk Factors " beginning on page S-11 and on page 2 of the accompanying prospectus.
Ratings
It is a condition to the issuance of your notes that one of the ratings set forth for each class of Series 200 - notes under the caption " Offered Notes " above be obtained.
Any rating assigned to the notes by a credit rating agency will reflect the rating agency's assessment solely of the likelihood that noteholders will receive the payments of interest and principal required to be made under the terms of the series and will be based primarily on the value of the transferred receivables and the credit enhancement provided. The rating is not a recommendation to purchase, hold or sell any notes. The rating does not constitute a comment as to the marketability of any notes, any market price or suitability for a particular investor. Any rating can be changed or withdrawn by a rating agency at any time.
[Exchange Listing
We will apply to list the Series 200 - notes on the Luxembourg Stock Exchange. We cannot guarantee that the application for the listing will be accepted.]
RFS Holding, L.L.C.
Our address is 1600 Summer Street, Stamford, Connecticut 06927. Our phone number is (203) 585-6669.
S-10
This prospectus supplement uses defined terms. You can find a glossary of terms under the caption " Glossary of Terms for Prospectus Supplement " beginning on page S-36 in this prospectus supplement and under the caption "Glossary of Terms for Prospectus" beginning on page 80 in the accompanying prospectus.
In addition to the risk factors described in the prospectus, you should consider the following.
It may not be possible to find a purchaser for your securities.
There is currently no public secondary market for the notes and we cannot assure you that one will develop. Thus you may not be able to resell your notes at all, or may be able to do so only at a substantial discount. The underwriters may assist in resales of the notes, but they are not required to do so. We do not intend to apply [for listing of the notes on any securities exchange or] for the inclusion of the notes on any automated quotation system. A trading market for the notes may not develop. If a trading market does develop, it might not continue or it might not be sufficiently liquid to allow you to resell any of your notes.
If the ratings of the notes are lowered or withdrawn, the market value of the notes could decrease
It is a condition to the issuance of the notes that they receive the ratings from the rating agencies set forth under the caption " Offered Notes " in this prospectus supplement. A rating is not a recommendation to purchase, hold or sell the notes, inasmuch as the rating does not comment as to market price or suitability for a particular investor. The ratings of the notes address the likelihood of the timely payment of interest and the ultimate repayment of principal of the notes pursuant to their respective terms. There is no assurance that a rating will remain for any given period of time or that a rating will not be lowered or withdrawn entirely by a rating agency if in its judgment circumstances in the future so warrant. The ratings of the notes are based primarily on the value of the transferred receivables, and the credit enhancement provided. In the event that the rating initially assigned to any notes is subsequently lowered or withdrawn for any reason, you may not be able to resell your notes without a substantial discount.
Payments on the Class B notes are subordinate to payments on the Class A notes.
If you buy Class B notes, your interest payments will be subordinate to interest payments on the Class A notes, and your principal payments will be subordinate to principal payments on the Class A Notes as follows:
As a result of these features, any decrease in the collateral amount for your series due to charge-offs, dilution or reallocation of principal will reduce payments on the Class B notes before reducing payments on the Class A notes.
S-11
Payments on the Class C notes are subordinate to payments on the Class A notes and the Class B notes.
If you buy Class C notes, your interest payments will be subordinate to interest payments on the Class A notes and the Class B notes, and your principal payments will be subordinate to principal payments on the Class A notes and Class B notes as follows:
As a result of these features, any decrease in the collateral amount for your series due to charge-offs, dilution or reallocation of principal will reduce payments on the Class C notes before reducing payments on the Class B notes or Class A notes.
The trust portfolio includes a subset of the accounts arising in the bank's private label programs for specified retailers. We refer to these specified retailers as the "approved retailers" and the accounts, whether or not designated for inclusion in the trust portfolio, arising in the private label programs for the approved retailers as the "bank's approved portfolio." The private label programs for the approved retailers [constituting more than [ ]% of the accounts in the trust portfolio] are listed in the table " Composition by Retailer Trust Portfolio " under " The Trust Portfolio " below.
The tables below contain performance information for the receivables in the bank's approved portfolio for each of the periods shown. The composition of the bank's approved portfolio is expected to change over time and accounts arising in the private label programs for additional retailers may be added to the bank's approved portfolio and the trust portfolio in the future. Because the trust portfolio is only a subset of the bank's approved portfolio, the actual performance of the transferred receivables may be different from that set forth below.
Delinquency and Loss Experience
The following tables set forth the aggregate delinquency and loss experience for cardholder payments on the credit card accounts in the bank's approved portfolio for each of the dates or periods shown. Receivables outstanding includes both principal receivables and finance charge receivables and Gross Charge-Offs include charge-offs of both principal receivables and finance charge receivables. Average receivables outstanding is the average of the total receivables balances as of the last day of each fiscal month for the bank in the period indicated.
We cannot assure you that the future delinquency and loss experience for the receivables in either the bank's approved portfolio or the trust portfolio will be similar to the historical experience for the bank's approved portfolio set forth below.
S-12
Delinquency Experience
(Dollars in Thousands)
|
|
|
As of December 31,
|
|||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
As of
March 31, 2004 |
|||||||||||||||
|
2003
|
2002
|
||||||||||||||
|
Receivables
|
Percentage of
Average Receivables Outstanding |
Receivables
|
Percentage of
Average Receivables Outstanding |
Receivables
|
Percentage of
Average Receivables Outstanding |
||||||||||
Average Receivables Outstanding | $ | 11,946,420 | $ | 11,391,668 | $ | 10,906,950 | ||||||||||
Receivables Delinquent | ||||||||||||||||
30-59 Days | 262,019 | 2.19 | % | 287,180 | 2.52 | % | 273,203 | 2.50 | % | |||||||
60-89 Days | 143,068 | 1.20 | % | 152,940 | 1.34 | % | 151,829 | 1.39 | % | |||||||
90 or More Days | 284,037 | 2.38 | % | 300,485 | 2.64 | % | 290,852 | 2.67 | % | |||||||
|
|
|
|
|
|
|||||||||||
Total | $ | 689,124 | 5.77 | % | $ | 740,605 | 6.50 | % | $ | 715,884 | 6.56 | % |
|
As of December 31,
|
||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
|
2001
|
2000
|
|||||||||
|
Receivables
|
Percentage of
Average Receivables Outstanding |
Receivables
|
Percentage of
Average Receivables Outstanding |
|||||||
Average Receivables Outstanding | $ | 10,267,742 | $ | 7,621,771 | |||||||
Receivables Delinquent | |||||||||||
30-59 Days | 251,973 | 2.45 | % | 170,688 | 2.24 | % | |||||
60-89 Days | 140,710 | 1.37 | % | 86,469 | 1.13 | % | |||||
90 or More Days | 268,474 | 2.61 | % | 134,224 | 1.76 | % | |||||
|
|
|
|
||||||||
Total | $ | 661,157 | 6.44 | % | $ | 391,381 | 5.14 | % |
S-13
Loss Experience
(Dollars in Thousands)
|
3 Fiscal
Months Ended |
Fiscal Year
|
||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
March 27,
2004 |
2003
|
2002
|
2001
|
2000
|
|||||||||||
Average Receivables Outstanding |
|
$ |
11,946,420 |
|
$ |
11,391,668 |
|
$ |
10,906,950 |
|
$ |
10,267,742 |
|
$ |
7,621,771 |
|
Gross Charge-Offs |
|
$ |
309,035 |
|
$ |
1,250,701 |
|
$ |
1,196,944 |
|
$ |
926,955 |
|
$ |
440,798 |
|
Recoveries |
|
$ |
34,597 |
|
$ |
125,888 |
|
$ |
111,973 |
|
$ |
87,144 |
|
$ |
80,226 |
|
Net Charge-Offs |
|
$ |
274,438 |
|
$ |
1,124,813 |
|
$ |
1,084,971 |
|
$ |
839,811 |
|
$ |
360,572 |
|
Net Charge-Offs as a percentage of Average Receivables Outstanding (annualized) |
|
|
9.19 |
% |
|
9.87 |
% |
|
9.95 |
% |
|
8.18 |
% |
|
4.73 |
% |
Revenue Experience
The gross revenues from finance charges and fees related to accounts in the bank's approved portfolio for each of the periods shown are set forth in the following table. Fees include late fees and returned check fees. The amounts of Total Finance Charges and Fees reflected in the following table represent billed amounts before reductions for charge-offs, fraud, customer disputes and other expenses and after reductions for returned merchandise.
We cannot assure you that the future revenue experience for the receivables in either the bank's approved portfolio or the trust portfolio will be similar to the historical experience for the bank's approved portfolio set forth below.
Revenue Experience
(Dollars in Thousands)
|
3 Fiscal
Months Ended |
Fiscal Year
|
||||||||||||||
---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
|
March 27,
2004 |
2003
|
2002
|
2001
|
2000
|
|||||||||||
Average Receivables Outstanding | $ | 11,946,420 | $ | 11,391,668 | $ | 10,906,950 | $ | 10,267,742 | $ | 7,621,771 | ||||||
Total Finance Charges and Fees | $ | 868,213 | $ | 3,121,395 | $ | 2,977,896 | $ | 2,835,638 | $ | 1,855,258 | ||||||
Total Finance Charges and Fees as a percentage of Average Receivables Outstanding (annualized) | 29.07 | % | 27.40 | % | 27.30 | % | 27.62 | % | 24.34 | % |
S-14
The receivables to be conveyed to the trust have been or will be generated from transactions made by holders of credit card accounts included in the trust portfolio. A description of the bank's credit card business is contained in the prospectus under the caption " The Bank's Credit Card Activities. "
As of the end of the day on [ ], 200[ ]:
The following tables summarize the trust portfolio by various criteria as of the end of the day on [ ], 200[ ], except that the Composition by Retailer Trust Portfolio table summarizes the retailers included in the trust portfolio as of the end of the day on [ ], 200[ ]. Because the future composition of the trust portfolio will change over time, these tables are not indicative of the composition of the trust portfolio at any subsequent time.
Composition by Retailer Trust Portfolio
Retailer
|
Number
of Accounts |
Percentage
of Number of Accounts |
Principal
Receivables Outstanding |
Percentage
of Principal Receivables Outstanding |
||||
---|---|---|---|---|---|---|---|---|
[ ] | ||||||||
[ ] | ||||||||
[ ] | ||||||||
[ ] | ||||||||
[ ] |
S-15
Composition by Account Balance
Trust Portfolio
Account Balance Range
|
Number of
Accounts |
Percentage of
Number of Accounts |
Principal
Receivables Outstanding |
Percentage of
Principal Receivables Outstanding |
||||||
---|---|---|---|---|---|---|---|---|---|---|
Credit Balance | ||||||||||
No Balance | ||||||||||
$.01-$100.00 | ||||||||||
$100.01-$250.00 | ||||||||||
$250.01-$500.00 | ||||||||||
$500.01-$750.00 | ||||||||||
$750.01-$1,000.00 | ||||||||||
$1,000.01-$1,250.00 | ||||||||||
$1,250.01-$1,500.00 | ||||||||||
$1,500.01-$2,000.00 | ||||||||||
$2,000.01-$2,500.00 | ||||||||||
$2,500.01-$3,000.00 | ||||||||||
$3,000.01-$4,000.00 | ||||||||||
$4,000.01-$5,000.00 | ||||||||||
$5,000.01 or more | ||||||||||
Total | 100.00 | % | 100.00 | % |
S-16
Composition by Credit Limit
Trust Portfolio
Credit Limit Range
|
Number of
Accounts |
Percentage of
Number of Accounts |
Principal
Receivables Outstanding |
Percentage of
Principal Receivables Outstanding |
||||||
---|---|---|---|---|---|---|---|---|---|---|
$.01-$100.00 | ||||||||||
$100.01-$250.00 | ||||||||||
$250.01-$500.00 | ||||||||||
$500.01-$750.00 | ||||||||||
$750.01-$1,000.00 | ||||||||||
$1,000.01-$1,250.00 | ||||||||||
$1,250.01-$1,500.00 | ||||||||||
$1,500.01-$2,000.00 | ||||||||||
$2,000.01-$2,500.00 | ||||||||||
$2,500.01-$3,000,00 | ||||||||||
$3,000.01-$4,000,00 | ||||||||||
$4,000.01-$5,000,00 | ||||||||||
$5,000.01 or more | ||||||||||
Total | 100.00 | % | 100.00 | % |
Composition by Account Age
Trust Portfolio
Age
|
Number of
Accounts |
Percentage of
Number of Accounts |
Principal
Receivables Outstanding |
Percentage of
Principal Receivables Outstanding |
||||||
---|---|---|---|---|---|---|---|---|---|---|
Not More than 12 Months | ||||||||||
Over 12 Months to 24 Months | ||||||||||
Over 24 Months to 36 Months | ||||||||||
Over 36 Months to 48 Months | ||||||||||
Over 48 Months to 60 Months | ||||||||||
Over 60 Months | ||||||||||
Total | 100.00 | % | 100.00 | % |
Cardholders whose accounts are designated for the trust portfolio had billing addresses in all 50 states and the District of Columbia except for % of the aggregate total principal receivable balance for which cardholders had billing addresses located outside of the United States or the District of Columbia. Except for the five states listed below, no state accounted for more than 5% of the number of accounts or 5% of the total principal receivables balances as of [ ], 200[ ].
Geographic Distribution of Accounts Trust Portfolio
|
Percentage of
Number of Accounts |
Percentage of
Principal Receivables Outstanding |
||
---|---|---|---|---|
California | ||||
Florida | ||||
North Carolina | ||||
Texas | ||||
Pennsylvania |
S-17
Series 200 - will always be in one of three periodsthe revolving period, the controlled accumulation period or the early amortization period. Unless an early amortization event occurs, each class of notes will not receive payments of principal until the expected principal payment date for that class. The expected principal payment date for the Class A, Class B and Class C notes will be the payment date in [ ] 200[ ]. We expect, but cannot assure you, that the issuer will have sufficient funds to pay the full principal amount of each class of Series 200 - notes on the expected principal payment date. However, if an early amortization event occurs, principal payments for the Series 200 - notes may begin prior to the expected principal payment date.
Controlled Accumulation Period
During the controlled accumulation period, principal allocated to the Series 200 - noteholders will accumulate in the principal accumulation account in an amount calculated to pay the Class A, Class B and Class C notes in full on the expected principal payment date. We expect, but cannot assure you, that the amounts available in the principal accumulation account on the expected principal payment date will be sufficient to pay in full the outstanding principal amount of the Series 200 - notes. If there are not sufficient funds on deposit in the principal accumulation account to pay any class of notes in full on the expected principal payment date, an early amortization event will occur and the early amortization period will begin.
Early Amortization Period
If an early amortization event occurs during either the revolving period or the controlled accumulation period, the early amortization period will begin. On each payment date during the early amortization period, principal allocated to the Series 200 - noteholders, including any amount on deposit in the principal accumulation account will be paid:
The issuer will continue to pay principal in the priority noted above to the noteholders on each payment date during the early amortization period until the earliest of the date the notes are paid in full, the date on which the collateral amount is reduced to zero and the Series 200 - final maturity date, which is the , 200 payment date. Except as described under " Description of Series Provisions Spread Account ," no principal will be paid on the Class B notes until the Class A notes have been paid in full. No principal will be paid on the Class C notes until the Class A and Class B notes have been paid in full.
Payment Rates
The payment rate on the receivables is the most important factor that will determine the size of principal payments during an early amortization period and whether the issuer has funds available to repay the notes on the expected principal payment date. The following table sets forth the highest and lowest cardholder monthly payment rates on the credit card accounts in the bank's approved portfolio during any month in the periods shown and the average cardholder monthly payment rates for all months in the periods shown, in each case calculated as a percentage of average total receivables for each month during the periods shown. Payment rates shown in the table are based on amounts that would be deemed payments of principal receivables and finance charge receivables with respect to the accounts.
S-18
Although we have provided historical data concerning the payment rates on the receivables, because of the factors described in the prospectus under " Risk Factors, " we cannot provide you with any assurance that the levels and timing of payments on receivables in the trust portfolio from time to time will be similar to the historical experience described in the following table for the bank's approved portfolio or that deposits into the principal accumulation account will equal the applicable controlled accumulation amount. The issuer may shorten the controlled accumulation period and, in that event, we cannot provide any assurance that there will be sufficient time to accumulate all amounts necessary to pay the outstanding principal amount of the Series 200 - notes on the expected principal payment date.
Cardholder Monthly Payment Rates
|
3 Fiscal Months
Ended |
Fiscal Year
|
|||||||||
---|---|---|---|---|---|---|---|---|---|---|---|
|
March 27, 2004
|
2003
|
2002
|
2001
|
2000
|
||||||
Lowest Month | 15.81 | % | 13.87 | % | 12.56 | % | 12.49 | % | 6.94 | % | |
Highest Month | 18.40 | % | 18.46 | % | 17.99 | % | 17.69 | % | 22.25 | % | |
Monthly Average | 16.77 | % | 15.84 | % | 14.99 | % | 14.65 | % | 13.88 | % |
We cannot assure you that the cardholder monthly payment rates for the bank's approved portfolio or for the trust portfolio in the future will be similar to the historical experience set forth above. In addition, the amount of collections of receivables may vary from month to month due to seasonal variations, general economic conditions and payment habits of individual cardholders.
Description of Series Provisions
We have summarized the material terms of the Series 200 - notes below and under " Description of the Notes " in the accompanying prospectus.
General
The Class A, Class B and Class C notes comprise the Series 200 - notes and will be issued under the indenture, as supplemented by the Series 200 - indenture supplement, in each case between the issuer and the indenture trustee.
The Series 200 - notes will be issued in denominations of $1,000 and integral multiples of $1,000 and will be available only in book-entry form, registered in the name of Cede & Co., as nominee of DTC. See " Description of the NotesGeneral ," " Book-Entry Registration " and " Definitive Notes " in the accompanying prospectus. Payments of interest and principal will be made on each payment date on which those amounts are due to the noteholders in whose names the Series 200 - notes were registered on the related record date, which will be the last day of the calendar month preceding that payment date.
[We will apply to list the notes on the Luxembourg Stock Exchange; however, we cannot assure you that the listing will be obtained. You should consult with the Luxembourg listing agent for the notes, [Address] Luxembourg, phone number ( ) , for the status of the listing.]
S-19
Collateral Amount
Your notes are secured by collateral consisting of an ownership interest in the transferred receivables. The amount of the collateral for your notes, which we call the collateral amount, will initially be $[ ] and will thereafter be reduced by:
The collateral amount cannot be less than zero.
Reductions described in clause (c) above will be reversed to the extent that finance charge collections are available for that purpose on any subsequent payment date.
Allocation Percentages
The servicer, on behalf of the issuer, will allocate among the collateral amount for your series, the collateral amount of each other series of notes issued and outstanding and the Free Equity Amount, the following items: the issuer's share of collections of finance charge receivables and principal receivables, the issuer's share of defaulted receivables and the issuer's share of dilution amounts that are not offset by the Free Equity Amount or reimbursed by us. The issuer's share of the foregoing amounts will be calculated as described in the accompanying prospectus under the caption " The Trust Portfolio ."
On any day, the allocation percentage for your series will be the percentage equivalentwhich may not exceed 100%of a fraction:
The denominator referred to above will initially be set as of the closing date. The denominator will be reset for purposes of allocating principal collections, finance charge collections and defaulted receivables at all times as follows:
S-20
The Class A notes will accrue interest from and including the closing date through but excluding , 200 , and for each following interest period, at a rate of % per year [above LIBOR for the related interest period.]
The Class B notes will accrue interest from and including the closing date through but excluding , 200 , and for each following interest period, at a rate of % per year [above LIBOR for the related interest period.]
The Class C notes will accrue interest from and including the closing date through but excluding , 200 , and for each following interest period, at a rate of % per year [above LIBOR for the related interest period.]
Each interest period will begin on and include a payment date and end on but exclude the next payment date. However, the first interest period will begin on and include the closing date.
[For purposes of determining the interest rates applicable to each interest period, LIBOR will be determined two London business days before that interest period begins and will equal the rate per annum displayed in the Bloomberg Financial Markets system as the composite offered rate for London interbank deposits for a one-month period, as of 11:00 a.m., London time, on that date. If that rate does not appear on that display page, the rate for that date will be the rate per annum shown on page 3750 of the Bridge Telerate Services Report screen or any successor page as the composite offered rate for London interbank deposits for a one-month period, as shown under the heading "USD" as of 11:00 a.m., London time, two London business days before that interest period begins. If no rate is shown as described in the preceding two sentence, LIBOR will be the rate per annum based on the rates at which Dollar deposits for a one-month period are displayed on page "LIBOR" of the Reuters Monitor Money Rates Service or such other page as may replace the LIBOR page on that service for the purpose of displaying London interbank offered rates of major banks as of 11:00 a.m., London time, two London business days before that interest period begins; provided that if at lease two rates appear on that page, the rate will be the arithmetic mean of the displayed rates and if fewer than two rates are displayed, or if no rate is relevant, LIBOR will be determined based on the rates at which deposits in United States dollars are offered by four major banks, selected by the servicer, at approximately 11:00 a.m., London time, on that day to prime banks in the London interbank market for a one-month period. The indenture trustee will request the principal London office of each of those banks to provide a quotation of its rate. If at least two quotations are provided, the rate for that date will be the arithmetic mean of the quotations. If fewer than two quotations are provided, the rate for that date will be the arithmetic mean of the rates quoted by major banks in New York City, selected by the servicer, at approximately 11:00 a.m., New York City time, on that day for loans in United States dollars to leading European banks for a one-month period.]
[The interest rates applicable to the then current and immediately preceding interest period may be obtained by telephoning the indenture trustee at its corporate trust office at [ ] or any other telephone number identified in a written notice from the indenture trustee to the Series 200 - noteholders from time to time.]
Interest on the notes will be calculated on the basis of the [actual number of days in the related interest period and] a 360-day year [of twelve 30-day months].
If the issuer does not pay interest as calculated above to any class on a payment date, the amount not paid will be due on the next payment date, together with interest on the overdue amount of regular monthly interest at 2% plus the interest rate payable on the notes for the applicable class.
S-21
[Interest Rate Swaps
To hedge the issuer's interest payment obligations, the issuer will enter into an interest rate swap for each of the Class A, Class B and Class C notes, each covering the period from the closing date through the [expected principal payment date] [final maturity date].
The notional amount of the Class A interest rate swap, the notional amount of the Class B interest rate swap and the notional amount of the Class C interest rate swap for each interest period will be equal to the outstanding principal balance of each of the Class A, Class B and Class C notes, respectively, in each case as of the end of the first day of the related interest period. Under each swap, on each payment date, if one-month LIBOR for the related interest period, exceeds a specified fixed rate, the issuer will receive payments from the swap counterparty equal to:
rate
differential |
X |
Class A, B or C
principal balance, as applicable |
X |
days in interest period
360 |
where the rate differential equals one-month LIBOR for the related interest period, minus the specified fixed rate. Alternatively, if one-month LIBOR for the related interest period, is less than the applicable specified fixed rate, the issuer will be required to make a payment to the swap counterparty equal to the result of the equation shown above, where the rate differential equals the specified fixed rate minus one-month LIBOR for the related interest period. The specified fixed rate for the Class A interest rate swap is [ ]% per year. The specified fixed rate for the Class B interest rate swap is [ ]% per year. The specified fixed rate for the Class C interest rate swap is [ ]% per year.
Any net amounts received by the issuer under the interest rate swaps will be treated as collections of finance charge receivables. Any net amounts payable by the issuer under the Class A interest rate swap will be paid from finance charge collections at the same priority as the interest payments on the Class A notes. Any net amounts payable by the issuer under the Class B interest rate swap will be paid from finance charge collections at the same priority as interest payments on the Class B notes. Any net amounts payable by the issuer under the Class C interest rate swap will be paid from finance charge collections at the same priority as interest payments on the Class C notes, but unlike Class C interest payments they will also have the benefit of reallocated principal collections, if necessary.
The issuer can only enter into and maintain interest rate swap agreements with counterparties that have debt ratings consistent with the standards of the rating agencies for the notes. If one of these rating agencies withdraws or lowers its rating for a swap counterparty, the servicer may obtain a replacement swap from a counterparty having the required credit ratings. Alternatively, it may enter into some other arrangement satisfactory to the rating agencies for the notes. See " Risk FactorsDefault by interest rate swap counterparty or termination of interest rate swap could lead to the commencement of an early amortization period " for a discussion of potential adverse consequences in the event the servicer is unable to obtain a replacement swap or enter into any other satisfactory arrangement.]
[Interest Rate Swap Counterparty
[Description of Swap Counterparty]]
Principal Payments
During the revolving period, no principal payments will be made on your notes. During the controlled accumulation period and the early amortization period, deposits to the principal
S-22
accumulation account and principal payments on the Series 200 - notes, as applicable, will be made on each payment date from the following sources:
Controlled Accumulation Period
The controlled accumulation period is scheduled to commence on [ ], 200 -[ ] and to last [ ] months. On each determination date until the controlled accumulation period begins, the servicer, on behalf of the issuer, will review the amount of expected principal collections and determine the number of months expected to be required to fully fund the principal accumulation account by the expected principal payment date as described under " Description of the NotesLength of Controlled Accumulation Period " in the accompanying prospectus. If the number of months needed to fully fund the principal accumulation account by the expected principal payment date is less than or more than the number of months in the scheduled controlled accumulation period, the issuer will either postpone the controlled accumulation period or start the controlled accumulation period earlier than the then-currently scheduled controlled accumulation period, as applicable, so that the number of months in the scheduled controlled accumulation period equals the number of months expected to be needed to fully fund the principal accumulation account by the expected principal payment date. In no event will the issuer postpone the beginning of the controlled accumulation period to later than [ ], 200[ ].
On each payment date relating to the controlled accumulation period, funds will be deposited in the principal accumulation account in amount equal to the least of:
Any remaining funds not deposited in the principal accumulation account first will be made available to other series as shared principal collections and second will either be deposited in the excess funding account under the circumstances described under " Description of the NotesExcess Funding Account " in the accompanying prospectus or distributed to us or our assigns. During the controlled accumulation period, if the excess collateral amount exceeds the required excess collateral amount, the excess collateral amount will be reduced, but not below the required excess collateral amount, by the amount of funds applied as described in the preceding sentence.
Unless an early amortization period commences prior to the expected principal payment date, amounts in the principal accumulation account will be paid on the expected principal payment date to
S-23
the Class A noteholders until the outstanding principal balance of the Class A notes has been paid in full, then to the Class B noteholders until the outstanding principal balance of the Class B notes has been paid in full, and then to the Class C noteholders until the outstanding principal balance of the Class C notes has been paid in full.
Early Amortization Period
On each payment date relating to the early amortization period, the Class A noteholders will be entitled to receive funds available for principal payments for Series 200 - for the related Monthly Period in an amount up to the outstanding principal balance of the Class A notes.
After payment in full of the outstanding principal balance of the Class A notes, the Class B noteholders will be entitled to receive, on each payment date relating to the early amortization period, the remaining available funds for Series 200 - for the related Monthly Period in an amount up to the outstanding principal balance of the Class B notes.
After payment in full of the outstanding principal balance of the Class A notes and the Class B notes, the Class C noteholders will be entitled to receive on each payment date relating to the early amortization period, the remaining available funds for Series 200 - for the related Monthly Period in an amount up to the outstanding principal balance of the Class C notes.
See " Early Amortization Events " below for a discussion of events that might lead to the commencement of the early amortization period.
Subordination
The Class B notes are subordinated to the Class A notes. The Class C notes are subordinated to the Class A notes and the Class B notes. The excess collateral amount is subordinated to all three classes of notes. Interest payments will be made on the Class A notes prior to being made on the Class B notes and the Class C notes. Interest payments will be made on the Class B notes prior to being made on the Class C notes.
Principal payments on the Class B notes will not begin until the Class A notes have been paid in full. Except as described under " Description of Series ProvisionsSpread Account Distributions," principal payments on the Class C notes will not begin until the Class A notes and the Class B notes have been paid in full.
The collateral amount for your series will be reduced as the collateral is applied for the benefit of your series, for instance as principal payments are made on your series (other than principal payments made from funds on deposit in the spread account). In addition, the collateral amount can be applied for the benefit of your series in two other ways:
The excess collateral amount provides credit enhancement by absorbing these types of reductions. If the total amount of these latter two types of reductions exceeds the excess collateral amount, then the Class C notes may not be repaid in full. If the total amount exceeds the excess collateral amount and the principal amount of the Class C notes, then the Class B notes may not be repaid in full. If the total amount exceeds the sum of the excess collateral amount and the principal amounts of the Class C and Class B notes, then the Class A notes may not be repaid in full.
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If receivables are sold after an event of default, the net proceeds of that sale would be paid first to the Class A notes, then to the Class B notes and finally to the Class C notes, in each case until the outstanding principal amount of the specified class and all accrued and unpaid interest payable to that class have been paid in full.
Application of Finance Charge Collections
We refer to your series' share of finance charge collections, including net investment proceeds transferred from the principal accumulation account, net swap receipts, amounts withdrawn from the reserve account and any available excess finance charge collections from other series, collectively, as finance charge collections. On each payment date, the servicer, on behalf of the issuer, will apply your series' share of finance charge collections for the prior month in the following order:
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Reallocation of Principal Collections
If finance charge collections available to your series are not sufficient to pay the aggregate amount of those payments described in clauses (1) through (5) under the caption " Application of Finance Charge Collections " above, then principal collections allocated to your series will be reallocated to cover these amounts. Any reallocation of principal collections is a use of the collateral for your notes. Consequently, these uses will reduce the remaining collateral amount by the amount that was reallocated. The amount of principal collections that will be reallocated on any payment date will not exceed the sum of the amounts described in the following clauses (1) through (3):
Investor Charge-Offs
A portion of the issuer's share of the defaulted principal receivables in each charged-off account will be allocated to the collateral amount for your series in an amount equal to your series' allocation percentage on the date the account is charged-off. The allocation percentage is described under
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" Allocation Percentages " above. The issuer's pro rata share of the defaulted principal receivables will be calculated as described in the accompanying prospectus under the caption " The Trust Portfolio ."
Dilution will also be allocated to the collateral amount for your series in the circumstances described in " Description of the Notes Defaulted Receivables; Dilution; Investor Charge-Offs " in the accompanying prospectus. If dilution is allocated among each series for any Monthly Period, your series' share of dilution will equal:
provided that, if the allocation percentage for finance charge collections for any series has been reset during that Monthly Period, for the portion of the Monthly Period falling on and after each reset date and prior to any subsequent reset date, the fraction described in clause (2) above will be calculated using a denominator which is equal to the sum of the numerators used in determining the allocation percentage for finance charge collections for all outstanding series as of the close of business on the subject reset date.
On each payment date, if the sum of the defaulted principal receivables and any remaining uncovered dilution allocated to the collateral amount for your series is greater than the finance charge collections used to cover those amounts, then the collateral amount will be reduced by the amount of the excess. Any reductions in the collateral amount on account of defaulted principal receivables and uncovered dilution will be reversed to the extent that finance charge collections are available for that purpose on any subsequent payment date.
Sharing Provisions
Your series is in group one for purposes of sharing excess finance charge collections. Your series will share excess finance charge collections with other series in group one. See " Description of the NotesShared Excess Finance Charge Collections " in the accompanying prospectus.
Your series is a principal sharing series; however, your series will not be entitled to share excess principal collections from other series on any payment date during the early amortization period that is prior to the expected principal payment date. See " Description of the NotesShared Principal Collections " and " Excess Funding Account " in the accompanying prospectus.
Principal Accumulation Account
The issuer will establish and maintain a segregated trust account to serve as the principal accumulation account. During the controlled accumulation period, the servicer, on behalf of the issuer, will make deposits to the principal accumulation account as described under " Principal Payments " in this prospectus supplement.
Funds on deposit in the principal accumulation account will be invested to the following payment date by the issuer in highly rated liquid investments that meet the criteria described in the indenture supplement. Investment earnings, net of investment losses and expenses, on funds on deposit in the principal accumulation account will be deposited in the collection account and treated as finance
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charge collections available to your series for the related interest period. If, for any payment date, these net investment earnings are less than the sum of:
then the issuer will withdraw the shortfall, to the extent required and available, from the reserve account and deposit it in the collection account for use as finance charge collections that are available to your series.
Excess Collateral Amount
An excess collateral amount provides credit enhancement for your series. The initial excess collateral amount will be $ [ ], which equals [ ]% of the initial collateral amount.
On each payment date during the controlled accumulation period, the excess collateral amount will be decreased by the amount of funds that are available, but not required, to be deposited into the principal accumulation account on that payment date. However, no such reduction will be permitted to reduce the excess collateral amount below the required excess collateral amount. See " Description of Series ProvisionsControlled Accumulation Period " in this prospectus supplement and " Credit EnhancementExcess Collateral Amount " in the accompanying prospectus.
The required excess collateral amount for your series on any day is currently equal to [ ]% of the total collateral amount on that day. However, a percentage lower than [ ]% may be used to calculate the required excess collateral amount in the future if each rating agency we designate for the Series 200 - notes confirms that the use of a lower percentage will not impair its ratings of the notes. In addition:
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Reserve Account
The issuer will establish and maintain a segregated account to serve as the reserve account. The reserve account is established to assist with the distribution of interest on the notes during the controlled accumulation period and on the first payment date with respect to the early amortization period. On each payment date from and after the reserve account funding date, but prior to the termination of the reserve account, the issuer will apply finance charge collections available to your series to increase the amount on deposit in the reserve account to the extent the amount on deposit in the reserve account is less than the required reserve account amount.
Unless each rating agency confirms that the postponement of the reserve account funding date will not impair its rating of the Series 200 - notes, the reserve account funding date will be a date selected by the servicer, on behalf of the issuer, that is not later than the payment date with respect to the Monthly Period which commences three months prior to the commencement of the controlled accumulation period.
The required reserve account amount for any payment date on or after the reserve account funding date will be equal to (a) .50% of the outstanding principal balance of the notes or (b) any other amount designated by us. We may only designate a lesser amount if each rating agency confirms that the designation will not impair its rating of any class of the Series 200 - notes and we will certify to the indenture trustee that, based on the facts known to the certifying officer at the time, in our reasonable belief, the designation will not cause an early amortization event to occur for Series 200 - .
On each payment date, after giving effect to any deposit to be made to, and any withdrawal to be made from, the reserve account on that payment date, the issuer will withdraw from the reserve account an amount equal to the excess, if any, of the amount on deposit in the reserve account over the required reserve account amount, and the amount withdrawn will no longer be available for your notes. Any amounts withdrawn from the reserve account and distributed to us or our assigns will not be available for distribution to the noteholders.
All amounts on deposit in the reserve account on any payment dateafter giving effect to any deposits to, or withdrawals from, the reserve account to be made on that payment datewill be invested to the following payment date by the issuer, in highly rated liquid investments that meet the criteria described in the indenture supplement. The interest and other investment income, net of losses and investment expenses, earned on these investments will be either retained in the reserve account to the extent the amount on deposit is less than the required reserve account amount or deposited in the collection account and treated as finance charge collections available to your series.
On or before each payment date with respect to the controlled accumulation period and on or before the first payment date with respect to the early amortization period, the issuer will withdraw from the reserve account and deposit in the collection account an amount equal to the lesser of:
Amounts withdrawn from the reserve account on any payment date will be included as finance charge collections available to your series for that payment date.
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The reserve account will be terminated upon the earliest to occur of:
Upon the termination of the reserve account, all amounts on deposit in the reserve account, after giving effect to any withdrawal from the reserve account on that date, will be distributed to us or our assigns. Any amounts withdrawn from the reserve account and distributed to us or our assigns will not be available for distribution to the noteholders.
Spread Account
The issuer will establish and maintain as a segregated account primarily for the benefit of the Class C noteholders to serve as the spread account. Amounts on deposit in the spread account will be used as described below under " Spread Account Distributions ."
The spread account initially will not be funded, but will be funded up to the required spread account amount on each payment date from finance charge collections allocated to your series to the extent available for that purpose.
The required spread account amount will be determined on each payment date as the product of:
The spread account percentage will be determined as follows:
If an early amortization event with respect to Series 200 - has occurred, the spread account percentage will equal []% and may not be subsequently reduced.
Funds on deposit in the spread account will be invested by the issuer in highly rated liquid investments that meet the criteria described in the indenture supplement. Investment earnings, net of losses and investment expenses, will, except as otherwise indicated in this prospectus supplement, not be deposited into the spread account and will be distributed to the issuer. However, after an event of default and acceleration of the maturity of the Series 200 - notes, these investment earnings will be available for payment to holders of the Series 200 - notes as described under " Spread Account Distributions " below.
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Spread Account Distributions
On or before each payment date, the issuer will withdraw from the spread account, and deposit in the distribution account for payment to the Class C noteholders and the swap counterparty under the Class C interest rate swap an amount equal to the lesser of:
Unless an early amortization event occurs, the issuer will withdraw from the spread account and deposit into the collection account for distribution to the Class C noteholders on the expected principal payment date an amount equal to the lesser of:
Except as provided in the following paragraph, if an early amortization event occurs, the amount, if any, remaining on deposit in the spread account, after making the payments described in the second preceding paragraph, will be applied to pay principal on the Class C notes on the earlier of the final maturity date and the first payment date on which the outstanding principal amount of the Class A and Class B notes has been paid in full.
In addition, on any day after the occurrence of an event of default with respect to Series 200 - and the acceleration of the maturity date, the issuer will withdraw from the spread account the outstanding amount on deposit in the spread account and deposit that amount into the distribution account for distribution to the Class C noteholders, the Class A noteholders and the Class B noteholders, in that order of priority, to fund any shortfalls in amounts owed to those noteholders.
Early Amortization Events
An early amortization event may occur for the Series 200 - notes upon the occurrence of any of the following events:
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affected for the designated period; except that an early amortization event described in this subparagraph (b) will not occur if we have accepted reassignment of the related receivable or all related receivables, if applicable, within the designated period;
In the case of any event described in clause (a), (b) or (d) above, an early amortization event will be deemed to have occurred with respect to the notes only if, after any applicable grace period, either the indenture trustee or the Series 200 - noteholders evidencing interests aggregating more than 50% of the aggregate unpaid principal amount of the Series 200 - notes, by written notice to the issuer, with a copy to the indenture trustee if notice is given by the Series 200 - noteholders, declare that an early amortization event has occurred with respect to the Series 200 - notes as of the date of the notice.
In the case of any event described in clause (g), (h) or (i), an early amortization event with respect to all series then outstanding, and in the case of any event described in clause (c), (e), (f) or (j) an early amortization event with respect to only the Series 200 - notes, will occur without any notice or other action on the part of the indenture trustee or the Series 200 - noteholders immediately upon the occurrence of the event.
On the date on which an early amortization event is deemed to have occurred, the early amortization period will begin.
See " Description of the NotesEarly Amortization Events " in the accompanying prospectus for an additional discussion of the consequences of insolvency, conservatorship or receivership events related to us and the bank.
Events of Default
The events of default for Series 200 - , as well as the rights and remedies available to the indenture trustee and the Series 200 - noteholders when an event of default occurs, are described under " The IndentureEvents of Default; Rights Upon Event of Default " in the accompanying prospectus.
In the case of an event of default involving bankruptcy, insolvency or similar events relating to the issuer, the principal amount of the Series 200 - notes automatically will be deemed to be immediately due and payable. If any other event of default for Series 200 - occurs, the indenture trustee or the
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holders of not less than a majority of the then-outstanding principal balance of the Series 200 - notes may declare the Series 200 - notes to be immediately due and payable. If the Series 200 - notes are accelerated, you may receive principal prior to the expected principal payment date for your class of notes.
Servicing Compensation and Payment of Expenses
The servicing fee rate for your series is 2% per year. Your series' share of the servicing fee for each month will be calculated as described under " Description of the NotesServicing Compensation and Payment of Expenses " in the accompanying prospectus. However, the monthly servicing fee allocable to your series for the first payment date will equal $[ ].
Subject to the terms and conditions set forth in an underwriting agreement between us, the issuer and the underwriters named below, the issuer has agreed to sell to the underwriters, and each of the underwriters has severally agreed to purchase, the principal amount of the notes set forth opposite its name:
Class A Underwriters
|
Principal Amount of Class A Notes
|
|||
---|---|---|---|---|
$ | ||||
|
||||
Total | $ | |||
|
Class B Underwriters
|
Principal Amount of Class B Notes
|
|||
---|---|---|---|---|
$ | ||||
|
||||
Total | $ | |||
|
Class C Underwriters
|
Principal Amount of Class C Notes
|
|||
---|---|---|---|---|
$ | ||||
|
||||
Total | $ | |||
|
In the underwriting agreement, the underwriters of each class of notes have agreed, subject to the terms and conditions set forth in that agreement, to purchase all of the notes in that class offered by this prospectus supplement if any of the notes in that class are purchased.
The underwriters of each class of notes have advised us that they propose initially to offer the notes in that class to the public at the prices set forth in this prospectus supplement, and to dealers chosen by the underwriters at the prices set forth in this prospectus supplement less a concession not in excess of the percentages set forth in the following table. The underwriters of each class of notes and those dealers may reallow a concession not in excess of the percentages set forth in the following table. After the initial public offering of the notes, the public offering prices and the concessions referred to in this paragraph may be changed. Additional offering expenses are estimated to be $[ ].
|
Class A Notes
|
Class B Notes
|
Class C Notes
|
||||
---|---|---|---|---|---|---|---|
Concessions. | % | % | % | ||||
Reallowances. | % | % | % |
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The underwriters will be compensated as set forth in the following table:
|
Underwriters'
Discounts and Commissions |
Amount
per $1,000 of Principal |
Total Amount
|
||||||
---|---|---|---|---|---|---|---|---|---|
Class A Notes | % | $ | $ | ||||||
Class B Notes | % | $ | $ | ||||||
Class C Notes | % | $ | $ | ||||||
|
|||||||||
Total Class A, Class B and Class C Notes | $ | ||||||||
|
Each underwriter has represented and agreed that:
We and RFS Holding, Inc. will indemnify the underwriters for certain liabilities specified in the underwriting agreement, including liabilities under the Securities Act, or will contribute to payments the underwriters may be required to make in connection with those liabilities as described in the underwriting agreement.
The underwriters may engage in over-allotment transactions, stabilizing transactions, syndicate covering transactions and penalty bids with respect to the notes in accordance with Regulation M under the Exchange Act. Over-allotment transactions involve syndicate sales in excess of the offering size, which creates a syndicate short position. The underwriters do not have an "overallotment" option to purchase additional notes in the offering, so syndicate sales in excess of the offering size will result in a naked short position. The underwriters must close out any naked short position through syndicate covering transactions in which the underwriters purchase notes in the open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the notes in the open market after pricing that would adversely affect investors who purchase in the offering. Stabilizing transactions permit bids to purchase the notes so long as the stabilizing bids do not exceed a specified maximum. Penalty bids permit the underwriters to reclaim a selling concession from a syndicate member when the notes originally sold by that syndicate member are purchased in a syndicate covering transaction. Over-allotment transactions, stabilizing transactions, syndicate covering transactions and penalty bids may have the effect of raising or maintaining the market price of the notes or preventing or retarding a decline in the market price of the notes. As a result, the price of the notes may be higher than the price that might otherwise exist in the open market. Neither we nor the underwriters represent that the underwriters will engage in any of these
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transactions or that those transactions, once commenced, will not be discontinued without notice at any time.
In the ordinary course of their respective businesses, the underwriters and their respective affiliates have engaged and may in the future engage in investment banking or commercial banking transactions with us and our affiliates.
Certain legal matters relating to the issuance of the Series 200 - notes will be passed upon for us by Mayer, Brown, Rowe & Maw LLP as special counsel for us. Certain legal matters relating to the federal tax consequences of the issuance of the Series 200 - notes will be passed upon for us by Mayer, Brown, Rowe & Maw LLP. Certain legal matters relating to the issuance of the Series 200 - notes will be passed upon for the underwriters by [ ].
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Glossary of Terms for Prospectus Supplement
" Base Rate " means, with respect to any Monthly Period, the annualized percentage equivalent of a fraction:
" Excess Spread Percentage " means, for any Monthly Period, a percentage equal to the Portfolio Yield for such Monthly Period, minus the Base Rate for such Monthly Period.
" Portfolio Yield " means, with respect to any Monthly Period, the annualized percentage equivalent of a fraction:
" Quarterly Average Excess Spread Percentage " means, for any payment date, the percentage determined as follows:
|
|
|
---|---|---|
For the [Month 1]
200 payment date: |
The Excess Spread Percentage for the
[Month 1] 200 payment date |
|
For the [Month 1] 200 payment date: |
|
The sum of the Excess Spread Percentage for the [Month 1] 200 payment date, plus the Excess Spread Percentage for the [Month 2] 200 payment date 2 |
For each following payment date: |
The sum of the Excess Spread Percentages for the then-current
payment date and the two prior payment dates 3 |
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Annex I
Other Series of Notes Issued and Outstanding
The principal characteristics of the other outstanding series of notes previously issued by the issuer are set forth in the table below. All of the outstanding series of notes and investor certificates are in group one. For more specific information with respect to any series of notes, any prospective investor should contact us at (203) 585-6586.
1. Series 2003-VFN1
The issuer has issued Series 2003-VFN1, which is a series of variable funding notes, meaning that the aggregate outstanding principal amount of Series 2003-VFN1 may be increased from time to time, subject to a maximum amount. The maximum amount for Series 2003-VFN1 is $5,000,000,000. The outstanding principal amount and collateral amount of Series 2003-VFN1 on the Series 200 - closing date are expected to be $[ ] and $[ ], respectively. Series 2003-VFN1 is in its controlled amortization period and the expected principal payment date for Series 2003-VFN1 is in October 2004. The final maturity date for Series 2003-VFN1 is in October 2006. The holders of the Series 2003-VFN1 notes receive a floating rate of interest, which is either based on 1-month LIBOR or a commercial paper rate.
2. Series 2003-VFN2
The issuer has issued Series 2003-VFN2, which is a series of variable funding notes, meaning that the aggregate outstanding principal amount of Series 2003-VFN2 may be increased from time to time, subject to a maximum amount. The maximum amount for Series 2003-VFN2 is $1,000,000,000. The outstanding principal amount and collateral amount of Series 2003-VFN2 on the Series 200 - closing date are expected to be $[ ] and $[ ], respectively. Series 2003-VFN2 is in its controlled amortization period and the expected principal payment date for Series 2003-VFN2 is in December 2004. The final maturity date for Series 2003-VFN2 is in December 2006. The holders of the Series 2003-VFN2 notes receive a floating rate of interest, which is either based on 1-month LIBOR or a commercial paper rate.
3. Series 2004-VFN1
The issuer has issued Series 2004-VFN1. The outstanding principal amount and collateral amount of Series 2004-VFN1 on the Series 200 - closing date are expected to be $750,000,000 and $789,473,684.21, respectively. Series 2004-VFN1 will enter a controlled amortization period in September 2004. The expected principal payment date for Series 2004-VFN1 is in August 2005. The final maturity date for Series 2004-VFN1 is in August 2007. The holders of the Series 2004-VFN1 notes receive a floating rate of interest, which is either based on 1-month LIBOR or a commercial paper rate.
4. Series 2004-VFN2
The issuer has issued Series 2004-VFN2. The outstanding principal amount and collateral amount of Series 2004-VFN2 on the Series 200 - closing date are expected to be $1,400,000,000 and $1,473,684,210.53, respectively. Series 2004-VFN2 will enter a controlled amortization period in September 2004. The expected principal payment date for Series 2004-VFN2 is in August 2005. The final maturity date for Series 2004-VFN2 is in August 2007. The holders of the Series 2004-VFN2 notes receive a floating rate of interest, which is either based on 1-month LIBOR or a commercial paper rate.
A-1-1
Annex II
Other Beneficial Interests Issued by
RFS Funding Trust
1. Undivided interest securing loan to RFS Funding Trust
Principal amount on Series 200 - closing date | $ | ||
Interest rate variable, commercial paper based | |||
Expected final payment date | [ ] |
A-2-1
The information in this prospectus is not complete and may be amended. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell and is not soliciting an offer to buy these securities in any state where the offer and sale is not permitted
Subject to Completion dated May 20, 2004
Prospectus
GE Capital Credit Card Master Note Trust
Issuer |
||
RFS Holding, L.L.C. Transferor |
|
Monogram Credit Card Bank of Georgia Servicer |
Asset Backed Notes
The Issuer
The Notes
You should consider carefully the risk factors beginning on page 2 in this prospectus.
A note is not a deposit and neither the notes nor the underlying accounts or receivables are insured or guaranteed by the Federal Deposit Insurance Corporation or any other governmental agency.
The notes are obligations of GE Capital Credit Card Master Note Trust only and are not obligations of RFS Holding, L.L.C., RFS Funding Trust, Monogram Credit Card Bank of Georgia, GE Consumer Card Co., General Electric Capital Corporation or any other person.
This prospectus may be used to offer and sell notes of a series only if accompanied by the prospectus supplement for that series.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these notes or determined that this prospectus is accurate or complete. Any representation to the contrary is a criminal offense.
, 200
Important Notice About Information Presented In This
Prospectus And The Accompanying Prospectus Supplement
We (RFS Holding, L.L.C.) provide information to you about the notes in two separate documents: (a) this prospectus, which provides general information, some of which may not apply to your series of notes, and (b) the accompanying prospectus supplement, which describes the specific terms of your series of notes, including:
If the terms of your series of notes vary between this prospectus and the accompanying prospectus supplement, you should rely on the information in the prospectus supplement.
You should rely only on the information provided in this prospectus and the accompanying prospectus supplement, including the information incorporated by reference. We have not authorized anyone to provide you with different information. We are not offering the notes in any state where the offer is not permitted.
We include cross references in this prospectus and the accompanying prospectus supplement to captions in these materials where you can find further related discussions. The following Table of Contents and the Table of Contents in the accompanying prospectus supplement provide the pages on which these captions are located.
|
Page
|
|||
---|---|---|---|---|
SUMMARY: OVERVIEW OF TRANSACTIONS | 1 | |||
RISK FACTORS | 2 | |||
An adverse determination in litigation relating to the bank could reduce yield on the trust accounts. | 2 | |||
Some liens may be given priority over your notes, which could cause delayed or reduced payments | 2 | |||
Regulatory action could cause delays or reductions in payment of your notes. | 2 | |||
If we became a debtor in a bankruptcy case, delays or reductions in payment of your notes could occur. | 3 | |||
Commingling of payments could cause delays or reductions in payment of your notes | 4 | |||
The bank may change the terms and conditions of the accounts in a way that reduces collections | 4 | |||
Charged-off receivables or uncovered dilution could reduce payments to you | 4 | |||
Current and proposed regulation and legislation relating to consumer protection laws may impede collection efforts or reduce collections | 5 | |||
Limited remedies for breaches of representations could reduce or delay payments | 5 | |||
Payment and origination patterns of receivables and operations of retailers could reduce collections | 6 | |||
Termination of certain private label credit card programs could lead to a reduction of receivables in the trust. | 6 | |||
Recharacterization of principal receivables would reduce principal receivables and may require the addition of new receivables | 7 | |||
The note interest rate and the receivables interest rate may re-set at different times, resulting in reduced or early payments to you | 7 | |||
We may assign our obligations as transferor and the bank may assign its obligations as servicer | 7 | |||
Default by a counterparty to a derivative contract or termination of a derivative contract could lead to the commencement of an early amortization period | 7 | |||
Issuance of additional notes may affect the timing and amount of payments to you | 8 | |||
Addition of credit card accounts to the trust may decrease the credit quality of the assets securing the repayment of your notes. If this occurs, your receipt of payments of principal and interest may be reduced, delayed or accelerated | 8 | |||
Acts of terrorism and related military actions could adversely affect the timing or amount of payments on your notes | 8 | |||
IMPORTANT PARTIES | 9 | |||
The issuer | 9 | |||
RFS Holding, L.L.C. | 9 | |||
RFS Funding Trust | 9 | |||
General Electric Capital Corporation | 10 | |||
Monogram Credit Card Bank of Georgia | 12 | |||
THE BANK'S CREDIT CARD ACTIVITIES | 12 | |||
General | 12 | |||
Program Agreements | 13 | |||
Account origination | 13 | |||
Marketing programs | 14 | |||
Underwriting process | 14 | |||
Servicing of accounts | 15 | |||
Account terms | 16 | |||
Delinquency and collections procedures | 16 | |||
i
Description of First Data Resources, Inc. | 17 | |||
THE TRUST PORTFOLIO | 17 | |||
USE OF PROCEEDS | 19 | |||
DESCRIPTION OF THE NOTES | 19 | |||
General | 20 | |||
Book-entry registration | 21 | |||
Definitive notes | 24 | |||
Interest payments | 24 | |||
Principal payments | 25 | |||
Length of controlled accumulation period | 26 | |||
Transfer and assignment of receivables | 26 | |||
Multiple issuance series | 27 | |||
New issuances of notes | 27 | |||
Representations and warranties | 28 | |||
Addition of trust assets | 32 | |||
Removal of accounts | 33 | |||
Discount option | 34 | |||
Servicing procedures | 35 | |||
Trust accounts | 35 | |||
Funding period | 35 | |||
Application of collections | 36 | |||
Shared excess finance charge collections | 37 | |||
Shared principal collections | 37 | |||
Excess funding account | 38 | |||
Defaulted receivables; dilution; investor charge-offs | 38 | |||
Final payment of principal | 39 | |||
Early amortization events | 39 | |||
Matters regarding the transferor | 40 | |||
Servicing compensation and payment of expenses | 41 | |||
Matters regarding the servicer | 41 | |||
Servicer's representations, warranties and covenants | 42 | |||
Servicer default | 43 | |||
Reports to noteholders | 45 | |||
Evidence as to compliance | 46 | |||
Amendments | 46 | |||
THE INDENTURE | 47 | |||
Events of default; rights upon event of default | 48 | |||
Covenants | 51 | |||
Modification of the indenture | 52 | |||
Annual compliance statement | 54 | |||
Indenture trustee's annual report | 54 | |||
List of noteholders | 54 | |||
Satisfaction and discharge of indenture | 54 | |||
The indenture trustee | 54 | |||
Matters regarding the administrator | 56 | |||
TRUST AGREEMENT FOR RFS FUNDING TRUST | 56 | |||
Trustee For RFS Funding Trust | 56 | |||
New issuances of investor certificates | 59 | |||
Amendments | 59 | |||
CREDIT ENHANCEMENT | 60 | |||
ii
General | 60 | |||
Subordination | 61 | |||
Letter of credit | 61 | |||
Cash collateral guaranty, cash collateral account or excess collateral | 61 | |||
Surety bond or insurance policy | 62 | |||
Spread account | 62 | |||
Reserve account | 63 | |||
DESCRIPTION OF THE BANK RECEIVABLES SALE AGREEMENT | 63 | |||
Sale of receivables | 63 | |||
Representations and warranties | 63 | |||
Covenants | 65 | |||
Merger or consolidation | 65 | |||
Amendments | 66 | |||
Termination | 66 | |||
NOTE RATINGS | 66 | |||
MATERIAL LEGAL ASPECTS OF THE RECEIVABLES | 67 | |||
Transfer of receivables | 67 | |||
Conservatorship and receivership | 68 | |||
Safety and soundness | 69 | |||
Consumer protection laws | 69 | |||
FEDERAL INCOME TAX CONSEQUENCES | 70 | |||
Classification of fasits | 70 | |||
Tax consequences to holder of the notes | 72 | |||
Special rules for fasit high-yield regular interests | 74 | |||
Pass-through entities holding notes | 74 | |||
Prohibited transactions and other taxes | 75 | |||
Termination of the rfs fasit | 75 | |||
STATE TAX CONSEQUENCES | 75 | |||
ERISA CONSIDERATIONS | 75 | |||
PLAN OF DISTRIBUTION | 76 | |||
REPORTS TO NOTEHOLDERS | 77 | |||
WHERE YOU CAN FIND MORE INFORMATION | 77 | |||
GLOSSARY OF TERMS FOR PROSPECTUS | 78 | |||
GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION PROCEDURES | A-1 |
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Summary: Overview of Transactions
Each series of notes will be issued by GE Capital Credit Card Master Note Trust and will include one or more classes of notes constituting debt of the issuer. Each series and class may differ as to timing and priority of payments, interest rates, amount of payments in respect of principal or interest and credit enhancement. We, RFS Holding, L.L.C., will disclose the details of the timing and priority of payments and other matters in a prospectus supplement.
Initially, the primary asset of the issuer will be a note trust certificate that RFS Funding Trust will issue to us, and we will transfer to the issuer. The note trust certificate represents a beneficial ownership interest in a designated pool of the credit card receivables that are owned by RFS Funding Trust and other related designated assets of RFS Funding Trust. We refer to the receivables in which the note trust certificate represents a beneficial ownership interest as the transferred receivables.
Monogram Credit Card Bank of Georgia is the originator of the transferred receivables. The bank sells receivables to us, and we, in turn, transfer the receivables to RFS Funding Trust.
The transferred receivables arise in eligible accounts designated by the bank from a number of retailer programs in its portfolio of private label credit card accounts. The bank may, from time to time, designate additional eligible accounts, and we will buy the receivables arising in those accounts from the bank and transfer them to RFS Funding Trust. Once an account has been designated, all new receivables generated in that account will be automatically sold to us and transferred to RFS Funding Trust. The bank continues to own the designated accounts, and has been hired to service the transferred receivables. The total amount of transferred receivables will fluctuate daily as new transferred receivables are generated and payments are received on existing transferred receivables.
RFS Funding Trust has obtained a loan that is secured by an undivided interest in the transferred receivables, as well as the collections on other credit card receivables held by RFS Funding Trust that are not transferred receivables. After the RFS Funding Trust loan has been retired, RFS Funding Trust will terminate, at which time the transferred receivables remaining in RFS Funding Trust will be transferred to the issuer and held directly by the issuer. Thereafter, we will transfer newly arising receivables that we purchase from the bank directly to the issuer. References to the transferred receivables in this prospectus and the prospectus supplement also include any receivables that we may transfer directly to the issuer in the future. We refer to the entityeither RFS Funding Trust or the issuerthat holds the transferred receivables at any given time as the trust.
Deutsche Bank Trust Company Delaware is the trustee for RFS Funding Trust, and Deutsche Bank Trust Company Americas will act as indenture trustee for the issuer. The issuer will grant a security interest in its assetsincluding the note trust certificate or, if RFS Funding Trust has terminated, the transferred receivablesto the indenture trustee for the benefit of the noteholders.
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The following is a summary of the principal risk factors that apply to an investment in the notes. You should consider the following risk factors and any risk factors in the accompanying prospectus supplement before deciding whether to purchase the notes.
An adverse determination in litigation relating to the bank could reduce yield on the trust accounts.
The bank is a defendant in a class action lawsuit in which the plaintiffs have alleged that certain interest and fees charged to customers in Louisiana by the bank exceed the amounts permitted by applicable law. ( Heaton v. Monogram Credit Card Bank of Georgia , 297 F.3d 416 (5th Cir. 2002) (reversing lower court's denial of FDIC's motion to intervene)). Specifically, the plaintiffs have argued that the bank is not a "state bank" under the portion of the Federal Deposit Insurance Act that entitles state banks to export interest rates under federal lawthat is, to charge customers who are not residents of the state where the bank is chartered interest rates and certain fees that are lawful in the state where the bank is chartered, even though those rates and fees may exceed the limitations provided under the laws of the states in which those customers reside. The bank believes that it is a state bank under the applicable federal statute that allows state banks to export interest rates. The bank intends to continue to defend its position in court. However, if a court did hold that the bank was not a state bank for purposes of the applicable federal statute, certain interest and fees charged by the bank to customers residing outside of the State of Georgia might be unlawful and the bank might be required to refund to class members any unlawfully collected amounts and to reduce the finance charges and other fees that the bank charges customers in Louisiana and elsewhere. A reduction in finance charges and fees would reduce the yield for the trust portfolio and could result in an early amortization event for your series and could result in the early payment of your notes. A reduction in finance charges and fees on the accounts would also reduce the amount of collections available to pay interest on your notes. In addition, some state laws authorize banks charging excess interest to be penalized by being required to refund all interest previously charged or multiples of that amount. Such penalties could augment the ill effects of a determination that the bank was charging excess interest because it was never legitimately determined to be a state bank.
Some liens may be given priority over your notes, which could cause delayed or reduced payments.
We and the bank account for our respective transfers of the receivables as sales. Even so, a court could conclude that we or the bank own the receivables and that the trust holds only a security interest in the receivables. Even if a court would reach that conclusion, however, steps will be taken to give the indenture trustee a first-priority perfected security interest in the receivables, either directly or through RFS Funding Trust.
If a court were to conclude that the trust has only a security interest in the receivables, a tax or governmental lien or other lien imposed under applicable state or federal law on our property or the bank's property arising before receivables come into existence may be senior to the trust's interest in the receivables. Additionally, if a receiver or conservator were appointed for the bank, the fees and expenses of the receiver or conservator might be paid from the receivables before the trust receives any payments on the receivables. In addition, the trust may not have a first-priority perfected security interest in collections that have been commingled with other funds. If any of these events were to occur, payments to you could be delayed or reduced. See " Material Legal Aspects of the ReceivablesTransfer of Receivables" and "Description of the NotesRepresentations and Warranties " in this prospectus.
Regulatory action could cause delays or reductions in payment of your notes.
If the bank were to become insolvent, the FDIC could act as conservator or receiver for the bank. In that role, the FDIC would have broad powers to repudiate contracts to which the bank was party if
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the FDIC determined that the contracts were burdensome and that repudiation would promote the orderly administration of the bank's affairs.
The FDIC has adopted a rule stating that, if certain conditions are met, the FDIC will not use its repudiation power to reclaim, recover or recharacterize as property of an FDIC-insured bank any financial assets transferred by that bank in connection with a securitization transaction. Although the FDIC has the power to repeal or amend its own rules, the securitization rule states that any repeal or amendment of that rule will not apply to any transfers of financial assets made before the repeal or amendment.
We have structured the issuance of the notes with the intention that the transfers of the receivables by the bank would have the benefit of this rule. If the FDIC were to assert that the rule does not apply to these transfers of receivables or that these transactions do not comply with other banking laws, however, payments of principal and interest on your notes could be delayed and, if the FDIC were successful, possibly reduced. Furthermore, if the FDIC were successful, the FDIC could:
If the FDIC were to successfully take any of these actions, the amount payable to you could be lower than the outstanding principal and accrued interest on the notes, thus resulting in losses to you.
If a conservator or receiver were appointed for the bank, an early payment of principal on all outstanding series could result. Under the terms of the agreement that governs the transfer of the receivables from us to the trust, new principal receivables would not be transferred to the trust. The conservator or receiver may have the power:
See " Material Legal Aspects of the ReceivablesConservatorship, Receivership and Bankruptcy " in this prospectus.
In addition, at any time, if the FDIC were to conclude that an obligation of the bank under the agreement governing the transfer of receivables to us or the servicing agreement were an unsafe or unsound practice or violated any law, rule or regulation applicable to the bank, the FDIC could order the bank to rescind or amend the terms of such obligation. see " Material Legal Aspects of the ReceivablesSafety and Soundness " in this prospectus.
If we became a debtor in a bankruptcy case, delays or reductions in payment of your notes could occur.
We are a bankruptcy remote affiliate of the bank, and our limited liability company agreement limits the nature of our business. If, however, we became a debtor in a bankruptcy case, a court could conclude that we effectively still own the transferred receivables. This could happen if a court presiding over our bankruptcy were to conclude either that the transfers referred to above were not "true sales"
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or that we and the trust should be treated as the same person for bankruptcy purposes. If this were to occur, then you could experience delays or reductions in payments as a result of:
Commingling of payments could cause delays or reductions in payment of your notes.
So long as General Electric Capital Corporation continues to guarantee the bank's servicing obligations and retains credit ratings that satisfy rating agency requirements, and there exists no servicer default, collections on the transferred receivables will not be required to be deposited into the related collection account until on or before the business day preceding the payment date. Pending deposit into the related collection account, collections may be held by the servicer and invested at its own risk and for its own benefit, and will not be segregated from funds of the servicer. If the servicer were unable to remit such funds or did not for any reason remit such funds, you might experience delays in payments on your notes or might incur a loss.
The bank may change the terms and conditions of the accounts in a way that reduces collections.
The bank transfers the receivables but continues to own the credit card accounts. As owner of the accounts, the bank retains the right to change various account terms, including finance charges, other fees and the required monthly minimum payment. These changes may be voluntary on the part of the bank or may be required by law, market conditions or other reasons. Changes in the terms of the accounts may reduce the amount of receivables arising under the accounts, reduce the portfolio yield, reduce the amount of collections on those receivables or otherwise alter payment patterns. Payments to you could be accelerated, delayed or reduced as a result of these changes. Changes could also cause a reduction in the credit ratings on your notes.
Charged-off receivables or uncovered dilution could reduce payments to you.
The primary risk associated with extending credit to the bank's customers under its private label credit card programs is the risk of default or bankruptcy of the customer, resulting in the customer's account balance being charged-off as uncollectible. The bank relies principally on the customer's creditworthiness for repayment of the account and usually has no other recourse for collection. In certain circumstances, the bank may not be able to successfully identify and evaluate the creditworthiness of cardholders to minimize delinquencies and losses. General economic factors, such as the rate of inflation, unemployment levels and interest rates, may result in greater delinquencies that lead to greater credit losses among customers.
In addition to being affected by general economic conditions and the success of the servicer's collection and recovery efforts, the trust's delinquency and net credit card receivable charge-off rates are affected by the average age of the various credit card account portfolios. The average age of credit card receivables affects the stability of delinquency and loss rates of the portfolio because delinquency and loss rates typically increase as the average age of accounts in a credit card portfolio increases. The servicer, on behalf of the trust, will charge-off the receivables arising in accounts designated to the trust in accordance with the trust's collection policies if the receivables become uncollectible. The collateral
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securing your notes will be allocated a portion of these charged-off receivables. See " Description of Series ProvisionsAllocation Percentages " and " Investor Charge-Offs " in the accompanying prospectus supplement.
Unlike charged-off receivables, reductions in the receivables due to returns of merchandise, unauthorized charges or disputes between a cardholder and a merchant, called dilution, are typically absorbed by reductions in our interest in the trust, or reimbursed by us through cash deposits to the excess funding account and are not intended to be allocated to the collateral securing your notes. However, to the extent our interest is insufficient to cover dilution for any monthly period and we then default in our obligation to compensate the trust for these reductions, the collateral securing your notes will be allocated a portion of the uncovered dilution.
If the amount of charged-off receivables and any uncovered dilution allocated to the collateral securing your notes exceeds the amount of funds available to reimburse those amounts, you may not receive the full amount of principal and interest due to you. See " Description of Series ProvisionsInvestor Charge-Offs " in the accompanying prospectus supplement and " Description of the NotesDefaulted Receivables; Dilution; Investor Charge-Offs " in this prospectus.
Current and proposed regulation and legislation relating to consumer protection laws may impede collection efforts or reduce collections.
Various federal and state consumer protection laws regulate the creation and enforcement of consumer loans, including credit card accounts and receivables. Such laws and regulations, among other things, limit the fees and other charges that the bank can impose on customers, limit or prescribe certain other terms of the bank's products and services, require specified disclosures to consumers, or require that the bank maintain certain qualifications and minimum capital levels. In some cases, the precise application of these statutes and regulations is not clear. In addition, numerous legislative and regulatory proposals are advanced each year which, if adopted, could have a material adverse effect on the amount of collections available to the trust or further restrict the manner in which the servicer may conduct its activities on behalf of the trust. The failure to comply with these laws or regulations or adverse changes in their terms or interpretation, could make it more difficult to collect payments on the receivables or reduce the finance charges and other fees that can be charged, resulting in reduced collections.
Receivables that do not comply with consumer protection laws may not be valid or enforceable under their terms against the obligors on those receivables. If a cardholder sought protection under federal or state bankruptcy or debtor relief laws, a court could reduce or discharge completely the cardholder's obligations to repay amounts due on its account and, as a result, the related receivables would be charged-off as uncollectible. See " Material Legal Aspects of the ReceivablesConsumer Protection Laws " in this prospectus.
Limited remedies for breaches of representations could reduce or delay payments.
When we transfer the receivables to the trust, we make representations and warranties relating to the validity and enforceability of the transferred receivables, and as to the perfection and priority of the trust's interest in the receivables. However, none of the trustee for RFS Funding Trust, the owner trustee or the indenture trustee will make any examination of the receivables or the related assets to determine the presence of defects or compliance with the representations and warranties or for any other purpose.
A representation or warranty relating to the receivables may be violated if the related obligors have defenses to payment or offset rights, or our creditors or creditors of the bank claim rights to the trust assets. If a representation or warranty is violated, we may have an opportunity to cure the violation. If we are unable to cure any violation within the specified time period and the violation has a material adverse effect on the transferred receivables or the availability of the proceeds to the trust, we
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must, if requested, accept reassignment of the receivables affected by the violation. See " Description of the NotesRepresentations and Warranties " in this prospectus.
Payment and origination patterns of receivables and operations of retailers could reduce collections.
The receivables transferred to the trust may be paid at any time. Prepayments represent principal reductions in excess of the contractually scheduled reductions. The rate of cardholder prepayments or defaults on credit card balances, as well as credit card usage, may be affected by a variety of competitive, economic and social factors.
The bank's ability to generate new receivables is completely dependent upon sales at or through the retailers. The retailing industry is intensely competitive. Generally, the retailers compete not only with other retailers and department stores in the geographic areas in which they operate, but also with numerous other types of retail outlets, including catalog and internet sales businesses. We cannot assure you that the retailers will continue to generate receivables at the same rate as in prior years. Also, if a retailer were to close some or all of its stores or otherwise stop honoring the related credit cards, the loss of utility of the affected credit cards could reduce the cardholders' incentive to pay their outstanding balances.
The bank's ability to generate new receivables is also dependent upon its ability to compete in the current industry environment. Because the retailers generally accept most major credit cards, not all sales made on credit at the retailers will generate receivables that will be transferred to the trust. We cannot guarantee that credit card sales under the bank's private label credit card programs will not decline as a percentage of total credit card sales by the retailers.
Economic factors that may affect payment patterns and credit card usage include the rate of inflation, unemployment levels, relative interest rates and the availability of alternative financing, most of which are not within the bank's control. A decrease in interest rates could cause cardholder prepayments to increase.
Social factors that may affect payment patterns and credit card usage include consumer confidence levels and the public's attitude about the use of credit cards and incurring debt and the consequences of personal bankruptcy. Moreover, adverse changes in economic conditions in states where cardholders are located, terrorist acts against the United States or other nations, or the commencement of hostilities between the United States and a foreign nation or nations could have a direct impact on the timing and amounts of payments on your notes.
We cannot assure the creation of additional receivables in the accounts designated to the trust or that any particular pattern of cardholder payments will occur. A significant decline in the amount of new receivables generated could result in the commencement of an early amortization period for each of those series. If an early amortization event occurs, you could receive payment of principal sooner than expected. In addition, changes in finance charges can alter the monthly payment rates of cardholders. A significant decrease in monthly payment rates could slow the return or accumulation of principal during an amortization period or accumulation period. See " Maturity Considerations " in the accompanying prospectus supplement.
Termination of certain private label credit card programs could lead to a reduction of receivables in the trust.
The bank operates its private label credit card programs with various retailers under agreements, some of which may expire while your notes are outstanding. Some of those program agreements provide that, upon expiration, the retailer has either the option or the obligation to purchase the receivables generated with respect to its program, including receivables in the trust. If these terminations and purchases were to occur with respect to retailers whose programs generate a significant portion of the trust's receivables, and the bank were unable to provide receivables arising under newly designated additional accounts to replace those purchased by the retailers, an early amortization period could begin.
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In addition, the program agreements generally permit retailers to discontinue their programs prior to the respective termination dates for the programs if the bank materially breaches its obligations under the related program agreements, subject to any cure rights the bank may have under the related program agreements. If the bank were unable to adequately perform its obligations, or a retailer were otherwise to assert that the bank was not adequately performing, then one or more of the programs could be terminated, leading to a reduction in the generation of receivables.
Recharacterization of principal receivables would reduce principal receivables and may require the addition of new receivables.
As described under " Description of the NotesDiscount Option " in this prospectus, we may designate a portion of some or all transferred receivables that would otherwise be treated as principal receivables to be treated as finance charge receivables. This designation should decrease the likelihood of an early amortization event occurring as a result of a reduction of the average net portfolio yield for a given period. However, this designation will also reduce the aggregate amount of transferred principal receivables, which may increase the likelihood that we will be required to add receivables to the trust. If we were unable to add receivables, one or more series of notes, including your series, could go into early amortization.
The note interest rate and the receivables interest rate may re-set at different times, resulting in reduced or early payments to you.
Some accounts have finance charges assessed at a variable rate based on a designated index, which rate may or may not be subject to a specified floor. A series of notes may bear interest either at a fixed rate or at a floating rate based on a different index. If the interest rate charged on the accounts declines, collections of finance charge receivables may be reduced without a corresponding reduction in the amounts of interest payable on your notes and other amounts required to be paid out of collections of finance charge receivables. If the interest rate on the accounts declines or the interest rate on a series increases, this could decrease the spread, or difference, between collections of finance charge receivables and those collections allocated to make interest payments on your notes. This would increase the risk of early repayment of your notes, as well as the risk that there may not be sufficient collections to make all required payments on your notes.
We may assign our obligations as transferor and the bank may assign its obligations as servicer.
Either we or the bank may transfer our rights and obligations in our respective capacities as transferor or servicer to one or more entities without noteholders' consent so long as specific conditions are satisfied. See " Description of the NotesMatters Regarding the Transferor " and " Matters Regarding the Servicer " in this prospectus. The entity assuming the rights and obligations may or may not be affiliated with us or the bank. After the assignment, either we or the bank, as the case may be, would have no further liability or obligation under the documents relating to the notes and the trust, other than those liabilities that arose prior to the transfer.
Default by a counterparty to a derivative contract or termination of a derivative contract could lead to the commencement of an early amortization period.
If specified in the prospectus supplement for your series, the issuer may enter into one or more derivative contracts for the benefit of your series. Derivative contracts include interest rate swaps, currency swaps, credit swaps, interest rate caps or interest rate floors.
If a counterparty to a derivative contract for your series does not make a required payment, the issuer will have less funds available to make payments on your notes. This could cause delays or reductions in the amount of interest or principal paid to you. The failure of a counterparty to make a required payment may also, subject to any applicable grace periods specified in the related prospectus supplement, cause an early amortization event and commencement of the early amortization period. If
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this were to happen, you could be paid sooner than expected and may not be able to reinvest the amount paid to you at the same rate you would have been able to earn on your notes.
If any derivative contract for your series were to terminate, the issuer might not be able to enter into a replacement derivative contract. For example, a derivative contract may terminate if the counterparty is downgraded or if the counterparty defaults on its obligations. The early termination of a derivative contract may, subject to any applicable grace periods specified in the related prospectus supplement, cause an early amortization event and commencement of the early amortization period if the issuer does not enter into a replacement derivative contract. If this were to happen, you could be paid sooner than expected and may not be able to reinvest the amount paid to you at the same rate you would have been able to earn on your notes.
Issuance of additional notes may affect the timing and amount of payments to you.
The issuer expects to issue notes from time to time. New notes, which may have different terms from outstanding notes, may be issued without any requirement for notice to, or consent from, existing noteholders. For a description of the conditions that must be met before the issuer can issues new notes, see " Description of the NotesNew Issuances of Notes " in this prospectus.
The issuance of new notes could adversely affect the timing and amount of payments on outstanding notes. For example, if additional notes in the same group as your series for purposes of sharing excess finance charge collections are issued after your notes and those notes have a higher interest rate than your notes, this could result in a reduction in the amount of excess funds from other series available to pay interest on your notes. Also, when new notes are issued, the voting rights of your notes will be diluted.
Addition of credit card accounts to the trust may decrease the credit quality of the assets securing the repayment of your notes. If this occurs, your receipt of payments of principal and interest may be reduced, delayed or accelerated.
The assets of the trust securing the notes change every day. We may choose, or may be required, to add credit card receivables to the trust. The credit card accounts from which these receivables arise may have different terms and conditions from the credit card accounts already designated for the trust. For example, the new credit card accounts may have higher or lower fees or interest rates, or different payment terms. We cannot guarantee that new credit card accounts will be of the same credit quality as the credit card accounts currently or historically designated for the trust. If the credit quality of the assets in the trust were to deteriorate, the issuer's ability to make payments on the notes could be adversely affected. See " Description of the NotesAddition of Trust Assets " in this prospectus.
Acts of terrorism and related military actions could adversely affect the timing or amount of payments on your notes.
The acts of terrorism which occurred in the United States on September 11, 2001 had an immediate impact on commercial activities in the United States, including the use of credit cards and the payment of credit card bills during the first few days after the terrorist attacks. The ongoing effect of the terrorist attacks on credit card use and payment patterns is unclear. The political and military actions taken in response to the terrorist attacks and the impact of those actions on credit card use and payment patterns are also unclear. We cannot predict the extent to which these events or similar events, including the recent conflict with Iraq, will have an adverse effect on general economic conditions, consumer confidence or general market liquidity or on credit card use or payment patterns. If delinquencies or losses on the receivables increase or the yield on the receivables, the rate at which new receivables are created or the principal payment rate on the receivables declines as a result of these events or similar events in the future, you may suffer payment delays or losses with respect to your notes or be exposed to reinvestment risk.
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This prospectus uses defined terms. You can find a glossary of these terms under the caption " Glossary of Terms for Prospectus " beginning on page 78 in this prospectus.
The Issuer
The issuer of your notes will be GE Capital Credit Card Master Note Trust. The issuer will be a statutory trust created under the laws of the State of Delaware. It will be operated under a trust agreement, dated as of September 25, 2003, between us and The Bank of New York (Delaware), as Owner Trustee.
The activities of the issuer consist of:
The issuer's principal offices are at the following address: c/o General Electric Capital Corporation, as administrator, 1600 Summer Street, Stamford, CT 06927. The issuer's phone number is (203) 585-6586.
RFS Holding, L.L.C.
WeRFS Holding, L.L.C.are a limited liability company formed under the laws of the State of Delaware on December 19, 2002, and are a wholly-owned, indirect subsidiary of General Electric Capital Services, Inc., which is also the indirect parent of Monogram Credit Card Bank of Georgia and the direct parent of General Electric Capital Corporation. We were organized for the purpose of purchasing, holding, owning and transferring receivables and related activities.
RFS Funding Trust
The notes are secured by a beneficial ownership interest in a pool of receivables that arise under revolving credit card accounts owned by Monogram Credit Card Bank of Georgia and designated by the bank as trust accounts. The receivables are currently held by RFS Funding Trust, a Delaware statutory trust formed in December 2002 by the conversion of a predecessor Delaware corporation, RFS Funding Incorporated. RFS Funding Incorporated was formed in September 1997 to securitize a portion of the bank's private label credit card receivables by purchasing those receivables from the bank and obtaining a loan secured by those receivables from a special purpose entity that issues commercial paper and is sponsored by GE Capital. That loan remains outstanding and is secured by an undivided interest in the transferred receivables held by RFS Funding Trust, similar to the beneficial ownership interest that secures the notes, as well as a 100% interest in a pool of receivables arising in accounts that are not designated as trust accounts. The principal amount of the interest in the transferred receivables that has been pledged to secure the RFS Funding Trust loan as of the closing date for any series of notes will be disclosed in Annex II to the prospectus supplement for the related series. The principal amount of that interest will be reduced by the amount of principal collections, defaulted receivables and dilution allocated to that interest for each Monthly Period and will not be increased. In this prospectus, we refer to the RFS Funding Trust loan and the various series of notes issued by the issuer collectively as the securities, and we refer to the holders of the securities as securityholders.
RFS Funding Trust has issued a note trust certificate to us that represents a beneficial ownership interest in the transferred receivables. We have transferred the note trust certificate to the issuer under a transfer agreement, and the issuer has granted a security interest in the note trust certificate to the
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indenture trustee. RFS Funding Trust has also granted a security interest in the transferred receivables and the proceeds of the transferred receivables directly to the indenture trustee pursuant to a security agreement. RFS Funding Trust, the lender for the RFS Funding Trust loan described above and the indenture trustee have entered into an intercreditor agreement pursuant to which each of the lender under the RFS Funding Trust loan and the indenture trustee will release from its respective security interest any collections allocated to the other party. Each of the lender under the RFS Funding Trust loan and the indenture trustee has agreed that if at any time it exercises its right to cause the sale of any transferred receivables, it will only be entitled to sell principal receivables, which will be randomly selected, in an aggregate amount not to exceed its undivided interest in the trust. The indenture trustee on behalf of any series of notes will only be entitled to sell transferred principal receivables in an amount equal to the collateral amount for that series, plus related finance charge receivables. If the lender for the RFS Funding Trust loan were to exercise its right to cause the sale of any receivables securing its loan, it would sell those receivables in which it has a security interest that are not included in the transferred receivables and other randomly selected transferred principal receivables in an amount not to exceed its undivided interest in the trust, plus the related finance charge receivables.
After the RFS Funding Trust loan referred to above and any other interests in the transferred receivables issued by RFS Funding Trust, other than the note trust certificate, have been retired, we will cause RFS Funding Trust to terminate, at which time the transferred receivables would be transferred to the issuer and held directly by the issuer. Thereafter, we would transfer newly arising receivables in the trust accounts directly to the issuer under the transfer agreement.
The trustee of RFS Funding Trust is Deutsche Bank Trust Company Delaware, the principal office of which is at 60 Wall Street, 26th FloorMS NYC 60 - 2606, New York, New York 10005. The administrator for RFS Funding Trust is GE Capital.
General Electric Capital Corporation
General Electric Capital Corporation, a Delaware corporation (often referred to as GE Capital), is the direct parent of GE Capital Consumer Card Co. and the indirect parent of Monogram Credit Card Bank of Georgia, and acts in two capacities in connection with the issuer: (1) it guarantees the obligations of the bank as servicer of the transferred receivables and (2) it acts as administrator for the issuer and RFS Funding Trust. The bank also contracts with GE Capital and other affiliates of the bank to perform certain servicing functions described below under " Servicing of the Accounts ."
All of GE Capital's outstanding common stock is owned by General Electric Capital Services, Inc., the common stock of which is in turn wholly owned directly or indirectly by General Electric Company (GE). Financing and services offered by GE Capital are diversified, a significant change from the original business of GE Capital and its predecessor entities, which was financing distribution and sale of consumer and other GE products. GE manufactures few of the products financed by GE Capital. GE Capital's principal executive offices are at 260 Long Ridge Road, Stamford, Connecticut 06927-1600. As of December 31, 2003, GE Capital's employment totaled approximately 83,700.
GE Capital's financial information, including filings with the U.S. Securities and Exchange Commission (SEC), is available at www.ge.com/en/company/investor/secfilings.htm. Copies are also available, without charge, from GE Corporate Investor Communications, 3135 Easton Turnpike, Fairfield, CT, 06828-0001. Alternatively, reports filed with the SEC may be viewed or obtained at the SEC Public Reference Room in Washington, D.C., or at www.sec.gov.
GE Capital provides a wide variety of financing, asset management, and insurance products and services which are organized into the following four operating segments:
Consumer Finance. Consumer Finance offers a broad range of financial products, including private-label credit cards, personal loans, bank cards, auto loans, leases and inventory financing,
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residential mortgages, corporate travel and purchasing cards, debt consolidation, home equity loans, and credit insurance.
Consumer Finance's operations are located principally in the United States, and in Europe, Asia, Latin and South America, Australia and New Zealand and are conducted principally through the Global Consumer Finance and Card Services businesses described below.
Global Consumer Finance. Global Consumer Finance is a leading provider of financial products and services to retailers, auto dealers, and consumers outside of North America. Global Consumer Finance provides private-label credit cards and proprietary credit services to retailers in Europe, Asia Pacific and, to a lesser extent, Latin and South America. Global Consumer Finance also provides a variety of direct-to-consumer credit programs such as personal loans, bank cards, auto loans and leases, residential mortgages, debt consolidation, home equity loans and the distribution of credit insurance.
Card Services. Card Services is a leading provider of sales financing services to North American retailers in a broad range of consumer industries and the originator of the receivables that comprise the primary collateral for the notes. Product offerings include customized private-label credit card solutions for retailers such as JC Penney, Wal-Mart, Sam's Club and Lowe's (all of which generate receivables that are included in the trust), and other major retailers. Product offerings also include personal loans, home equity loans, business credit services, and corporate travel and purchasing cards. GE Capital Consumer Card Co. and Monogram Credit Card Bank of Georgia are operated within the Card Services business. None of the retailers associated with these private label credit programs are affiliates of GE Capital.
Commercial Finance. Commercial Finance offers an array of financial services worldwide. With particular expertise in the mid-market segment, this operating segment offers loans, leases, and other financial services to customers, including manufacturers, distributors and end-users for a variety of equipment and major capital assets including industrial facilities and equipment, energy-related facilities, commercial and residential real estate, vehicles, aircraft, and equipment used in construction, manufacturing, data telecommunications, and healthcare.
Commercial Finance has offices throughout the United States and in Canada, Latin America, Europe, and Asia Pacific.
Equipment Management and Other Services. Equipment Management and Other Services helps customers manage, finance and operate a wide variety of business equipment worldwide. This operating segment provides rentals, leases, sales, asset management services and loans for portfolios of commercial and transportation equipment, including tractors, trailers, railroad rolling stock, intermodal shipping containers, modular space units, computer networks, marine containers and autos.
Equipment Management and Other Services has offices throughout the United States and in Canada, Mexico and Europe.
Insurance. Insurance offers a broad range of insurance and investment products that help consumers create and preserve personal wealth, protect assets and enhance their life styles. For lenders and investors, these insurance products protect against the risk of default on low-down-payment mortgages. For businesses, it provides reinsurance and primary commercial insurance products to insurance companies, Fortune 100 companies, self-insurers and healthcare providers. Through December 2003, for state and local governments and other public entities, Insurance offered financial guarantees for a variety of debt securities. Insurance has offices throughout the United States and in Canada, Europe, Latin America and Australia.
In November 2003, GE announced its intent to make an initial public offering of a new company, Genworth Financial, Inc., comprising most of the Insurance operating segment's life and mortgage
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insurance businesses. GE plans to sell approximately one-third of Genworth's equity in the initial public offering, and expects (subject to market conditions) to reduce its ownership over the next three years as Genworth transitions to full independence. GE commenced the offering process in January 2004 and expects to complete the initial public offering in the first half of the year, subject to market conditions and receipt of various regulatory approvals.
GE Capital Consumer Card Co.
GE Capital Consumer Card Co. is an FDIC-insured federal savings bank which is regulated, supervised and examined by the Office of Thrift Supervision. GE Capital Consumer Card Co. was established in 1988 as a limited purpose credit card bank and converted to a federal savings bank in 2003. GE Capital Consumer Card Co. is engaged in various retail sales financing programs including private label credit cards, consumer installment and home improvement loans. In addition, GE Capital Consumer Card Co. has recently entered the mortgage loan business. GE Capital Consumer Card Co. is a wholly owned subsidiary of GE Capital and is the parent of Monogram Credit Card Bank of Georgia.
Monogram Credit Card Bank of Georgia
Monogram Credit Card Bank of Georgia is an FDIC-insured limited purpose credit card bank chartered under the laws of the State of Georgia. The bank is regulated, supervised, and examined by the Georgia Department of Banking and Finance and the Federal Deposit Insurance Corporation. Established in 1988, the bank is the main card issuing entity for the private label credit card business within Card Services, which is a subdivision of GE Capital's Consumer Finance operating segment. Monogram is a wholly owned subsidiary of GE Capital Consumer Card Co.
The Bank's Credit Card Activities
General
The bank currently offers only private label credit accounts. The private label credit account business consists of revolving consumer credit account programs established with retailers that have been approved by the bank. Open-end revolving credit card accounts are offered to customers of those retailers. Each credit account is established primarily for the purchase of goods and services of a particular retailer. In addition, in the future cardholders may also be able to access their credit card accounts by using checks issued by the bank for cash advances and other purchases on their credit accounts.
Many retailers have been replacing private label credit cards offered to their customers with co-branded MasterCard and VISA general purpose credit cards that may be used to purchase goods and services wherever MasterCard and VISA, as the case may be, are accepted. From time to time, the bank evaluates offering a dual purpose credit card that combines a private label credit line for use in the retailer's store with a general purpose credit line for use elsewhere. If the bank were to offer dual purpose cards in the future, those accounts may be designated to the trust portfolio if they meet the applicable eligibility criteria. If any accounts arising in one or more dual card programs are designated as trust accounts, a portion of interchange revenue relating to such accounts may be transferred from the bank to us and from us to the trust. Interchange is the term for the fees received by creditors participating in the Visa and MasterCard International associations as partial compensation for taking credit risk, absorbing fraud losses and funding receivables for a limited period prior to initial billing. Any interchange revenues so transferred will be treated as collections of finance charge receivables.
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Retailers that are approved and accepted into a private label program enter into a credit card program agreement with the bank. These agreements vary on a retailer-by-retailer basis, and may be amended from time to time. Under these agreements, the bank issues credit cards to approved customers and owns the underlying account and all receivables generated thereunder from the time of origination, unless otherwise sold following origination.
The program agreements generally provide that the bank will fund new purchases on an account only if the bank has authorized such new purchases. Some program agreements also provide that upon termination, the retailer has the option to purchase the receivables generated with respect to its program, including receivables in the trust. If these terminations and purchases were to occur with respect to retailers whose programs generate a significant portion of the trust's receivables, and the bank were unable to provide receivables arising under newly designated additional accounts to replace those purchased by a retailer, an early amortization period could begin.
The program agreements typically provide that the bank may chargeback a receivable if customer disputes occur concerning the merchandise or the validity of the charge or if there is a violation of certain terms of the program agreement. The program agreements may also provide for chargeback of receivables if there is fraud and the retailer failed to follow the operating procedures documented in the program agreement. In most other cases there is no recourse to the retailer because of the failure of the customer to pay.
The program agreements generally have terms ranging from three to five years and many of the program agreements have renewal clauses which allow the program agreement to be renewed for successive one or more year terms until terminated by the bank or the retailer. In addition, the program agreements generally permit termination in the event of a breach of the agreement or in the event the retailer becomes insolvent, files bankruptcy, undergoes a change in ownership or has a material adverse change in financial condition.
Account Origination
The bank has separately developed programs to promote credit with each of the retailers and has developed varying credit decision guidelines for the different retailers. The bank originates revolving credit card accounts through several different channels: (1) in-store, (2) mail, (3) internet, (4) telephone and (5) pre-approved solicitations.
Applicants provide information such as name, address, telephone number, date of birth and social security number. Once inputted into the credit application system, the application is screened for information such as applicant age, missing information and other information which would result in a policy rejection of the application. After clearing these screens, the application is scored based on the applicant's credit bureau report obtained from one of the three major credit bureaus using proprietary credit and bankruptcy scorecards. The bank applies additional application screens based on input from credit bureaus and applicant information to help identify potential fraud and prior bankruptcies before qualifying the application for approval. Accounts that are identified as involving potential fraud will go through an additional authorization process before being approved. Qualifying credit scores and initial credit line assignments are determined for each portfolio by the risk management group responsible for the individual portfolio.
The process for submitting applications through a retail client location requires the sales associate to transmit the applicant's information to the bank after obtaining positive identification and providing the applicant with key account terms. Once received by the bank, the application is entered and reviewed as required and the system automatically screens the application for content and obtains application scores electronically. If the application is approved, the sales associate is advised of the
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account number and credit line either electronically or by phone. If the application is declined or referred for additional reviews, the store is advised that the applicant will be notified of the final decision by mail. When an application is approved, the store offers the new account holder the opportunity to shop immediately on the card using a temporary shopping pass after providing the new cardholder with the account terms and conditions. Credit cards and an additional copy of the account terms and conditions are mailed to the cardholder following approval.
Applications submitted through the mail or entered through the internet are processed similarly after the information is entered into the system, except that the applicant is notified of the bank's decision regarding the application by mail.
A number of the current retailers use or have used pre-approved account solicitations in varying degrees. The bank, through a credit bureau, eliminates existing accounts from the list and scores the remaining names using credit bureau information to eliminate those prospects less likely to respond to the offer as well as those not meeting an established minimum risk score. The remaining qualified individuals are each mailed a pre-approved account solicitation.
At the time a new account is opened, the bank assigns the credit card account to a billing cycle to control monthly billings.
Marketing Programs
Following new account opening, the bank has an ongoing lifecycle marketing program, the primary purpose of which is to promote cardholders' loyalty to the retailers. Working in close collaboration with each retailer client, the bank develops card marketing programs that promote retailers' cardholder sales for creditworthy cardholders. Direct mail campaigns and monthly billing statements provide direct marketing communications for cardholders. This supports the retailer's in-store programs by encouraging both store traffic and card usage. These programs include cardholder specific offers, events and special services including product discounts, dollar-off coupons, cardholder sales, new product announcements and previews, gift wrapping, alteration or delivery services.
The bank has invested significantly to improve its direct marketing capabilities with an extensive marketing database, including, among other things, retailer specific data warehouses containing account level transactional, performance, demographic and campaign history. This data is used to develop marketing models and programs to increase credit card usage. Client-dedicated teams provide ongoing program performance tracking to assess return on investment and support continuous improvement in the bank's ability to predict and target the most responsive cardholders.
The bank also manages a number of ongoing retail loyalty programs as part of the private label credit card benefits offered to specific retailers. These programs typically provide discounts to cardholders in the form of gift certificates offered by the applicable retailers earned based on achieving a pre-set spending level on the card. The gift certificates are then mailed to the cardholder and can be redeemed at the retailer for store merchandise. These ongoing loyalty programs have typically generated incremental credit sales per cardholder on an ongoing basis, while ensuring continued card value and ongoing purchase loyalty.
The bank is also continuously working with its retailer clients to identify improved private label card strategies and to increase overall card demand and usage through improved value, card utility, functionality and convenience. Major product improvements may be introduced from time to time through widespread card reissues, direct mail and in-store marketing campaigns.
Underwriting Process
Account Underwriting and Credit Guidelines. The bank develops or adopts systems and specifications for underwriting and authorizations. It contracts with GE Capital for services, including
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the implementation of these systems and of the underwriting and authorization specifications. The bank's underwriting process involves the purchase of credit bureau information. The bank obtains credit reports from one or more of the following credit bureaus: Experian, Inc., Equifax Credit Information Services, Inc. and Trans Union Corporation. The information obtained is electronically fed into proprietary scoring models developed for the bank to calculate a credit score. The bank periodically analyzes performance trends of accounts originated at different score levels as compared to projected performance, and adjusts the minimum score or the opening limit to manage risk. Different scoring models may be used depending upon bureau type, account source and type of credit card.
Credit Monitoring. To monitor and control the quality of its portfolio of credit cards, the bank uses behavioral scoring models to score each active account on its monthly cycle date. The behavioral scoring models are used to dynamically evaluate whether or not credit limits should be increased or decreased.
Credit Authorization. Point-of-sale terminals in each retailer's stores have an on-line connection with the bank's credit authorization system and allow real-time updating of accounts. Sales transactions are passed through a proprietary authorization system which looks at a variety of behavioral and risk factors to determine whether each transaction should be approved "as is," with a credit limit increase, with an over credit limit allowance or should be declined.
Fraud Investigation. The bank contracts with several of its affiliates to provide follow up and research with respect to different types of fraud such as fraud rings, new account fraud and transactional fraud. The bank has developed a proprietary fraud model to identify new account fraud that utilizes tools that help identify transaction purchase behavior outside the cardholder's established pattern.
Servicing of Accounts
The bank has contracted with several of its affiliates to provide servicing for its private label credit card portfolio. The bank's credit card operations are managed to provide for the consistent application of credit policies and servicing standards for each retail portfolio serviced. Accounts are serviced by GE Capital and certain other affiliates of the bank.
GE Capital is the primary servicer for the bank's credit card operations and performs servicing operations at offices located in sixteen cities throughout the United States, Canada, India and Mexico. Services provided include application processing, card embossing, customer billing, payment processing, client settlement, collections, recovery, customer services and accounting services.
The services provided within each location can be customized to support the particular requirements of each retailer. The internal control environment at each location ensures security while maximizing customer service. In addition, the servicers are responsible for following all federal, state and local laws, rules and regulations applicable to the credit card programs including but not limited to insurance laws, the Truth in Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Credit Billing Act and the Fair Debt Collection Practices Act, each of their implementing regulations, and any applicable state laws. The bank monitors the servicers' activities to ensure compliance.
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Account Terms
The bank offers fixed rate and variable rate credit card accounts. Finance charges are calculated by multiplying the average daily balance outstanding on an account during the monthly billing period by the applicable periodic finance charge rate. In certain instances, finance charges are assessed from the date of purchase. A grace period of approximately 25 days from the billing date is available to make payment and avoid finance charges. Payments are generally applied in the following order: (1) to fees and finance charges assessed on the account and (2) to the unpaid principal balance of purchases. Subject to applicable law, the bank may change finance charge rates from time to time at its discretion. Currently, the minimum monthly payment amount is equal to a percentage of the account balance, as well as any past due amounts. Subject to applicable law, the bank may change the minimum monthly payment from time to time at its discretion.
The bank offers four types of promotions to merchants and cardholders:
Delinquency and Collections Procedures
Efforts to collect delinquent receivables are made by the bank's or an affiliate's collections department and, if necessary, by external outsourcing collection agencies and outside attorneys. As of the end of March 2004, the bank's or an affiliate's internal collection departments included three collection sites with approximately 1,019 full-time equivalent front-line collectors and 156 full-time equivalent managers. The three collection sites are located in Canton, Ohio; Edmonton, Canada; and Puerto Rico. The bank also utilizes the GE Capital International Services organization of 913 full-time equivalent collectors and their three collection sites located in Hyderabad, India; Gurgaon, India; and Juarez, Mexico.
External outsourcing agencies are used for a portion of the bank's collections efforts, particularly during peak volume periods. These agencies are most often utilized for collection of pre-charge-off accounts that are 60 or more days delinquent, although external outsourcing agencies may also be used for pre-charge-off accounts that are less than 60 days delinquent. Outsourcing is also often used for "specialized processes" such as locating cardholders who have moved without notifying the bank of their new address and when there is no phone number associated with an account on the system. The bank uses the following agencies for collection activities: NCO Group located in Parma, Ohio; GC Services Limited Partnership located in Knoxville, Tennessee; Encore Receivable Management, Inc. located in Lenexa, Kansas; Risk Management Alternatives, Inc. located in Lenexa, Kansas; and Allied
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Interstate, Inc., located in Toronto, Canada. Outside attorneys are used for pre-charge-off accounts that are deemed "non-collectable" or where the customer is unwilling to pay.
For accounts that are billed as 15 days past due, collection efforts vary from three to 14 days after the billing date. For accounts that are billed as 30 or more days past due, collection efforts generally begin one day after the billing date. Collection efforts vary by client and portfolio and are based upon customer account characteristics. These characteristics include the customer's payment history and delinquency status, and whether the account was a first payment default. These characteristics are analyzed to determine the optimal collection strategy, which could include contact from a live automated dialer, a manual collector, a digital voice/taped message and/or the use of a pre-charge-off external outsourcing agency. The bank uses several collection strategy tools and related software packages to automate the collection process in addition to a standardized automated daily calling procedure that maximizes our opportunity to contact the customer.
Accounts are charged off as a credit loss when the account becomes 180 days past due. Federal Financial Institutions Examination Council guidelines are followed for charge-off procedures relating to aging, bankruptcy, fraud and deceased. Specific conditions must be met before an account can be re-aged. No account may be re-aged more than once in any twelve-month period or more than twice in a five-year period. A change in terms to reduce monthly payments may also be used when a permanent change is needed, but only in circumstances where extensions will not provide a permanent solution.
Description of First Data Resources, Inc.
Certain data processing and administrative functions associated with the servicing of a portion of the bank's credit card portfolio are currently being performed on behalf of the bank by First Data Resources, Inc. First Data Resources, Inc. was established in 1969 as the data processing unit of Mid-America Bankcard Association. In 1980, American Express acquired First Data Resources, Inc. and in 1992, First Data Resources, Inc. became an independent company as a subsidiary of First Data Corp. According to First Data Resources, Inc., it is a global provider of comprehensive transaction processing products and services to credit, debit, commercial, private label and oil card issuers.
First Data Resources, Inc.'s home office in the United States is located in Omaha, Nebraska.
We refer to the accounts that have been designated as trust accounts as the trust portfolio.
In addition to the transferred receivables, the notes will be secured by:
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The transferred receivables consist of:
The bank has the right, and in some cases the obligation, to designate from time to time additional eligible accounts to the trust portfolio and to convey to us, for further transfer to the trust, all receivables in those additional accounts, whether those receivables are then existing or thereafter created. The accounts and the related receivables may be originated by the bank or, with rating agency approval, acquired by the bank from others. The designation of additional accounts and sale of related receivables to the trust will be limited by the conditions described in " Description of the NotesAddition of Trust Assets " in this prospectus. Some, but not all, designations of additional accounts require confirmation from each of the rating agencies that the addition will not impair its rating of any outstanding securities.
The accounts must meet eligibility standards as of the date the bank designates them as additional accounts. Once these accounts are designated, only the receivables arising under these accounts, and not the accounts themselves, are sold. In addition, as of the date on which any new receivables are created, we will represent and warrant to the trust that the receivables conveyed to the trust on that day meet the issuer's eligibility standards. However, we cannot guarantee that all the receivables and accounts will continue to meet the applicable eligibility requirements throughout the life of the trust. The issuer's eligibility requirements for accounts and receivables are described under " Description of the NotesRepresentations and Warranties " in this prospectus.
Under limited circumstances, the bank may also designate that some accounts will no longer be trust accounts, and the receivables originated under these accounts will be conveyed by the trust back to us, as described in " Description of the NotesRemoval of Accounts " in this prospectus. Throughout the term of the trust, the transferred receivables will consist of:
We cannot assure you that additional accounts will be of the same credit quality as the initial trust accounts. Moreover, additional accounts may contain receivables which consist of fees, charges and amounts which are different from the fees, charges and amounts described in this prospectus. Additional accounts may also have different credit guidelines, balances and ages. Consequently, we cannot assure you that the accounts will continue to have the characteristics described in this prospectus as additional accounts are added. In addition, if the bank designates additional accounts with lower periodic finance charges, that designation may have the effect of reducing the portfolio yield.
The prospectus supplement relating to each series of notes will provide the following information about the trust portfolio as of the date specified:
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Unless RFS Funding Trust has been terminated and the issuer holds the transferred receivables directly, the issuer will share collections on the transferred receivables with the holders of any other beneficial ownership interests in the transferred receivables that have been issued by RFS Funding Trust. Currently, the only other outstanding interest in the transferred receivables is the interest that secures a loan obtained by RFS Funding Trust as described under " Summary: Overview of Transactions " and " Important PartiesRFS Funding Trust ." RFS Funding Trust may issue additional beneficial ownership interests in the transferred receivables in the future, subject to the conditions described under " Trust Agreement for RFS Funding Trust ." Until the RFS Funding Trust has been terminated, the issuer will be allocated a portion of collections of transferred principal receivables and finance charge receivables, as well as a portion of defaulted receivables and dilution, based on the Note Trust Ownership Percentage. The Note Trust Ownership Percentage will be recalculated for purposes of allocating principal collections, finance charge collections, defaulted receivables and dilution amounts to the issuer as follows:
If RFS Funding Trust has been terminated, the issuer will hold the transferred receivables directly and will be entitled to receive 100% of all collections of principal receivables and finance charge receivables and will be allocated 100% of all defaulted receivables and dilution amounts with respect to the transferred receivables.
We will receive the net proceeds from the sale of each series of notes offered by this prospectus and will use those proceeds for general corporate purposes.
The issuer may issue from time to time one or more series of notes under a master indenture and one or more indenture supplements entered into by the issuer and the indenture trustee. The following summaries describe the material provisions common to each series of notes. The accompanying prospectus supplement gives you the additional material terms specific to the notes of your series. The summaries are qualified by all of the provisions of the amended and restated trust agreement for RFS Funding Trust, the transfer agreement, the trust receivables purchase agreement, the servicing agreement, the intercreditor agreement, the trust agreement for the Issuer, the indenture and the related indenture supplement. We have filed a form of an indenture supplement and copies of each of the other agreements with the SEC as exhibits to the registration statement relating to the notes.
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General
The notes will be secured by and paid from the assets of the issuer. The amount of receivables constituting collateral for any series of notes, called its collateral amount, will be specified in the related prospectus supplement, and initially will generally equal the initial outstanding principal amount of the notes of that series plus the initial excess collateral amount, if any, for that series of notes. The amount available to make payments on each series of notes on each payment date will be a portion of the collections of transferred principal receivables and finance charge receivables received by the issuer based on the allocation percentage for that series of notes, which will be based on the collateral amount for that series and will be calculated as described in the related prospectus supplement.
Each series of notes may consist of one or more classes, one or more of which may be senior notes and one or more of which may be subordinated notes. Each class of a series will evidence the right to receive specified payments of principal or interest or both. Each class of a series may differ from other classes in some aspects, including:
We or our assigns will have the right to receive all cash flows from the assets of the issuer other than the amounts required to make payments for any series. Our interest is called the transferor interest.
During the revolving period, the amount of collateral for a series of notes offered under this prospectus will remain constant unless reduced on account of:
See " Defaulted Receivables; Dilution; Investor Charge-Offs " in this prospectus. The amount of transferred principal receivables and the Note Trust Principal Balance, however, will vary each day as new principal receivables are created and others are paid. The transferor interest will fluctuate each day to absorb the changes in the amount of the Note Trust Principal Balance. When a series is amortizing, the collateral amount for that series will decline as transferred principal receivables are collected and paid, or accumulated for payment, to the noteholders. As a result, the transferor interest will generally increase to reflect reductions in the collateral amount for that series and will also change to reflect the variations in the amount of transferred principal receivables. The transferor interest may also be reduced as the result of new issuances by the issuer. See "New Issuances of Notes " in this prospectus.
Generally, notes offered under this prospectus and the accompanying prospectus supplement:
The accompanying prospectus supplement will specify if your notes have different characteristics from those listed above.
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DTC has informed us that its nominee will be Cede & Co. Accordingly, Cede & Co. is expected to be the holder of record of each series of notes. As an owner of beneficial ownership interests in the notes, you will generally not be entitled to a definitive note representing your interest in the issued notes because you will own notes through a book-entry record maintained by DTC. References in this prospectus and the accompanying prospectus supplement to distributions, reports, notices and statements to noteholders refer to DTC or Cede & Co., as registered holder of the notes, for distribution to you in accordance with DTC procedures. All references in this prospectus and the accompanying prospectus supplement to actions by noteholders refer to actions taken by DTC upon instructions from DTC participants.
The accompanying prospectus supplement may state that an application will be submitted to list your series or class of notes on the Luxembourg Stock Exchange or another exchange.
Book-Entry Registration
This section describes the form your notes will take, how your notes may be transferred and how payments will be made to you.
The information in this section concerning DTC and DTC's book-entry system has been provided by DTC. We have not independently verified the accuracy of this information.
You may hold your notes through DTC in the U.S., Clearstream or Euroclear in Europe or in any other manner described in the accompanying prospectus supplement. You may hold your notes directly with one of these systems if you are a participant in the system, or indirectly through organizations which are participants.
Cede & Co., as nominee for DTC, will hold the global notes. Clearstream and Euroclear will hold omnibus positions on behalf of the Clearstream customers and the Euroclear participants, respectively, through customers' securities accounts in Clearstream's and Euroclear's names on the books of their respective depositaries, which in turn will hold those positions in customers' securities accounts in the depositaries' names on the books of DTC.
DTC is a limited-purpose trust company organized under the laws of the State of New York, a member of the Federal Reserve System, a "clearing corporation" within the meaning of the New York Uniform Commercial Code, and a "clearing agency" registered under the provisions of Section 17A of the Securities Exchange Act of 1934. DTC was created to hold securities for its participants and facilitate the clearance and settlement of securities transactions between participants through electronic book-entry changes in accounts of participants, thereby eliminating the need for physical movement of certificates. Participants include securities brokers and dealers, banks, trust companies and clearing corporations and may include other organizations. Participants also may include the underwriters of any series. Indirect access to the DTC system also is available to others, including banks, brokers, dealers and trust companies, as indirect participants, that clear through or maintain a custodial relationship with a participant, either directly or indirectly.
Transfers between DTC participants will occur in accordance with DTC rules. Transfers between Clearstream customers and Euroclear participants will occur in the ordinary way in accordance with their applicable rules and operating procedures.
Cross-market transfers between persons holding directly or indirectly through DTC, on the one hand, and directly or indirectly through Clearstream customers or Euroclear participants, on the other, will be effected through DTC in accordance with DTC rules on behalf of the relevant European international clearing system by its depositary; however, those cross-market transactions will require delivery of instructions to the relevant European international clearing system by the counterparty in that system in accordance with its rules and procedures and within its established deadlines, which will be based on European time. The relevant European international clearing system will, if the transaction
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meets its settlement requirements, deliver instructions to its depositary to take action to effect final settlement on its behalf by delivering or receiving securities in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Clearstream customers and Euroclear participants may not deliver instructions directly to Clearstream's and Euroclear's depositaries.
Because of time-zone differences, credits of securities in Clearstream or Euroclear as a result of a transaction with a participant will be made during the subsequent securities settlement processing, dated the business day following the DTC settlement date, and those credits or any transactions in those securities settled during that processing will be reported to the relevant Clearstream customer or Euroclear participant on that business day. Cash received in Clearstream or Euroclear as a result of sales of securities by or through a Clearstream customer or a Euroclear participant to a DTC participant will be received with value on the DTC settlement date but will be available in the relevant Clearstream or Euroclear cash account only as of the business day following settlement in DTC.
Note owners that are not participants or indirect participants but desire to purchase, sell or otherwise transfer ownership of, or other interest in, notes may do so only through participants and indirect participants. In addition, note owners will receive all distributions of principal of and interest on the notes from the indenture trustee through the participants who in turn will receive them from DTC. Under a book-entry format, note owners may experience some delay in their receipt of payments, since payments will be forwarded by the indenture trustee to Cede & Co., as nominee for DTC. DTC will forward those payments to its participants, which thereafter will forward them to indirect participants or note owners. It is anticipated that the only "noteholder" will be Cede & Co., as nominee of DTC. Note owners will not be recognized by the indenture trustee as noteholders, as that term is used in the indenture, and note owners will only be permitted to exercise the rights of noteholders indirectly through the participants who in turn will exercise the rights of noteholders through DTC.
Under the rules, regulations and procedures creating and affecting DTC and its operations, DTC is required to make book-entry transfers among participants on whose behalf it acts with respect to the notes and is required to receive and transmit distributions of principal and interest on the notes. Participants and indirect participants with which note owners have accounts with respect to the notes similarly are required to make book-entry transfers and receive and transmit those payments on behalf of their respective note owners. Accordingly, although note owners will not possess notes, note owners will receive payments and will be able to transfer their interests.
Because DTC can only act on behalf of participants, who in turn act on behalf of indirect participants and certain banks, the ability of a note owner to pledge notes to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of those notes, may be limited due to the lack of a physical certificate for those notes.
DTC has advised us that it will take any action permitted to be taken by a noteholder under the indenture only at the direction of one or more participants to whose account with DTC the notes are credited. Additionally, DTC has advised us that it will take those actions with respect to specified percentages of the collateral amount only at the direction of and on behalf of participants whose holdings include interests that satisfy those specified percentages. DTC may take conflicting actions with respect to other interests to the extent that those actions are taken on behalf of participants whose holdings include those interests.
Clearstream is incorporated under the laws of Luxembourg. Clearstream holds securities for its customers and facilitates the clearance and settlement of securities transactions between Clearstream customers through electronic book-entry changes in accounts of Clearstream customers, thereby eliminating the need for physical movement of notes. Transactions may be settled in Clearstream in any of 36 currencies, including United States dollars. Clearstream provides to its Clearstream customers,
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among other things, services for safekeeping, administration, clearance and settlement of internationally traded securities and securities lending and borrowing. Clearstream also deals with domestic securities markets in over 30 countries through established depository and custodial relationships. Clearstream is registered as a bank in Luxembourg, and therefore is subject to regulation by the Commission de Surveillance du Secteur Financier, which supervises Luxembourg banks. Clearstream's customers are world-wide financial institutions, including underwriters, securities brokers and dealers, banks, trust companies and clearing corporations, among others, and may include the underwriters of any series of notes. Clearstream's U.S. customers are limited to securities brokers and dealers and banks. Currently, Clearstream has approximately 2,000 customers located in over 80 countries, including all major European countries, Canada and the United States. Indirect access to Clearstream is also available to other institutions that clear through or maintain a custodial relationship with an account holder of Clearstream. Clearstream has established an electronic bridge with Euroclear Bank S.A./N.V. as the operator of the Euroclear System in Brussels to facilitate settlement of trades between Clearstream and Euroclear.
Euroclear was created in 1968 to hold securities for participants of the Euroclear System and to clear and settle transactions between Euroclear participants through simultaneous electronic book-entry delivery against payment, thereby eliminating the need for physical movement of notes and any risk from lack of simultaneous transfers of securities and cash. Transactions may now be settled in any of 34 currencies, including United States dollars. The Euroclear System includes various other services, including securities lending and borrowing and interfaces with domestic markets in several countries generally similar to the arrangements for cross-market transfers with DTC described above. The Euroclear System is operated by Euroclear Bank S.A./N.V. as the Euroclear operator. All operations are conducted by the Euroclear operator, and all Euroclear securities clearance accounts and Euroclear cash accounts are accounts with the Euroclear operator. Euroclear participants include central banks and other banks, securities brokers and dealers and other professional financial intermediaries and may include the underwriters of any series of notes. Indirect access to the Euroclear System is also available to other firms that clear through or maintain a custodial relationship with a Euroclear participant, either directly or indirectly.
Securities clearance accounts and cash accounts with the Euroclear operator are governed by the Terms and Conditions Governing Use of Euroclear and the related Operating Procedures of the Euroclear System. These terms and conditions govern transfers of securities and cash within the Euroclear System, withdrawal of securities and cash from the Euroclear System, and receipts of payments with respect to securities in the Euroclear System. All securities in the Euroclear System are held on a fungible basis without attribution of specific certificates to specific securities clearance accounts. The Euroclear operator acts under these rules and laws only on behalf of Euroclear participants and has no record of or relationship with persons holding through Euroclear participants.
Distributions with respect to notes held through Clearstream or Euroclear will be credited to the cash accounts of Clearstream customers or Euroclear participants in accordance with the relevant system's rules and procedures, to the extent received by its depositary. Those distributions will be subject to tax reporting in accordance with relevant United States tax laws and regulations. See " Federal Income Tax Consequences " in this prospectus. Clearstream or the Euroclear operator, as the case may be, will take any other action permitted to be taken by a noteholder under the indenture on behalf of a Clearstream customer or Euroclear participant only in accordance with its relevant rules and procedures and subject to its depositary's ability to effect those actions on its behalf through DTC.
Although DTC, Clearstream and Euroclear have agreed to the foregoing procedures in order to facilitate transfers of notes among participants of DTC, Clearstream and Euroclear, they are under no obligation to perform or continue to perform those procedures and those procedures may be discontinued at any time.
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Definitive Notes
Notes that are initially cleared through DTC will be issued in definitive, fully registered, certificated form to note owners or their nominees, rather than to DTC or its nominee, only if:
advise DTC through participants in writing that the continuation of a book-entry system through DTC or a successor to DTC is no longer in the best interest of those note owners.
If any of these events occur, DTC must notify all participants of the availability through DTC of definitive notes. Upon surrender by DTC of the definitive instrument representing the notes and instructions for re-registration, the issuer will execute and the indenture trustee will authenticate the notes as definitive notes, and thereafter the indenture trustee will recognize the registered holders of those definitive notes as noteholders under the indenture.
Payment of principal and interest on the notes will be made by the indenture trustee directly to holders of definitive notes in accordance with the procedures set forth in this prospectus and in the indenture. Interest payments and any principal payments on each payment date will be made to holders in whose names the definitive notes were registered at the close of business on the related record date. Payments will be made by check mailed to the address of the noteholders as it appears on the register maintained by the indenture trustee. However, the final payment on any notewhether definitive notes or the notes registered in the name of Cede & Co. representing the noteswill be made only upon presentation and surrender of that note at the office or agency specified in the notice of final payment to noteholders. The indenture trustee will mail this notice to registered noteholders not later than the fifth day of the month of the final distributions.
Definitive notes will be transferable and exchangeable at the offices of the transfer agent and registrar, which will initially be the indenture trustee. No service charge will be imposed for any registration of transfer or exchange, but the issuer and transfer agent and registrar may require payment of a sum sufficient to cover any tax or other governmental charge imposed in connection with the transfer or exchange.
Interest Payments
Your class of notes will pay interest on the dates and at the interest rate specified in the accompanying prospectus supplement. The interest rate on any note may be a fixed, floating or any other type of rate as specified in the accompanying prospectus supplement. If your notes bear interest at a floating or variable rate, the accompanying prospectus supplement will describe how that rate is calculated.
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Interest payments or deposits on any payment date will be paid from:
If interest payments will be made less frequently than monthly, an interest funding account may be established to accumulate the required interest amount. If a series has more than one class of notes, that series may have more than one interest funding account. In addition, for any series, any accrued and unpaid interest not paid as of the final maturity date for that series will be due and payable on the final maturity date for that series.
Principal Payments
Each series will begin with a revolving period during which no principal payments will be made to the noteholders of that series. However, if specified in the accompanying prospectus supplement, principal may be payable on any class of notes during the revolving period in connection with a partial amortization. A partial amortization would occur if we were required to add receivables and the bank did not designate sufficient eligible accounts and we elected to avoid an early amortization event by commencing a partial amortization.
The revolving period for each series will be scheduled to end on or no later than a specified date, at which time a new period will begin during which principal collections available to that series will be accumulated in a trust account or used to repay the notes of that series. That new period is called an amortization period if partial principal payments are made each month, and is called an accumulation period if the available principal is accumulated for a series over one or more months to pay off a class of notes in full on a scheduled expected principal payment date. If the amount paid or accumulated each month is limited to some specified figure, then the period is called a controlled amortization period or controlled accumulation period, respectively.
However, each series will also be subject to early amortization events, which could cause the revolving period to end earlier than scheduled or could terminate an existing amortization period or accumulation period. Upon an early amortization event, an early amortization period will begin, during which available principal will be paid to noteholders monthly and will not be subject to any controlled amount or accumulation provision. Finally, a series with an accumulation period may specify some adverse events as accumulation events, rather than early amortization events, resulting in an early start to an accumulation period or removing any limitation based on a controlled accumulation amount.
Principal payments for any class of notes will be paid from collections of transferred principal receivables allocated to the related series and from other sources specified in the accompanying prospectus supplement. In the case of a series with more than one class of notes, the noteholders of one or more classes may receive payments of principal at different times. The accompanying prospectus supplement will describe the manner, timing and priority of payments of principal to noteholders of each class.
Funds on deposit in any principal accumulation account for a series may be subject to a guaranteed rate agreement or guaranteed investment contract or other arrangement intended to assure
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a minimum rate of return on the investment of those funds if specified in the related prospectus supplement. In order to enhance the likelihood of the payment in full of the principal amount of a class of notes at the end of an accumulation period, that class of notes may be subject to a principal guaranty or other similar arrangement if specified in the related prospectus supplement.
Length of Controlled Accumulation Period
The prospectus supplement for any series having a controlled accumulation period will specify the date on which that period is scheduled to commence and the scheduled length of that period. On each determination date until the controlled accumulation period begins for any series, the servicer, on behalf of the issuer, will review the amount of expected principal collections and determine the number of months expected to be required to fully fund the principal accumulation account by the related expected principal payment date for each class of notes in that series. If the number of months needed to fully fund the principal accumulation account by the related expected principal payment date for each class of notes is less than or more than the number of months in the scheduled controlled accumulation period, the issuer will either postpone the controlled accumulation period or start the controlled accumulation period earlier than the then-currently scheduled controlled accumulation period, as applicable, so that the number of months in the scheduled controlled accumulation period equals the number of months expected to be needed to fully fund the principal accumulation account by the expected principal payment date. In making its decision, the issuer is required to assume that (1) the principal payment rate will be no greater than the lowest monthly principal payment rate for the prior 12 months, (2) the total amount of transferred principal receivables in the trust and the amounts on deposit in the excess funding account will remain constant, (3) no early amortization event for any series will occur and (4) no additional series will be issued after the related determination date. In no case will the controlled accumulation period for any series be reduced to less than one month.
Transfer and Assignment of Receivables
The transferred receivables have been transferred either directly by the bank to the trust or by the bank to us, and in turn, by us to the trust. Under a receivables purchase agreement entered into by the bank in 1997, the bank, in its capacity as transferor, transferred receivables in designated accounts on an ongoing basis to RFS Funding Trust or its predecessor, RFS Funding Incorporated. As of September 25, 2003, that agreement was replaced by two new agreements:
Under the bank receivables sale agreement, the bank has designated a pool of accounts and transfers receivables in the designated accounts to us on an ongoing basis. The bank may also designate additional accounts under the bank receivables sale agreement in the future, and the receivables existing in those accounts and any receivables arising in those accounts in the future will be transferred to us. Under the trust receivables purchase agreement, in our capacity as transferor, we transfer all receivables sold to us by the bank to RFS Funding Trust. If RFS Funding Trust has terminated, we will instead transfer all receivables sold to us by the bank to the issuer under a transfer agreement between us and the issuer.
We and the bank have indicated and, in connection with each future transfer of receivables to the trust, will indicate in our computer files or books and records that the receivables have been conveyed to the trust. In addition, we and the bank have provided or caused to be provided and, in connection with each future designation of trust accounts, will provide, or cause to be provided, to the trustee for RFS Funding Trust, or, if RFS Funding Trust has terminated, the indenture trustee, computer files or
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microfiche lists, containing a true and complete list showing each trust account, identified by account number. Neither we nor the bank will deliver to the trustee for RFS Funding Trust or the indenture trustee any other records or agreements relating to the trust accounts or the transferred receivables, except in connection with additions or removals of accounts. Except as stated in this paragraph, the records and agreements that the bank maintains relating to the trust accounts and the transferred receivables are not and will not be segregated from other documents and agreements relating to other credit card accounts and receivables and are not and will not be stamped or marked to reflect the transfers described in this paragraph, but the bank's computer records are and will be required to be marked to evidence these transfers. We and the bank have filed in all appropriate jurisdictions Uniform Commercial Code financing statements with respect to the transferred receivables meeting the requirements of applicable law. See " Risk FactorsSome liens may be given priority over your notes, which could cause delayed or reduced payments " and " Material Legal Aspects of the Receivables " in this prospectus.
Multiple Issuance Series
If specified in the accompanying prospectus supplement, a series may be a multiple issuance series. In a multiple issuance series, notes of any class can be issued on any date so long as the issuer has received confirmation from the rating agencies then rating any outstanding notes of the multiple issuance series that the issuance will not impair its rating and the other conditions of issuance set forth in the indenture are met. All of the subordinated notes of a multiple issuance series provide subordination protection to all of the senior notes of the same series, regardless of whether the subordinated notes are issued before, at the same time as, or after the senior notes of that series. As part of a multiple issuance series, we expect the issuer to issue different classes of notes or additional notes of an already issued class, at different times. Neither you nor any other noteholder will have the right to consent to the issuance of future notes of a multiple issuance series.
New Issuances of Notes
The issuer may issue from time to time one or more new series or for any multiple issuance series, notes of any class for that series. All principal terms of each new series will be defined in an indenture supplement. Each series issued may have terms and enhancements that are different from those for any other series. No prior noteholders' consent will be required for the issuance of an additional series, and we do not expect to request such consents. The issuer may offer any series or class relating to a multiple issuance series under a prospectus or other disclosure document in transactions either registered under the Securities Act or exempt from registration under the Securities Act either directly or through one or more other underwriters or placement agents, in fixed-price offerings or in negotiated transactions or otherwise.
No new series or, for any multiple issuance series, notes of any class for that series, may be issued unless we satisfy various conditions, including that:
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For any multiple issuance series, there are no restrictions on the timing or amount of any additional issuance of notes, so long as the conditions described above are met. As of the date of any additional issuance of an outstanding class of notes, the outstanding principal amount for that class will be increased to reflect the principal amount of the additional notes. When issued, the additional notes of an outstanding class will be equally and ratably entitled to the benefits of the indenture and the related indenture supplement as the other outstanding notes of that class without preference, priority or distinction.
Representations and Warranties
As of each date on which transferred receivables are transferred to the trust, we represent to the trust that:
purchase agreement or the transfer agreement, as applicable, and upon creation of each transferred receivable, be prior to all other liens other than liens permitted by the trust receivables purchase agreement and the transfer agreement;
For purposes of the representations above and the criteria for eligible receivables described below, liens permitted by the trust receivables purchase agreement and the transfer agreement include liens
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for taxes or assessments or other governmental charges not yet due and payable, unperfected workers', mechanics', suppliers' or similar liens arising in the ordinary course of business and liens created in favor of, or created by, the trust.
If any of these representations is not true in any material respect for any receivables as of the date specified in the representation and as a result of the breach any receivables in the related account become defaulted receivables or the trust's rights in the transferred receivables or the proceeds of the transferred receivables are impaired or are not available to the trust free and clear of any lien, other than liens permitted by the trust receivables purchase agreement and the transfer agreement, those receivables will be deemed to have a principal balance of zero for purposes of calculating the total amount of receivables in the trust and we are required to accept reassignment of the ineligible receivable. We will be permitted 60 days to cure the breach or a longer period, not to exceed 150 days as may be agreed to by the trust, after we receive notice of the breach from the trust.
Except under the circumstances described in the following sentence, we will purchase each ineligible receivable for a cash purchase price equal to the principal amount of the reassigned receivable, plus accrued finance charges as of the end of the preceding Monthly Period, by no later than the date on which collections of receivables for the related Monthly Period are required to be deposited in the collection account as described under "Application of Collections ." However, we are not required to make the payment described in the preceding sentence if the Free Equity Amount exceeds the Minimum Free Equity Amount, after giving effect to the exclusion of the ineligible receivable from the Aggregate Principal Receivables. Any deduction or deposit is considered a repayment in full of the ineligible receivable.
For purposes of the above representations and warranties, an eligible account is an account that satisfies the following criteria as of the date it is designated as a trust account:
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Eligible Accounts may include accounts, the receivables in which have been written off as uncollectible, or as to which the bank or other originator of the account believes the related cardholder is bankrupt and certain receivables that have been identified by the cardholder as having been incurred as a result of fraudulent use of credit cards or any credit cards have been reported to the bank or other originator, as applicable, as lost or stolen, so long as the balance of all receivables included in those accounts is reflected on the books and records of the bank or other originator, as applicable, as "zero" and charging privileges with respect to all such accounts have been cancelled and are not reinstated.
For purposes of the above representations and warranties, an eligible receivable is a receivable:
been duly obtained or given and are in full force and effect as of the date of the creation of that receivable, except that a receivable will not fail to be an eligible receivable if the failure to obtain or make any such consent, license, approval, authorization or registration would not have a material adverse effect on the trust or its assigns;
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On each day on which transferred receivables are transferred to the trust, we will also make representations and warranties to the trust as to:
If any of the representations and warranties described in the immediately preceding paragraph is false in any material respect and the breach of the representation or warranty has a material adverse effect on the transferred receivables or the availability of the proceeds of the transferred receivables to the trust, then we will be obligated to accept retransfer of all of the transferred receivables. We will be permitted 60 days after we receive notice of such breach, or a longer period, not to exceed 150 days, as may be specified in the notice, to cure the breach.
The reassignment price would equal the aggregate amount of outstanding transferred receivables as of the end of the last preceding Monthly Period, but will in no event be less than the aggregate outstanding principal amounts for all series of securities, in each case as of the payment date on which the reassignment is scheduled to be made, plus accrued and unpaid interest on the securities through the payment date, plus any other amounts specified in any prospectus supplement.
Reassignment of any affected receivables or all of the transferred receivables to us, as the case may be, is the sole remedy respecting any breach of the representations and warranties described above.
On each day on which transferred receivables are transferred to the trust prior to the date on which the note trust certificate is retired, we will also make the following representations and warranties to the trust:
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conveyance of the note trust certificate to the trust have been duly obtained, effected or given and are in full force and effect.
Addition of Trust Assets
We have the option to designate additional accounts to the trust portfolio, the receivables in which will be sold to us and assigned by us to the trust, if the bank is willing to designate additional accounts under the bank receivables sale agreement. We may continue designating additional accounts without obtaining confirmation of the ratings of any outstanding notes, so long as the following limits are not exceeded:
minus the transferred principal receivables in the additional accounts added since that date, measured for each such additional account as of the date that additional account was designated to be added to the trust; or
minus the transferred principal receivables in the additional accounts added since that date, measured for each such additional account as of the date that additional account was designated to be added to the trust;
minus the number of additional accounts added since that date; or
minus the number of additional accounts added since that date.
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We may exceed these limitations or add accounts acquired by the bank from a third-party financial institution if the rating agencies for all outstanding series of notes confirm that doing so will not impair their ratings of any outstanding class of notes.
In addition, if at the end of any Monthly Period, the Free Equity Amount is less than the Minimum Free Equity Amount or the Note Trust Principal Balance is less than the Required Principal Balance, we will be required to make an addition of accounts to the trust on or before the tenth business day following that Monthly Period. The amount of the required addition is the amount necessary so that the Free Equity Amount and the Note Trust Principal Balance, in each case computed on a pro forma basis as if the additional accounts had been designated prior to the end of the Monthly Period, would at least equal the Minimum Free Equity Amount and Required Principal Balance, respectively.
When we transfer receivables in additional accounts to the trust, we must satisfy several conditions, including:
In addition to the periodic reports otherwise required to be filed by the servicer with the SEC in accordance with the Securities Exchange Act of 1934, we will file a Report on Form 8-K with respect to any addition to the trust of receivables in additional accounts that would have a material effect on the composition of the trust assets.
Removal of Accounts
We also have the right to remove accounts from the list of designated accounts and to require the reassignment to us of all receivables in the removed accounts, whether the receivables already exist or arise after the designation. Our right to remove accounts is subject to the satisfaction of several conditions, including that:
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In addition, we may from time to time, remove accounts designated for purchase by a retailer under the terms of their credit card program agreement with the bank. The repurchase price for these receivables will be calculated as if the receivables were ineligible receivables. Amounts received by the trust for these removed receivables will be treated as collections of transferred principal receivables.
From time to time, we may also designate inactive accounts as removed accounts without satisfying the conditions described above. Inactive accounts are accounts that either (a) have had a zero balance and on which no charges have been made for at least the preceding twelve months or (b) have a zero balance and the related cardholder has agreed to substitute its credit card for a dual purpose credit card, which is a credit card that combines a private label credit line for use in the related retailer's store with a general purpose credit line for use elsewhere.
Discount Option
We have the option to reclassify a percentage of collections of transferred principal receivables as collections of finance charge receivables. We also have the option to reclassify a percentage of collections of transferred principal receivables arising in selected groups of trust accounts as collections of finance charge receivables. For example, we may choose to apply discounting to only those trust accounts arising in one or more selected retailer programs. If we do so, the reclassified percentage of collections of transferred principal receivables arising in accounts comprising the entire trust portfolio or accounts comprising only the portion of the trust portfolio selected for discounting for each Monthly Period will be considered collections of finance charge receivables and will be allocated with all other collections of finance charge receivables in the trust portfolio.
We may exercise this option in order to compensate for a decline in the portfolio yield, but only if there would be sufficient transferred principal receivables to allow for that discounting. Exercise of this option would result in a larger amount of collections of finance charge receivables and a smaller amount of collections of transferred principal receivables. By doing so, we would reduce the likelihood that an early amortization event would occur as a result of a decreased portfolio yield and, at the same time, would increase the likelihood that we will have to add principal receivables to the trust. We may not exercise our option to reclassify collections of transferred principal receivables as collections of
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finance charge receivables if we reasonably believe that doing so would cause an early amortization event, or any event that with notice or lapse of time or both, would constitute an early amortization event for any series of securities.
In addition, the rating agencies may limit the percentage of transferred principal receivables that may be reclassified from time to time.
Servicing Procedures
As servicer, the bank will agree to conduct the servicing, administration and collection of the receivables owned by the trust with reasonable care and diligence and in accordance with the credit card program agreements and the trust's collection policies. On behalf of the issuer, the servicer will also direct the paying agent to make payments on the notes. The servicer will be required to maintain fidelity bond or other appropriate insurance coverage insuring against losses through wrongdoing of its officers and employees who are involved in the servicing of credit card receivables covering those actions, and in an amount, in each case as the servicer believes to be reasonable from time to time.
Trust Accounts
The issuer has established and maintains a collection account and an excess funding account. Both the collection account and the excess funding account must be a segregated account maintained in the corporate trust department of the indenture trustee or maintained with a depository institution that has either a short-term or long-term unsecured debt rating acceptable to each of the rating agencies.
The funds on deposit in these accounts may only be invested in highly rated liquid investments that meet the criteria described in the indenture or the related indenture supplement for that series.
Funding Period
On the closing date for any series of notes, the total amount of transferred principal receivables available to that series may be less than the total principal amount of the notes of that series. If this occurs, the initial collateral amount for that series of notes will be less than the principal amount of that series of notes. In this case, the related prospectus supplement will set forth the terms of the funding period, which is the period from that series' closing date to the earliest of:
During the funding period, the portion of the collateral amount not invested in principal receivables will be maintained by the issuer either as cash held in a prefunding account or, if the maximum funding period for any series is longer than one month, in the form of eligible investments transferred by us to the issuer of a type approved by the rating agencies for the related series. On the closing date for that series of notes, this amount may be up to 100% of the principal balance of that series of notes. The collateral amount for that series will increase as new principal receivables are transferred to the trust or as the collateral amounts of other outstanding series of securities are reduced. The collateral amount may decrease due to investor charge-offs allocated to the series.
During the funding period, the issuer will pay to us funds on deposit in the prefunding account as the collateral amount increases. If the portion of the collateral amount that is not invested in principal receivables will be maintained by the issuer in the form of eligible investments, rather than cash, then on the maturity date for any eligible investment the issuer will either pay the proceeds of the eligible
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investment to us to the extent of any increase in the collateral amount or, if the collateral amount has not been increased by an amount at least equal to those proceeds, will deposit any remaining proceeds not transferred to us into the excess funding account. If the collateral amount for that series is not increased so that the initial collateral amount equals the sum of the initial principal balance of the notes of that series and the required excess collateral amount for that series by the end of the funding period, the issuer will repay to noteholders any amount remaining in the prefunding account or any proceeds of eligible investments held in the excess funding account.
The prospectus supplement for a series with a funding period will set forth:
Application of Collections
The trust currently is required to deposit, or cause to be deposited by the servicer, into the collection account, all payments made on transferred receivables during any Monthly Period by no later than the business day preceding the first payment date after the end of that Monthly Period. The trust may continue making monthly deposits of these collections, so long as the bank remains the servicer and one of the following conditions is satisfied:
GE Capital currently provides a guaranty of the servicing obligations of the servicer, which is acceptable to the rating agencies and which satisfies the requirements of clause (1) above.
If in the future the above requirements are no longer satisfied, the issuer or the servicer, on behalf of the issuer, will be required to deposit all payments made on the transferred receivables into the collection account by no later than the second business day after processing.
The servicer, on behalf of the trust, is only required to make daily or periodic deposits to the collection account during any Monthly Period to the extent that the funds are expected to be needed for deposit into other trust accounts or for distribution to securityholders or other parties on or prior to the related payment date. For this purpose, estimates of interest due on each series of notes and other trust expenses will be used to determine what funds are expected to be needed for deposit or distribution, based on the assumption that no early amortization event or event of default will occur, unless the trust has actual knowledge that such an event has occurred. If the collection account balance ever exceeds the amount expected to be needed for those deposits or distributions, the servicer, on behalf of the trust, may withdraw the excess and release it to the issuer for the issuer's own use. Subject to the immediately preceding sentence, the trust may retain and pay, or cause to be paid, directly to the servicer the servicing fee for any series and will not be required to deposit those amounts in the collection account.
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The servicer, on behalf of the issuer, will allocate all collections of finance charge receivables and transferred principal receivables among each series of securities and the Free Equity Amount based on the respective allocation percentages for each series and the transferor allocation percentage. The transferor allocation percentage at any time will equal 100% minus the total of the applicable allocation percentages for all outstanding series. The transferor allocation percentage of finance charge collections and principal collections will first be deposited in the excess funding account to the extent required to maintain a Free Equity Amount that is not less than the Minimum Free Equity Amount. Any remaining finance charge collections and principal collections will be available for distribution by the issuer to us or our assigns. Subject to the limitation described above, the collections allocated to each series will be retained in the collection account or applied as described in the related prospectus supplement.
Under the terms of each credit card processing agreement, many of the retailers accept payments on the accounts at their stores. These amounts are netted against payments owed by the bank to the retailers on a periodic basis. However, the bank is obligated to transfer the full amount of all payments made on transferred receivables, without giving effect to any netting of payments owed by the bank, into the collection account.
Shared Excess Finance Charge Collections
If a series is identified in the prospectus supplement for that series as included in a group, collections of finance charge receivables allocated to that series in excess of the amount needed to make deposits or payments for the benefit of that series may be shared with other series that are included in the same group. The servicer on behalf of the issuer will allocate the aggregate of the excess finance charge collections for all series in the same group to cover any payments required to be made out of finance charge collections for any series in that group that have not been covered out of the finance charge collections allocable to those series. If the finance charge shortfalls exceed the excess finance charge collections for any group for any Monthly Period, excess finance charge collections will be allocated pro rata among the applicable series based on the relative amounts of finance charge shortfalls for such series.
Shared Principal Collections
Each series will share excess principal collections with each other series unless the related prospectus supplement excludes that series from this sharing arrangement. If a principal sharing series is allocated principal in excess of the amount needed for deposits or distributions of principal collections, that excess will be shared with other principal sharing series. The servicer, on behalf of the issuer, will allocate the aggregate of the shared principal collections for all principal sharing series to cover any principal shortfalls for other principal sharing series. Principal shortfalls for each series will be calculated as described in the related prospectus supplements. Shared principal collections will only be available to make scheduled or permitted principal distributions to securityholders and deposits to principal accumulation accounts, if any, for any series that have not been covered out of the collections of transferred principal receivables allocable to those series, and will not be used to cover investor charge-offs for any series.
If the principal shortfalls exceed the amount of shared principal collections for any Monthly Period, shared principal collections for all series will be allocated pro rata among the applicable series based on the relative amounts of principal shortfalls. If shared principal collections exceed principal shortfalls, the balance will be available for distribution by the issuer to us or our assigns or will be deposited in the excess funding account under the circumstances described under " Excess Funding Account " below.
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On each business day on which the Free Equity Amount is less than the Minimum Free Equity Amount, the servicer, on behalf of the issuer, will deposit collections of transferred principal receivables allocable to the Free Equity Amount, as described in " Application of Collections " above, and excess shared principal collections otherwise distributable to us or our assigns, into the excess funding account until the Free Equity Amount equals the Minimum Free Equity Amount. On any payment date on which one or more series are in an amortization period, the issuer will determine the aggregate amounts of principal shortfalls, if any, for these series remaining after application of shared principal collections as described under " Shared Principal Collections " above and will instruct the indenture trustee to withdraw funds on deposit in the excess funding account to cover remaining principal shortfalls, subject to the limitations described in the following sentence. The amount to be withdrawn from the excess funding account and treated as shared principal collections for any payment date may not exceed the amount by which the Free Equity Amount would be less than zero if there were no funds on deposit in the excess funding account on that payment date.
Investment earnings on amounts on deposit in the excess funding account will be treated as finance charge collections and allocated to each series based on the respective allocation percentages for each series.
Defaulted Receivables; Dilution; Investor Charge-Offs
Receivables in any account will be charged-off as uncollectible in accordance with the issuer's collection policies and the issuer's customary and usual policies and procedures for revolving credit card receivables and other revolving credit account receivables comparable to the receivables. The issuer's current policy is to charge off the receivables in an account not later than the date on which that account becomes 180 days delinquent. On the last day of the Monthly Period in which a receivable is charged-off, the receivable will be sold to us and will no longer be shown as an amount payable on the issuer's records. The purchase price for those defaulted receivables will be equal to the aggregate amount of recoveries on previously charged-off accounts that we have received from the bank for the same Monthly Period, which will be allocated to us on a reasonable basis based on the historical recovery experience for the bank's portfolio of accounts.
Each series will be allocated a portion of defaulted receivables in each charged-off account in an amount equal to its allocation percentage on the date the account is charged-off, as specified in the related prospectus supplement, from the issuer's share of the aggregate amount of transferred principal receivables in that account. Prior to the termination of the RFS Funding Trust, the issuer will be allocated an amount of defaulted receivables equal to the Note Trust Ownership Percentage of defaulted receivables.
Unlike defaulted receivables, dilution, which includes reductions in transferred principal receivables as a result of returns, unauthorized charges and the like, is not intended to be allocated to any series. Instead, these reductions are applied to reduce the Free Equity Amount, and to the extent they would reduce the Free Equity Amount below zero, we are required to deposit the amount of the reduction into the excess funding account. However, if we default in our obligation to make a payment to cover dilution, then a portion of any resulting shortfall in receivables will be allocated to your series as specified in the accompanying prospectus supplement.
On each payment date, if the sum of the defaulted receivables and any dilution allocated to any series is greater than the finance charge collections and other funds available to cover those amounts as described in the related prospectus supplement, then the collateral amount for that series will be reduced by the amount of the excess. Any reductions in the collateral amount for any series on account of defaulted receivables and dilution will be reinstated to the extent that finance charge collections and
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other amounts on deposit in the collection account are available for that purpose on any subsequent payment date as described in the related prospectus supplement.
Final Payment of Principal
If so specified in the prospectus supplement relating to a series, we will have the option to purchase the collateral amount for your series at any time after the remaining outstanding principal amount of that series is 10% or less of the initial principal amount of that series, but only if the purchase price paid to the issuer is sufficient to pay all amounts owing to the noteholders of that series and all other amounts specified for that series in the related indenture supplement, as described in the prospectus supplement for that series. The purchase price will equal:
For any series, the related prospectus supplement may specify additional conditions to our purchase option.
Each prospectus supplement will specify the final maturity date for the related notes, which will generally be a date falling substantially later than the expected principal payment date. For any class of notes, principal will be due and payable on the final maturity date. Additionally, the failure to pay principal by the final maturity date will be an event of default, and the indenture trustee or holders of a specified percentage of the notes of that series will have the rights described under " The IndentureEvents of Default; Rights upon Event of Default " in this prospectus.
Early Amortization Events
The revolving period for your series will continue through the date specified in the accompanying prospectus supplement unless an early amortization event occurs prior to that date. An early amortization event occurs with respect to all series of the issuer upon the occurrence of any of the following events:
In addition, an early amortization event may occur with respect to any series upon the occurrence of any other event specified in the accompanying prospectus supplement. On the date on which an early amortization event is deemed to have occurred, the early amortization period or, if so specified in the accompanying prospectus supplement, the controlled accumulation period will commence. If, because of the occurrence of an early amortization event, the early amortization period begins earlier than the scheduled commencement of an amortization period or prior to an expected principal payment date, noteholders will begin receiving distributions of principal earlier than they otherwise would have, which may shorten the average life of the notes.
In addition to the consequences of an early amortization event discussed above, unless otherwise specified in the accompanying prospectus supplement, if insolvency or similar proceedings under the Bankruptcy Code or similar laws occur with respect to us or any other transferor of receivables to the
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trust, on the day of that event we or such other transferor, as applicable, will immediately cease to transfer principal receivables to the trust and promptly give notice to the trustee for RFS Funding Trust, with a copy to the indenture trustee and the Owner Trustee of this event. Any transferred principal receivables or participation interests transferred to the trust prior to the event, as well as collections on those transferred principal receivables, participation interests and finance charge receivables accrued at any time with respect to those transferred principal receivables, will continue to be part of the trust assets.
If the only early amortization event to occur is our insolvency, the court may have the power to require the continued transfer of principal receivables to us, in which event we will continue to transfer principal receivables to the trust. See " Risk FactorsIf a conservator or receiver were appointed for Monogram Credit Card Bank of Georgia delays or reductions in payment of your notes could occur " in this prospectus.
Matters Regarding the Transferor
The trust agreement for the issuer provides that we may sell, assign, pledge or otherwise transfer our interest in all or a portion of the transferor interest. Before we may transfer our interest in the transferor interest, the following must occur:
We may consolidate with, merge into, or sell our business to another entity, in accordance with the transfer agreement and the trust receivables purchase agreement if the following conditions are satisfied:
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the effect that, the related supplemental agreement is valid and binding with respect to the surviving entity, enforceable against the surviving entity, subject to insolvency and equity related exceptions; and
Servicing Compensation and Payment of Expenses
The servicer receives a fee for its servicing activities. The share of the servicing fee allocable to each series for any payment date will be equal to one-twelfth of the product of (a) the servicing fee rate for that series and (b) the collateral amount for that series on the last day of the prior Monthly Period.
The servicer will pay from its servicing compensation expenses of servicing the receivables, other than federal, state and local income and franchise taxes, if any, of the issuer or RFS Funding Trust.
Each series' servicing fee is payable each period from collections of finance charge receivables allocated to the series. Neither the issuer nor the noteholders are responsible for any servicing fee allocable to the Free Equity Amount or any other holder of a beneficial ownership interest in the transferred receivables issued by RFS Funding Trust.
Matters Regarding the Servicer
The servicer may not resign from its obligations and duties, except:
If the servicer resigns or is terminated, RFS Funding Trust will appoint, or if RFS Funding Trust has terminated, the issuer will appoint, a successor.
The servicer's resignation will not become effective until a successor has assumed the servicer's obligations and duties. The issuer will notify each rating agency upon the appointment of a successor servicer. The servicer may delegate any of its servicing duties to another entity, but the servicer's delegation of its duties will not relieve it of its liability and responsibility with respect to the delegated duties.
The servicer will indemnify RFS Funding Trust, the issuer and their affiliates, and their respective directors, officers, employees, trustees or agents for any losses suffered as a result of the servicer's material breach of its obligations under the servicing agreement, except in each case, for losses resulting from the bad faith, gross negligence or willful misconduct by the indemnified party or recourse for uncollectible receivables. No indemnity payments by the servicer will be paid from the assets of the issuer or RFS Funding Trust.
Except as provided in the preceding paragraph, neither the servicer nor any of its directors, officers, employees or agents will be liable to RFS Funding Trust, the issuer, the Owner Trustee, the indenture trustee, the trustee for RFS Funding Trust, the securityholders or any other person for any action or for refraining from taking any action in good faith in its capacity as servicer under the servicing agreement. However, the servicer will not be protected against any liability resulting from willful misfeasance, bad faith or gross negligence in the performance of its duties or by reason of its reckless disregard of obligations and duties under the servicing agreement. In addition, the servicer is
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not under any obligation to appear in, prosecute or defend any legal action which is not incidental to its servicing responsibilities under the servicing agreement and which in its reasonable opinion may expose it to any expense or liability.
The servicer may consolidate with, merge into, or sell its business to, another entity in accordance with the servicing agreement on the following conditions:
Servicer's Representations, Warranties and Covenants
The servicer will make customary representations and warranties to the trust as of the closing date for each series, including that:
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The servicer will covenant and agree as follows:
If the Servicer breaches the above covenants with respect to any transferred receivable or the related account, and as a result, the trust's rights in, to or under the related transferred receivables are materially impaired or the proceeds of the transferred receivables are not available to the trust free and clear of any lien, then no later than 60 days from the earlier to occur of the discovery of the breach by the servicer or the receipt by the servicer of notice of the breach from the trust, all transferred receivables in the accounts to which the breach relates will be assigned to the servicer. On or prior to the related payment date, the servicer will pay the trust an amount equal to the amount of the transferred receivables required to be assigned to the servicer. The servicer will not be required to accept assignment of the receivables if on any day prior to the end of the 60-day period described above, the relevant breach has been cured and the covenant has been complied with in all material respects and the servicer has delivered an officer's certificate describing the nature of the breach and the manner in which the breach was cured.
Servicer Default
The occurrence of any of the following events constitutes a servicer default:
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The issuer will covenant to the indenture trustee that it will notify the servicer of any failure or breach by the servicer described above if directed to do so by the indenture trustee or holders of not less than 25% of the aggregate outstanding principal amount of all series or, with respect to any failure by the servicer or any breach by the servicer of a representation, warranty or certification that does not relate to all series, holders of 25% of the aggregate outstanding principal amount of all series to which the failure or the applicable representation, warranty or certification relates.
If a servicer default occurs, for so long as it has not been remedied, the issuer may give notice to the servicer, terminating all of the rights and obligations of the servicer under the servicing agreement. The issuer will covenant to the indenture trustee that it will deliver notice to the servicer terminating all of the rights and obligations of the servicer under the servicing agreement if a servicer default described in clause (5) above occurs or if any other servicer default occurs and it is directed to terminate the servicer by the holders of not less than 50% of the aggregate outstanding principal amount of each affected series of notes.
Within 30 days after the issuer gives notice of termination to the servicer, the issuer will appoint a successor servicer. Because the bank, as servicer, has significant responsibilities with respect to the servicing of the transferred receivables, the indenture trustee may have difficulty finding a suitable successor servicer. Potential successor servicers may not have the capacity to adequately perform the duties required of a successor servicer or may not be willing to perform those duties for the amount of the servicing fee currently payable under the servicing agreement. If no successor has been appointed and has accepted the appointment by the time the servicer ceases to act as servicer or if the majority of the noteholders so request in writing to the indenture trustee, the indenture trustee will automatically become the successor. Deutsche Bank Trust Company Americas, the indenture trustee, does not have credit card operations. If Deutsche Bank Trust Company Americas is automatically appointed as successor servicer it may not have the capacity to perform the duties required of a successor servicer and current servicing compensation under the servicing agreement may not be sufficient to cover its actual cost and expenses of servicing the accounts. If the indenture trustee is legally unable to act as servicer, the indenture trustee will petition a court of competent jurisdiction to appoint an eligible servicer.
The issuer has covenanted in the indenture to enforce the obligations of the servicer under the servicing agreement and if a servicer default arises from the failure of the servicer to perform any of its duties or obligations under the servicing agreement with respect to the transferred receivables, the issuer will take all reasonable actions available to it to remedy that failure. However, any default by the servicer in the performance of its obligations under the servicing agreement, other than a default that relates to a failure to make required deposits, may be waived by the trust, but only upon consent of the
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noteholders holding not less than 66 2 / 3 % of the then-outstanding principal balance of the notes of each series as to which that default relates.
Our rights and obligations under the bank receivables sale agreement will be unaffected by any change in servicer.
If a conservator or receiver is appointed for the servicer, the conservator or receiver may have the power to prevent the trust from appointing a successor servicer.
Reports to Noteholders
Noteholders of each series issued by the issuer will receive reports with information on the series and the trust. The indenture trustee will forward to each noteholder of record a report, prepared by the servicer, for its series on the payment dates for that series. The report will contain the information specified in the related prospectus supplement. If a series has multiple classes, information will be provided for each class, as specified in the related prospectus supplement.
Periodic information to noteholders generally will include:
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The issuer will also provide to each person who at any time during the preceding calendar year was a noteholder of record a statement containing the information that is required to enable the noteholders to prepare their federal, state and other income tax returns.
Evidence as to Compliance
The servicing agreement provides that on or before the 75th day following the end of the servicer's fiscal year, beginning with 2003, the servicer will have a firm of independent certified public accountants furnish a report to the issuer to the effect that:
in either case, except for any discrepancies or exceptions they consider immaterial or that are otherwise disclosed.
The servicing agreement also provides that by the 75th day following the end of the servicer's fiscal year, the servicer will deliver to the issuer a certificate of an authorized officer to the effect that the servicer has performed in all material respects its obligations under the servicing agreement during the preceding year, or, if there has been a default in the performance of any of such obligations, specifying the nature and status of the default.
Amendments
The transfer agreement may be amended by us and the issuer. The servicing agreement may be amended by the servicer, the issuer and RFS Funding Trust; however, in the case of any amendment, modification, termination or waiver that could reasonably be expected to have a material adverse effect on the performance of the receivables, the rating agencies must have provided confirmation that the amendment, modification, termination or waiver would not impair their rating of any outstanding class of notes. The trust receivables purchase agreement may be amended by us and RFS Funding Trust. The issuer will covenant to the indenture trustee that it will not amend the transfer agreement or the servicing agreement or consent to any amendment of the trust receivables purchase agreement, unless:
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The issuer will also covenant to the indenture trustee that, notwithstanding the foregoing clauses (1) through (3) above, the issuer will not enter into any amendment of the transfer agreement or the servicing agreement or consent to any amendment of the trust receivables purchase agreement if the amendment:
in each case, without the consent of each affected noteholder;
For purposes of clause (1) above, changes in early amortization events or events of default that decrease the likelihood of the occurrence of those events will not be considered delays in the timing of distributions.
The following is a summary of the material terms of the indenture. The summary is not complete and is qualified in its entirety by reference to the indenture. The indenture is filed as an exhibit to the registration statement of which this prospectus is a part.
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Events of Default; Rights upon Event of Default
An event of default will occur under the indenture for any series of notes upon the occurrence of any of the following events:
An event of default will not occur if the issuer fails to pay the full principal amount of a note on its expected principal payment date.
An event of default with respect to one series of notes will not necessarily be an event of default with respect to any other series of notes.
If an event of default referred to in clause (1), (2) or (4) above occurs and is continuing with respect to any series of notes, the indenture trustee or noteholders holding a majority of the then-outstanding principal balance of the notes of the affected series may declare the principal of the notes of that series to be immediately due and payable. If an event of default referred to in clause (3) above occurs and is continuing, the unpaid principal and interest due on the notes automatically will be deemed to be declared due and payable. Before a judgment or decree for payment of the money due has been obtained by the indenture trustee, noteholders holding a majority of the then-outstanding principal balance of the notes of that series may rescind the declaration of acceleration of maturity if:
The indenture trustee will be under no obligation to exercise any of the rights or powers under the indenture at the request or direction of any of the noteholders if:
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Subject to those provisions for indemnification and those limitations contained in the indenture, noteholders holding not less than a majority of the then-outstanding principal balance of the notes of the affected series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to the indenture trustee if an event of default has occurred and is continuing. Prior to the acceleration of the maturity of the notes of the affected series, the noteholders holding not less than a majority of the then-outstanding principal balance of each class of the notes of the affected series or, with respect to any series with two or more classes, each class may also waive any event of default with respect to the notes, except a default in the payment of principal or interest or a default relating to a covenant or provision of the indenture that cannot be modified without the waiver or consent of each affected noteholder of that series.
After acceleration of a series of notes, principal collections and finance charge collections allocated to those notes will be applied to make monthly principal and interest payments on the notes until the earlier of the date the notes are paid in full or the final maturity date of the notes. Funds in the collection account and the other trust accounts for an accelerated series of notes and funds in the excess funding account that are available to that series will be applied immediately to pay principal of and interest on those notes.
Upon acceleration of the maturity of a series of notes following an event of default, the indenture trustee will have a lien on the collateral for those notes for its unpaid fees and expenses that ranks senior to the lien of those notes on the collateral.
In general, the indenture trustee will enforce the rights and remedies of the holders of accelerated notes. However, noteholders will have the right to institute any proceeding with respect to the indenture if the following conditions are met:
If the indenture trustee receives conflicting or inconsistent requests and indemnity from two or more groups of any affected series, each representing no more than 50% of the then-outstanding principal balance of that series, the indenture trustee in its sole discretion may determine what action, if any, will be taken.
Each holder of a note will have an absolute and unconditional right to receive payment of the principal of and interest in respect of that note as principal and interest become due and payable, and to institute suit for the enforcement of any payment of principal and interest then due and payable and those rights may not be impaired without the consent of that noteholder.
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Subject to the provisions of the indenture relating to the duties of the indenture trustee, if any series of notes has been accelerated following an event of default, the indenture trustee may do one or more of the following:
Subject to the conditions described in the following sentence, the indenture trustee also may cause the trust to sell principal receivables, which will be randomly selected, in an amount equal to the collateral amount for the series of accelerated notes and the related finance charge receivables. Before exercising this remedy, the indenture trustee must receive an opinion of counsel to the effect that exercise of this remedy complies with applicable federal and state securities laws and one of the following conditions must be satisfied:
The remedies described above are the exclusive remedies provided to noteholders, and each noteholder by accepting its interest in the notes of any series and the indenture trustee expressly waive any other remedy that might have been available under the Uniform Commercial Code.
The indenture trustee and the noteholders will covenant that they will only institute against the issuer any reorganization or other proceeding under any federal or state law if noteholders holding not less than 66 2 / 3 % of the outstanding principal amount of each class of notes have approved such filing. They will also covenant not to institute this type of proceeding against us or RFS Funding Trust in any case.
None of us, the administrator, the Owner Trustee, the indenture trustee, the servicer, GE Consumer Card Co. or RFS Funding Trust, nor any holder of an ownership interest in the issuer, nor any of their respective owners, beneficiaries, agents, officers, directors, employees, successors or assigns shall, in the absence of an express agreement to the contrary, be personally liable for the payment of the principal of or interest on the notes or for the agreements of the issuer contained in the indenture. The notes will represent obligations solely of the issuer, and the notes will not be insured or guaranteed by us, the servicer, the administrator, the Owner Trustee, the indenture trustee, or any other person or entity.
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Covenants
The indenture provides that the issuer may not consolidate with, merge into or sell its business to, another entity, unless:
As long as the notes are outstanding, the issuer will not, among other things:
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Modification of the Indenture
The issuer and the indenture trustee may, without the consent of any noteholders but with prior written notice to each rating agency, enter into one or more supplemental indentures for any of the following purposes:
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The issuer and the indenture trustee may also, without the consent of any noteholders, enter into one or more supplemental indentures to amend the indenture or any indenture supplement, upon:
The issuer and the indenture trustee may also, without the consent of the noteholders of any series, enter into one or more supplemental indentures to add, modify or eliminate any provisions necessary or advisable in order to enable (i) a FASIT election to be made with respect to all or part of RFS Funding Trust or the issuer, (ii) so long as a FASIT election is in effect, all or part of RFS Funding Trust or the issuer to qualify as a FASIT under the Code, (iii) the termination of a FASIT election with respect to all or part of RFS Funding Trust or the issuer or (iv) the issuer to avoid the imposition of state or local income or franchise taxes on the issuer's property or its income. Prior to any amendment described in this paragraph, each rating agency must confirm that the amendment will not impair its rating of any outstanding class of notes. In addition, no amendment described in this paragraph or the preceding paragraph may affect the rights, duties or obligations of the indenture trustee or the issuer under the indenture.
The issuer and the indenture trustee will not, without prior notice to each rating agency and the consent of each noteholder affected, enter into any supplemental indenture to:
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The issuer and the indenture trustee may otherwise, with the consent of noteholders holding more than 66 2 / 3 % of the then-outstanding principal balance of the notes of each series adversely affected, enter into one or more supplemental indentures to add provisions to or change in any manner or eliminate any provision of the indenture or to change the rights of the noteholders under the indenture.
Annual Compliance Statement
The issuer will be required to present to the indenture trustee each year a written statement as to the performance of its obligations under the indenture.
Indenture Trustee's Annual Report
If required under the Trust Indenture Act of 1939, the indenture trustee will be required to mail to the noteholders each year a brief report relating to any change in its eligibility and qualification to continue as indenture trustee under the indenture, any change in the property and funds physically held by the indenture trustee and any action it took that materially affects the notes and that has not been previously reported. If none of the events described in the preceding sentence occurred during the previous 12 months, no report will be required to be delivered.
List of Noteholders
Holders of not less than 10% of the outstanding principal balance of any series of notes may obtain access to the list of noteholders the indenture trustee maintains for the purpose of communicating with other noteholders. The indenture trustee may elect not to allow the requesting noteholders access to the list of noteholders if it agrees to mail the requested communication or proxy, on behalf and at the expense of the requesting noteholders, to all noteholders of record.
Satisfaction and Discharge of Indenture
The indenture will be discharged with respect to the notes upon the delivery to the indenture trustee for cancellation of all the notes or, with specific limitations, upon deposit with the indenture trustee of funds sufficient for the payment in full of all the notes.
The Indenture Trustee
The indenture trustee is Deutsche Bank Trust Company Americas. Under the terms of the indenture, the issuer has agreed to pay to the indenture trustee reasonable compensation for performance of its duties under the indenture. The indenture trustee has agreed to perform only those duties specifically set forth in the indenture. Many of the duties of the indenture trustee are described
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throughout this prospectus and the related prospectus supplement. Under the terms of the indenture, the indenture trustee's limited responsibilities include the following:
The indenture trustee is not liable for any errors of judgment as long as the errors are made in good faith unless it is proved that the indenture trustee was negligent in ascertaining the pertinent facts, and the indenture trustee will not be liable for any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to the indenture.
The indenture trustee will not be deemed to have knowledge of an event of default, early amortization event or servicer default unless a responsible officer of the indenture trustee has actual knowledge of the relevant event or the indenture trustee receives written notice of the relevant event from the issuer or noteholders owning notes of the affected series or all series, as applicable, aggregating not less than 10% of the outstanding notes of the affected series or all series, as applicable. The indenture trustee will have no duty to monitor the performance of the issuer or its agents and it will not have any liability in connection with the wrongdoing or failure to act by the issuer. In addition, the indenture trustee will have no liability in connection with compliance of the issuer or its agents with statutory or regulatory requirements related to the transferred receivables.
The indenture trustee is not required to expend or risk its own funds or otherwise incur financial liability in the performance of any of its duties under the indenture or in the exercise of any of its rights or powers if it reasonably believes that repayments of such funds or adequate indemnity satisfactory to it against any loss, liability or expense is not reasonably assured to it.
If an event of default occurs and the indenture trustee has actual knowledge of the occurrence of an event of default, the indenture trustee will exercise its rights and powers under the indenture using the same degree of care and skill as a prudent person would exercise in the conduct of his own affairs. If an event of default occurs and is continuing, the indenture trustee may, in its discretion, proceed to protect and enforce its rights and the rights of the noteholders of the affected series by any appropriate proceedings as the indenture trustee may deem necessary to protect and enforce any of those rights. See " The IndentureEvents of Default; Rights Upon Event of Default. "
For the purpose of meeting any legal requirement of any jurisdiction in which any part of the collateral for the notes may at the time be located, the indenture trustee will have the power to appoint one or more co-trustees or separate trustees for the benefit of the noteholders, and to vest in any co-trustee or separate trustee all rights under the indenture with respect to the collateral for the notes and those powers, duties, obligations, rights and trusts as the indenture trustee considers necessary or desirable. No co-trustee or separate trustee will be required to meet the terms of eligibility as a successor trustee under the indenture and no notice to noteholders of the appointment of any co-trustee or separate trustee will be required. If a separate trustee or co-trustee is appointed, all
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rights, powers, duties and obligations conferred or imposed upon the indenture trustee will be conferred or imposed upon and exercised or performed by the indenture trustee and the separate trustee or co-trustee jointly or, in any jurisdiction where the indenture trustee is incompetent or unqualified to perform certain acts, singly by the separate trustee or co-trustee, but solely at the direction of the indenture trustee. No trustee appointed under the indenture will be personally liable for any act or omission of any other trustee appointed under the indenture. The indenture trustee may at any time accept the resignation of or remove, in its sole discretion, any separate trustee or co-trustee.
The indenture trustee may resign at any time. Noteholders holding not less than 66 2 / 3 % of the aggregate outstanding principal balance of all series may remove the indenture trustee and may appoint a successor indenture trustee. In addition, the issuer will remove the indenture trustee if it ceases to be eligible to continue as an indenture trustee under the indenture or if the indenture trustee becomes insolvent or otherwise becomes legally unable to act as indenture trustee. If the indenture trustee resigns or is removed, the issuer will then be obligated to appoint a successor indenture trustee. If a successor indenture trustee does not assume the duties of indenture trustee within 60 days after the retiring indenture trustee resigns or is removed, the retiring indenture trustee, the issuer or noteholders representing not less than a majority of the aggregate outstanding principal balance of all series may petition a court of competent jurisdiction to appoint a successor indenture trustee. In addition, if the indenture trustee ceases to be eligible to continue as indenture trustee, any noteholder may petition a court of competent jurisdiction for the removal of the indenture trustee and the appointment of a successor indenture trustee.
If an event of default occurs under the indenture, under the Trust Indenture Act of 1939, the indenture trustee may be deemed to have a conflict of interest and be required to resign as indenture trustee for one or more classes of each series of notes. In that case, a successor indenture trustee will be appointed for one or more of those classes of notes and may provide for rights of senior noteholders to consent to or direct actions by the indenture trustee which are different from those of subordinated noteholders. Any resignation or removal of the indenture trustee and appointment of a successor indenture trustee for any class or series of notes will not become effective until the successor indenture trustee accepts its appointment.
The indenture trustee is not responsible for the accuracy, validity or adequacy of any of the information contained in this prospectus.
Matters Regarding the Administrator
The administrator will, to the extent provided in the administration agreement, provide the notices and perform on behalf of the issuer other administrative obligations required by the indenture.
Trust Agreement for RFS Funding Trust
We have summarized the terms of the RFS Funding Trust trust agreement that are material to noteholders in this prospectus. The summary is not complete and is qualified in its entirety by reference to the RFS Funding Trust trust agreement. The RFS Funding Trust trust agreement is filed as an exhibit to the registration statement of which this prospectus is a part.
Trustee for RFS Funding Trust
Deutsche Bank Trust Company Delaware is the trustee for RFS Funding Trust under the RFS Funding Trust trust agreement. The trustee may not, in its individual capacity, but may in a fiduciary capacity, become the owner or pledgee of notes or otherwise extend credit to RFS Funding Trust. The trustee for RFS Funding Trust may otherwise deal with RFS Holding, Inc., the administrator for RFS
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Funding Trust and the servicer with the same rights as it would have if it were not the trustee for RFS Funding Trust.
The trustee for RFS Funding Trust will receive as compensation for its services under the RFS Funding Trust trust agreement certain fees as have been separately agreed upon between General Electric Capital Services, Inc., and the trustee and the trustee will be entitled to be reimbursed by RFS Holding, Inc. for its other reasonable expenses under the RFS Funding Trust trust agreement, including the reasonable compensation, expenses and disbursements of any agents, representatives, experts and counsel as the trustee may employ in connection with the exercise and performance of its rights and its duties under the RFS Funding Trust trust agreement.
The trustee for RFS Funding Trust has agreed to perform only those duties specifically set forth in the RFS Funding Trust trust agreement. Many of the duties of the trustee for RFS Funding Trust are described throughout this prospectus and the related prospectus supplement. Under the terms of the RFS Funding Trust trust agreement, the trustee's limited responsibilities include the following:
The trustee for RFS Funding Trust will not be liable for any error of judgment made in good faith by a responsible officer of the trustee for RFS Funding Trust unless it is proved that the trustee for RFS Funding Trust was grossly negligent in determining the pertinent facts. The trustee for RFS Funding Trust will also not be liable for any action taken or not taken by it in accordance with the instructions of the administrator for RFS Funding Trust, us, as holder of the residual interest in RFS Funding Trust or the Required Parties delivered in accordance with the terms of the RFS Funding Trust trust agreement.
No provision of the RFS Funding Trust trust agreement or any transaction document will require the trustee for RFS Funding Trust to expend or risk funds or otherwise incur any financial liability in the performance of any of its rights or powers under the trust agreement for RFS Funding Trust or under any transaction document, if the trustee has reasonable grounds for believing that repayment of those funds or adequate indemnity against any risk or liability is not reasonably assured or provided to it. Under no circumstances will the trustee for RFS Funding Trust be liable for indebtedness evidenced by or arising under any of the transaction documents, including the principal of and interest on the notes or any representation, warranty or covenant of RFS Funding Trust.
The trustee for RFS Funding Trust will not be liable for the default or misconduct of the administrator for RFS Funding Trust, RFS Holding, Inc., the servicer or any other person under any of the transaction documents or otherwise and the trustee for RFS Funding Trust will have no obligation or liability to perform the obligations of RFS Funding Trust under the RFS Funding Trust trust agreement or the transaction documents that are required to be performed by the administrator for RFS Funding Trust under the administration agreement or the servicer under the transaction documents, and the trustee for RFS Funding Trust will have no obligation to monitor any of those parties in connection with their respective obligations.
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The trustee for RFS Funding Trust will not be obligated to exercise any of the rights or powers vested in it by the RFS Funding Trust trust agreement, or to institute, conduct or defend any litigation under the RFS Funding Trust trust agreement or any transaction document, at the request, order or direction of any of the Required Parties unless the Required Parties have offered to the trustee for RFS Funding Trust security or indemnity satisfactory to it. The right of the trustee for RFS Funding Trust to perform any discretionary act will not impose a duty on the trustee for RFS Funding Trust, and the trustee for RFS Funding Trust will not be liable for other than its gross negligence or willful misconduct in the performance of any act taken.
The Required Parties will have the right to direct the time, method, and place of conducting any proceeding for any remedy available to trustee for RFS Funding Trust, or exercising any trust or power conferred on the trustee relating to any proceeding. The trustee will not, however, be required to take any action under the RFS Funding Trust trust agreement or under any transaction document if the trustee has reasonably determined, or has been advised by counsel, that the action is likely to result in liability on the part of the trustee for RFS Funding Trust or is contrary to the terms of the RFS Funding Trust trust agreement or of any transaction document or is otherwise contrary to law.
Whenever the trustee for RFS Funding Trust is unable to decide between alternative courses of action permitted or required by the RFS Funding Trust trust agreement or any transaction document or the trustee for RFS Funding Trust is unsure as to the application of any provision of the RFS Funding Trust trust agreement or any transaction document or any provision is ambiguous as to its application, the trustee for RFS Funding Trust will promptly give notice to us, as holder of the residual interest in RFS Funding Trust and, if the trustee for RFS Funding Trust has actual knowledge that any proceeding is pending or has received notice from any Required Party that a proceeding is contemplated or is pending, each Required Party requesting instruction as to the course of action to be adopted. If the trustee for RFS Funding Trust acts in good faith in accordance with any written instruction received from the Required Parties or, if the trustee for RFS Funding Trust does not have actual knowledge that a proceeding is pending and has not received notice from any Required Party that a proceeding is contemplated or pending, or otherwise if no instruction has been received from the Required Parties, the trustee for RFS Funding Trust will not be liable on account of any action taken in good faith at our direction. If the trustee has not received appropriate instruction within ten days of any notice delivered as described in this paragraph or within a shorter period of time as reasonably may be specified by the trustee for RFS Funding Trust in the related notice or as may be necessary under the circumstances, the trustee for RFS Funding Trust may, but will not be under any duty to, take or refrain from taking any action not inconsistent with the RFS Funding Trust trust agreement or the transaction documents, as the trustee for RFS Funding Trust considers to be in the best interests of the certificateholders, and will have no liability to any person for any action or inaction.
The trustee for RFS Funding Trust may resign at any time, in which event the administrator for RFS Funding Trust will be obligated to appoint a successor trustee for RFS Funding Trust. If no successor trustee for RFS Funding Trust has been appointed within 30 days after the trustee for RFS Funding Trust has delivered notice of its resignation, the resigning trustee may petition a court of competent jurisdiction to appoint a successor trustee.
The administrator on behalf of RFS Funding Trust may also remove the trustee for RFS Funding Trust if the trustee for RFS Funding Trust ceases to be eligible to continue as trustee or becomes legally unable to act under the RFS Funding Trust trust agreement or if the trustee for RFS Funding Trust becomes insolvent. In those circumstances, the administrator for RFS Funding Trust will be obligated to appoint a successor trustee for RFS Funding Trust. Any resignation or removal of the trustee for RFS Funding Trust and appointment of a successor trustee for RFS Funding Trust will not become effective until acceptance of the appointment by the successor trustee for RFS Funding Trust and payment of all fees and expenses owed to the outgoing trustee.
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For purposes of meeting the legal requirements of certain local jurisdictions, the administrator for RFS Funding Trust or the trustee for RFS Funding Trust will have the power to appoint a co-trustee for RFS Funding Trust or separate trustee for RFS Funding Trust of all or any part of RFS Funding Trust. If a separate trustee or co-trustee is so appointed, all rights, powers, duties and obligations conferred or imposed upon the trustee for RFS Funding Trust by the RFS Funding Trust trust agreement will be conferred or imposed upon the trustee for RFS Funding Trust and such separate trustee or co-trustee jointly, or, in any jurisdiction in which the trustee for RFS Funding Trust is incompetent or unqualified to perform certain acts, singly upon the separate trustee or co-trustee who will exercise and perform such rights, powers, duties and obligations solely at the direction of the trustee for RFS Funding Trust.
New Issuances of Investor Certificates
The RFS Funding Trust trust agreement provides that, in any one or more issuance supplements to the trust agreement, we may direct the trustee for RFS Funding Trust to issue one or more new beneficial ownership interests in the transferred receivables. An issuance supplement may only modify or amend the terms of the RFS Funding Trust trust agreement as applied to the related beneficial ownership interest issued by that issuance supplement. There is no limit to the number of new issuances we may cause under the RFS Funding Trust trust agreement.
No new beneficial ownership interest in the transferred receivables may be issued unless we satisfy various conditions, including that:
Amendments
The RFS Funding Trust trust agreement and any supplement to the trust agreement may be amended by us, RFS Holding, Inc. and the trustee for RFS Funding Trust, without the consent of the indenture trustee or the noteholders of any series if the following conditions are satisfied:
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The trust agreement may also be amended by us, RFS Holding, Inc. and the trustee for RFS Funding Trust, with the consent of the indenture trustee if the interests of the indenture trustee are affected by the amendment. The indenture trustee will not consent to any amendment requiring its consent unless it has obtained the consent of noteholders representing more than 66 2 / 3 % of the aggregate outstanding principal balance of all series adversely affected by the amendment.
General
For any series, credit enhancement may be provided with respect to one or more of the related classes. Credit enhancement may be in the form of setting the collateral amount for that series at an amount greater than the initial principal amount of the notes in that series, the subordination of one or more classes of the notes of that series, a letter of credit, the establishment of a cash collateral guaranty or account, a surety bond, an insurance policy, a spread account, a reserve account, the use of cross support features or another method of credit enhancement described in the accompanying prospectus supplement, or any combination of these. If so specified in the accompanying prospectus supplement, any form of credit enhancement may be structured so as to be drawn upon by more than one class to the extent described in that accompanying prospectus supplement. Any credit enhancement that constitutes a guarantee of the applicable notes will be separately registered under the Securities Act unless exempt from registration under the Securities Act.
In the prospectus supplement for each series, we will describe the amount and the material terms of the related credit enhancement. Often, the credit enhancement will not provide protection against all risks of loss and will not guarantee repayment of the entire principal balance of the notes and interest thereon. If losses occur which exceed the amount covered by the credit enhancement or which are not covered by the credit enhancement, noteholders will bear their allocable share of uncovered losses.
If credit enhancement is provided with respect to a series, the accompanying prospectus supplement will include a description of:
The accompanying prospectus supplement may also set forth additional information with respect to any credit enhancement provider, including:
If so specified in the accompanying prospectus supplement, credit enhancement with respect to a series may be available to pay principal of the notes of that series following the occurrence of one or more early amortization events with respect to that series. In this event, the credit enhancement
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provider will have an interest in the cash flows in respect of the receivables to the extent described in that prospectus supplement.
Subordination
If so specified in the accompanying prospectus supplement, one or more classes of notes of any series will be subordinated as described in the accompanying prospectus supplement to the extent necessary to fund payments with respect to the senior notes. The rights of the holders of these subordinated notes to receive distributions of principal and/or interest on any payment date for that series will be subordinate in right and priority to the rights of the holders of senior notes, but only to the extent set forth in the accompanying prospectus supplement. If so specified in the accompanying prospectus supplement, subordination may apply only in the event that a specified type of loss is not covered by another form of credit enhancement.
The accompanying prospectus supplement will also set forth information concerning:
If collections of receivables otherwise distributable to holders of a subordinated class of a series will be used as support for a class of another series, the accompanying prospectus supplement will specify the manner and conditions for applying that cross-support feature.
Letter of Credit
If so specified in the accompanying prospectus supplement, support for a series or one or more of the related classes will be provided by one or more letters of credit. A letter of credit may provide limited protection against some losses in addition to or in lieu of other credit enhancement. The issuer of the letter of credit will be obligated to honor demands with respect to that letter of credit, to the extent of the amount available thereunder, to provide funds under the circumstances and subject to any conditions as are specified in the accompanying prospectus supplement.
The maximum liability of the issuer of a letter of credit under its letter of credit will generally be an amount equal to a percentage specified in the accompanying prospectus supplement of the initial collateral amount of a series or a class of that series. The maximum amount available at any time to be paid under a letter of credit will be set forth in the accompanying prospectus supplement.
Cash Collateral Guaranty, Cash Collateral Account or Excess Collateral
If so specified in the accompanying prospectus supplement, support for a series or one or more of the related classes will be provided by the following:
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The amounts on deposit in the cash collateral account or available under the cash collateral guaranty may be increased under the circumstances described in the accompanying prospectus supplement which may include:
The amount available from the cash collateral guaranty, the cash collateral account and any excess collateral will be limited to an amount specified in the accompanying prospectus supplement. The accompanying prospectus supplement will set forth the circumstances under which payments are made to beneficiaries of the cash collateral guaranty from the cash collateral account or from the cash collateral account directly.
Surety Bond or Insurance Policy
If so specified in the accompanying prospectus supplement, insurance with respect to a series or one or more of the related classes will be provided by one or more insurance companies. This insurance will guarantee, with respect to one or more classes of the related series, distributions of interest or principal in the manner and amount specified in the accompanying prospectus supplement.
If so specified in the accompanying prospectus supplement, a surety bond will be purchased for the benefit of the holders of any series or class of that series to assure distributions of interest or principal with respect to that series or class of notes in the manner and amount specified in the accompanying prospectus supplement.
If an insurance policy or a surety bond is provided for any series or class, the provider of the insurance policy or surety bond will be permitted to exercise the voting rights of the noteholders of the applicable series or class to the extent described in the prospectus supplement for that series. For example, if specified in the related prospectus supplement, the provider of the insurance policy or surety bond, rather than the noteholders of that series, may have the sole right to:
Spread Account
If so specified in the accompanying prospectus supplement, support for a series or one or more of the related classes will be provided by the periodic deposit of all or a portion of available excess cash flow from the trust assets into a spread account intended to assist with subsequent distribution of interest and principal on the notes of that class or series in the manner specified in the accompanying prospectus supplement.
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Reserve Account
If so specified in the accompanying prospectus supplement, support for a series or one or more of the related classes or any related enhancement will be provided by a reserve account. The reserve account may be funded, to the extent provided in the accompanying prospectus supplement, by an initial cash deposit, the retention of a portion of periodic distributions of principal or interest or both otherwise payable to one or more classes of notes, including the subordinated notes, or the provision of a letter of credit, guarantee, insurance policy or other form of credit or any combination of these arrangements. The reserve account will be established to assist with the subsequent distribution of principal or interest on the notes of that series or the related class or any other amount owing on any related enhancement in the manner provided in the accompanying prospectus supplement.
Description of the Bank Receivables Sale Agreement
The following is a summary of the material terms of the bank receivables sale agreement. The summary is not complete and is qualified in its entirety by reference to the bank receivables sale agreement. The bank receivables sale agreement is filed as an exhibit to the registration statement of which this prospectus is a part.
Sale of Receivables
The bank previously transferred some of the receivables in the accounts currently designated to the trust directly to RFS Funding Trust under the trust receivables purchase agreement. Under the bank receivables sale agreement, the bank sold to us the remaining receivables in the accounts designated to the trust and, in the future, may sell to us receivables in additional accounts as of the related addition dates.
Representations and Warranties
In the bank receivables sale agreement, the bank represents and warrants to us as of each date on which receivables are transferred to us that:
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For purposes of the representations above and the criteria for eligible receivables described below, liens permitted by the bank receivables sale agreement include liens for taxes or assessments or other governmental charges not yet due and payable, unperfected workers', mechanics', suppliers' or similar liens arising in the ordinary course of business and liens created in favor of, or created by, us.
If any of these representations is not true in any material respect for any receivables as of the date specified in the representation and as a result of the breach any receivables in the related account become defaulted receivables or our rights in the transferred receivables or the proceeds of the transferred receivables are impaired or are not available to us free and clear of any lien, other than liens permitted by the bank receivables sale agreement, those receivables will be deemed to be an ineligible receivable and will be subject to repurchase by the bank as described below. The bank will be permitted 60 days to cure the breach or a longer period not to exceed 120 days agreed to by us after the bank discovers the breach or receives notice of the breach from us.
The bank will repurchase each ineligible receivable for a purchase price equal to the purchase price paid by us for that receivable, less any principal collections received on the receivable since the date we purchased the receivable. The bank will pay the repurchase price on the first date on which additional receivables are sold to us after the repurchase obligation arises. The repurchase price will first be netted against the purchase price payable by us for receivables sold by the bank to us on the repurchase date, except that if we inform the bank that we require funds to make payments on account of the related ineligible receivable under the transfer agreement, trust receivables purchase agreement or one of the other transaction documents, the bank will instead pay the full repurchase price to us in cash.
In the bank receivables sale agreement, the bank will also make representations and warranties to us as to:
failure to be so qualified would have a material adverse effect on the bank's ability to perform its obligations under the transaction documents, the validity or enforceability of the transaction documents, the transferred receivables or our interest or the bank's interest in the transferred receivables;
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If any of the representations and warranties described in the immediately preceding paragraph is false in any material respect and the breach of the representation or warranty has a material adverse effect on the transferred receivables or the availability of the proceeds of the transferred receivables to us, then the bank will be obligated to accept retransfer of all of the transferred receivables. The bank will be permitted 60 days after it receives notice of such breach, or a longer period, not to exceed 150 days, as may be specified in the notice, to cure the breach.
The reassignment price would be payable on the first payment date following the Monthly Period in which the reassignment obligation arises and would be equal to the aggregate amount of outstanding transferred receivables as of the end of the last preceding Monthly Period, but will in no event be less than the aggregate outstanding principal amounts for all series of securities, as of the payment date on which the reassignment is scheduled to be made, plus accrued and unpaid interest on the securities through the payment date, plus any other amounts specified in any prospectus supplement.
Covenants
In the bank receivables sale agreement, the bank covenants that it will comply with and perform its obligations under the credit card program agreements relating to the accounts and its policies and procedures relating to the accounts unless the failure to do so would not materially or adversely affect our rights. The bank may change the terms and provisions of the credit card program agreements, the agreements between the bank and the cardholders relating to the accounts or policies and procedures, including the reduction of the required minimum monthly payment, calculation of the amount, or the timing of, charge-offs and periodic finance charges and other fees applicable to the accounts, so long as any changes made are also made to any comparable segment of the bank's revolving credit card accounts which have characteristics the same as, or substantially similar to, the accounts that are the subject of the applicable change except as otherwise restricted by any agreement between the bank and a third-party or by the terms of the credit card program agreements.
The bank also covenants that it will not reduce the finance charges and other fees on the accounts, if we inform the bank that as a result of the reduction, we have a reasonable expectation that the portfolio yield for any series of notes as of the time of the reduction would be less than the base rate for that series, except as required by law and as the bank deems necessary in order to maintain its credit card business, based on its good faith assessment, in its sole discretion, of the nature of the competition in the credit card business. In any event, the bank will not reduce the periodic finance charges assessed on any transferred receivable or other fees on any account if (i) the reduction would cause the issuer to fail to make required payments under the indenture and (ii) noteholders representing more than a majority of the outstanding principal balance of each affected series of notes have not consented to the reduction.
Merger or Consolidation
The bank will covenant that it will not consolidate with or merge into any other entity or convey its business substantially as an entirety to any person unless:
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transaction have been complied with, and an opinion of counsel to the effect that the related supplemental agreement is legal, valid and binding with respect to the surviving entity, subject to permitted insolvency and equity related exceptions; and
Amendments
The bank receivables sale agreement may be amended without the consent of the noteholders. However, we have covenanted in the transfer agreement that we will not enter into an amendment of the bank receivables sale agreement if such amendment would adversely affect in any material respect the interests of the issuer or the noteholders.
Termination
If a receiver or conservator is appointed for the bank or we become a debtor in a bankruptcy case or other specified liquidation, bankruptcy, insolvency or similar events occur or the bank becomes unable for any reason to transfer receivables to us in accordance with the bank receivables sale agreement, we will immediately cease to purchase receivables under the bank receivables sale agreement.
Any rating of the notes by a rating agency will indicate:
Among the things a rating will not indicate are:
A rating will not be a recommendation to buy, sell or hold the notes. A rating may be lowered or withdrawn at any time by a rating agency.
We will request a rating of the notes offered by this prospectus and the accompanying prospectus supplement from at least one rating agency. Rating agencies other than those requested could assign a rating to the notes and, if so, that rating could be lower than any rating assigned by a rating agency chosen by us. Except as otherwise expressly stated, any reference in this prospectus or the accompanying prospectus supplement to a rating agency refers to a rating agency selected by us to rate the securities issued by the issuer or RFS Funding Trust.
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Material Legal Aspects of the Receivables
Transfer of Receivables
In the bank receivables sale agreement, the bank will represent and warrant that its transfer of receivables constitutes a valid sale and assignment of all of its right, title and interest in and to the receivables. In the trust receivables purchase agreement and the transfer agreement, we will represent and warrant that the trust receivables purchase agreement and the transfer agreement, as the case may be, create in favor of the trust (x) a valid first-priority perfected security interest in the receivables in existence at the time that the trust is formed or at the time that receivables in additional accounts are transferred, as the case may be, and (y) a valid first-priority perfected security interest in our rights in the receivables arising in accounts already designated for the trust portfolio on and after their creation, in each case until termination of the trust. For a discussion of the issuer's rights arising from these representations and warranties not being satisfied, see " Description of the NotesRepresentations and Warranties " in this prospectus.
We will represent in the trust receivables purchase agreement and the transfer agreement and the bank will represent in the bank receivables sale agreement that the receivables are "accounts" for purposes of the UCC. Both the sale of accounts and the transfer of accounts as security for an obligation are subject to the provisions of Article 9 of the UCC. Therefore, we and the bank will file appropriate UCC financing statements to perfect the respective transferee's security interest in the receivables.
There are limited circumstances in which prior or subsequent transferees of receivables could have an interest in those receivables with priority over the trust's interest. Under the bank receivables sale agreement, however, the bank will represent and warrant that it has transferred the receivables to us free and clear of the lien of any third party other than the trust and the indenture trustee, subject to specified liens permitted by the bank receivables sale agreement. In addition, the bank will covenant that it will not sell, create or permit to exist any lien on any receivable, subject to specified liens permitted by the bank receivables sale agreement. Similarly, under the trust receivables purchase agreement and the transfer agreement, we will represent and warrant that the receivables or the note trust certificate, as the case may be, have been transferred to the trust or the issuer, as the case may be, free and clear of the lien of any third party other than the indenture trustee, subject to specified liens permitted by the trust receivables purchase agreement and the transfer agreement. In addition, we will covenant that we will not create or permit to exist any lien on any receivable or the note trust certificate, as the case may be, other than to RFS Funding Trust or the issuer, as the case may be, subject to specified liens permitted by the trust receivables purchase agreement and the transfer agreement. Nevertheless, a tax, governmental or other nonconsensual lien on our property or the bank's property arising prior to the time a receivable comes into existence may have priority over the trust's interest in that receivable. Furthermore, if the FDIC were appointed as the bank's receiver or conservator, administrative expenses of the receiver or conservator may have priority over the trust's interest in the receivables.
So long as the conditions discussed in " Description of the NotesApplication of Collections " in this prospectus continue to be satisfied, the servicer, on behalf of the issuer, will be permitted to make deposits of collections on a monthly basis. Cash collections held by the servicer, on behalf of the issuer, therefore will be commingled and used for the benefit of the servicer prior to each payment date, and the trust may not have a first-priority perfected security interest in those collections. In addition, if a receiver or conservator were appointed for the bank, the indenture trustee may not be able to obtain, or may experience delays in obtaining, control of collections that are in possession of the bank at the time of such appointment. If any such event occurs, the amount payable to you could be lower than the outstanding principal and accrued interest on the notes, thus resulting in losses to you.
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Conservatorship and Receivership
The bank is a state bank chartered under the laws of the State of Georgia and is regulated and supervised principally by the Georgia Department of Banking and Finance, which is required to appoint the FDIC as conservator or receiver for the bank if specified events occur relating to the bank's financial condition or the propriety of its actions. In addition, the FDIC could appoint itself as conservator or receiver for the bank.
In its role as conservator or receiver, the FDIC would have broad powers to repudiate contracts to which the bank was a party if the FDIC determined that the contracts were burdensome and that repudiation would promote the orderly administration of the bank's affairs.
The FDIC has adopted a rule stating that, if certain conditions are met, the FDIC shall not use its repudiation power to reclaim, recover or recharacterize as property of an FDIC-insured bank any financial assets transferred by that bank in connection with a securitization transaction. Although the FDIC has the power to repeal or amend its own rules, the securitization rule states that any repeal or amendment of that rule will not apply to any transfers of financial assets made in connection with a securitization that was in effect before the repeal or modification.
We have structured the issuance of the notes with the intention that the transfers of receivables by the bank would have the benefit of this rule. Nevertheless, if the FDIC were to assert that the transfers do not have the benefit of the rule or violate the banking laws, or were to require the indenture trustee or any of the other transaction parties to go through the administrative claims procedure established by the FDIC in order to obtain payments on the notes, or were to request a stay of any actions by any of those parties to enforce the applicable agreement, delays in payments on outstanding series of notes could occur. Furthermore, if the FDIC's assertions were successful, possible reductions in the amount of those payments could occur.
If bankruptcy, insolvency or similar proceedings occur with respect to the bank, we will promptly notify the indenture trustee and an early amortization event will occur with respect to each series. Under the trust receivables purchase agreement and the transfer agreement, newly created receivables will not be transferred to the trust on and after any of these bankruptcy or insolvency related events.
In the event of conservatorship or receivership of the servicer, the conservator or receiver may have the power to prevent either the indenture trustee or the noteholders from appointing a successor servicer, to direct the servicer to stop servicing the transferred receivables or to increase the amount or the priority of the servicing fee due to the bank or otherwise alter the terms under which the bank services the transferred receivables. See " Description of the NotesServicer Default " in this prospectus.
In the event of conservatorship or receivership of the administrator, the conservator or receiver may have the power to prevent the issuer from appointing a successor administrator or to direct the administrator to stop providing administrative services to the issuer.
We are a separate, bankruptcy-remote affiliate of the bank, and our operating agreement contains limitations on the nature of our business. In addition, the trustee for RFS Funding Trust has covenanted in the trust agreement for RFS Funding Trust that it will not at any time institute against us any bankruptcy, insolvency or similar proceedings under the Bankruptcy Code or similar laws. Nevertheless, if we were to become a debtor in a bankruptcy case and if a bankruptcy trustee or one of our creditors or we as debtor-in-possession were to take the position that the transfers of the receivables by us to the trust were not "true sales" or that we and the trust should be treated as the
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same person for bankruptcy purposes then you could experience delays in payment on the notes and possible reductions in the amount of those payments as a result of:
Application of federal and state insolvency and debtor relief laws would affect the interests of the noteholders if those laws result in any receivables being charged-off as uncollectible. See " Description of the NotesDefaulted Receivables; Dilution; Investor Charge-Offs " in this prospectus.
Safety and Soundness
If federal bank regulatory authorities supervising any bank were to find that any obligation of that bank or an affiliate under a securitization or other agreement, or any activity of that bank or affiliate, constituted an unsafe or unsound practice or violated any law, rule or regulation applicable to the related bank, these federal bank regulatory authorities have the power under the Federal Deposit Insurance Act to order that bank or affiliate, among other things, to rescind that contractual obligation or terminate that activity. The bank may not be liable to you for contractual damages for complying with such an order and you may have no recourse against the applicable regulatory authority.
In 2003, the Office of the Comptroller of the Currency issued a consent order against a national bank asserting that, contrary to safe and sound banking practices, the bank was receiving inadequate servicing compensation under its securitization agreements, and ordered it, among other things, to resign as servicer within approximately 75 days and immediately to withhold funds from collections in an amount sufficient to compensate it for its actual costs and expenses of servicing, notwithstanding the priority of payments in the securitization agreements.
While the bank has no reason to believe that the FDIC would consider provisions relating to the bank acting as servicer or the payment or amount of the servicing fee payable to the bank, or any other obligation of the bank under its securitization agreements, to be unsafe or unsound or violative of any law, rule or regulation applicable to it, we cannot assure you that the FDIC in the future would not conclude otherwise. If the FDIC did reach that conclusion and ordered the bank to rescind or amend its securitization agreements, payments on your notes may be delayed or reduced.
Consumer Protection Laws
The relationship of the consumer and the provider of consumer credit is extensively regulated by federal and state consumer protection laws. With respect to credit accounts issued by us, the most significant federal laws include the Federal Truth-in-Lending, Equal Credit Opportunity, and Fair Credit Reporting and Fair Debt Collections Practices Acts. These statutes impose various disclosure requirements either before or when an account is opened, or both, and at the end of monthly billing cycles, and, in addition, limit account holder liability for unauthorized use, prohibit various discriminatory practices in extending credit and regulate practices followed in collections. In addition, account holders are entitled under these laws to have payments and credits applied to their revolving credit accounts promptly and to request prompt resolution of billing errors. Congress and the states
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may enact new laws and amendments to existing laws to regulate further the consumer revolving credit industry. The trust may be liable for violations of consumer protection laws that apply to the receivables, either as assignee from us with respect to obligations arising before transfer of the receivables to the trust or as the party directly responsible for obligations arising after the transfer. In addition, an account holder may be entitled to assert those violations by way of set-off against the obligation to pay the amount of receivables owing. All receivables that were not created in compliance in all material respects with the requirements of consumer protection laws, if the noncompliance has a material adverse effect on the noteholders' interest therein, may be reassigned to us. For a discussion of the trust's rights if the receivables were not created in compliance in all material respects with applicable laws, see " Description of the NotesRepresentations and Warranties " in this prospectus.
Federal Income Tax Consequences
The following is a summary of the material U.S. Federal income tax consequences of the purchase, ownership and disposition of the notes. This summary is based upon current provisions of the Code, proposed, temporary and final Treasury regulations promulgated thereunder, and published rulings and court decisions currently in effect. The current tax laws and the current regulations, rulings and court decisions may be changed, possibly retroactively. The portions of this summary which relate to matters of law or legal conclusions represent the opinion of Mayer, Brown, Rowe & Maw LLP, special Federal tax counsel for the issuer, as qualified in this summary. Mayer, Brown, Rowe & Maw LLP have prepared or reviewed the statements in this prospectus under the heading "Federal Income Tax Consequences" and are of the opinion that they are correct in all material respects.
The following summary does not furnish information in the level of detail or with the attention to an investor's specific tax circumstances that would be provided by an investor's own tax advisor. For example, it does not discuss the tax consequences of the purchase, ownership and disposition of the notes by investors that are subject to special treatment under the Federal income tax laws, including banks and thrifts, insurance companies, regulated investment companies, dealers in securities, holders that will hold the notes as a position in a "straddle" for tax purposes or as part of a "synthetic security" or "conversion transaction" or other integrated investment comprised of the notes and one or more other investments, trusts and estates and pass-through issuers, the equity holders of which are any of these specified investors. In addition, the discussion regarding the notes is limited to the Federal income tax consequences of the initial investors and not a purchaser in the secondary market and also is limited to investors who have purchased notes and hold those notes as capital assets within the meaning of section 1221 of the Code.
The issuer will be provided with an opinion of Mayer, Brown, Rowe & Maw LLP regarding certain Federal income tax matters discussed below. An opinion of Mayer, Brown, Rowe & Maw LLP, however, is not binding on the Internal Revenue Service (the "IRS") or the courts. Moreover, there are no cases or IRS rulings on similar transactions involving the public issuance of regular interests in a "financial asset securitization investment trust" (a "FASIT") with terms similar to those of the notes. As a result, the IRS may disagree with all or a part of the discussion below. No ruling on any of the issues below will be sought from the IRS.
Classification of FASITs
The "Small Business Job Protection Act of 1996" created a new type of entity for Federal income tax purposes called a "financial asset securitization investment trust" or "FASIT." Sections 860H through 860L of the Code set forth the rules governing the creation and taxation of FASITs (the "FASIT Provisions"). The IRS also published proposed Treasury regulations (the "FASIT Regulations"), supplementing the FASIT Provisions on February 7, 2000, but many issues remain unresolved. The FASIT Regulations are subject to change with potentially retroactive effect before being adopted as final regulations.
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In February 2003, the staff of the Joint Committee on Taxation transmitted a report to Senators Baucus and Grassley recommending, among other things, the repeal of the FASIT Provisions. Since that time, a number of bills have been introduced in both houses of Congress containing provisions that would repeal the FASIT Provisions. To date, none of those bills have been enacted. Nevertheless, repeal of the FASIT Provisions could occur and any such repeal could have retroactive effect. It is unclear what effect, if any, the repeal of the FASIT Provisions would have on noteholders. As indicated above, this discussion is based solely on current law.
Generally, a FASIT is any entity or segregated pool of assets for which an election to be treated as a FASIT applies for the taxable year, all of the interests in which are regular interests or the ownership interest, which has only one ownership interest and such ownership interest is held directly by an eligible corporation, and substantially all of the assets of which consist of permitted assets. An entity or segregated pool of assets qualifying as a FASIT is not subject to Federal income tax. Rather, the holder of the ownership interest in the FASIT is required to treat all assets, liabilities, and items of income, gain, deduction, loss and credit of the FASIT as assets, liabilities and items of the holder. Further, a regular interest in the FASIT, even if not otherwise a debt instrument, is treated as a debt instrument for Federal income tax purposes, although certain FASIT regular interests may be treated as "high-yield regular interests" which are subject to special rules discussed below.
An election has been made to treat a portion of RFS Funding Trust's assets as a segregated pool constituting a FASIT for Federal income tax purposes (the "RFS FASIT"), and the note trust certificate held by the issuer represents an interest in the segregated pool of assets that constitutes the RFS FASIT. Upon issuance of each series of notes, Mayer, Brown, Rowe & Maw LLP will deliver its opinion to the effect that, assuming compliance with all provisions of the servicing agreement, the trust agreement and other transaction documents, (i) the segregated pool of assets designated as the RFS FASIT will qualify as a FASIT, (ii) the notes offered by the issuer with respect thereto will be considered to be "regular interests" in the RFS FASIT and (iii) the issuer will not be an association or publicly traded partnership taxable as a corporation for Federal income tax purposes. Opinions of counsel only represent the views of that counsel and are not binding on the IRS or the courts. Accordingly, there can be no assurance that the IRS and the courts will not take a differing position. Furthermore, qualification of the RFS FASIT as a FASIT will depend on meeting on a continuing basis the various qualification tests imposed by the Code. Mayer, Brown, Rowe & Maw LLP will not review compliance with these tests on a continuing basis. No assurance can be given that the RFS FASIT will satisfy such tests on a continuing basis.
Although the accompanying prospectus supplement will indicate if any of the offered FASIT securities are expected to be treated as "high-yield regular interests," in many cases it will not be clear as of the date of the prospectus supplement (and possibly not even after the issuance of the securities) whether any particular class will actually be so treated. The ownership interest in the RFS FASIT is currently owned by an affiliate of the issuer and it is expected that it will continue to be owned by an affiliate of the issuer.
If the RFS FASIT fails to comply with one or more of the ongoing requirements of the Code for FASIT status during any taxable year, the Code provides that it will not be treated as a FASIT for that year and thereafter. In that event, the RFS FASIT may be taxable as a separate corporation under Treasury regulations, and the related notes may not be accorded the status or given the tax treatment described in this prospectus under "Federal Income Tax Consequences." The IRS may, but it is not compelled to, provide relief, but any relief may be accompanied by sanctions, including the imposition of a corporate tax on all or a portion of the trust's income for the period in which the requirements for that status are not satisfied. The transaction documents contain provisions designed to maintain the status of the RFS FASIT as a FASIT. It is not anticipated that the status of the RFS FASIT will be terminated.
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Tax Consequences to Holder of the Notes
General. In general, notes offered pursuant to this prospectus will be treated for Federal income tax purposes as debt instruments and not as an ownership interest in the RFS FASIT or its assets. Moreover, holders of the notes that otherwise report income under a cash method of accounting will be required to report income from the notes under an accrual method. The discussion below assumes the notes are classified as debt for Federal income tax purposes.
Original Issue Discount and Interest Income on the Notes. The discussion below assumes that the interest formula for the notes meets the requirements for "qualified stated interest" under Treasury regulations (the "OID Regulations") relating to original issue discount ("OID"). This discussion assumes that any OID on the notes is a de minimis amount, within the meaning of the OID Regulations. Under the OID Regulations, the notes will have OID to the extent the principal amount of the notes exceeds their issue price. Further, if the notes have any OID, it will be de minimis if it is less than 0.25% of the principal amount of the notes multiplied by the number of full years included in their term. If these conditions are not satisfied for any given series of notes and as a result the notes are treated as issued with OID, additional tax considerations for these notes will be disclosed in the applicable prospectus supplement.
Based on the above assumptions, except as discussed below, the notes will not be considered issued with OID. If you buy the notes issued with OID, even if you otherwise report income under a cash method of accounting, you will be required to report income for the notes, including interest income, under an accrual method. Under the OID Regulations, if you hold a note issued with a de minimis amount of OID, you must include this OID in income, on a pro rata basis, as principal payments are made on the note. If you purchase a note in the secondary market for more or less than its principal amount, you generally will be subject, respectively, to the premium amortization or market discount rules of the Code.
Sale or Other Disposition of Notes. Upon the sale of a note, a noteholder will recognize gain or loss in an amount equal to the difference between the amount realized on the sale and the noteholder's adjusted basis in the note. The adjusted tax basis of a note will equal the noteholder's cost for the note, increased by any market discount, OID and gain previously included in the noteholder's income with respect to the note and decreased by the amount of premium, if any, previously amortized and by the amount of principal payments previously received on the note. Any gain or loss will be capital gain or loss, except for gain representing accrued interest and accrued market discount not previously included in income. Capital losses generally may be used by a corporate taxpayer only to offset capital gains, and by an individual taxpayer only to the extent of capital gains plus $3,000 of other income. In the case of an individual taxpayer, any capital gain on the sale of a note will be taxed at the taxpayer's ordinary income tax rate if the note is held for not more than 12 months and at the taxpayer's maximum capital gains rate if the note is held for more than 12 months.
Foreign Holders. If you are a nonresident alien, foreign corporation or other non-United States person (a "Foreign Person"), any interest paid to or accrued by you (including OID) generally will be considered "portfolio interest" and generally will not be subject to U.S. Federal income tax and withholding tax so long as the income is not effectively connected with your conduct of a trade or business carried on in the United States and:
(i) you do not actually or constructively own 10% or more of the total combined voting power of all classes of stock of us or the issuer;
(ii) you are not a controlled foreign corporation that is related to us or the issuer through stock ownership;
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(iii) you are not a bank whose receipt of interest on a note is described in section 881(c)(3)(A) of the Code; and
(iv) the interest is not contingent interest described in section 871(h)(4) of the Code.
To qualify for this exemption from taxation, you, or a financial institution holding the note on your behalf, must provide, in accordance with specified procedures, a paying agent of the issuer with a statement to the effect that you are not a U.S. person. Currently these requirements will be met if you provide your name and address, and certify, under penalties of perjury, that you are not a U.S. person (which certification may be made on an IRS Form W-8BEN or substantially similar form), or if a financial institution holding the note on your behalf certifies, under penalties of perjury, that the required statement has been received by it and furnishes a paying agent with a copy of the statement.
If you are a Foreign Person and interest paid or accrued to you is not "portfolio interest," then it will be subject to a 30% withholding tax unless you provide the issuer or its paying agent, as the case may be, with a properly executed:
If you are a Foreign Person engaged in a trade or business in the United States and interest on the note is effectively connected with your conduct of the trade or business, although you will be exempt from the withholding tax discussed above, you will be subject to U.S. Federal income tax on interest on a net income basis in the same manner as if you were a U.S. person. In addition if you are a foreign corporation, you may be subject to a branch profits tax equal to 30%, or lower treaty rate, of your effectively connected earnings and profits for the taxable year, subject to adjustments.
If you are a Foreign Person, any capital gain realized by you on the sale, redemption, retirement or other taxable disposition of a note by you will be exempt from U.S. Federal income and withholding tax; provided that:
Backup Withholding. If you are not an exempt holder, including a corporation, tax-exempt organization, qualified pension and profit-sharing issuer, individual retirement account or nonresident alien who provides certification as to status as a nonresident, you will be required to provide, under penalties of perjury, a certificate containing your name, address, correct federal taxpayer identification number and a statement that you are not subject to backup withholding. If you are not an exempt holder and fail to provide the required certification, the issuer will be required to withhold a percentage of the amount otherwise payable to you, and remit the withheld amount to the IRS as a credit against your Federal income tax liability. A backup withholding rate of 28% is in effect for payments made in the taxable year 2003 and thereafter. Under current law, the backup withholding rate will be increased to 31% for payments made after the taxable year 2010. Information returns will be sent annually to the IRS and to you setting forth the amount of interest paid on the notes owned by you and the amount of tax withheld on those payments.
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Special Rules for FASIT High-Yield Regular Interests
General. A high-yield regular interest in a FASIT is a subcategory of a FASIT regular interest. A FASIT high-yield regular interest is a FASIT regular interest that either (i) has an issue price that exceeds 125% of its stated principal amount, (ii) has a yield to maturity equal to or greater than a specified amount (generally 500 basis points above the appropriate applicable Federal rate) or (iii) is an interest-only obligation whose interest payments consist of a non-varying specified portion of the interest payments on permitted assets. A holder of a FASIT high-yield regular interest generally is subject to treatment, described above, applicable to FASIT regular interests.
Limitation on Utilization of Losses. The holder of a FASIT high-yield regular interest may not offset its income derived thereon by any unrelated losses. Thus, the taxable income of such holder will be at least equal to the taxable income derived from such interest (which includes gain or loss from the sale of such interests), any FASIT ownership interests and certain other items specified under the Code. Thus, income from such interests generally cannot be offset by current net operating losses or net operating loss carryovers. Similarly, the alternative minimum taxable income of the holder of a high-yield regular interest cannot be less than such holder's taxable income determined solely for such interests. For purposes of these provisions, all members of an affiliated group filing a consolidated return are treated as one taxpayer. Accordingly, the consolidated taxable income of the group cannot be less that the group's "tainted" income (thereby preventing losses of one member from offsetting the tainted income of another member). However, to avoid doubly penalizing income, net operating loss carryovers are determined without regard to such income for both regular and alternative minimum tax purposes.
Transfer Restrictions. Transfers of FASIT high-yield regular interests to certain "disqualified holders" will (absent the satisfaction of certain conditions) be disregarded for Federal income tax purposes. In such event, the most recent eligible holder (generally the transferring holder) will continue to be taxed as if it were the holder of the high-yield regular interest (although the disqualified holder, and not the most recent eligible holder, would be taxable on any gain recognized by such holder for such interest). Although not free from doubt, the tax ownership of a FASIT high-yield regular interest may (absent the satisfaction of certain conditions) revert to a prior holder even if the transferee becomes a disqualified holder after the relevant transfer. The indenture supplement pursuant to which any high-yield regular interest is issued will require, as a prerequisite to any transfer of a FASIT high-yield regular interest, the delivery to the trustee of an affidavit of the transferee to the effect that it is not a disqualified holder and contains certain other provisions designed to preclude the automatic reversion of the tax ownership of such interest. For these purposes, a "disqualified holder" is any person other than a (i) FASIT or (ii) domestic C corporation (other than a corporation that is exempt from (or not subject to) Federal income tax. In addition, the following entities are also "disqualified holders": (a) all regulated investment companies subject to the provisions of Part I of subchapter M of the Code, (b) all real estate investment trusts subject to the provisions of Part II of subchapter M of the Code, (c) all real estate mortgage investment conduits subject to the provisions of Part IV of subchapter M of the Code and (d) all cooperatives described in section 1381(a) of the Code.
Pass-Through Entities Holding Notes
If a regulated investment company, real estate investment trust, trust, partnership or another entity described in Section 860E(e)(6) of the Code (a "Pass-Through Entity"), or a person holding an interest in a Pass-Through Entity as a nominee for another person, issues a high-yielding debt or equity interest that is supported by any note, such entity will be subject to an excise tax unless no principal purpose of such resecuritization was the avoidance of the rules relating to FASIT high-yield regular interests (pertaining to eligible holders of such interests). See " Special Rules for FASIT High-Yield Regular InterestsTransfer Restrictions ." The tax will apply if the original yield to maturity of the debt or equity interest in the Pass-Through Entity exceeds the greater of (i) the sum of (a) the applicable Federal rate
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in effect for the calendar month in which the debt or equity interest is issued and (b) five percentage points or (ii) the yield to maturity to such entity on the note (determined as of the date that such entity acquired such interest). The Code provides that Treasury regulations will be issued to provide the manner in which to determine the yield to maturity of any equity interest. No such regulations have yet been issued. If this tax did apply, the tax would equal to the product of (i) the highest corporate tax rate and (ii) the income of the holder of the debt or equity interest that is properly attributable to the note supporting such interest.
Prohibited Transactions and Other Taxes
The Code imposes a prohibited transactions tax, which is a tax on FASITs equal to 100% of the net income derived from prohibited transactions. In general, subject to specified exceptions, a prohibited transaction means the disposition of receivables, the receipt of income from a source other than any receivable or other permitted assets, the receipt of compensation for services, or receipt of any income derived from a loan originated by the FASIT. It is not anticipated that the RFS FASIT will engage in any prohibited transactions in which it would recognize a material amount of net income. The holder of the ownership interest and not the RFS FASIT itself will be subject to any prohibited transaction taxes.
Unless otherwise disclosed in the accompanying prospectus supplement, it is not anticipated that any material state or local income or franchise tax will be imposed on the RFS FASIT.
Termination of the RFS FASIT
The RFS FASIT will terminate as a FASIT if it revokes its election or if it fails to qualify as a FASIT under the Code. Upon the termination of the RFS FASIT, you will be treated as exchanging your notes for interests in the underlying arrangement that formerly constituted the RFS FASIT, which will be reclassified under general principles of the Federal income tax law as, for example, a partnership or a corporation. You may recognize gain on the exchange, however, no loss may be recognized. It is intended that the RFS FASIT will not terminate while any notes remain outstanding.
The above discussion does not address the tax consequences of the purchase, ownership or disposition of the notes under any state or local tax law. We suggest that you consult your own tax advisors regarding the state and local tax consequences of the purchase, ownership and disposition of the notes.
The prospectus supplement for each series of notes will specify whether the notes offered by that prospectus supplement are eligible for purchase by employee benefit plans.
Section 406 of the Employee Retirement Income Security Act of 1974, as amended, and Section 4975 of the Code prohibit a pension, profit-sharing or other employee benefit plan, as well as an individual retirement account or Keogh plan, from engaging in specified transactions with persons that are "parties in interest" under ERISA or "disqualified persons" under the Code with respect to these benefit plans. A violation of these "prohibited transaction" rules may result in an excise tax or other penalties and liabilities under ERISA and the Code for these persons. Title I of ERISA also requires that fiduciaries of a benefit plan subject to ERISA make investments that are prudent, diversified (unless clearly prudent not to do so), and in accordance with the governing plan documents.
Some transactions involving the purchase, holding or transfer of the notes might be deemed to constitute or result in prohibited transactions under ERISA and Section 4975 of the Code if assets of the trust were deemed to be assets of a benefit plan or "plan assets". Under a regulation issued by the
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United States Department of Labor, the assets of the trust would be treated as plan assets of a benefit plan for the purposes of ERISA and the Code only if the benefit plan acquires an "equity interest" in the trust and none of the exceptions contained in the regulation is applicable. An equity interest is defined under the regulation as an interest in an entity other than an instrument which is treated as indebtedness under applicable local law and which has no substantial equity features. Although there can be no assurances in this regard, it appears that, at the time of their initial issuance, the notes should be treated as debt without substantial equity features for purposes of the regulation. The debt characterization of the notes could change after their initial issuance if the trust incurs losses. This risk of reclassification is greater for classes of notes that are subordinated to other classes of notes.
However, without regard to whether the notes are treated as an equity interest for these purposes, the acquisition or holding of the notes by or on behalf of benefit plans could be considered to give rise to a prohibited transaction if we, the issuer, the underwriters, the Owner Trustee, the servicer, the administrator, a counterparty to a derivative contract or the indenture trustee, is or becomes a party in interest or a disqualified person with respect to these benefit plans. In that case, various exemptions from the prohibited transaction rules could be applicable depending on the type and circumstances of the benefit plan fiduciary making the decision to acquire a note. Included among these exemptions are:
By your acquisition of a note, you will be deemed to represent and warrant that either (i) your purchase and holding of a note is not with the assets of an employee benefit plan or (ii) your purchase and holding of the note will not result in a non-exempt prohibited transaction under ERISA or Section 4975 of the Code which is not covered by one of the exemptions discussed above or similar applicable exemption.
Employee benefit plans that are governmental plans, as defined in Section 3(32) of ERISA, and certain church plans, as defined in Section 3(33) of ERISA, are not subject to ERISA requirements, but may be subject to state or other federal law requirements which may impose restrictions similar to those under ERISA and the Code discussed above.
If you are a benefit plan fiduciary considering the purchase of any of the notes, you should consult your tax and legal advisors regarding whether the assets of the trust would be considered plan assets, the possibility of exemptive relief from the prohibited transaction rules and other issues and their potential consequences.
Subject to the terms and conditions set forth in an underwriting agreement to be entered into with respect to each series of notes, the issuer will sell the notes to each of the underwriters named in that underwriting agreement and in the accompanying prospectus supplement, and each of those underwriters will severally agree to purchase from the issuer, the principal amount of notes set forth in that underwriting agreement and in the accompanying prospectus supplement, subject to proportional
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adjustment on the terms and conditions set forth in the related underwriting agreement in the event of an increase or decrease in the aggregate amount of notes offered by this prospectus and by the accompanying prospectus supplement.
In each underwriting agreement, the several underwriters will agree, subject to the terms and conditions set forth in that underwriting agreement, to purchase all the notes offered by this prospectus and by the accompanying prospectus supplement if any of those notes are purchased. In the event of a default by any underwriter, each underwriting agreement will provide that, in specified circumstances, purchase commitments of the nondefaulting underwriters may be increased or the underwriting agreement may be terminated.
Each prospectus supplement will set forth the price at which each series of notes or class being offered initially will be offered to the public and any concessions that may be offered to dealers participating in the offering of those notes. After the initial public offering, the public offering price and those concessions may be changed.
Each underwriting agreement will provide that the transferor and RFS Holding, Inc. will indemnify the related underwriters against specified liabilities, including liabilities under the Securities Act of 1933.
The place and time of delivery for any series of notes in respect of which this prospectus is delivered will be set forth in the accompanying prospectus supplement.
We will cause the servicer to prepare monthly and annual reports that will contain information about the trust. The financial information contained in the reports will not be prepared in accordance with generally accepted accounting principles. Unless and until definitive notes are issued, the reports will be sent to Cede & Co. which is the nominee of The Depository Trust Company and the registered holder of the notes. No financial reports will be sent to you. See " Description of the NotesBook-Entry Registration ," " Reports to Noteholders " and " Evidence as to Compliance " in this prospectus.
Where You Can Find More Information
We filed a registration statement relating to the notes with the SEC. This prospectus is part of the registration statement, but the registration statement includes additional information.
We will cause the servicer to file with the SEC all required annual, monthly, and special SEC reports and other information about the trust.
You may read and copy any reports, statements or other information we file at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. You can request copies of these documents, upon payment of a duplicating fee, by writing to the SEC. Please call the SEC at (800) SEC-0330 for further information on the operation of the public reference rooms. Our SEC filings are also available to the public on the SEC Internet site ( http://www.sec.gov ).
The SEC allows us to "incorporate by reference" information we file with it, which means that we can disclose important information to you by referring you to those documents. The information incorporated by reference is considered to be part of this prospectus. Information that we file later with the SEC will be filed under the name of GE Capital Credit Card Master Note Trust and will automatically update the information in this prospectus. In all cases, you should rely on the later information over different information included in this prospectus or the accompanying prospectus supplement. We incorporate by reference any future annual, monthly and special SEC reports and proxy materials filed by or on behalf of the issuer and RFS Funding Trust until we terminate our offering of the notes.
As a recipient of this prospectus, you may request a copy of any document we incorporate by reference, except exhibits to the documentsunless the exhibits are specifically incorporated by referenceat no cost, by writing or calling us care of: Monogram Credit Card Bank of Georgia, 4125 Windward Plaza Drive, Alpharetta, Georgia 30005, Telephone: (678) 518-2441.
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Glossary of Terms for Prospectus
" Aggregate Principal Receivables " at any time will equal:
" Code " means the Internal Revenue Code of 1986, as amended.
" Eligible Institution " means:
" Free Equity Amount " means, on any date, the difference between:
" Minimum Free Equity Amount " will be calculated as the product of (a) the highest Required Retained Transferor Percentage specified in the prospectus supplement for any series, multiplied by (b) the Aggregate Principal Receivables. Unless otherwise specified in the prospectus supplement for your series, the Required Retained Transferor Percentage for your series will be 0%.
" Monthly Period " means, unless otherwise specified in the prospectus supplement for your series, each period beginning on and including the 22 nd day of a calendar month and ending on and including the 21 st day of the following calendar month.
" Note Trust Ownership Percentage " means 100%, minus the percentage equivalent of a fraction:
" Note Trust Principal Balance " at any time will equal:
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" Owner Trustee " means The Bank of New York (Delaware), as owner trustee for the issuer, under the trust agreement dated as September 25, 2003 between the issuer and The Bank of New York (Delaware), as owner trustee.
" Required Parties " means, with respect to any matter as to which the RFS Funding Trust trust agreement requires or permits the trustee for RFS Funding Trust to be instructed by the "Required Parties":
For purposes of determining whether the rights of the issuer are affected by any matter, the rights of the issuer will be presumed to be affected if the indenture trustee has notified the trustee for RFS Funding Trust that in the indenture trustee's judgment the interests of the issuer are affected and, in the absence of any notice from the indenture trustee, unless we or the indenture trustee has delivered an officer's certificate to the trustee for RFS Funding Trust to the effect that the interests of the issuer are not affected by the applicable matter.
" Required Principal Balance " means, on any date of determination, the sum of the numerators used to calculate the allocation percentages for principal collections for all outstanding series of notes on that date of determination.
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Annex I
Global Clearance, Settlement and
Tax Documentation Procedures
Except in certain limited circumstances, the globally offered GE Capital Credit Card Master Note Trust Asset Backed Notes (the "global securities") to be issued in series from time to time will be available only in book-entry form. Investors in the global securities may hold those global securities through any of The Depository Trust Company, Clearstream or Euroclear. The global securities will be tradable as home market instruments in both the European and U.S. domestic markets. Initial settlement and all secondary trades will settle in same-day funds.
Secondary market trading between investors holding global securities through Clearstream and Euroclear will be conducted in the ordinary way in accordance with their normal rules and operating procedures and in accordance with conventional eurobond practicei.e., seven calendar day settlement.
Secondary market trading between investors holding global securities through DTC will be conducted according to the rules and procedures applicable to U.S. corporate debt obligations.
Secondary cross-market trading between Clearstream or Euroclear and DTC participants holding notes will be effected on a delivery-against-payment basis through the respective depositaries of Clearstream and Euroclear, in that capacity, and as DTC participants.
Non-U.S. holders of global securities will be subject to U.S. withholding taxes unless those holders meet certain requirements and deliver appropriate U.S. tax documents to the securities clearing organizations or their participants.
Initial Settlement
All global securities will be held in book-entry form by DTC in the name of Cede & Co. as nominee of DTC. Investors' interests in the global securities will be represented through financial institutions acting on their behalf as direct and indirect participants in DTC. As a result, Clearstream and Euroclear will hold positions on behalf of their participants through their respective depositaries, which in turn will hold those positions in accounts as DTC participants.
Investors electing to hold their global securities through DTC (other than through accounts at Clearstream or Euroclear) will follow the settlement practices applicable to U.S. corporate debt obligations. Investor securities custody accounts will be credited with their holdings against payment in same-day funds on the settlement date.
Investors electing to hold their global securities through Clearstream or Euroclear accounts will follow the settlement procedures applicable to conventional eurobonds in registered form. Global securities will be credited to the securities custody accounts on the settlement date against payment for value on the settlement date.
Secondary Market Trading
Because the purchaser determines the place of delivery, it is important to establish at the time of the trade where both the purchaser's and transferor's accounts are located to ensure that settlement can be made on the desired value date.
Trading between DTC Participants. Secondary market trading between DTC participants, other than the depositaries for Clearstream and Euroclear, will be settled using the procedures applicable to U.S. corporate debt obligations in same-day funds.
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Trading between Clearstream customers and/or Euroclear participants. Secondary market trading between Clearstream customers and/or Euroclear participants will be settled using the procedures applicable to conventional eurobonds in same-day funds.
Trading between DTC seller and Clearstream customer or Euroclear participant. When global securities are to be transferred from the account of a DTC participantother than the depositaries for Clearstream and Euroclearto the account of a Clearstream customer or a Euroclear participant, the purchaser must send instructions to Clearstream prior to 12:30 p.m. on the settlement date. Clearstream or Euroclear, as the case may be, will instruct the respective depositary to receive the global securities for payment. Payment will then be made by the respective depositary, as the case may be, to the DTC participant's account against delivery of the global securities. After settlement has been completed, the global securities will be credited to the respective clearing system and by the clearing system, in accordance with its usual procedures, to the Clearstream customer's or Euroclear participant's account. Credit for the global securities will appear the next day (European time) and the cash debit will be back-valued to, and the interest on the global securities will accrue from, the value date, which would be the preceding day when settlement occurred in New York. If settlement is not completed on the intended value date (i.e., the trade fails), the Clearstream or Euroclear cash debit will be valued instead as of the actual settlement date.
Clearstream customers and Euroclear participants will need to make available to the respective clearing systems the funds necessary to process same-day funds settlement. The most direct means of doing so is to pre-position funds for settlement, either from cash on hand or existing lines of credit, as they would for any settlement occurring within Clearstream or Euroclear. Under this approach, they may take on credit exposure to Clearstream or Euroclear until the global securities are credited to their accounts one day later.
As an alternative, if Clearstream or Euroclear has extended a line of credit to them, Clearstream customers or Euroclear participants can elect not to pre-position funds and allow that credit line to be drawn upon to finance settlement. Under this procedure, Clearstream customers or Euroclear participants purchasing global securities would incur overdraft charges for one day, assuming they cleared the overdraft when the global securities were credited to their accounts. However, interest on the global securities would accrue from the value date. Therefore, in many cases the investment income on the global securities earned during that one-day period may substantially reduce or offset the amount of such overdraft charges, although this result will depend on each Clearstream customer's or Euroclear participant's particular cost of funds.
Since the settlement is taking place during New York business hours, DTC participants can employ their usual procedures for sending global securities to the respective European depositary for the benefit of Clearstream customers or Euroclear participants. The sale proceeds will be available to the DTC seller on the settlement date. Thus, to the DTC participant a cross-market transaction will settle no differently from a trade between two DTC participants.
Trading between Clearstream or Euroclear seller and DTC purchaser. Due to time zone differences in their favor, Clearstream customers and Euroclear participants may employ their customary procedures for transactions in which global securities are to be transferred by the respective clearing system, through the respective European depositary, to another DTC participant. The seller will send instructions to Clearstream before 12:30 p.m. on the settlement date. In these cases, Clearstream or Euroclear will instruct the respective European depositary, as appropriate, to credit the global securities to the DTC participant's account against payment. The payment will then be reflected in the account of the Clearstream customer or Euroclear participant the following day, and receipt of the cash proceeds in the Clearstream customer's or Euroclear participant's account would be back-valued to the value date, which would be the preceding day, when settlement occurred in New York. If the Clearstream customer or Euroclear participant has a line of credit with its respective clearing system and elects to
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draw on such line of credit in anticipation of receipt of the sale proceeds in its account, the back-valuation may substantially reduce or offset any overdraft charges incurred over that one-day period. If settlement is not completed on the intended value date (i.e., the trade fails), receipt of the cash proceeds in the Clearstream customer's or Euroclear participant's account would instead be valued as of the actual settlement date.
Certain U.S. Federal Income Tax Documentation Requirements
A beneficial owner of global securities holding securities through Clearstream, Euroclear or through DTCif the holder has an address outside the U.S.will be subject to the 30% U.S. withholding tax that generally applies to payments of interest, including original issue discount, on registered debt issued by U.S. Persons, unless (i) each clearing system, bank or other financial institution that holds customers' securities in the ordinary course of its trade or business in the chain of intermediaries between the beneficial owner and the U.S. entity required to withhold tax complies with applicable certification requirements and (ii) the beneficial owner provides the appropriate certification for obtaining an exemption or reduced tax rate. See " Federal Income Tax Consequences " in this prospectus.
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GE Capital Credit Card Master Note Trust
Issuer
RFS Holding, L.L.C.
Transferor |
Monogram Credit Card Bank of Georgia
Servicer |
Series 200 -
$
Class A [Floating Rate] [ %] Asset Backed Notes
$
Class B [Floating Rate] [ %] Asset Backed Notes
$
Class C [Floating Rate] [ %] Asset Backed Notes
Prospectus Supplement
Underwriters of the Class A notes
Underwriters of the Class B notes
Underwriters of the Class C notes
You should rely only on the information contained or incorporated by reference in this prospectus supplement and the accompanying prospectus. We have not authorized anyone to provide you with different information.
We are not offering the notes in any state where the offer is not permitted.
We do not claim the accuracy of the information in this prospectus supplement and the accompanying prospectus as of any date other than the dates stated on their respective covers.
Dealers will deliver a prospectus supplement and prospectus when acting as underwriters of the notes and with respect to their unsold allotments or subscriptions. In addition, all dealers selling the notes will deliver a prospectus supplement and prospectus until , 200 .
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14 Other Expenses of Issuance and Distribution .
Estimated expenses in connection with the offering of the Securities being registered herein are as follows:
SEC filing fee | $ | 633,454.20 | ** | |
Legal fees and expenses | 1,320,000 | * | ||
Accounting fees and expenses | 250,000 | * | ||
Rating agency fees | 2,545,000 | * | ||
Indenture Trustee fees and expenses | 65,000 | * | ||
Blue Sky expenses | 20,000 | * | ||
Printing and engraving | 250,000 | * | ||
Miscellaneous | 65,000 | * | ||
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Total | $ | 5,148,454.20 | * | |
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Item 15 Indemnification of Directors and Officers .
Section 18-108 of the Delaware Limited Liability Company Act provides that, subject to the standards and restrictions, if any, as are described in its limited liability company agreement, a limited liability company may, and shall have the power to, indemnify and hold harmless any member or manager or other person from and against any and all claims and demands whatsoever.
RFS Holding, L.L.C. ("RFS Holding") was formed under the laws of the State of Delaware. The limited liability company agreement of RFS Holding provides, in effect that, subject to certain limited exceptions, it will indemnify and hold harmless, and advance expenses to its members, managers, employees, organizers or agents (each, an "Indemnified Party"), to the fullest extent permitted by applicable law against any losses, claims, damages or liabilities to which the Indemnified Party may become subject in connection with any matter arising from, related to, or in connection with, the limited liability company agreement or RFS Holding's business or affairs; provided, however , that no indemnification may be made to or on behalf of any Indemnified Party if a judgment or other final adjudication adverse to the Indemnified Party establishes (i) that the Indemnified Party's acts were committed in bad faith or were the result of active and deliberate dishonesty and were material to the cause of action so adjudicated or (ii) that the Indemnified Party personally gained in fact a financial profit or other advantage to which the Indemnified Party was not legally entitled. This indemnification shall be in addition to any liability that RFS Holding may otherwise have, shall inure to the benefit of the successors, assigns, heirs and personal representatives of each Indemnified Party, and shall be limited to the assets of RFS Holding.
Insofar as indemnification by RFS Holding for liabilities arising under the Securities Act of 1933, as amended (the "Securities Act") may be permitted to directors, officers and controlling persons of RFS Holding pursuant to the foregoing provisions, RFS Holding has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Each underwriting agreement will generally provide that the underwriter will indemnify RFS Holding and its directors, officers and controlling parties against specified liabilities, including liabilities
II-1
under the Securities Act relating to certain information provided or actions taken by the underwriter. RFS Holding has been advised that in the opinion of the Securities and Exchange Commission this indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable.
Item 16 Exhibits .
1.1 |
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Form of Underwriting Agreement for Notes |
3.2 |
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Limited Liability Company Agreement of RFS Holding, L.L.C.* |
4.1 |
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Master Indenture, dated as of September 25, 2003, between GE Capital Credit Card Master Note Trust, as Issuer, and Deutsche Bank Trust Company Americas, as Indenture Trustee |
4.2 |
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Form of Indenture Supplement, including form of Notes |
4.3 |
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Trust Agreement, dated as of September 25, 2003, between RFS Holding, L.L.C. and The Bank of New York (Delaware) |
4.4 |
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RFS Funding Trust Amended and Restated Trust Agreement, dated as of December 19, 2002 and amended and restated as of June 27, 2003, among RFS Holding, L.L.C., RFS Holding, Inc. and Deutsche Bank Trust Company Delaware, as Trustee |
4.5 |
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Note Trust Certificate |
4.6 |
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Indenture and Security Agreement, dated as of September 25, 2003, between RFS Funding Trust, as Grantor, and Deutsche Bank Trust Company Americas, as Indenture Trustee |
4.7 |
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Intercreditor Agreement, dated as of September 25, 2003 relating to RFS Funding Trust, among Edison Asset Securitization, L.L.C., Deutsche Bank Trust Company Americas, as Indenture Trustee, and RFS Funding Trust |
4.8 |
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Custody and Control Agreement, dated as of September 25, 2003 by and among Deutsche Bank Trust Company of Americas, in its capacity as Custodian and in its capacity as Indenture Trustee, and GE Capital Credit Card Master Note Trust |
4.9 |
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Receivables Sale Agreement, dated as of June 27, 2003, between Monogram Credit Card Bank of Georgia and RFS Holding, L.L.C. |
4.10 |
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Receivables Purchase and Contribution Agreement, dated as of June 27, 2003, between RFS Holding, L.L.C. and RFS Funding Trust |
4.11 |
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First Amendment to Receivables Purchase and Contribution Agreement, dated as of September 25, 2003, between RFS Holding, L.L.C. and RFS Funding Trust |
4.12 |
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Transfer Agreement, dated as of September 25, 2003, between RFS Holding, L.L.C. and GE Capital Credit Card Master Note Trust |
4.13 |
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Servicing Agreement, dated as of June 27, 2003, by and among RFS Funding Trust, GE Capital Credit Card Master Note Trust and Monogram Credit Card Bank of Georgia |
4.14 |
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Administration Agreement, dated as of September 25, 2003, among GE Capital Credit Card Master Note Trust, General Electric Capital Corporation, as administrator, and The Bank of New York (Delaware), not in its individual capacity but solely as Trustee |
II-2
4.15 |
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Servicer Performance Guaranty, dated as of June 27, 2003, by General Electric Capital Corporation |
4.16 |
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Omnibus Amendment No. 1 to Securitization Documents, dated as of February 9, 2004, among RFS Holding, L.L.C., RFS Funding Trust, Monogram Credit Card Bank of Georgia, GE Capital Credit Card Master Note Trust, Deutsche Bank Trust Company Delaware, as Trustee of RFS Funding Trust, and Deutsche Bank Trust Company Americas, as Indenture Trustee |
4.17 |
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Amended and Restated Administration Agreement, dated as of December 30, 2002 and amended and restated as of June 27, 2003, among RFS Funding Trust, General Electric Capital Corporation, as administrator, and Deutsche Bank Trust Company Delaware, not in its individual capacity but solely as Trustee |
5.1 |
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Opinion of Mayer, Brown, Rowe & Maw LLP with respect to legality |
8.1 |
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Opinion of Mayer, Brown, Rowe & Maw LLP with respect to Federal income tax matters (included in Exhibit 5.1) |
23.1 |
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Consent of Mayer, Brown, Rowe & Maw LLP (included as part of Exhibit 5.1) |
23.2 |
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Consent of Mayer, Brown, Rowe & Maw LLP (included as part of Exhibit 8.1) |
24. |
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Power of Attorney* |
25.1 |
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Form T-1 Statement of Eligibility |
Item 17 Undertakings
(a) As to Rule 415: The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made of the securities registered hereby, a post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment hereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar volume of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement;
(iii) to include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement;
provided, however , that the undertakings set forth in clauses (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those clauses is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or
II-3
Section 15(d) of the Securities Exchange Act of 1934, as amended, that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(b) As to documents subsequently filed that are incorporated by reference: The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of the registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) As to indemnification: Insofar as indemnification for liabilities arising under the Securities Act, may be permitted to directors, officers and controlling persons of the registrant pursuant to the provisions described in Item 15 herein, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Securities Act, and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act, and will be governed by the final adjudication of such issue.
II-4
Pursuant to the requirements of the Securities Act of 1933, each registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3, reasonably believes that the security rating requirement contained in Transaction Requirement B.5 of Form S-3 will be met by the time of sale of the securities registered hereunder, and has duly caused this Amendment No. 1 to Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in Stamford, Connecticut, on the date of May 20, 2004.
RFS Holding, L.L.C., as Co-Registrant | |||
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By: |
/s/ MARK BEGOR Mark Begor Principal Executive Officer |
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RFS Funding Trust, as Co-Registrant |
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By: RFS Holding, L.L.C., as sole beneficiary of RFS Funding Trust |
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By: |
/s/ MARK BEGOR Mark Begor Principal Executive Officer |
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GE Capital Credit Card Master Note Trust, as Co-Registrant |
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By: General Electric Capital Corporation, as Administrator |
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By: |
/s/ IAIN J. MACKAY Iain J. Mackay Vice President |
II-5
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1 to the Registration Statement has been signed by the following persons on behalf of RFS Holding, L.L.C. in the capacities and on the dates indicated.
Signature
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Title
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Date
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/s/
MARK BEGOR*
Mark Begor |
Principal Executive Officer | May 20, 2004 | ||
/s/ IAIN J. MACKAY Iain J. Mackay |
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Principal Financial Officer and Manager |
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May 20, 2004 |
/s/ MARIO MASTRANTONI Mario Mastrantoni |
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Principal Accounting Officer |
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May 20, 2004 |
/s/ MELISSA HODES* Melissa Hodes |
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Manager |
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May 20, 2004 |
/s/ CHRISTOPHER HOTTOIS* Christopher Hottois |
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Manager |
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May 20, 2004 |
*Signed by Ian J. Mackay as attorney-in-fact under Power of Attorney | ||||
*By: |
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/s/ IAIN J. MACKAY Name: Iain J. Mackay Title: Principal Financial Officer and Manager |
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II-6
1.1 | | Form of Underwriting Agreement for Notes | ||
3.2 |
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Limited Liability Company Agreement of RFS Holding, L.L.C.* |
4.1 |
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Master Indenture, dated as of September 25, 2003, between GE Capital Credit Card Master Note Trust, as Issuer, and Deutsche Bank Trust Company Americas, as Indenture Trustee |
4.2 |
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Form of Indenture Supplement, including form of Notes |
4.3 |
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Trust Agreement, dated as of September 25, 2003, between RFS Holding, L.L.C. and The Bank of New York (Delaware) |
4.4 |
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RFS Funding Trust Amended and Restated Trust Agreement, dated as of December 19, 2002 and amended and restated as of June 27, 2003, among RFS Holding, L.L.C., RFS Holding, Inc. and Deutsche Bank Trust Company Delaware, as Trustee |
4.5 |
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Note Trust Certificate |
4.6 |
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Indenture and Security Agreement, dated as of September 25, 2003, between RFS Funding Trust, as Grantor, and Deutsche Bank Trust Company Americas, as Indenture Trustee |
4.7 |
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Intercreditor Agreement, dated as of September 25, 2003 relating to RFS Funding Trust, among Edison Asset Securitization, L.L.C., Deutsche Bank Trust Company Americas, as Indenture Trustee, and RFS Funding Trust |
4.8 |
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Custody and Control Agreement, dated as of September 25, 2003 by and among Deutsche Bank Trust Company of Americas, in its capacity as Custodian and in its capacity as Indenture Trustee, and GE Capital Credit Card Master Note Trust |
4.9 |
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Receivables Sale Agreement, dated as of June 27, 2003, between Monogram Credit Card Bank of Georgia and RFS Holding, L.L.C. |
4.10 |
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Receivables Purchase and Contribution Agreement, dated as of June 27, 2003, between RFS Holding, L.L.C. and RFS Funding Trust |
4.11 |
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First Amendment to Receivables Purchase and Contribution Agreement, dated as of September 25, 2003, between RFS Holding, L.L.C. and RFS Funding Trust |
4.12 |
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Transfer Agreement, dated as of September 25, 2003, between RFS Holding, L.L.C. and GE Capital Credit Card Master Note Trust |
4.13 |
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Servicing Agreement, dated as of June 27, 2003, by and among RFS Funding Trust, GE Capital Credit Card Master Note Trust and Monogram Credit Card Bank of Georgia |
4.14 |
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Administration Agreement, dated as of September 25, 2003, among GE Capital Credit Card Master Note Trust, General Electric Capital Corporation, as administrator, and The Bank of New York (Delaware), not in its individual capacity but solely as Trustee |
4.15 |
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Servicer Performance Guaranty, dated as of June 27, 2003, by General Electric Capital Corporation |
4.16 |
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Omnibus Amendment No. 1 to Securitization Documents, dated as of February 9, 2004, among RFS Holding, L.L.C., RFS Funding Trust, Monogram Credit Card Bank of Georgia, GE Capital Credit Card Master Note Trust, Deutsche Bank Trust Company Delaware, as Trustee of RFS Funding Trust, and Deutsche Bank Trust Company Americas, as Indenture Trustee |
II-7
4.17 |
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Amended and Restated Administration Agreement, dated as of December 30, 2002 and amended and restated as of June 27, 2003, among RFS Funding Trust, General Electric Capital Corporation, as administrator, and Deutsche Bank Trust Company Delaware, not in its individual capacity but solely as Trustee |
5.1 |
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Opinion of Mayer, Brown, Rowe & Maw LLP with respect to legality |
8.1 |
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Opinion of Mayer, Brown, Rowe & Maw LLP with respect to Federal income tax matters (included in Exhibit 5.1) |
23.1 |
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Consent of Mayer, Brown, Rowe & Maw LLP (included as part of Exhibit 5.1) |
23.2 |
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Consent of Mayer, Brown, Rowe & Maw LLP (included as part of Exhibit 8.1) |
24. |
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Power of Attorney* |
25.1 |
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Form T-1 Statement of Eligibility |
II-8
Exhibit 1.1
RFS HOLDING, L.L.C
GE CAPITAL CREDIT CARD MASTER NOTE TRUST
$[ ] Class A Asset-Backed Notes
$[ ] Class B Asset-Backed Notes
$[ ] Class C Asset-Backed Notes
UNDERWRITING AGREEMENT
[ ],
Acting on behalf of itself and as the
Representative of the Several
Underwriters named in Schedule I hereto
(the
Representative
)
[Address] |
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[ ] |
Ladies and Gentlemen:
RFS Holding, L.L.C., a limited liability company organized and existing under the laws of the State of Delaware (the Company ), proposes to cause GE Capital Credit Card Master Note Trust (the Issuer ) to issue $[ ] aggregate principal amount of Class A Asset Backed Notes, Series 200[ ]-[ ] (the Class A Notes , $[ ] aggregate principal amount of the Class B Asset Backed Notes, Series 200[ ]-[ ] (the Class B Notes ) and $[ ] aggregate principal amount of the Class C Asset Backed Notes, Series 200[ ]-[ ] (the Class C Notes , and together with the Class A Notes and the Class B Notes, the Offered Notes ). The offering of the Offered Notes by the Underwriters pursuant to this Agreement is referred to herein as the Note Offering ). The Company is a wholly-owned subsidiary of RFS Holding, Inc. ( Holding ).
The Issuer is a Delaware statutory trust formed pursuant to (a) a Trust Agreement, dated as of September 25, 2003 (the Trust Agreement ), between the Company and The Bank of New York (Delaware), as owner trustee (the Owner Trustee ), and (b) the filing of a certificate of trust with the Secretary of State of Delaware on September 24, 2003. The Offered Notes will be issued pursuant to a Master Indenture, dated as of September 25, 2003, and as amended as of February 9, 2004 (as heretofore amended, the Master Indenture ), between the Issuer and Deutsche Bank Trust Company Americas, as indenture trustee (the Indenture Trustee ), as supplemented by the Series 200[ ]-[ ] Indenture Supplement with respect to the Offered Notes, dated as of [ ], 200[ ] (the Indenture Supplement and, together with the Master Indenture, the Indenture ).
1
The primary asset of the Issuer is a certificate (the Note Trust Certificate ) representing a beneficial interest in the assets held in RFS Funding Trust, issued pursuant to the Amended and Restated Trust Agreement, dated as of December 19, 2002, as amended and restated as of June 27, 2003, and as further amended as of February 9, 2004 (as heretofore amended, the RFS Funding Trust Agreement ), among the Company, Holding and Deutsche Bank Trust Company Delaware, as trustee (the RFS Funding Trust Trustee ). The assets of RFS Funding Trust include, among other things, certain amounts due (the Receivables ) on a pool of private label credit card accounts of Monogram Credit Card Bank of Georgia (the Bank ).
The Receivables are transferred to RFS Funding Trust pursuant to the Receivables Purchase and Contribution Areement, dated as of June 27, 2003, and as amended as of February 9, 2004 (as heretofore amended, the RPCA ) between the Company and RFS Funding Trust. The Receivables transferred to RFS Funding Trust by the Company are acquired by the Company from the Bank pursuant to a Receivables Sale Agreement, dated as of June 27, 2003, and as amended as of February 9, 2004 (as heretofore amended, the Receivables Sale Agreement ), between the Company and the Bank. The Note Trust Certificate has been transferred by the Company to the Issuer pursuant to the Transfer Agreement, dated as of September 25, 2003, and as amended as of February 9, 2004 (as heretofore amended, the Transfer Agreement ), among the Company and the Issuer. The Bank has agreed to conduct the servicing, collection and administration of the Receivables owned by RFS Funding Trust or the Issuer pursuant to a Servicing Agreement, dated as of June 27, 2003 (the Servicing Agreement ) among RFS Funding Trust, the Issuer and the Bank.
General Electric Capital Corporation ( GECC ) has agreed to provide notices and perform on behalf of the Issuer certain other administrative obligations required by the Transfer Agreement, the Servicing Agreement, the Master Indenture and each indenture supplement for each series of notes issued by the Issuer, pursuant to an Administration Agreement, dated as of September 25, 2003 (the Administration Agreement ), between GECC, as administrator (in such capacity, the Administrator ), the Issuer and The Bank of New York (Delware), as Owner Trustee. The Trust Agreement, the RFS Funding Trust Agreement, the Indenture, the RPCA, the Transfer Agrement, the Receivables Sale Agreement, the Servicing Agreement and the Administration Agreement are referred to herein, collectively, as the Program Documents .
This Underwriting Agreement is referred to herein as this Agreement . To the extent not defined herein, capitalized terms used herein have the meanings assigned in the Program Documents.
The Company and Holding hereby agree, severally and not jointly, with the underwriter[s] for the Class A Notes listed on Schedule A hereto (the Class A Underwriters ), the underwriter[s] for the Class B Notes listed on Schedule A hereto (the Class B Underwriters ) and the underwriter[s] for the Class C Notes listed on Schedule A hereto (the Class C Underwriters and, together with the Class A Underwriters and the Class B Underwriters, the Underwriters ) as follows:
2
3
(a) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the Class A Underwriter[s], and the Class A Underwriter[s] agree to purchase from the Company, at a purchase price of [ ]% of the principal amount thereof, $[ ] aggregate principal amount of the Class A Notes, each Class A Underwriter to purchase the amounts shown on Schedule A hereto.
(b) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the Class B Underwriter[s], and the Class B Underwriter[s] agree to purchase from the Company, at a purchase price of [ ]% of the principal amount thereof, $[ ] aggregate principal amount of the Class B Notes, each Class B Underwriter to purchase the amounts shown on Schedule A hereto.
(c) On the basis of the representations, warranties and agreements herein contained, but subject to the terms and conditions herein set forth, the Company agrees to sell to the Class C Underwriters, and the Class C Underwriters agree to purchase from the Company, at a purchase price of [ ]% of the principal amount thereof, $[ ] aggregate principal amount of the Class C Notes.
(d) The parties hereto agree that settlement for all securities pursuant to this Agreement shall take place on the terms set forth herein and therein and not as set forth in Rule 15c6-1(a) under the Securities Exchange Act 0f 1934, as amended (the Exchange Act ).
4
The Company agrees to notify the Underwriter at least two business days before each Closing Date of the exact principal balance evidenced by the Offered Notes and to have such Offered Notes available for inspection in Chicago, Illinois, no later than 12:00 noon on the business day prior to such Closing Date.
5
6
(h) Counsel for the Owner Trustee (who shall be satisfactory to the Representative) shall have furnished to the Representaive an opinion, dated as of the Closing Date, in form and substance satisfactory to the Representative.
(h) Counsel for the Company (who shall be satisfactory to the Representative) shall have furnished to the Representative an opinion, dated as of the Closing Date, in form and substance satisfactory to the Representative, relating to certain insolvency and bankruptcy matters and federal income tax matters.
7
8
under the heading Underwriting in the Prospectus Supplement, on the cover page of the Prospectus Supplement in the table under the heading Class B Notes and on the line across from Price to public, in the table listing the Class B Underwriters and the Principal Amount of Class B Notes and under the heading Underwriting in the Prospectus Supplement, in the table following the third paragraph under the heading Underwriting in the Prospectus Supplement in the column labeled Class B Notes, on the cover page of the Prospectus Supplement in the table under the heading Class C Notes and on the line across from Price to public, in the table listing the Class C Underwriters and the Principal Amount of Class C Notes and under the heading Underwriting in the Prospectus Supplement, in the table following the third paragraph under the heading Underwriting in the Prospectus Supplement in the column labeled Class C Notes, and in the penultimate paragraph under the heading Underwriting in the Prospectus Supplement constitute the information furnished in writing by or on behalf of the Underwriter for inclusion in the Prospectus, and the Underwriters confirms that such statements are correct.
9
10
Notwithstanding anything to the contrary in Section 7(d), no person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 7, each person who controls the Underwriter within the meaning of either the Act or the Exchange Act shall have the same rights to contribution as the Underwriter, and each person who controls the Company or Holding within the meaning of either the Act or the Exchange Act, each officer of the Company or Holding who shall have signed the Registration Statement and each director of the Company or Holding shall have the same rights to contribution as the Company or Holding, as applicable, subject in each case to the immediately preceding sentence of this paragraph.
11
12
17. Non-Petition Covenant . Notwithstanding any prior termination of this Agreement, the Underwriters shall not acquiesce, petition or otherwise invoke or cause the Company to invoke the process of any court or governmental authority for the purpose of commencing or sustaining a case against the Company under any federal or state bankruptcy, insolvency or similar law, or appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or other similar official of the Company or any substantial part of its property, or ordering the winding up or liquidation of the affairs of the Company.
13
If the foregoing is in accordance with your understanding of our agreement, please sign and return to the undersigned a counterpart hereof, whereupon this letter and your acceptance shall represent a binding agreement between the Company and the Underwriter.
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Very truly yours, |
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RFS HOLDING, L.L.C. |
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By: |
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Name: |
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Title: |
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RFS HOLDING, INC. |
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By: |
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Name: |
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Title: |
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The foregoing Agreement is |
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hereby confirmed and accepted |
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as of the date first above written. |
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[ ] |
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By: |
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Name: |
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Title: |
14
EXHIBIT 4.1
GE CAPITAL CREDIT CARD MASTER NOTE TRUST,
as Issuer
DEUTSCHE BANK TRUST COMPANY AMERICAS
,
as Indenture Trustee.
MASTER
INDENTURE
Dated as of September 25, 2003
GE CAPITAL CREDIT CARD MASTER NOTE TRUST
Reconciliation
and Tie between this Indenture
dated as of September 25, 2003 and the
TIA of 1939, as amended
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TIA Section |
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Indenture Section |
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310(a)(1) |
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6.11 |
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(a)(2) |
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6.11 |
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(a)(3) |
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6.10(b) |
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(a)(4) |
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Not Applicable |
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(b) |
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6.11 |
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(c) |
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Not Applicable |
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311(a) |
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6.13 |
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(b) |
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6.13 |
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312(a) |
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7.1 |
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(b) |
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7.2(b); 10.14 |
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(c) |
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7.2(c); 10.14 |
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313(a) |
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6.14; 6.6 |
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(b)(1) |
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6.14 |
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(b)(2) |
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6.14 |
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(c) |
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6.14 |
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(d) |
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6.14 |
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314(a) |
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7.3 |
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(b) |
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3.6; 8.8 |
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(c)(1) |
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8.7 |
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(c)(2) |
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8.7 |
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(c)(3) |
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8.7 |
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(d) |
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8.7 |
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(e) |
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10.1 |
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(f) |
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Not Applicable |
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315(a) |
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6.1 |
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(b) |
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6.5 |
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(c) |
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6.1 |
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(d) |
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6.7 |
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(e) |
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5.12 |
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316(a) (last sentence) |
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2.12 |
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(a)(1)(A) |
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5.10 |
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(a)(1)(b) |
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5.11 |
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(a)(2) |
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Not Applicable |
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317(a)(1) |
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5.3 |
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(a)(2) |
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5.3 |
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(b) |
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6.16 |
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318(a) |
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10.17 |
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(c) |
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10.17 |
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TABLE OF CONTENTS
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Performance of Obligations; Servicing of Transferred Receivables |
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The Issuer to Furnish the Indenture Trustee Names and Addresses of Noteholders |
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Notices, etc., to the Indenture Trustee, the Issuer and Rating Agencies |
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iv
EXHIBITS
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v
INDENTURE , dated as of September 25, 2003, between GE CAPITAL CREDIT CARD MASTER NOTE TRUST, a Delaware statutory trust (the Issuer ), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, as trustee and not in its individual capacity (the Indenture Trustee ). This Indenture may be supplemented at any time and from time to time by an indenture supplement in accordance with Article IX (an Indenture Supplement, and together with this Indenture and any amendments, the Agreement ). If a conflict exists between the terms and provisions of this Indenture and any Indenture Supplement, the terms and provisions of the Indenture Supplement shall be controlling with respect to the related Series.
NOW, THEREFORE, THIS INDENTURE WITNESSETH :
For and in consideration of the premises and the purchase of the Notes by the holders thereof, it is mutually covenanted and agreed, for the benefit of all Noteholders, as follows:
GRANTING CLAUSE
The Issuer, as security for the Issuers obligations under the Notes and this Indenture, hereby Grants to Deutsche Bank Trust Company Americas on the Closing Date relating to the first Series of Notes, as the Indenture Trustee for the benefit of the Noteholders and the Indenture Trustee, a security interest in all of the Issuers right, title and interest in, to and under the following, whether now existing or hereafter arising or acquired (collectively, the Collateral ):
(a) the Note Trust Certificate;
(b) from and after the RFS Funding Trust Termination Date, the Transferred Receivables;
(c) Collections related to and all money, instruments, investment property and other property distributed or distributable in respect of (together with all earnings, dividends, distributions, income, issues, and profits relating to) the Transferred Receivables pursuant to the terms of this Indenture and any Indenture Supplement;
(d) all funds, Financial Assets, Investment Property or other property on deposit from time to time in or credited to the Trust Accounts, including the proceeds thereof and income thereon;
(e) all Insurance Proceeds;
(f) all proceeds of any derivative contracts between the Issuer or, to the extent assigned to the Issuer, the Transferor and a counterparty, as described in any Indenture Supplement;
(g) all present and future claims, demands, causes and causes in action in respect of any or all of the property described in the foregoing clauses (a) through (f) and all payments on, under or in respect of any or all of the foregoing, including all proceeds of the conversion, voluntary or involuntary, into cash or other liquid property, all cash proceeds, Trust Accounts, promissory notes, drafts, acceptances, chattel paper, checks,
deposit accounts, insurance proceeds, condemnation awards, rights to payment of any and every kind and other forms of obligations and receivables, instruments and other property that at any time constitute all or part of or are included in the proceeds of any and all of the foregoing;
(h) all rights, remedies, powers, privileges and claims of the Issuer under or with respect to any Series Enhancement, the Servicing Agreement, Bank Receivables Sale Agreement and the Transfer Agreement (whether arising pursuant to the terms of the related Enhancement Agreement, the Servicing Agreement, Bank Receivables Sale Agreement or the Transfer Agreement or otherwise available to the Issuer at law or in equity), including the rights of the Issuer to enforce such Enhancement Agreement, the Servicing Agreement, Bank Receivables Sale Agreement or the Transfer Agreement, and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to such Enhancement Agreement, the Servicing Agreement, Bank Receivables Sale Agreement or the Transfer Agreement to the same extent as the Issuer could but for the assignment and security interest granted to the Indenture Trustee for the benefit of the Noteholders;
(i) all general intangibles relating to or arising out of any of the property described in the foregoing clauses (a) through (h) ;
(j) all proceeds of any of the property described in the foregoing clauses (a) through (i) ; and
(k) all other personal property of the Issuer, of whatever kind or nature and wherever located.
Such Grant is made in trust to the Indenture Trustee.
Deutsche Bank Trust Company Americas, as Indenture Trustee on behalf of the Noteholders, (i) acknowledges such Grant, and (ii) accepts the trusts under this Indenture in accordance with this Indenture and agrees, subject to the terms and conditions hereof, to perform its duties required in this Indenture to the best of its ability to the end that the interests of the Noteholders may be adequately and effectively protected.
The Issuer shall file, and hereby authorizes the Indenture Trustee to file, a UCC financing statement with a collateral description covering all of the Issuers personal property, wherever located, whether now existing or arising in the future.
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.1. Definitions . Except as otherwise specified or as the context may otherwise require, the following capitalized terms only have the meanings set forth below for all purposes of this Indenture.
Account means, at any time, each credit card account then included as an Account pursuant to (and as defined in) the Trust Receivables Purchase Agreement on or prior to the RFS
2
Funding Trust Termination Date and thereafter pursuant to (and as defined in) the Transfer Agreement.
Act is defined in Section 10.3(a) .
Additional Retailer means any retailer for which Originator maintains a Private Label Program, a Dual Card Program or both, which is designated as an Additional Retailer (a) prior to the RFS Funding Trust Termination Date, in accordance with the Trust Receivables Purchase Agreement or (b) thereafter in accordance with the Transfer Agreement.
Adverse Effect means, with respect to any action, that such action will (a) result in the occurrence of an Early Amortization Event or an Event of Default or (b) materially and adversely affect the amount or timing of distributions to be made to the Noteholders of any Series or Class pursuant to the Related Documents.
Affiliate means, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, five percent (5%) or more of the securities having ordinary voting power in the election of directors of such Person, (b) each Person that controls, is controlled by or is under common control with such Person, or (c) each of such Persons officers, directors, joint venturers and partners. For the purposes of this definition, control of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
Aggregate Principal Receivables means, as of any date of determination, the aggregate Outstanding Balance of Principal Receivables as of such date (excluding Principal Receivables that are Specified Retailer Receivables with respect to any date of determination prior to the RFS Funding Trust Termination Date), plus the principal amount of any Participation Interest, minus the Borrowing Base (as defined in the RFS Funding Trust Agreement) for that Monthly Period; provided that for the purposes of calculating the Note Trust Principal Balance, the Borrowing Base (as defined in the RFS Funding Trust Agreement) shall not be subtracted from the Aggregate Principal Receivables.
Agreement is defined in the preamble .
Allocation Percentage is defined, for any Series, with respect to Principal Collections, Finance Charge Collections and Charged-Off Receivables, in the related Indenture Supplement.
Amortization Period means, as to any Series or any Class within a Series, any period specified in the related Indenture Supplement during which a share of principal collections is used or set aside to repay the outstanding principal amount of that Series.
Authorized Officer means, with respect to any corporation or statutory trust, the Chairman or Vice-Chairman of the Board, the President, any Vice President, the Secretary, the Treasurer, any Assistant Secretary, any Assistant Treasurer and each other officer of such corporation or trustee or administrator of such trust specifically authorized in resolutions of the Board of Directors of such corporation or by the governing documents or agreements of such
3
trust to sign agreements, instruments or other documents on behalf of such corporation or statutory trust in connection with the transactions contemplated by the Related Documents.
Banana Republic Program Agreement means that certain Amended and Restated Consumer Credit Card Program Agreement, dated as of August 29, 2000, by and among Gap, Inc. and Monogram.
Banana Republic Retailers means Gap, Inc. d/b/a Banana Republic and its permitted assigns under the Banana Republic Program Agreement.
Bank Receivables Sale Agreement means the Receivables Sale Agreement dated as of June 27, 2003, between Monogram and the Transferor.
Bankruptcy Code means the provisions of Title 11 of the United States Code, 11 U.S.C. §§ 101 et seq.
Benefit Plan means (i) an employee benefit plan as defined in Section 3(3) of ERISA, which is subject to Title I of ERISA, (ii) a plan as defined in Section 4975 of the Code, (iii) an entity whose underlying assets include plan assets by reason of investment by an employee benefit plan or plans in such entity, or (iv) a governmental plan subject to applicable law that is substantially similar to the fiduciary responsibility provisions of ERISA or Section 4975 of the Code.
Book-Entry Notes means a beneficial interest in the Notes of a particular Class, ownership and transfers of which shall be made through book entries by a Clearing Agency as described in Section 2.10 .
Business Day means any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in the State of New York or the State of Connecticut, the State of Georgia (or, with respect to any Series, any additional city specified by the related Indenture Supplement).
Certificated Security has the meaning assigned to such term in Section 8-102 of Article 8 of the UCC.
Charged-Off Receivable means a Principal Receivable (or any portion thereof) arising in an Account which either (a) is 180 days past due or (b) has otherwise been written off as uncollectible in accordance with the Credit and Collection Policies. To avoid doubt, a Principal Receivable shall become a Charged-Off Receivable upon the earlier of the events described in clause (a) or clause (b) to occur with respect to the related account.
Chattel Paper has the meaning assigned thereto in Section 9-102 of Article 9 of the UCC.
Class means any class of Notes of any Series.
4
Clearing Agency means an organization registered as a clearing agency pursuant to Section 17A of the Securities Exchange Act that has been designated as the Clearing Agency for purposes of this Indenture.
Clearing Agency Participant means a broker, dealer, bank, other 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 means, with respect to any Series, the closing date specified in the Indenture Supplement for such Series.
Code means the Internal Revenue Code of 1986, as amended from time to time, and Treasury Regulations promulgated thereunder.
Collateral is defined in the Granting Clause of this Indenture.
Collateral Amount is defined, with respect to any Series, in the Indenture Supplement for such Series.
Collection Account means the account designated as such, established and owned by the Issuer and maintained in accordance with Section 8.2 .
Collections means, for any Receivable for any period, (a) the sum of all amounts, whether in the form of cash, checks, drafts, or other instruments, received in payment of, or applied to, any amount owed by an Obligor on account of such Receivable during such period, including all amounts received on account of such Receivable, all other fees and charges, (b) Recoveries and cash proceeds of Related Security with respect to such Receivable and (c) any in-store payments received with respect to such Receivable. Amounts paid by Transferor pursuant to Section 2.5 of either of the Trust Receivables Purchase Agreement or the Transfer Agreement shall be deemed to be Principal Collections. Amounts paid by Transferor pursuant to Section 6.1(e) of either of the Trust Receivables Purchase Agreement or the Transfer Agreement and amounts paid by the Servicer pursuant to Section 2.6 of the Servicing Agreement shall be deemed to be Principal Collections to the extent that they represent the purchase price of Principal Receivables and shall be deemed to be Finance Charge Collections to the extent that they represent the purchase price of Finance Charge Receivables. Recoveries shall be treated as Collections of Finance Charge Receivables.
Commission means the Securities and Exchange Commission.
Contract means the agreement and Federal Truth in Lending Statement for revolving credit card accounts between any Obligor and Originator, as such agreements may be amended, modified, or otherwise changed from time to time.
Corporate Trust Office means, (a) with respect to the Indenture Trustee, the principal office of the Indenture Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of this Indenture is located at 60 Wall Street, 26 th Floor MS NYC60-2606, New York, New York 10005, Attention: Corporate Trust & Agency Services (facsimile no.(212) 797-8606); or at such other address as the Indenture Trustee may designate
5
from time to time by notice to the Noteholders and the Issuer, or the principal corporate trust office of any successor Indenture Trustee (the address of which the successor Indenture Trustee will notify the Noteholders and the Issuer) and (b) with respect to the Trustee, 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 this Indenture is located at 101 Barclay Street, Floor 8 West (ABS Unit), New York, New York, 10286, Attention: Antonio Vayas (facsimile no. (212) 815-2493 or 3993);.
Credit and Collection Policies means with respect to each credit card program from which Accounts are drawn, the Issuers policies and procedures relating to the operation of such credit card program, including the policies and procedures for determining the creditworthiness of Obligors and the extension of credit to Obligors, and relating to the maintenance of credit card accounts and collection of credit card receivables, as such policies and procedures may be amended from time to time.
Custody and Control Agreement means the Custody and Control Agreement, dated as of September 25, 2003, among the Issuer, Deutsche Bank Trust Company Americas, as custodian, and the Indenture Trustee.
Date of Processing means, as to any transaction, the day on which the transaction is first recorded on the Issuers computer file of consumer revolving accounts (without regard to the effective date of such recordation).
Debtor Relief Law means Title 11 of the United States Code, the Federal Deposit Insurance Act and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, readjustment of debt, marshalling of assets or similar debtor relief laws of the United States, any state or any foreign country from time to time in effect, affecting the rights of creditors generally.
Default means any occurrence that is, or with notice or the lapse of time or both would become, an Event of Default.
Definitive Notes is defined in Section 2.10 .
Delivery means, when used with respect to Trust Account Property:
(i) with respect to any such Trust Account Property that constitutes a Certificated Security, transfer of possession of such Certificated Security to the Indenture Trustee or its nominee or custodian by physical delivery to the Indenture Trustee or its nominee or custodian, endorsed to, or registered in the name of, the Indenture Trustee or its nominee or custodian or endorsed in blank (and, in the case of delivery to any nominee of or custodian for the Indenture Trustee, such nominee or custodian shall have acknowledged in writing that it is holding possession thereof on behalf of and for the Indenture Trustee); and
(ii) with respect to any such Trust Account Property that constitutes an Uncertificated Security (including any investments in money market mutual funds, but excluding any Federal Book-Entry Security), satisfaction of the requirements for obtaining control pursuant to Section 8-106(c)(2) of Article 8 of the UCC.
6
Determination Date means, unless otherwise specified in any Indenture Supplement with respect to the related Series, the second Business Day preceding each Payment Date.
Dual Card Program means any arrangement in which Originator agrees to extend general purpose credit card accounts to customers of a Retailer, which accounts combine a private label credit line for use at the Retailers establishments or in its catalogue sales business and a general purpose credit line for use elsewhere.
Early Amortization Event means, as to any Series, each event, if any, specified in the relevant Indenture Supplement as an Early Amortization Event for that Series or a Trust Early Amortization Event.
Eligible Deposit Account means: (a) a segregated deposit account maintained with a depository institution or trust company whose short term unsecured debt obligations are rated at least, if rated by S&P, A-1+ by S&P, if rated by Moodys, P-1 by Moodys, and, if rated by Fitch, F-1+ by Fitch, (b) a segregated account which is either (i) maintained in the corporate trust department of the Indenture Trustee or (ii) maintained with a depository institution or trust company whose long term unsecured debt obligations are rated at least, if rated by S&P, AA- by S&P, if rated by Moodys, Baa3 by Moodys and, if rated by Fitch, BBB- by Fitch or (c) a segregated trust account maintained in the corporate trust department of a federally or state chartered depository institution whose long-term unsecured debt obligations are rated at least, if rated by S&P, BBB- by S&P, if rated by Moodys, Baa3 by Moodys and, if rated by Fitch, BBB- by Fitch, subject to regulations regarding fiduciary funds on deposit substantially similar to 12 C.F.R. §9.10(b) in effect on the date hereof.
Enhancement Agreement means any agreement, instrument or document governing the terms of any Series Enhancement or pursuant to which any Series Enhancement is issued.
Entitlement Order has the meaning assigned thereto in Section 8-102(a) of Article 8 of the UCC.
ERISA means the Employee Retirement Income Security Act of 1974, as amended.
Event of Default is defined in Section 5.2 .
Excess Allocation Series means a Series that, pursuant to the Indenture Supplement therefor, is entitled to receive Excess Finance Charge Collections, as set forth in such Indenture Supplement. If so specified in the Indenture Supplement for a Group of Series, such Series may be an Excess Allocation Series only for the Series in such Group.
Excess Finance Charge Collections means all amounts that any Indenture Supplement designates as Excess Finance Charge Collections.
Excess Funding Account means the account designated as such, established and owned by the Issuer and maintained in accordance with Section 8.2.
FASIT means a financial asset securitization investment trust within the meaning of Section 860L of the Code.
7
FDIC means the Federal Deposit Insurance Corporation.
Federal Book-Entry Regulations means (a) the Federal regulations listed on Appendix A to Operating Circular No.7 issued by the Federal Reserve Banks and (b) the Federal regulations published at 25 C.F.R. Part 350.
Federal Book-Entry Security means a marketable security (a) issued in electronic form by (i) the United States Government, (ii) the Federal Home Loan Mortgage Corporation, the Federal National Mortgage Association or the Government National Mortgage Association or (iii) any direct obligation of any other agency or instrumentality of the United States Government that is fully guaranteed as to timely payment or principal and interest by the United States of America and (b) that the Federal Reserve Banks have determined is eligible to be held in an account at a Federal Reserve Bank containing securities of such type pursuant to the Federal Book-Entry Regulations.
Finance Charge Collections means Collections of Finance Charge Receivables (after giving effect to any recharacterization of Collections of Principal Receivables as Collections of Finance Charge Receivables pursuant to Section 2.8 of the Trust Receivables Purchase Agreement or the Transfer Agreement).
Finance Charge Receivables means Receivables created in respect of periodic finance charges, late fees, returned check fees and all other similar fees and charges billed or accrued and unpaid on an Account.
Finance Charge Shortfalls is defined, as to any Series, in the related Indenture Supplement.
Financial Asset has the meaning assigned thereto in Section 8-102 of Article 8 of the UCC.
Fitch means Fitch Inc.
Free Equity Amount means, on any date of determination, the result of (a) the Note Trust Principal Balance, minus (b) the aggregate of the Collateral Amounts for all Outstanding Series of Notes.
Gap Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000 by and among Gap, Inc. and Monogram.
Gap Retailers means Gap, Inc. and its permitted assigns under the Gap Program Agreement.
GE Capital means General Electric Capital Corporation, a Delaware corporation.
GECAF Retailer means each retailer who is from time to time a party to a dealer agreement with Monogram relating to Monograms GECAF private label credit card program.
8
Governmental Authority means any nation or government, any state, county, city, town, district, board, bureau, office commission, any other municipality or other political subdivision thereof (including any educational facility, utility or other Person operated thereby), and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Grant means to create and grant a Lien pursuant to this Indenture, and other forms of the verb to Grant shall have correlative meanings. A Grant with respect to the Collateral or any other agreement or instrument shall include a grant of a Lien upon all rights, powers and options (but none of the obligations) of the Granting party thereunder, including the right, upon the occurrence of a Default and declaration thereof by the party to whom such Grant is made, to claim for, collect, receive and give receipt for principal and interest payments in respect of the Collateral and all other amounts payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the Granting party or otherwise and generally to do and receive anything that the Granting party is or may be entitled to do or receive thereunder or with respect thereto.
Group means, with respect to any Series, the group of Series, if any, in which the related Indenture Supplement specifies such Series is to be included.
Indenture means this Master Indenture, dated as of September 25, 2003 between the Issuer and the Indenture Trustee.
Indenture Servicer Default means:
(a) failure on the part of the Servicer duly to observe or perform in any material respect any covenant or agreement of the Servicer set forth in the Servicing Agreement which has a material adverse effect on the Noteholders, which continues unremedied for a period of 60 days after there shall have been given, by registered or certified mail, to the Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by the Noteholders of at least 25% of the Outstanding Principal Balance of the Notes of such Series a written notice of default specifying such default and requiring the same to be remedied; or the Servicer shall assign or delegate its duties under the Servicing Agreement except as permitted by the Servicing Agreement, and such delegation continues unremedied for 15 days after the date on which written notice thereof, requiring the same to be remedied, shall have been given to the Issuer by the Indenture Trustee; or
(b) any representation, warranty or certification made by the Servicer in the Servicing Agreement or in any certificate delivered pursuant to the Servicing Agreement shall prove to have been incorrect when made, which has a material adverse effect on the rights of the Noteholders and which continues to be incorrect in any material respect for a period of 60 days after there shall have been given, by registered or certified mail, to the Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by the Noteholders of at least 25% of the Outstanding Principal Balance of the Notes of such
9
Series a written notice of default specifying such default and requiring the same to be remedied.
Indenture Security Agreement means the Indenture Security Agreement, dated as of September 25, 2003, between RFS Funding Trust and the Indenture Trustee.
Indenture Supplement means, with respect to any Series, a supplement to this Indenture, executed and delivered in connection with the original issuance of the Notes of such Series pursuant to Section 2.8 of the Indenture, and an amendment to this Indenture executed pursuant to Sections 9.1 or 9.2 of the Indenture, and, in either case, including all amendments thereof and supplements thereto.
Indenture Trustee means Deutsche Bank Trust Company Americas, not in its individual capacity but solely as Indenture Trustee under this Indenture, or any successor Indenture Trustee under this Indenture.
Independent means, with respect to any specified Person, any such Person who (a) does not have any direct financial interest, or any material indirect financial interest in any Originator, the Servicer, the Transferor, the Issuer, or any Affiliate of any thereof and (b) is not connected with any Originator, the Servicer, the Transferor, the Issuer, or any Affiliate of any thereof, as an officer, employee, promoter, underwriter, trustee, partner, director or Person performing similar functions; provided , however , that a Person shall not fail to be Independent of any Originator, the Servicer, the Transferor, the Issuer, or any Affiliate of any thereof merely because such Person is the beneficial owner of 1% or less of any class of securities issued by the Issuer, any Originator, the Servicer, or any Affiliate thereof, as the case may be.
Independent Certificate means a certificate or opinion to be delivered to the Indenture Trustee under the circumstances described in, and otherwise complying with, the applicable requirements of Section 10.1 made by an Independent appraiser or other expert appointed by an Issuer Order, and such opinion or certificate shall state that the signer has read the definition of Independent in this Indenture and that the signer is Independent within the meaning thereof.
Initial Closing Date means September 25, 2003.
Insolvency Event means, with respect to a specified Person: (a) the commencement by a court having jurisdiction in the premises of an involuntary action seeking: (i) a decree or order for relief in respect of such Person a case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law, (ii) the appointment of a custodian, receiver, liquidator, assignee, trustee, sequestrator, or other similar official of such Person or (iii) the winding up or liquidation of such Persons affairs, and notwithstanding the objection by such Person any such action shall have remained undischarged or unstayed for a period of 90 consecutive days or any order or decree providing the sought after relief, remedy or other action shall have been entered; or (b) the commencement by such Person of a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree or order for relief in respect of such Person in an involuntary case or proceeding under any applicable federal or state bankruptcy, insolvency,
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reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal or state law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator, or similar official of such Person or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or such Persons failure to pay its debts generally as they become due, or the taking of corporate action by such Person in furtherance of any such action.
Intercreditor Agreement means the Intercreditor Agreement, dated as of September 25, 2003, among Edison Asset Securitization, L.L.C., RFS Funding Trust and the Indenture Trustee.
Instruments has the meaning assigned thereto in Section 9-102 of Article 9 of the UCC.
Insurance Proceeds means any amounts payable to Originator pursuant to any credit insurance policies covering any Obligor with respect to Transferred Receivables under such Obligors Account.
Investment Company Act means the Investment Company Act of 1940.
Investment Property has the meaning assigned thereto in Section 9-102 of Article 9 of the UCC.
Issuer means GE Capital Credit Card Master Note Trust, a Delaware statutory trust, until a successor replaces it and, thereafter, means the successor and, for purposes of any provision contained in this Indenture and required by the TIA, each other obligor on the Notes.
Issuer Order and Issuer Request means a written order or request, respectively, signed in the name of the Issuer by any one of its Authorized Officers and delivered to the Indenture Trustee.
JCPenney Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of December 6, 1999, by and between J.C. Penney Company, Inc. and Monogram.
JCPenney Retailers means J.C. Penney Company, Inc. and other Authorized Entities as such term is defined in the J.C. Penney Program Agreement.
Lien means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale, any lease or title retention agreement, or any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction); provided , however , Permitted Encumbrances shall not constitute a Lien.
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Lowes Retailers means each of Lowes Companies, Inc., Lowes Home Centers, Inc., The Contractor Yard, Inc., Lowes HIW, Inc. and certain of their affiliates.
Minimum Free Equity Amount means, as of any date of determination, (a) the product of (i) the Aggregate Principal Receivables and (ii) the highest of the Minimum Free Equity Percentages specified in each Indenture Supplement effective on the date of determination. Unless otherwise specified in the related Indenture Supplement for a Series the Minimum Free Equity Percentage for such Series shall be zero.
Monogram means Monogram Credit Card Bank of Georgia, a bank organized under the laws of Georgia.
Montgomery Ward means Montgomery Ward & Co. Incorporated.
Monthly Period means as to each Payment Date, the period beginning on the 22 nd day of the second preceding calendar month and ending on the 21 st day of the immediately preceding calendar month.
Moodys means Moodys Investors Service, Inc.
New Issuance is defined in Section 2.8(a) .
Note means one of the notes issued by the Issuer pursuant to the Indenture and an Indenture Supplement, substantially in the form attached to the related Indenture Supplement.
Note Depository Agreement means the agreement among the Issuer, the Indenture Trustee and The Depository Trust Company, as the initial Clearing Agency, to be dated on or around the Closing Date of the first Series that contains Book-Entry Notes.
Note Owner means, with respect to a Book-Entry Note, the Person who is the owner of such Book-Entry Note, as reflected on the books of the Clearing Agency, or on the books of a Person maintaining an account with the Clearing Agency (directly as a Clearing Agency Participant or as an indirect participant, in each case in accordance with the rules of the Clearing Agency).
Note Register and Note Registrar have the respective meanings specified in Section 2.4 .
Note Trust Certificate means the certificate captioned Note Trust Certificate and dated June 27, 2003, representing a beneficial interest in a portion of the assets held by RFS Funding Trust, issued pursuant to the RFS Funding Trust Agreement.
Note Trust Principal Balance means, as of any time of determination falling within or relating to a Monthly Period, the result of (a) the Aggregate Principal Receivables at that time, plus (b) the amount on deposit in the Excess Funding Account at that time (exclusive of any investment earnings on such amount), minus (c) before the RFS Funding Trust Termination Date, the Borrowing Base (as defined in the RFS Funding Trust Agreement) for that Monthly Period.
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Noteholder means the Person in whose name a Note is registered on the Note Register or such other Person deemed to be a Noteholder in any related Indenture Supplement.
Notice of Default is defined in Section 5.2(c) .
Obligor means, with respect to any Receivable, any Person obligated to make payments in respect thereof.
Officers Certificate means, with respect to any Person, a certificate signed by an Authorized Officer of such Person.
Old Navy Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. and Monogram.
Old Navy Retailers means Gap, Inc. d/b/a Old Navy and its permitted assigns under the Old Navy Program Agreement.
Opinion of Counsel means a written opinion of counsel (who may, except as otherwise expressly provided in this Agreement, be an employee of or counsel to the Issuer or an Affiliate of the Issuer), which counsel and opinion shall be acceptable to the Indenture Trustee, or the Rating Agencies, as applicable.
Originator means Monogram or any other originator so designated pursuant to Section 2.10 of the Trust Receivables Purchase Agreement or the Transfer Agreement.
Other Assets is defined in Section 10.18 .
Outstanding means, as of the date of determination, all Notes theretofore authenticated and delivered under this Indenture except:
(a) Notes theretofore canceled by the Note Registrar or delivered to the Note Registrar for cancellation;
(b) Notes or portions thereof the payment for which funds in the necessary amount have been theretofore deposited with the Indenture Trustee or any Paying Agent in trust for the Noteholders ( provided , however , that if such Notes are to be redeemed, notice of such redemption has been duly given pursuant to this Indenture); and
(c) Notes in exchange for or in lieu of other Notes that have been authenticated and delivered pursuant to this Indenture unless proof satisfactory to the Indenture Trustee is presented that any such Notes are held by a protected purchaser;
provided , that in determining whether the Noteholders of the requisite Outstanding Principal Balance of the Notes have given any request, demand, authorization, direction, notice, consent or waiver hereunder or under any Related Document, Notes owned by the Issuer or any Affiliate thereof shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Indenture Trustee shall be protected in relying upon any such request, demand, authorization, direction, notice, consent or waiver, only Notes that a Responsible Officer of the
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Indenture Trustee actually knows to be so owned shall be so disregarded. Notes so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Indenture Trustee the pledgees right so to act with respect to such Notes and that the pledgee is not the Issuer or any Affiliate thereof.
Outstanding Balance means, with respect to any Principal Receivable: (a) as of the Transfer Date for that Principal Receivable, the outstanding amount of such Principal Receivable as reflected on the Issuers books and records after giving effect to any recharacterization of any portion of such Principal Receivable as a Finance Charge Receivable pursuant to Section 2.8 of either the Trust Receivables Purchase Agreement or Transfer Agreement; and (b) thereafter, the amount referred to in clause (a) minus Collections with respect to that Principal Receivable that are allocable to a reduction of the Outstanding Balance thereof minus any subsequent discounts to or any other modifications that reduce such Outstanding Balance; provided , that the Outstanding Balance of a Charged-Off Receivable shall equal zero.
Outstanding Principal Balance means the aggregate principal amount of all Notes Outstanding at the date of determination.
Participation Interest is defined in the Transfer Agreement.
Paying Agent means with respect to the Notes, initially the Indenture Trustee or any other Person that meets the eligibility standards for the Indenture Trustee specified in Section 6.11 and is authorized by the Issuer to make the payments from the Trust Accounts, including payment of principal of or interest on the Notes on behalf of the Issuer; provided , that if the Indenture Supplement for a Series so provides, a separate or additional Paying Agent may be appointed with respect to such Series.
Payment Date means, with respect to any Series, the date specified in the related Indenture Supplement.
Permitted Encumbrances means the following encumbrances: (a) Liens for taxes or assessments or other governmental charges not yet due and payable; (b) inchoate and unperfected workers, mechanics, suppliers or similar Liens arising in the ordinary course of business; and (c) presently existing or hereinafter created Liens in favor of, or created by, Issuer.
Permitted Investments means one or more of the following:
(a) obligations of, or guaranteed as to the full and timely payment of principal and interest by, the United States or obligations of any agency or instrumentality thereof, when such obligations are backed by the full faith and credit of the United States;
(b) repurchase agreements on obligations specified in clause (a) ; provided , that the short-term debt obligations of the party agreeing to repurchase are rated on the date of acquisition at least, if rated by S&P, A-1+ by S&P and, if rated by Moodys, P-1 by Moodys, and, if rated by Fitch, F1+ by Fitch;
(c) federal funds, certificates of deposit, time deposits and bankers acceptances (which shall each have an original maturity of not more than 90 days or, in
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the case of bankers acceptances, shall in no event have an original maturity of more than 365 days) of any United States depository institution or trust company incorporated under the laws of the United States or any State thereof or of any United States branch or agency of a foreign commercial bank; provided , that the short-term debt obligations of such depository institution or trust company are rated on the date of acquisition at least, if rated by S&P, A-1+ by S&P and, if rated by Moodys, P-1 by Moodys, and, if rated by Fitch, F1+ by Fitch;
(d) commercial paper (having original maturities of not more than 30 days) which on the date of acquisition are rated at least, if rated by S&P, A-1+ by S&P and, if rated by Moodys, P-1 by Moodys, and, if rated by Fitch, F1+ by Fitch;
(e) securities of money market funds rated on the date of acquisition at least, if rated by S&P, A-1+ by S&P and , if rated by Moodys, P-1 by Moodys, and, if rated by Fitch, F1+ by Fitch; and
(f) any other investment permitted by each of the Rating Agencies as set forth in writing delivered to the Indenture Trustee; provided , that investments described in clauses (e) and (f) shall be made only if there shall have been delivered to the Indenture Trustee an Opinion of Counsel to the effect that making such investments will not require the Issuer to register as an investment company under the Investment Company Act or impair the Issuers status as a qualifying special purpose entity under Statement of Accounting Standards No. 140.
Person means any individual, sole proprietorship, partnership, joint venture, unincorporated organization, trust, association, corporation (including a statutory or business trust), limited liability company, institution, public benefit corporation, joint stock company, Governmental Authority or any other entity of whatever nature.
Predecessor Note means, with respect to any particular Note in a Series, every previous Note in such Series evidencing all or a portion of the same debt as that evidenced by such particular Note, and, for the purpose of this definition, any Note in a Series authenticated and delivered under Section 2.5 in lieu of a mutilated, lost, destroyed or stolen Note in such Series shall be deemed to evidence the same debt as the mutilated, lost, destroyed or stolen Note.
Principal Collections means Collections of Principal Receivables (after giving effect to any recharacterization of Collections of Principal Receivables as Collections of Finance Charge Receivables pursuant to Section 2.8 of the Trust Receivables Purchase Agreement or the Transfer Agreement).
Principal Receivable means each Receivable, other than a Finance Charge Receivable.
Principal Sharing Series means a Series that, pursuant to the Indenture Supplement therefor, is entitled to receive Shared Principal Collections.
Principal Shortfalls is defined, as to any Series, in the related Indenture Supplement.
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Principal Terms means, with respect to any Series, the following information related thereto: (a) the name or designation and Closing Date for such Series; (b) the initial principal amount (or method for calculating such amount) and the Collateral Amount; (c) the note interest rate for each Class of Notes of such Series (or method for the determination thereof); (d) the payment date or dates and the date or dates from which interest shall accrue; (e) the method for allocating Collections to Noteholders of such Series; (f) the designation of any Series Accounts and the terms governing the operation of any such Series Accounts; (g) the Series Servicing Fee Percentage; (h) the terms of any form of Series Enhancement with respect thereto; (i) the terms, if any, on which the Notes of such Series may be exchanged for Notes of another Series, repurchased by the Transferor or remarketed to other investors; (j) the Series Maturity Date; (k) the number of Classes of Notes of such Series and, if more than one Class, the rights and priorities of each such Class; (l) the extent to which the Notes of such Series will be issuable in temporary or permanent global form (and, in such case, the depositary for such global note or notes, the terms and conditions, if any, upon which such global note or notes may be exchanged, in whole or in part, for Definitive Notes, and the manner in which any interest payable on a temporary or global note will be paid); (m) whether the Notes of such Series may be issued in bearer form and any limitations imposed thereon; (n) the priority of such Series with respect to any other Series; (o) whether such Series will be part of a Group; (p) whether such Series will be a Principal Sharing Series; (q) whether such Series will be an Excess Allocation Series; (r) the applicable Payment Dates; (s) the legal final maturity date on which the rights of the Noteholders of such Series to receive payments from the Issuer will terminate; and (t) whether such Series will or may act as a paired series with another existing Series and the Series, with which it will be paired, if applicable.
Private Label Program means a business arrangement in which Originator agrees to extend open end credit card accounts to customers of such Retailer and such Retailer agrees to allow purchases to be made at its retail establishments, or in its catalogue sales business, under such accounts.
Proceeding means any suit in equity, action at law or other judicial or administrative proceeding.
Rating Agency means, as to each Series, the rating agency or agencies, if any, specified in the related Indenture Supplement.
Rating Agency Condition means, with respect to any action, that each Rating Agency, if any, shall have notified the Issuer in writing that such action will not result in a reduction or withdrawal of the rating, if any, of any outstanding Series or Class with respect to which it is a Rating Agency.
Receivable means any amount owing by an Obligor under an Account from time to time.
Receivables Trust means (a) prior to the RFS Funding Trust Termination Date, RFS Funding Trust and (b) on and after the RFS Funding Trust Termination Date, the Issuer.
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Record Date means, with respect to a Payment Date, unless otherwise specified for a Series in the Indenture Supplement for such Series, the close of business on the last Business Day of the calendar month immediately preceding such Payment Date.
Records means all Contracts and other documents, books, records and other information (including computer programs, tapes, disks, data processing software and related property and rights) prepared and maintained by any Originator, the Servicer, or Sub-Servicer with respect to the Transferred Receivables and the Obligors thereunder.
Recoveries means (a) so long as the arrangement described in Section 2.1(b) of the Bank Receivables Sale Agreement remains in effect, amounts allocated to the Transferred Receivables pursuant to that Section and (b) if at any time that arrangement no longer remains in effect, with respect to any Transferred Receivable, (i) Collections of such Transferred Receivable received after such Transferred Receivable was charged off as uncollectible but before any sale or other disposition of such Transferred Receivable after charge off; and (ii) any proceeds from such a sale or other disposition by Transferor of such Transferred Receivable, in each of clauses (i) and (ii) net of expenses of recovery.
Redemption Date means, with respect to any Series, the date or dates specified in this Indenture or the related Indenture Supplement.
Redemption Price means, with respect to any Series, the price specified in the Indenture Supplement.
Related Documents means the Transfer Agreement, the Trust Receivables Purchase Agreement, the Servicing Agreement, the Indenture Security Agreement, the Administration Agreement, the Notes, the Trust Agreement, the Custody and Control Agreement, this Indenture, any Indenture Supplement, the Bank Receivables Sale Agreement, the Note Trust Certificate, the RFS Funding Trust Agreement and including all other pledges, powers of attorney, consents, assignments, contracts, notices, and all other written matter whether heretofore, now or hereafter executed by or on behalf of any Person, or any employee of any Person, and delivered in connection with any of the foregoing. Any reference in the foregoing documents to a Related Document shall include all Annexes, Exhibits and Schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to such Related Documents as the same may be in effect at any and all times such reference becomes operative.
Related Security means with respect to any Receivable: (a) all of the Originators interest, if any, in the goods, merchandise (including returned merchandise) or equipment, if any, the sale of which gave rise to such Receivable; (b) all guarantees, insurance or other agreements or arrangements of any kind from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise; and (c) all Records relating to such Receivable.
Removed Accounts is defined in Section 2.7(a) of the Transfer Agreement.
Required Principal Balance means, as of any date of determination, the sum of the numerators used at such date to calculate the Allocation Percentages with respect to Principal Collections for all Series outstanding on such date.
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Responsible Officer means, with respect to the Issuer, the Administrator or a Responsible Officer of the Trustee. With respect to the Indenture Trustee, the term Responsible Officer means any officer assigned to the Corporate Trust Office, including any vice president, assistant vice president, assistant treasurer, or any other officer of the Indenture Trustee customarily performing functions similar to those performed by any of the above designated officers and having direct responsibility for the administration of the applicable Related Documents, and also, with respect to a particular matter, any other officer, to whom such matter is referred because of such officers knowledge of and familiarity with the particular subject. With respect to the Trustee, the term Responsible Officer means any officer within the Corporate Trust Office of the Trustee with direct responsibility for the administration of the Issuer, or any other officer to whom such matter is referred because of such officers knowledge of and familiarity with the particular subject. The term Responsible Officer, when used herein with respect to any Person other than the Issuer, the Indenture Trustee or the Trustee, means an officer or employee of such Person corresponding to any officer or employee described in the preceding sentence.
Retailer means any of the Banana Republic Retailers; the Gap Retailers; the GECAF Retailers; the JCPenney Retailers, Inc.; the Lowes Retailers; Montgomery Ward; the Old Navy Retailers; the Sams Club Retailers; the Wal-Mart Retailers and from time to time, any Additional Retailer. It is understood and agreed that (a) Additional Retailers who from time to time become GECAF Retailers shall automatically be treated as Retailers with respect to Monograms GECAF program without the necessity of complying with the terms of Section 2.6(e) of the RFS Funding Trust Agreement or the Transfer Agreement and (b) any Person designated as a Retailer shall cease to be included as a Retailer if the Accounts related to that Person are designated as Removed Account pursuant to Section 2.7(b) of the RFS Funding Trust Agreement or the Transfer Agreement, effective at the time that the repurchase of the related Transferred Receivables is completed.
RFS Funding Trust means RFS Funding Trust, a Delaware statutory trust.
RFS Funding Trust Agreement means the Amended and Restated Trust Agreement dated as of December 19, 2002 among Transferor, General Electric Capital Services, Inc., and Deutsche Bank Trust Company Delaware, as trustee, and as amended and restated on June 27, 2003 among Transferor, RFS Holding, Inc. (as assignee of General Electric Capital Services, Inc.) and Deutsche Bank Trust Company Delaware, as trustee.
RFS Funding Trust Termination Date means the date on which the RFS Funding Trust is terminated and all of the Transferred Receivables held by the RFS Funding Trust are transferred to the Issuer.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.
Sams Club Program Agreement means that certain Third Amended and Restated Consumer Credit Card Program Agreement, dated as of February 1, 1999, by and among Wal-Mart Stores, Inc., Sams West, Inc., Sams East, Inc. and Monogram.
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Sams Club Retailers means Sams West, Inc., a Delaware corporation, Sams East, Inc., a Delaware corporation, and their respective successors and permitted assigns under the Sams Club Program Agreement.
Securities Account has the meaning assigned thereto in Section 8-501(a) of Article 8 of the UCC.
Securities Act means the provisions of the Securities Act of 1933, 15 U.S.C. Sections 77a et seq. , and any regulations promulgated thereunder.
Securities Intermediary is defined in Section 8-102 of Article 8 of the UCC.
Securities Exchange Act means the provisions of the Securities Exchange Act of 1934 15 U.S.C. Sections 78a et seq. , and any regulations promulgated thereunder.
Securities Intermediary is defined in Section 8-102 of Article 8 of the UCC.
Series means any series of Notes, which may include within any such Series a Class or Classes of Notes subordinate to another such Class or Classes of Notes.
Series Account means any deposit, trust, escrow or similar account maintained for the benefit of the Noteholders of any Series or Class, as specified in any Indenture Supplement.
Series Enhancement means the rights and benefits provided to the Issuer or the Noteholders of any Series or Class pursuant to any letter of credit, surety bond, cash collateral account, collateral interest, spread account, reserve account, cash collateral guaranty, insurance policy, tax protection agreement, interest rate swap agreement, interest rate cap agreement, cross support feature or other similar arrangement. The subordination of any Series or Class to another Series or Class shall be deemed to be a Series Enhancement.
Series Enhancer means the Person or Persons providing any Series Enhancement, other than (except to the extent otherwise provided with respect to any Series in the Indenture Supplement for such Series) any account or deposits therein or the Noteholders of any Series or Class which is subordinated to another Series or Class.
Series Maturity Date means, with respect to any Series, the maturity date for such Series specified in the Indenture Supplement for such Series.
Series Servicing Fee Percentage is defined, as to any Series, in the related Indenture Supplement.
Servicer means Monogram, in its capacity as the Servicer under the Servicing Agreement, or any other Person designated as a Successor Servicer pursuant to the Servicing Agreement.
Servicer Default is defined in Section 5.1 of the Servicing Agreement.
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Servicer Guaranty means that certain Servicer Performance Guaranty dated as of June 27, 2003 by GE Capital, as servicer performance guarantor.
Servicing Agreement means the Servicing Agreement dated as of June 27, 2003, by and among the Servicer, RFS Funding Trust and the Issuer (upon its accession in accordance with the terms thereof).
Shared Principal Collections means all amounts that any Indenture Supplement designates as Shared Principal Collections.
Specified Retailer Receivables means the Transferred Receivables arising in the Originators programs for Montgomery Ward. Transferred Receivables arising in the Originators program for Montgomery Ward that have been transferred to the Originators program for Wal-Mart Retailers shall not be considered Specified Retailer Receivables.
State means any one of the 50 states of the United States of America or the District of Columbia.
Sub-Servicer means any Person with whom the Servicer enters into a Sub-Servicing Agreement.
Sub-Servicing Agreement means any written contract entered into between the Servicer and any Sub-Servicer relating to the servicing, administration or collection of the Transferred Receivables.
Subsidiary means, with respect to any Person, any corporation or other entity (a) of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned by such Person or (b) that is directly or indirectly controlled by such Person within the meaning of control under Section 15 of the Securities Act.
Successor Servicer means a successor to the initial Servicer as appointed under the Servicing Agreement.
Tax Opinion means, with respect to any action, an Opinion of Counsel to the effect that, for Federal income tax purposes, (a) such action will not adversely affect the tax characterization as debt of Notes of any outstanding Class with respect to which an Opinion of Counsel was delivered at the time of their issuance that such Notes would be characterized as debt, (b) such actions will not cause the Issuer to be classified as an association (or publicly traded partnership) taxable as a corporation, (c) such action will not cause or constitute an event in which gain or loss would be recognized by any Noteholder and (d) and with respect to a New Issuance, unless otherwise specified in the Indenture Supplement, the Notes of the new Series will be treated as debt.
TIA or the Trust Indenture Act means the Trust Indenture Act of 1939, as in force on the date of this Indenture unless otherwise specifically provided, provided however , that in the event the Trust Indenture Act of 1939 is amended after such date, TIA or Trust Indenture
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Act means to the extent required by such an amendment, the Trust Indenture Act of 1939 as so amended.
Transfer Date means the Business Day preceding each Payment Date.
Transfer Agreement means the Transfer Agreement, dated as of September 25, 2003 between the Transferor and the Issuer.
Transferor means RFS Holding, L.L.C. or any additional transferor designated as a Transferor (a) prior to the RFS Funding Trust Termination Date, pursuant to the Trust Receivables Purchase Agreement or (b) thereafter pursuant to the Transfer Agreement.
Transferor Interest means the interest of the Transferor or its assigns in the Issuer and the Receivables, which entitles the Transferor or its assigns to receive the various amounts specified in the Related Documents to be paid or transferred to the holder(s) of the Transferor Interest.
Transferor Percentage means as to Finance Charge Collections, Charged-Off Receivables and Principal Collections, 100% less the sum of the applicable Allocation Percentages for all outstanding Series.
Transferred Assets is defined in Section 2.1 of the Transfer Agreement.
Transferred Receivable means a Receivable that has been transferred by Transferor to RFS Funding Trust under the Trust Receivables Purchase Agreement or the Issuer under the Transfer Agreement.
Treasury Regulations means regulations, including proposed or temporary regulations, promulgated under the Code. References to specific provisions of proposed or temporary regulations shall include analogous provisions of final Treasury Regulations or other successor Treasury Regulations.
Trust Account means any Series Account, the Collection Account or Excess Funding Account.
Trust Account Property means the Trust Accounts, all amounts, Financial Assets, Investment Property and other investments or other property held from time to time in or credited to any Trust Account and all Proceeds of the foregoing.
Trust Agreement means the Trust Agreement relating to the Issuer, dated as of September 25, 2003 between the Transferor and the Trustee, as the same may be amended, supplemented or otherwise modified from time to time.
Trust Early Amortization Event is defined in Section 5.1 .
Trust Estate means all right, title and interest of the Issuer in and to the property and rights assigned to the Issuer pursuant to the Transfer Agreement, all monies, investment property, instruments and other property on deposit from time to time in a Trust Account and all
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other property of the Issuer from time to time, including any rights of the Trustee and the Issuer pursuant to the Related Documents.
Trust Receivables Purchase Agreement means the Receivables Purchase and Contribution Agreement dated as of June 27, 2003, between Transferor and RFS Funding Trust.
Trustee means The Bank of New York (Delaware), not in its individual capacity but solely in its capacity as Trustee under the Trust Agreement, its successors in interest and any successor Trustee under the Trust Agreement.
Uncertificated Security has the meaning assigned thereto in Section 8-102 of Article 8 of the UCC.
UCC means, unless the context otherwise requires, the Uniform Commercial Code as in effect in the relevant jurisdiction.
Variable Interest means any Note that is designated as a variable funding note in the related Indenture Supplement.
Wal-Mart Program Agreement means that certain Consumer Credit Card Program Agreement dated as of August 26, 1999, by and among Wal-Mart Stores, Inc. and Monogram.
Wal-Mart Retailers means Retailer as such term is defined in the Wal-Mart Program Agreement.
SECTION 1.2. Other Interpretive Matters . All terms defined directly or by reference in this Indenture shall have the defined meanings when used in any certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Indenture and all such certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined herein and accounting terms partly defined herein to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; and unless otherwise provided , references to any month, quarter or year refer to a fiscal month, quarter or year as determined in accordance with the Issuers fiscal calendar; (b) unless defined in this Indenture or the context otherwise requires, capitalized terms used in this Indenture which are defined in the UCC shall have the meaning given such term in the UCC; (c) any reference to each Rating Agency shall only apply to any specific rating agency if such rating agency is then rating any outstanding Series; (d) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (e) the words hereof, herein and hereunder and words of similar import refer to this Indenture (or the certificate or other document in which they are used) as a whole and not to any particular provision of this Indenture (or the certificate or other document in which reference is made); (f) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Indenture, and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (g) the term including means including without limitation; (h) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (i) references to any agreement refer to that agreement as from time to time amended, restated or supplemented or as the terms of
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such agreement are waived or modified in accordance with its terms; and (j) references to any Person include that Persons successors and permitted assigns.
SECTION 1.3. Incorporation by Reference of TIA . Whenever this Indenture refers to a provision of the TIA, the provision is incorporated by reference in and made a part of this Indenture. The following terms, where used in the TIA shall have the following meanings for the purposes hereof:
indenture securities means the Notes.
indenture security holder means a Noteholder.
indenture to be qualified means this Indenture.
indenture trustee or institutional trustee means the Indenture Trustee.
obligor on the indenture securities means the Issuer.
All other TIA terms used in this Indenture that are defined by the TIA, defined by TIA reference to another statute or defined by Commission rule have the meanings assigned to them by such definitions.
ARTICLE II
THE NOTES
SECTION 2.1. Form . With respect to any Series, the Notes related thereto, together with the Indenture Trustees certificate of authentication, shall be in substantially the form of an exhibit to the Indenture Supplement for such Series, with such appropriate insertions, omissions, substitutions and other variations as are required or permitted by this Indenture or such Indenture Supplement, and may have such letters, numbers or other marks of identification and such legends or endorsements placed thereon, as may, consistently herewith, be determined by the officers executing such Notes, as evidenced by their execution of such Notes. Any portion of the text of any Note may be set forth on the reverse thereof, with an appropriate reference thereto on the face of the Note.
The Notes shall be typewritten, printed, lithographed or engraved or produced by any combination of these methods (with or without steel engraved borders), all as determined by the officers executing such Notes, as evidenced by their execution of such Notes.
Each Note shall be dated the date of its authentication. The terms of the Notes set forth in an exhibit to the related Indenture Supplement are part of the terms of this Indenture.
Except as otherwise specified in the related Indenture Supplement, the Notes of each Series shall be issuable only in registered form and only in minimum denominations of at least $1,000; provided , that the foregoing shall not restrict or prevent the registration or transfer in accordance with Section 2.4 of any Note having an Outstanding Principal Balance of other than an integral multiple of $1,000, or the issuance of a single Note of each Class with a denomination less than $1,000.
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SECTION 2.2 . Execution, Authentication and Delivery . (a) Each Note shall be executed by manual or facsimile signature on behalf of the Issuer by a Responsible Officer of the Trustee.
(b) Notes bearing the manual or facsimile signature of individuals who were at the time of signature a Responsible Officer of the Trustee shall bind the Issuer, notwithstanding that such individuals or any of them have ceased to hold such offices prior to the authentication and delivery of such Notes or did not hold such offices at the date of such Notes.
(c) No Note shall be entitled to any benefit under this Indenture or the related Indenture Supplement or be valid or obligatory for any purpose, unless there appears on such Note a certificate of authentication substantially in the form provided for herein or in the related Indenture Supplement executed by the Indenture Trustee by the manual signature of one of its authorized signatories, and such certificate of authentication shall be conclusive evidence, and the only evidence, that such Note has been duly authenticated and delivered hereunder.
(d) From time to time when permitted hereunder, the Issuer shall execute and deliver Notes to the Indenture Trustee for authentication together with an Issuer Request to the Indenture Trustee directing the authentication and delivery of such Notes and thereupon the same shall be authenticated and delivered by the Indenture Trustee in accordance with such Issuer Request.
SECTION 2.3 . Temporary Notes . Pending the preparation of Definitive Notes, when permitted hereunder, the Issuer shall execute, and upon receipt of an Issuer Order, the Indenture Trustee shall authenticate and deliver, temporary Notes of the tenor of the Definitive Notes in lieu of which they are issued and with such variations not inconsistent with this Indenture as the Issuer may determine, as evidenced by their execution of such Notes.
If temporary Notes are issued, the Issuer will cause Definitive Notes to be prepared without unreasonable delay. After the preparation of Definitive Notes, the temporary Notes shall be exchangeable for Definitive Notes upon surrender of the temporary Notes at the office or agency of the Issuer to be maintained as provided in Section 3.2 , without charge to the Noteholder. Upon surrender for cancellation of any one or more temporary Notes, the Issuer shall execute and the Indenture Trustee shall authenticate and deliver in exchange therefor a like principal amount of Definitive Notes of authorized denominations. Until so exchanged, the temporary Notes shall in all respects be entitled to the same benefits under this Indenture and the applicable Indenture Supplement as if they were Definitive Notes.
SECTION 2.4 . Registration; Registration of Transfer and Exchange . (a) The Issuer shall cause to be kept a register (the Note Register ) in which, subject to such reasonable regulations as it may prescribe, the Issuer shall provide for the registration of Notes and the registration of transfers of Notes. The Issuer hereby appoints the Indenture Trustee as registrar (in such capacity, the Note Registrar ) for the purpose of registering Notes and transfers of Notes as herein provided and the Indenture Trustee hereby accepts such appointment. Upon any
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resignation of any Note Registrar, the Issuer shall promptly appoint a successor or, if it cannot make such an appointment, assume the duties of Note Registrar.
If a Person other than the Indenture Trustee is appointed by the Issuer as the Note Registrar, the Issuer will give the Indenture Trustee prompt written notice of the appointment of such Note Registrar and of the location, and any change in the location, of the Note Register. The Indenture Trustee shall have the right to inspect the Note Register at all reasonable times, to obtain copies thereof and to rely upon a certificate executed on behalf of the Note Registrar by an officer thereof as to the names and addresses of the Noteholders and the principal amounts and number of such Notes.
(b) Subject to Section 2.4(a) , upon surrender for registration of transfer of any Note at the Corporate Trust Office of the Indenture Trustee to be maintained as provided in Section 3.2 , if the requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute, the Indenture Trustee shall authenticate and the Noteholder shall obtain from the Indenture Trustee, in the name of the designated transferee or transferees, one or more new Notes of the same Series and Class in any authorized denominations of a like aggregate principal amount. At the option of a Noteholder, its Notes may be exchanged for other new Notes of the same Series or Class in any authorized denominations of a like aggregate principal amount, upon surrender of the Notes to be exchanged at such office or agency. Whenever any Notes are so surrendered for exchange, if the requirements of Section 8-401(1) of the UCC are met, the Issuer shall execute, the Indenture Trustee shall authenticate and the Noteholder shall obtain from the Indenture Trustee, the Notes that the Noteholder making the exchange is entitled to receive. The Indenture Trustee shall make a notation on any such new Note of the amount of principal, if any, that has been paid on such Note.
(c) All Notes issued upon any registration of transfer or exchange of Notes shall be the valid obligations of the Issuer, evidencing the same debt and entitled to the same benefits under this Indenture and the related Indenture Supplement as the Notes surrendered upon such registration of transfer or exchange.
(d) Every Note presented or surrendered for registration of transfer or exchange shall (if so required by the Issuer or the Indenture Trustee) be duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Indenture Trustee duly executed by, the Noteholder thereof or such Noteholders attorney duly authorized in writing, with such signature guaranteed by an eligible guarantor institution meeting the requirements of the Note Registrar, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (STAMP) or such other signature guarantee program as may be determined by the Note Registrar in addition to, or in substitution for, STAMP, all in accordance with the Securities Exchange Act.
(e) By acquiring a Note, each purchaser and transferee shall be deemed to represent and warrant that either (i) it is not acquiring the Note with the plan assets of a Benefit Plan or (ii) the acquisition and holding of the Note will not give rise to a non-
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exempt prohibited transaction under Section 406 of ERISA or Section 4975 of the Code (or, in the case of a governmental plan, any substantially similar applicable law).
(f) The registration of transfer of any Note shall be subject to the additional requirements, if any, set forth in the Indenture Supplement related to such Note.
(g) No service charge shall be made to a Noteholder for any registration of transfer or exchange of Notes, but the Issuer or the Indenture Trustee may require the payment by such Noteholder of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Notes, other than exchanges pursuant to Section 2.3 or 9.5.
(h) If and so long as any Series of Notes are listed on the Luxembourg Stock Exchange and such exchange shall so require, the Issuer shall appoint a co-transfer agent and co-registrar in Luxembourg or another European city. Any reference in this Indenture to Note Registrar shall include any co-transfer agent and co-registrar unless the context otherwise requires. The Indenture Trustee will enter into any appropriate agency agreement with any co-transfer agent and co-registrar not a party to this Indenture, which will implement the provisions of this Indenture that relate to such agent.
SECTION 2.5 . Mutilated, Destroyed, Lost or Stolen Notes . (a) If: (i) any mutilated Note is surrendered to the Indenture Trustee, or the Indenture Trustee receives evidence to its satisfaction of the destruction, loss or theft of any Note, and (ii) there is delivered to the Indenture Trustee such security or indemnity as may be required by the Indenture Trustee and the Issuer to hold the Indenture Trustee and the Issuer, respectively, harmless, then, in the absence of notice to the Issuer, the Note Registrar or the Indenture Trustee that such Note has been acquired by a protected purchaser, and provided , that the requirements of Section 8-405 of the UCC are met, the Issuer shall execute, and upon its request the Indenture Trustee shall authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement Note of the same Class, Series and principal amount and bearing a number not contemporaneously outstanding; provided , however , that if any such destroyed, lost or stolen Note, but not a mutilated Note, shall have become, or within seven days shall be, due and payable, or shall have been called for redemption, instead of issuing a replacement Note, the Issuer may pay such destroyed, lost or stolen Note when so due or payable or upon the Redemption Date without surrender thereof. If, after the delivery of such replacement Note (or payment of a destroyed, lost or stolen Note pursuant to the proviso to the preceding sentence), a protected purchaser of the original Note in lieu of which such replacement Note was issued presents for payment such original Note, the Issuer and the Indenture Trustee shall be entitled to recover such replacement Note (or such payment) from the Person to whom it was delivered or any Person taking such replacement Note from such Person to whom such replacement Note was delivered (or payment made) or any assignee of such Person, except a protected purchaser, and shall be entitled to recover upon the security or indemnity provided therefor to the extent of any loss, damage, cost or expense incurred by the Issuer or the Indenture Trustee in connection therewith.
(b) Upon the issuance of any replacement Note under this Section, the Issuer or the Indenture Trustee shall require the payment by such Noteholder of a sum sufficient to
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cover any tax or other governmental charge that may be imposed in relation thereto and any other reasonable expenses (including the fees and expenses of the Indenture Trustee) connected therewith.
(c) Every replacement Note issued pursuant to this Section in replacement of any mutilated, destroyed, lost or stolen Note shall constitute an original additional contractual obligation of the Issuer, whether or not the mutilated, destroyed, lost or stolen Note shall be at any time enforceable by anyone, and shall be entitled to all the benefits of this Indenture equally and proportionately with any and all other Notes of the same Class and Series duly issued hereunder.
(d) The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.6 . Persons Deemed Owner . Prior to due presentment for registration of transfer of any Note, the Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee may treat the Person in whose name any Note is registered (as of the day of determination) as the owner of such Note for the purpose of receiving payment on such Note pursuant to the terms of the applicable Indenture Supplement and for all other purposes whatsoever, whether or not such Note be overdue, and neither the Issuer, the Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
SECTION 2.7 . Payment of Principal and Interest; Defaulted Interest . (a) Any installment of interest or principal, if any, payable on any Note that is punctually paid or duly provided for by the Issuer on the applicable Payment Date shall be paid to the Person in whose name such Note (or one or more Predecessor Notes) is registered on the Record Date by check mailed first-class, postage prepaid, to such Persons address as it appears on the Note Register on such Record Date unless otherwise specified in the applicable Indenture Supplement. However, with respect to Notes registered on the Record Date in the name of the nominee of the Clearing Agency (initially, such nominee to be Cede & Co.), payment will be made by wire transfer in immediately available funds to the account designated by such nominee. Notwithstanding the above, the final installment of principal payable with respect to such Note (and except for the Redemption Price for any Note called for redemption pursuant to Section 2.17 ) shall be payable as provided in clause (b)(ii) . The funds represented by any such checks returned undelivered shall be held in accordance with Section 6.16 .
(b) (i) The principal of each Note shall be payable in installments on each applicable Payment Date in an amount set forth in the related Indenture Supplement, for such Payment Date.
(ii) Notwithstanding the foregoing, the entire Outstanding Principal Balance of any affected Series shall be due and payable on: (A) the date on which an Event of Default described in paragraph (a), (b) or (c) of Section 5.2 shall have occurred and be continuing with respect to such Series if the Indenture Trustee or the Noteholders representing not less than a majority of the Outstanding Principal Balance of the Notes of such Series have declared the Notes to be immediately
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due and payable in the manner provided in Section 5.3 , (B) the date on which an Event of Default described in paragraph (d) of Section 5.2 shall have occurred and be continuing and (C) if the Notes in any Series remain Outstanding, the Series Maturity Date for such Series.
(iii) The Issuer shall notify the Indenture Trustee, and the Indenture Trustee shall subsequently notify the Person in whose name a Note is registered at the close of business on the Record Date preceding the Payment Date, of the date on which the Issuer expects that the final installment of principal of and interest on such Note will be paid. Such notice shall be mailed no later than the fifth day of the calendar month for such final Payment Date and shall specify that such final installment will be payable only upon presentation and surrender of such Note and shall specify the place where such Note may be presented and surrendered for payment of such installment.
(c) All reductions in the principal amount of a Note effected by payments of installments of principal made on any Payment Date shall be binding upon all Noteholders of such Note and of any Note issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof, whether or not such payment is noted on such Note. All payments on the Notes shall be made without any requirement of presentment but each Noteholder of any Note shall be deemed to agree, by its acceptance of the same, to surrender such Note at the Corporate Trust Office against payment of the final installment of principal of such Note.
SECTION 2.8 . New Issuances .
(a) Pursuant to one or more Indenture Supplements, the Issuer may issue one or more new Series of Notes (a New Issuance ). The Notes of all outstanding Series shall be equally and ratably entitled as provided herein to the benefits of this Indenture without preference, priority or distinction, all in accordance with the terms and provisions of this Indenture and the related Indenture Supplement except, with respect to any Series or Class, as provided in the Indenture Supplement related to such Series. Interest on and principal of the Notes of each outstanding Series shall be paid as specified in the Indenture Supplement relating to such outstanding Series.
(b) On or before the Closing Date relating to any New Issuance, the parties hereto will execute and deliver an Indenture Supplement which will specify the Principal Terms of the new Series to be issued. The terms of such Indenture Supplement may modify or amend the terms of this Indenture solely as applied to such new Series. The obligation of the Issuer to execute the Notes of any Series and of the Indenture Trustee to authenticate such Notes (other than any Series issued pursuant to an Indenture Supplement dated as of the date hereof) and to execute and deliver the related Indenture Supplement is subject to the satisfaction of the following conditions:
(i) on or before the fifth Business Day immediately preceding the applicable Closing Date (unless a shorter period shall be acceptable to the Indenture Trustee and each applicable Rating Agency), the Issuer shall have given
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the Indenture Trustee and each Rating Agency notice (unless such notice requirement is otherwise waived) of such New Issuance and the Closing Date; provided , however , no such notice shall be required with respect to a New Issuance on the Initial Closing Date;
(ii) the Issuer shall have delivered to the Indenture Trustee any related Indenture Supplement, in form satisfactory to the Issuer and the Indenture Trustee, executed by each party hereto;
(iii) the Issuer shall have delivered to the Indenture Trustee any Series Enhancement Agreement to be entered into in connection with such New Issuance executed by the Series Enhancer;
(iv) the Rating Agency Condition shall have been satisfied with respect to such issuance;
(v) such New Issuance will not have an Adverse Effect as of the applicable Closing Date (after giving effect to such New Issuance) and the Transferor shall have delivered an Officers Certificate to the effect that based upon the facts known to the officer, the New Issuance will not have an Adverse Effect as of the applicable Closing Date (after giving effect to such New Issuance);
(vi) the Free Equity Amount shall not be less than the Minimum Free Equity Amount as of the applicable Closing Date after giving effect to such New Issuance;
(vii) the Note Trust Principal Balance shall not be less than the Required Principal Balance as of the applicable Closing Date after giving effect to such New Issuance; and
(viii) the Issuer shall have delivered to the Indenture Trustee (with a copy to each Rating Agency) a Tax Opinion, dated the Closing Date with respect to such issuance.
(c) Upon satisfaction of the above conditions, pursuant to Section 2.2 , the Issuer, shall execute and the Indenture Trustee shall, upon receipt of an Issuer Request, authenticate and deliver the Notes of such Series as provided in this Indenture and the applicable Indenture Supplement.
SECTION 2.9 . Cancellation . All Notes surrendered for payment, registration of transfer, exchange or redemption shall, if surrendered to any Person other than the Indenture Trustee, be delivered to the Indenture Trustee and shall be promptly canceled by the Indenture Trustee. The Issuer may at any time deliver to the Indenture Trustee for cancellation any Notes previously authenticated and delivered hereunder that the Issuer may have acquired in any manner whatsoever, and all Notes so delivered shall be promptly canceled by the Indenture Trustee. No Notes shall be authenticated in lieu of or in exchange for any Notes canceled as provided in this Section except as expressly permitted by this Indenture. All canceled Notes may be held or
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disposed of by the Indenture Trustee in accordance with its standard retention or disposal policy as in effect at the time unless the Issuer shall direct by an Issuer Order that they be returned to it; provided , that such Issuer Order is timely and the Notes have not been previously disposed of by the Indenture Trustee.
SECTION 2.10 . Book-Entry Notes . Unless otherwise provided in any related Indenture Supplement, the Notes of each Series and Class, upon original issuance, will be issued in the form of typewritten Notes representing the Book-Entry Notes to be delivered to the depository specified in such Indenture Supplement which shall be the Clearing Agency or its custodian, by or on behalf of the Issuer. The Notes of each Series and Class shall, unless otherwise provided in the related Indenture Supplement, initially be registered in the Note Register in the name of the nominee of the Clearing Agency for such Book-Entry Notes and shall be delivered to the Indenture Trustee or, pursuant to such Clearing Agencys instructions held by the Indenture Trustees agent as custodian for the Clearing Agency.
Unless and until definitive fully registered Notes (the Definitive Notes ) are issued under the circumstances described in Section 2.12 or any applicable Indenture Supplement, no Note Owner shall be entitled to receive a Definitive Note representing such Note Owners interest in such Note. Unless and until Definitive Notes have been issued to the Note Owners pursuant to Section 2.12 or any applicable Indenture Supplement:
(i) the provisions of this Section shall be in full force and effect with respect to each such Series;
(ii) the Issuer, the Note Registrar and the Indenture Trustee, and their officers, directors, employees and agents may deal with the Clearing Agency for all purposes (including the payment of principal of and interest on the Notes of each such Series) as the authorized representative of the respective Note Owners;
(iii) to the extent that this Section conflicts with any other provisions of this Indenture, this Section shall control with respect to each such Series;
(iv) the rights of the respective Note Owners of each such Series 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 respective Note Owners and the Clearing Agency and/or the Clearing Agency Participants. Pursuant to the Note Depository Agreement applicable to a Series, unless and until Definitive Notes of such Series are issued pursuant to Section 2.12 , the initial Clearing Agency will make book-entry transfers among the Clearing Agency Participants and receive and transmit payments of principal of and interest on the related Notes to such Clearing Agency Participants; and
(v) whenever this Indenture or any applicable Indenture Supplement requires or permits actions to be taken based upon instructions, directions, or the consent of Noteholders evidencing a specified percentage of the Outstanding Principal Balance of the Notes or of a particular Series or Class of Notes, the Clearing Agency shall be deemed to represent such percentage only to the extent
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that it has received instructions to such effect from Note Owners and/or Clearing Agency Participants owning or representing, respectively, such required percentage of the beneficial interest in such Notes, Series or Class, as applicable, and has delivered such instructions to the Indenture Trustee.
SECTION 2.11 . Notices to Clearing Agency . Whenever a notice or other communication to any Noteholder is required under this Indenture, unless and until Definitive Notes have been issued to the related Note Owners, the Indenture Trustee shall give all such notices and communications to the Clearing Agency.
SECTION 2.12 . Definitive Notes . (a) If: (i) the Issuer advises the Indenture Trustee in writing that the Clearing Agency is no longer willing or able to properly discharge its responsibilities under the Note Depository Agreement with respect to the Notes of a given Series, and the Issuer is unable to locate a qualified successor, (ii) circumstances change so that the book-entry system through the Clearing Agency is less advantageous due to economic or administrative burden or if the use of the book-entry system becomes unlawful with respect to such Series and the Issuer notifies the Indenture Trustee in writing that because of such changes in circumstances it is terminating such book-entry system through the Clearing Agency with respect to such Series or (iii) after the occurrence of an Event of Default, Note Owners representing beneficial interests aggregating at least a majority of the Outstanding Principal Balance of the Notes (or such other percentage as specified in the related Indenture Supplement) of such Series advise the Clearing Agency in writing that the continuation of a book-entry system through the Clearing Agency is no longer in the best interests of the Note Owners of such Series, then the Clearing Agency has undertaken to notify all Note Owners of such Series and the Indenture Trustee of the occurrence of any such event and of the availability of Definitive Notes to Note Owners of such Series requesting the same. Upon surrender to the Indenture Trustee of the typewritten Notes of such Series representing the Book-Entry Notes by the Clearing Agency, accompanied by registration and transfer instructions from the Clearing Agency for registration, the Issuer shall execute, and the Indenture Trustee shall authenticate, the Definitive Notes of such Series in accordance with the instructions of the Clearing Agency and shall recognize registered holders of such Definitive Notes as Noteholders under this Indenture. None of the Issuer, the Note Registrar or the Indenture 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. Upon the issuance of Definitive Notes of such Series, all references herein to obligations imposed upon or to be performed by the Clearing Agency with respect to such Series shall be deemed to be imposed upon and performed by the Issuer, to the extent applicable with respect to such Definitive Notes, and the Issuer shall recognize the holders of the relevant Definitive Notes of such Series as Noteholders hereunder.
(b) Definitive Notes will not be eligible for clearing or settlement through the Clearing Agency.
SECTION 2.13. Treasury Notes . In determining whether the Noteholders of the required Outstanding Principal Balance of Notes of a given Series have concurred in any direction, waiver or consent, any such Notes owned by the Issuer or an Affiliate of the Issuer shall be considered as though not Outstanding, except that for the purposes of determining whether the Indenture
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Trustee shall be protected in relying on any such direction, waiver or consent, only Notes which a Responsible Officer actually knows are so owned shall be so disregarded.
SECTION 2.14 . CUSIP Numbers . The Issuer in issuing the Notes may use CUSIP numbers (if then generally in use), and, if so, the Indenture Trustee shall indicate the CUSIP numbers of the Notes in notices of redemption and related materials as a convenience to Noteholders; provided , that any such notice may state that no representation is made as to the correctness of such numbers either as printed on the Notes or as contained in any notice of redemption and related materials.
SECTION 2.15 . Perfection Representations and Warranties . The parties hereto agree that the representations, warranties and covenants set forth in Schedule 1 shall be a part of this Indenture for all purposes.
SECTION 2.16 . Notes to Constitute Indebtedness . The parties hereto agree that it is their mutual intent that, for all applicable tax purposes, the Notes will constitute indebtedness. Further, each party hereto and each Noteholder (by accepting and holding a Note) hereby covenants to every other party hereto and to every other Noteholder to treat the Notes as indebtedness for all applicable tax purposes in all tax filings, reports and returns and otherwise, and further covenants that neither it nor any of its Affiliates will take, or participate in the taking of or permit to be taken, any action that is inconsistent with the treatment of the Notes as indebtedness for tax purposes. All successors and assignees of the parties hereto shall be bound by the provisions hereof.
SECTION 2.17. Redemption . If so specified in the applicable Indenture Supplement, the Notes of each Series shall be subject to redemption in connection with exercise by the Transferor of its rights under Section 10.1 of the Trust Agreement relating to the Collateral Amount for that Series. The terms of any such redemption shall be specified in the applicable Indenture Supplements.
ARTICLE III
COVENANTS
SECTION 3.1 . Payment of Principal and Interest . (a) The Issuer will duly and punctually pay the principal of and interest, if any, on the Notes in accordance with the terms of the Notes, as specified in the Indenture Supplement related to such Notes.
(b) The Noteholders of any Series as of the Record Date in respect of a Payment Date shall be entitled to the interest accrued and payable and principal payable on such Payment Date with respect to such Series as specified in the related Indenture Supplement. All payment obligations under a Note are discharged to the extent such payments are made to the Noteholder of record.
SECTION 3.2 . Maintenance of Office or Agency . The Issuer will maintain an office or agency where Notes may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Issuer in respect of the Notes and this Indenture may be served. The Issuer hereby initially appoints the Indenture Trustee at its Corporate Trust Office to serve as its agent for the foregoing purposes. The Issuer will not change the location of such
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offices or its jurisdiction of organization, as defined in the UCC, without giving the Indenture Trustee at least 30 days prior written notice thereof.
SECTION 3.3 . Paying Agents Obligations . The Issuer will cause each Paying Agent to comply with the obligations of the Paying Agent set forth in Section 6.16 .
SECTION 3.4 . Existence . (a) The Issuer will keep in full effect its existence, rights and franchises as a Delaware statutory trust.
(b) The Issuer shall at all times observe and comply in all material respects with (i) all laws applicable to it, and (ii) all requisite and appropriate organizational and other formalities in the management of its business and affairs and the conduct of the transactions contemplated hereby.
SECTION 3.5 . Protection of the Collateral; Further Assurances . The Issuer will from time to time execute and deliver all such supplements and amendments hereto and all such writings of further assurance and other writings, and will take such other action necessary or advisable to:
(a) more effectively make a Grant over all or any portion of the Collateral;
(b) maintain or preserve the Lien (and the priority thereof) of this Indenture or carry out more effectively the purposes hereof;
(c) perfect, publish notice of or protect the validity of any Grant made or to be made by this Indenture and perfect the Lien contemplated hereby in favor of the Indenture Trustee;
(d) enforce or cause the Servicer to enforce any of the Collateral; or
(e) preserve and defend against the claims of all Persons and parties, (i) title to the Collateral (including the right to receive all payments due or to become due with respect to the Transferred Receivables) and the interests in the property included in the Collateral and (ii) the rights of the Indenture Trustee and the Noteholders with respect to such Collateral (including the right to receive all payments due or to become due with respect to the Transferred Receivables) and interests with respect to the property included in the Collateral.
The Issuer hereby designates the Indenture Trustee as its agent and attorney-in-fact to file and/or execute any financing statement, continuation statement, writing of further assurance or other writing required to be executed and/or filed to accomplish the foregoing; provided , however , that nothing in this paragraph shall obligate the Indenture Trustee to file or execute any financing statement or continuation statement or to take any other action hereunder.
SECTION 3.6 . Opinions as to the Collateral . (a) On the Closing Date relating to the first Series of Notes, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording and filing of this Indenture, any indentures supplemental hereto and any other requisite
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documents, and with respect to the execution and filing of any financing statements and continuation statements, as are necessary to perfect and make effective the Lien created by this Indenture and reciting the details of such action, or stating that, in the opinion of such counsel, no such action is necessary to perfect and make effective such Lien.
(b) On or before March 31 in each calendar year, beginning in 2005, the Issuer shall furnish to the Indenture Trustee an Opinion of Counsel either stating that, in the opinion of such counsel, such action has been taken with respect to the recording, filing, re-recording and refiling of this Indenture, any indentures supplemental hereto and any other requisite documents, and with respect to the execution and filing of any financing statements and continuation statements, as is necessary to maintain the Lien of this Indenture and reciting the details of such action, or stating that in the opinion of such counsel no such action is necessary to maintain such Lien. Such Opinion of Counsel shall also describe the recording, filing, re-recording and refiling of this Indenture, any Indenture Supplements, any indentures supplemental hereto and any other requisite documents, and the execution and filing of any financing statements and continuation statements, that will, in the opinion of such counsel, be required to maintain the Lien of this Indenture until March 31 in the following calendar year.
SECTION 3.7 . Performance of Obligations; Servicing of Transferred Receivables . (a) The Issuer will not take any action and will use commercially reasonable efforts not to permit any action to be taken by others that would release any Person from any material covenants or obligations under any instrument or agreement included in the Collateral or that would result in the amendment, hypothecation, subordination, termination or discharge of, or impair the validity or effectiveness of, any such instrument or agreement, except as expressly provided in this Indenture, any applicable Indenture Supplement, the Transfer Agreement, the Servicing Agreement or such other instrument or agreement.
(b) The Issuer will punctually perform and observe all of its obligations and agreements contained in this Indenture, any applicable Indenture Supplement, the other Related Documents and in the instruments and agreements included in the Collateral, including filing or causing to be filed all UCC financing statements and continuation statements required to be filed by this Indenture, any applicable Indenture Supplement, the Transfer Agreement, and the Servicing Agreement in accordance with and within the time periods provided for herein and therein.
(c) The Issuer hereby covenants and agrees that it will enforce the obligations of the Transferor under the Transfer Agreement.
(d) The Issuer hereby covenants and agrees that it will enforce the obligations of the Servicer under the Servicing Agreement and if a Servicer Default shall arise from the failure of the Servicer to perform any of its duties or obligations under the Servicing Agreement with respect to the Transferred Receivables, the Issuer shall take all reasonable actions available to it to remedy such failure; provided , however , that any Servicer Default other than a Servicer Default arising under Section 5.1(a) of the Servicing Agreement may be waived by the Issuer upon consent of the Noteholders of
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not less than 66 2/3% of the Outstanding Principal Balance for the Notes for all Series to which the Servicer Default relates.
(e) The Issuer hereby covenants and agrees that it shall deliver a notice to the Servicer of any Servicer Default if directed to do so by the Indenture Trustee or by the Noteholders of not less than 25% of the Outstanding Principal Balance of the Notes for all Series; provided , however , with respect to any Servicer Default that does not relate to all Series, the Issuer shall deliver a notice to the Servicer of such Servicer Default if directed to do so by the Noteholders of 25% of the Outstanding Principal Balance of the Notes for all Series to which the Servicer Defaults relates; provided , however , that if the Servicer breaches its covenants in Section 2.6 of the Servicing Agreement, upon discovery by the Issuer, the Issuer shall provide prompt written notice of such breach to the Servicer in accordance with Section 2.6 of the Servicing Agreement. The Issuer hereby covenants and agrees that it shall: (i) upon the occurrence of a Servicer Default set forth in Section 5.1(e) of the Servicing Agreement, promptly exercise its rights to terminate the Servicer pursuant to Section 5.1 of the Servicing Agreement and (ii) prior to exercising its rights to terminate the Servicer pursuant to Section 5.1 of the Servicing Agreement due to the occurrence of a Servicer Default set forth in Sections 5.1(a) , (b) , (c) or (d) of the Servicing Agreement, obtain the consent of the Noteholders representing a majority of the Outstanding Principal Balance of each affected Series of Notes. Within thirty (30) days after the giving of notice of termination to the Servicer of the Servicers rights and powers pursuant to Section 5.1 of the Servicing Agreement, the Issuer shall appoint a Successor Servicer, such appointment to be reflected by a written assumption in a form acceptable to the Indenture Trustee. In the event that a Successor Servicer has not been appointed and accepted its appointment at the time when the previous Servicer ceases to act as Servicer, the Indenture Trustee without further action shall automatically be appointed the Successor Servicer, subject to all the responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and provisions hereof, provided , however , that the Indenture Trustee shall not be liable for any actions of any Servicer prior to the Indenture Trustees appointment as Successor Servicer. Notwithstanding the preceding sentence, the Indenture Trustee shall, if it is legally unable to so act or if the majority of Noteholders so request in writing to the Indenture Trustee, appoint, or petition a court of competent jurisdiction to appoint, any servicing institution established in servicing trade receivables substantially similar to the Transferred Receivables as the successor to the Servicer hereunder in the assumption of all or any part of the responsibilities, duties or liabilities of the Servicer hereunder. The Indenture Trustee may resign as the Servicer by giving written notice of such resignation to the Issuer and in such event will be released from such duties and obligations, such release not to be effective until the date a Successor Servicer enters into a servicing agreement with the Issuer as provided below. Upon delivery of any such notice to the Issuer, the Issuer shall obtain a new servicer as the Successor Servicer under the Servicing Agreement. Any Successor Servicer other than the Indenture Trustee shall: (i) be an established financial institution having a net worth of not less than $500,000,000 and whose regular business includes the servicing of receivables and (ii) enter into a servicing agreement with the Issuer having substantially the same provisions as the provisions of the Servicing Agreement applicable to the Servicer. If within 30 days after the delivery of the notice of termination of the Servicers right and powers referred to above, the
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Issuer shall not have obtained such a Successor Servicer, the Indenture Trustee may appoint, or may petition a court of competent jurisdiction to appoint, a Successor Servicer. In connection with any such appointment, the Indenture Trustee may make such arrangements for the compensation of such Successor Servicer as it and such Successor Servicer shall agree, subject to the limitations set forth below and in the Servicing Agreement, and in accordance with Section 6.2 of the Servicing Agreement, the Issuer shall enter into an agreement with such Successor Servicer for the servicing of the Transferred Receivables (such agreement to be in form and substance satisfactory to the Indenture Trustee). If the Indenture Trustee shall succeed to the previous Servicers duties as servicer of the Transferred Receivables as provided herein, it shall do so in its individual capacity and not in its capacity as Indenture Trustee and, accordingly, the provisions of Article VI shall be inapplicable to the Indenture Trustee in its duties as the Successor Servicer and the servicing of the Transferred Receivables. In case the Indenture Trustee shall become the Successor Servicer under the Servicing Agreement, the Indenture Trustee shall be entitled to appoint as Servicer any one of its Affiliates; provided , that it shall be fully liable for the actions and omissions of such Affiliate in its capacity as Successor Servicer.
(f) Upon any termination of the Servicers rights and powers pursuant to the Servicing Agreement, the Issuer shall promptly notify the Indenture Trustee. As soon as a Successor Servicer is appointed, the Issuer shall notify the Indenture Trustee of such appointment, specifying in such notice the name and address of such Successor Servicer.
(g) The Issuer shall provide to the Indenture Trustee or its respective designees access to the documentation regarding the Accounts and the Transferred Receivables in such cases where the Indenture Trustee or such designee is required in connection with the enforcement of the rights of the Indenture Trustee, 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 Issuers normal security and confidentiality procedures and (iv) at offices designated by the Issuer. Nothing in this section shall derogate from the obligation of any Person to observe any applicable law prohibiting disclosure of information regarding the Obligors, and the failure of the Issuer to provide access as provided in this section as a result of such obligation shall not constitute a breach of this Section.
(h) Upon a merger or consolidation of the Servicer or an Originator, the Issuer shall provide prompt written notice to the Rating Agencies.
(i) The Issuer shall promptly deliver to the Rating Agencies the reports furnished to the Issuer pursuant to Section 2.9 of the Servicing Agreement unless such delivery would be prohibited by the terms of any agreement between the Servicer and the accounting firm preparing such report.
SECTION 3.8 . Taxes . The Issuer shall contest or pay all taxes when due and payable or levied against its assets, properties or income, including any property that is part of the Collateral.
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SECTION 3.9 . Annual Statement as to Compliance . The Issuer will deliver to the Indenture Trustee, within 120 days after the end of each fiscal year of the Issuer (commencing with the fiscal year 2003), an Officers Certificate, substantially in the form of Exhibit A , stating that:
(i) a review of the activities of the Issuer during such year and of performance under this Indenture has been made under such Authorized Officers supervision; and
(ii) to the best of such Authorized Officers knowledge, based on such review, the Issuer has complied with all conditions and covenants under this Indenture throughout such year or, if there has been a default in the compliance of any such condition or covenant, specifying each such default known to such Authorized Officers and the nature and status thereof.
SECTION 3.10 . Negative Covenants . So long as any Notes are Outstanding, the Issuer shall not:
(a) sell, transfer, exchange or otherwise dispose of any of the properties or assets of the Issuer, including those included in the Collateral, except as expressly permitted by this Indenture and any Indenture Supplement, Trust Receivables Purchase Agreement or Transfer Agreement;
(b) claim any credit on, or make any deduction from the principal or interest payable in respect of, the Notes (other than amounts properly withheld from such payments under the Code or applicable State law) or assert any claim against any present or former Noteholder by reason of the payment of the taxes levied or assessed upon any part of the Collateral;
(c) engage in any business or activity other than in connection with, or relating to the financing, purchasing, owning, selling and servicing of, the Transferred Receivables and the interests in the property constituting the Collateral, the issuance of the Notes, and the specific transactions contemplated by the Issuers limited liability company agreement and the Related Documents and activities incidental thereto;
(d) issue, incur, assume, or allow to remain outstanding any indebtedness, or guaranty any indebtedness or otherwise become liable, directly or indirectly for any indebtedness of any Person, other than the Notes, except as contemplated by this Indenture and the other Related Documents;
(e) seek dissolution or liquidation or wind up its affairs in whole or in part, or reorganize its business or affairs;
(f) (i) permit the validity or effectiveness of this Indenture to be impaired, or permit the Lien of this Indenture to be amended, hypothecated, subordinated, terminated or discharged, or permit any Person to be released from any covenants or obligations with respect to the Notes under this Indenture except as may be expressly permitted hereby, (ii) permit any Lien to be created on or extend to or otherwise arise upon or burden the
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Collateral or any part thereof or any interest therein or the proceeds thereof or (iii) permit the Lien of this Indenture not to constitute a valid first priority (other than with respect to any tax lien, mechanics lien or other lien not considered a Lien) security interest (as such term is defined in Section 1-201 of Article 1 of the UCC) in the Collateral;
(g) make any loan or advance to any Affiliate of the Issuer or to any other Person;
(h) make any expenditure (by long-term or operating lease or otherwise) for capital assets (either realty or personalty);
(i) directly or indirectly: (i) pay any dividend or make any distribution (by reduction of capital or otherwise), whether in cash, property, securities or a combination thereof, with respect to any ownership or equity interest or security in or of the Issuer, (ii) redeem, purchase, retire or otherwise acquire for value any such ownership or equity interest or security or (iii) set aside or otherwise segregate any amounts for any such purpose or (iv) make payments to or from the Collection Account, in each case, except in accordance with this Indenture and the Related Documents;
(j) consolidate or merge with or into any other Person or convey or transfer any of its properties or assets, including those included in the Collateral, to any Person unless:
(i) such Person shall be a United States citizen or a Person organized and existing under the laws of the United States of America or any State,
(ii) such Person shall expressly assume, by an indenture supplemental hereto, executed and delivered to the Indenture Trustee, in form satisfactory to the Indenture Trustee, the due and punctual payment of the principal of and interest on all Notes and the performance or observance of every agreement and covenant of this Indenture on the part of the Issuer to be performed or observed, all as provided herein,
(iii) immediately after giving effect to such transaction, no Event of Default shall have occurred and be continuing;
(iv) the Rating Agency Condition shall have been satisfied with respect to such transaction;
(v) the Issuer shall have received a Tax Opinion (and shall have delivered copies thereof to the Indenture Trustee);
(vi) such Person is not subject to regulation under the Investment Company Act;
(vii) in the case of a sale of the Issuers business, such Person expressly agrees by an indenture supplement hereto that (A) all right, title and interest so conveyed by the Issuer will be subject and subordinate to the rights of the Noteholders, (B) such Person will mail all filings with the Commission required
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by the Securities Exchange Act in connection with the Notes and (c) such Person expressly agrees to indemnify the Indenture Trustee for any loss, liability or expense arising under the Indenture and the Notes;
(viii) any action that is necessary to maintain the Lien created by this Indenture and the priority thereof shall have been taken;
(ix) the Issuer shall have delivered to the Indenture Trustee an Officers Certificate and an Opinion of Counsel each stating that such consolidation or merger or such conveyance or transfer, as the case may be, and such supplemental indenture comply with this Article and that all conditions precedent herein provided for relating to such transaction have been complied with (including any filing, if any, required by the Securities Exchange Act) and the supplemental indenture is duly authorized, executed and delivered and is valid, binding and enforceable;
(k) amend the Transfer Agreement or the Servicing Agreement or consent to any amendment of the Trust Receivables Purchase Agreement unless (i) the amendment (A) is being entered into to cure any ambiguity or correct or supplement any provision of or to add or change any provisions concerning matters or questions raised under the Transfer Agreement, Servicing Agreement or Trust Receivables Purchase Agreement and does not materially adversely affect the interest of the Noteholders; (B) the Rating Agency Condition is satisfied and (C) the Transferor has delivered an Officers Certificate to the Issuer certifying the amendment will not cause an Adverse Effect, (ii) the Rating Agency Condition is satisfied and the amendment is being entered into to add, modify or eliminate provisions necessary or advisable in order to enable (A) a FASIT election to be made with respect to all or part of RFS Funding Trust or the Issuer, (B) so long as a FASIT Election is in effect, all or part of RFS Funding Trust or the Issuer to qualify as a FASIT under the code, (C) the termination of a FASIT election with respect to all or part of RFS Funding Trust or the Issuer or (D) the Issuer to avoid the imposition of state or local income or franchise taxes on the Issuers property or its income or (iii) the Issuer obtains the consent of Noteholders representing more than 66 2 /3 % of Outstanding Principal Balance of each Series affected by the amendment for which the Transferor has not delivered an Officers Certificate required under clause (i) . Notwithstanding the foregoing, the Issuer will not enter into any amendment of the Transfer Agreement, the Servicing Agreement or consent to any amendment of the Trust Receivables Purchase Agreement if the amendment reduces (i) the amount of, or delays the timing of (A) distributions to the Noteholders of any Series or (B) the amount available under any Series Enhancement; provided , however , changes in Early Amortization Events or Events of Default that decrease the likelihood of the occurrence of those events will not be considered delays in the timing of distributions or deposits of amounts to be distributed or the amount available under any Enhancement Agreement, in each case without the consent of each affected Noteholder, (ii) changes the manner of calculating the interest of any Noteholder without the consent of each affected Noteholder, (iii) reduces the percentage of the Outstanding Principal Balance of the Notes required to consent to any amendment, without the consent of each affected Noteholder or (iv) adversely affects the ratings of any Series or Class by each Rating
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Agency without the consent of the Noteholders representing more than 66 2/3% of the Outstanding Principal Balance of each affected Series or Class; and
(l) consent to any reduction in periodic finance charge assessed on any Transferred Receivable under the Transfer Agreement without the consent of the Noteholders representing more than a majority of the Outstanding Principal Balance of each affected Series of Notes if such reduction would cause the Issuer to fail to make required payments under this Indenture on any Payment Date.
SECTION 3.11 . Successor or Transferee . (a) Upon any consolidation or merger of the Issuer in accordance with Section 3.10(j) , the Person formed by or surviving such consolidation or merger (if other than the Issuer) shall succeed to, and be substituted for, and may exercise every right and power of and have every obligation of, the Issuer under this Indenture with the same effect as if such Person had been named as the original Issuer.
(b) Upon a conveyance or transfer of all the assets and properties of the Issuer pursuant to Section 3.10(j) , the Issuer will be released from every covenant and agreement of this Indenture to be observed or performed on the part of the Issuer with respect to the Notes immediately upon the delivery of written notice to the Indenture Trustee stating that the Issuer is to be so released.
SECTION 3.12 . Notice of Early Amortization Event and Events of Default . (a) The Issuer shall give the Indenture Trustee and the Rating Agencies prompt written notice of each Early Amortization Event and Event of Default hereunder and each Servicer Default (and, in the case of a Servicer Default, shall specify in such notice the action, if any, the Issuer is taking with respect to such Servicer Default).
(b) The Issuer shall deliver to the Indenture Trustee, within five days after the Issuer obtains actual knowledge thereof, written notice in the form of an Officers Certificate of any event that, with the giving of notice or the lapse of time or both, would become an Early Amortization Event or an Event of Default under Article V, its status and what action the Issuer is taking or proposes to take with respect thereto.
SECTION 3.13 . Further Instruments and Acts . Upon request of the Indenture Trustee, the Issuer will execute and deliver such further instruments and do such further acts as may be reasonably necessary to carry out more effectively the provisions of this Indenture.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 . Satisfaction and Discharge of Indenture . (a) This Indenture shall cease to be of further effect except as to: (i) rights of registration of transfer and exchange, (ii) substitution of mutilated, destroyed, lost or stolen Notes, (iii) rights of Noteholders to receive payments of principal thereof and interest thereon, (iv) Section 3.2 , (v) the rights, obligations and immunities of the Indenture Trustee hereunder
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(including the rights of the Indenture Trustee under Section 6.7 and the obligations of the Indenture Trustee under Section 4.2 ) and (vi) the rights of Noteholders as beneficiaries hereof with respect to the property so deposited with the Indenture Trustee payable to all or any of them, and the Indenture Trustee, on demand of and at the expense of the Issuer, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Notes, when:
(A) either:
(1) all Notes theretofore authenticated and delivered (other than: (i) Notes that have been destroyed, lost or stolen and that have been replaced or paid as provided in Section 2.5 and (ii) Notes for whose payment funds have theretofore been deposited in trust or segregated and held in trust by the Issuer and thereafter repaid to the Issuer or discharged from such trust, as provided in Section 6.16 ) have been delivered to the Indenture Trustee for cancellation; or
(2) all Notes not theretofore delivered to the Indenture Trustee for cancellation:
(i) have become due and payable,
(ii) will become due and payable on the Series Maturity Date therefor within one year, or
(iii) are to be called for redemption within one year under arrangements satisfactory to the Indenture Trustee for the giving of notice of redemption by the Indenture Trustee on behalf, and at the expense, of the Issuer;
and the Issuer, in the case of clause (2)(i) , (ii) or (iii) , has irrevocably deposited or caused to be irrevocably deposited with the Indenture Trustee cash or direct obligations of or obligations guaranteed by the United States of America (which will mature prior to the date such amounts are payable), in trust for such purpose, in an amount sufficient to pay and discharge the entire indebtedness on such Notes not theretofore delivered to the Indenture Trustee for cancellation when due to the Series Maturity Date for such Class or Series of Notes or the Redemption Date (if Notes shall have been called for redemption pursuant to the related Indenture Supplement), as the case may be;
(B) the Issuer has paid or caused to be paid all other sums payable hereunder by the Issuer; and
(C) the Issuer has delivered to the Indenture Trustee an Officers Certificate, an Opinion of Counsel and (if required by the TIA or the Indenture Trustee) an Independent Certificate from a firm of certified
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public accountants, each meeting the applicable requirements of Section 10.1(a) and, subject to Section 10.2 , each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of this Indenture have been complied with.
At such time, the Indenture Trustee shall deliver to the Issuer or, upon an Issuer Order, its assignee, all cash, securities and other property held by it as part of the Collateral other than funds deposited with the Indenture Trustee pursuant to Section 4.1(a)(A)(2) , for the payment and discharge of the Notes.
(b) Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Issuer to the Indenture Trustee under Section 6.7 , and if funds shall have been deposited with the Indenture Trustee pursuant to Section 4.1(a)(A)(2) , the obligations of the Indenture Trustee under Sections 4.2 and 6.7 (in its capacity as Paying Agent) shall survive.
SECTION 4.2 . Application of Trust Funds . All funds deposited with the Indenture Trustee pursuant to Section 4.1 shall be held in trust and applied by it, in accordance with the provisions of the Notes, this Indenture and the applicable Indenture Supplement, to the payment, either directly or through any Paying Agent, as the Indenture Trustee may determine, to the Noteholders of the particular Notes for the payment or redemption of which such funds have been deposited with the Indenture Trustee, of all sums due and to become due thereon for principal and interest; but such funds need not be segregated from other funds except to the extent required herein or as required by law.
ARTICLE V
TRUST EARLY AMORTIZATION EVENTS, EVENTS OF DEFAULTS AND REMEDIES
SECTION 5.1 . Trust Early Amortization Events . If any one of the following events (each, a Trust Early Amortization Event ) shall occur:
(a) the occurrence of an Insolvency Event relating to Originator or Transferor;
(b) Originator shall become unable for any reason to transfer Receivables to Transferor pursuant to the Bank Receivables Sale Agreement or Transferor shall become unable for any reason to transfer Receivables (i) prior to the RFS Funding Trust Termination Date, to RFS Funding Trust pursuant to the Trust Receivables Purchase Agreement or (ii) thereafter to the Issuer pursuant to the Transfer Agreement; or
(c) RFS Funding Trust or the Issuer shall become subject to regulation by the Commission as an investment company within the meaning of the Investment Company Act;
then an Early Amortization Event with respect to all Series of Notes shall occur without any notice or other action on the part of the Indenture Trustee or the Noteholders immediately upon the occurrence of such event.
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Upon the occurrence of an Early Amortization Event, payment on the Notes of each Series will be made in accordance with the terms of the related Indenture Supplement.
SECTION 5.2 . Events of Default . Event of Default , wherever used herein, means, with respect to any Series, any one of the following events (whatever the reason for such Event of Default and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any court or any order, rule or regulation of any administrative or governmental body):
(a) default in the payment of any interest on any Note of that Series when the same becomes due and payable, and such default shall continue for a period of thirty-five days;
(b) default in the payment of the principal of any Note of that Series, if and to the extent not previously paid, when the same becomes due and payable on its Series Maturity Date;
(c) default in the observance or performance of any covenant or agreement of the Issuer made in this Indenture in respect of the Notes of such Series (other than a covenant or agreement a default in the observance or performance of which is elsewhere in this Section specifically dealt with) (all such covenants and agreements in the Indenture which are not expressly stated to be for the benefit of a particular Series being deemed to be in respect of the Notes of all Series for this purpose) and such default shall continue or not be cured for a period of 60 days after there shall have been given, by registered or certified mail, to the Issuer by the Indenture Trustee or to the Issuer and the Indenture Trustee by the Noteholders of at least 25% of the Outstanding Principal Balance of the Notes of such Series, a written notice specifying such default and requiring it to be remedied and stating that such notice is a Notice of Default hereunder and, as a result of such default, the interests of the Noteholders are materially and adversely affected and continue to be materially and adversely affected during the sixty-day period;
(d) the occurrence of an Insolvency Event relating to the Issuer; or
(e) any additional events specified in the Indenture Supplement related to such Series.
SECTION 5.3 . Acceleration of Maturity and Annulment; Remedies . (a) If an Event of Default shall have occurred and be continuing with respect to any Series, and the Notes of such Series have been accelerated pursuant to Section 5.3(b) or (c) , the Indenture Trustee may do one or more of the following:
(i) institute Proceedings in its own name and as trustee of an express trust for the collection of all amounts then payable on the Notes of the affected Series or under this Indenture with respect thereto, whether by declaration or otherwise, enforce any judgment obtained, and collect from the Issuer and any other obligor upon such Notes moneys adjudged due;
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(ii) take any other appropriate action to protect and enforce the rights and remedies of the Indenture Trustee and the Noteholders of the affected Series;
(iii) cause the Receivables Trust to sell randomly selected Principal Receivables (or interests therein) in an amount equal to the Collateral Amount of the accelerated Series and the related Finance Charge Receivables in accordance with Section 5.16 ;
provided , however , that the Indenture Trustee may not exercise the remedy described in subparagraph (iii) above unless (A) (1) the Noteholders representing 100% of the Outstanding Principal Balance of the Notes of the affected Series consent in writing thereto, (2) the Indenture Trustee determines that any proceeds of such exercise distributable to the Noteholders of the affected Series are sufficient to discharge in full all amounts then due and unpaid upon the Notes for principal and interest and is directed to exercise this remedy by Noteholders representing more than a majority of the Outstanding Principal Balance of the Notes of such Series, or (3) the Indenture Trustee determines that the Collateral may not continue to provide sufficient funds for the payment of principal of and interest on the Notes as they would have become due if the Notes had not been declared due and payable, and the Indenture Trustee obtains the consent of the Noteholders representing at least 66 2/3% of the Outstanding Principal Balance of the Notes of each Class of such Series and (B) the Indenture Trustee has been provided with an Opinion of Counsel to the effect that the exercise of such remedy complies with applicable federal and state securities laws. In determining such sufficiency or insufficiency with respect to clauses (A)(2) and (A)(3) , the Indenture Trustee may, but need not, obtain and conclusively rely upon an opinion of an Independent investment banking or accounting firm of national reputation as to the feasibility of such proposed action and as to the sufficiency of the Collateral for such purpose.
(b) If an Event of Default described in paragraph (a) , (b) or (c) of Section 5.2 should occur and be continuing with respect to a Series, then the Indenture Trustee or the Noteholders representing not less than a majority of the Outstanding Principal Balance of the Notes of such Series may declare all the Notes of such Series to be immediately due and payable, by a notice in writing to the Issuer, and upon any such declaration the Outstanding Principal Balance of such Notes, together with accrued and unpaid interest thereon through the date of acceleration, shall become immediately due and payable;
(c) If an Event of Default described in paragraph (d) of Section 5.2 should occur and be continuing, then the unpaid principal of the Notes, together with accrued and unpaid interest thereon through the date of acceleration, shall automatically become due and payable.
(d) At any time after a declaration of acceleration of maturity of an affected Series has been made and before a judgment or decree for payment of the amount due has been obtained by the Indenture Trustee as hereinafter in this Article V provided, the Noteholders of Notes representing not less than a majority of the Outstanding Principal Balance of such Series, by written notice to the Issuer and the Indenture Trustee may rescind and annul such declaration and its consequences if:
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(i) the Issuer has paid or deposited with the Indenture Trustee a sum sufficient to pay:
(A) all payments of principal of and interest on all Notes of such Series and all other amounts that would then be due hereunder or upon such Notes if the Event of Default giving rise to such acceleration had not occurred; and
(B) all sums paid or advanced by the Indenture Trustee hereunder and the reasonable compensation, expenses, disbursements and advances of the Indenture Trustee and its agents and counsel, and all other amounts due to the Indenture Trustee pursuant to Section 6.7 ; and
(ii) all Events of Default, other than the nonpayment of the principal of the Notes that have become due solely by such acceleration, have been cured or waived as provided in Section 5.11 .
No such rescission shall affect any subsequent Event of Default or impair any right consequent thereto.
(e) If the Indenture Trustee collects any money or property pursuant to this Article V following the acceleration of the Notes of the affected Series pursuant to this Section 5.3 (so long as such a declaration shall not have been rescinded or annulled), it shall pay out the money or property in the following order:
FIRST: to the Indenture Trustee for amounts due pursuant to Section 6.7 ; and
SECOND: unless otherwise specified in the related Indenture Supplement, for application and payment in accordance with the related Indenture Supplement with such amounts being deemed to be Principal Collections and Finance Charge Collections in the same proportion as (x) the Outstanding Principal Balance of the Notes bears to (y) the sum of the accrued and unpaid interest on the Notes and other fees and expenses payable in connection therewith under the applicable Indenture Supplement, including the amounts payable under any Series Enhancements with respect to such Series.
(f) The Indenture Trustee may, upon notification to the Issuer, fix a record date and payment date for any payment to Noteholders of the affected Series pursuant to this Section. At least fifteen days before such record date, the Indenture Trustee shall mail or send by facsimile, at the expense of the Issuer, to each such Noteholder a notice that states the record date, the payment date and the amount to be paid.
(g) In addition to the application of money or property referred to in Section 5.5(b) for an accelerated Series, amounts then held in the Collection Account, Excess Funding Account or any Series Accounts for such Series and any amounts available
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under the Series Enhancement for such Series shall be used to make payments to the Noteholders of such Series and the Series Enhancement Provider for such Series in accordance with the terms of this Indenture, the related Indenture Supplement and the Series Enhancement for such Series. Following the sale of any Principal Receivables and related Finance Charge Receivables pursuant to Section 5.3(a)(iii) (or interests therein) for a Series and the application of the proceeds of such sale to such Series and the application of the amounts then held in the Collection Account, the Excess Funding Account and any Series Accounts for such Series as are allocated to such Series and any amounts available under the Series Enhancement for such Series, such Series shall no longer be entitled to any allocation of Collections or other property constituting the Collateral under this Indenture.
(h) The Indenture Trustee and each Noteholder by its acceptance of a Note covenants that it will not directly or indirectly institute or cause to be instituted against the Issuer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceeding under any Federal or state bankruptcy law unless Noteholders of not less than 66 2/3% of the Outstanding Principal Amount of each Class of each Series has approved such filing and it will not directly or indirectly institute or cause to be institute against RFS Funding Trust or the Transferor any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceeding under any Federal or state bankruptcy law in any instance; provided , that the foregoing shall not in anyway limit the Noteholders rights to pursue any other creditor rights or remedies that the Noteholders may have for claims against the Issuer.
(i) The remedies provided in this Section are the exclusive remedies provided to the Noteholders with respect to the Collateral and each of the Noteholders (by their acceptance of their respective interests in the Notes) or the Indenture Trustee hereby expressly waive any other remedy that might have been available under the applicable UCC.
SECTION 5.4 . Collection of Indebtedness and Suits for Enforcement by the Indenture Trustee .
(a) In case (i) there shall be pending, relative to the Issuer or any Person having or claiming an ownership interest in the Collateral, Proceedings under Title 11 of the United States Code or any other applicable Federal or State bankruptcy, insolvency or other similar law, or (ii) a receiver, assignee, trustee in bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been appointed for or taken possession of the Issuer or its property or such other Person, or (iii) of any other comparable judicial Proceedings relative to the Issuer, or to the creditors or property of the Issuer, then the Indenture Trustee (irrespective of whether the principal of any Notes shall then be due and payable as therein expressed or by declaration or otherwise and irrespective of whether the Indenture Trustee shall have made any demand pursuant to this Section) , shall be entitled and empowered to, and at the written direction of the requisite Noteholders pursuant to Section 5.10 shall, by intervention in such Proceedings or otherwise:
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(A) file and prove a claim or claims for the whole amount of principal and interest owing and unpaid in respect of the Notes of such Series and to file such other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee (including any claim for reasonable compensation to the Indenture Trustee and each predecessor the Indenture Trustee, and their respective agents, attorneys and counsel, and for reimbursement of all expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee, except as a result of negligence, willful misconduct or bad faith, and all other amounts due to the Indenture Trustee pursuant to Section 6.7 ) and of the Noteholders of such Series allowed in such Proceedings;
(B) unless prohibited by applicable law or regulations, vote on behalf of the Noteholders of such Series in any election of a trustee, a standby trustee or any Person performing similar functions in any such Proceedings;
(C) collect and receive any amounts or other property payable or deliverable on any such claims and to distribute all amounts received with respect to the claims of the Noteholders of such Series and of the Indenture Trustee on their behalf; and
(D) file such proofs of claim and other papers or documents as may be necessary or advisable in order to have the claims of the Indenture Trustee or the Noteholders of such Series allowed in any judicial Proceedings relative to the Issuer, its creditors and its property;
and any trustee, receiver, liquidator, assignee, custodian, sequestrator or other similar official in any such Proceeding is hereby authorized by each of such Noteholders to make payments to the Indenture Trustee, and, in the event that the Indenture Trustee shall consent to the making of payments directly to such Noteholders, to pay to the Indenture Trustee such amounts as shall be sufficient to cover reasonable compensation to the Indenture Trustee, each predecessor Indenture Trustee and their respective agents, attorneys and counsel, and all other expenses and liabilities incurred, and all advances made, by the Indenture Trustee and each predecessor Indenture Trustee except as a result of negligence, willful misconduct or bad faith, and all other amounts due to the Indenture Trustee pursuant to Section 6.7 .
(b) Nothing herein contained shall be deemed to authorize the Indenture Trustee to authorize or consent to or vote for or accept or adopt on behalf of any Noteholder any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Noteholder thereof or to authorize the Indenture Trustee to vote in respect of the claim of any Noteholder in any such proceeding except, as aforesaid, to vote for the election of a trustee in bankruptcy or similar Person.
(c) All rights of action and of asserting claims under this Indenture, or under any of the Notes, may be enforced by the Indenture Trustee without the possession of any of the Notes or the production thereof in any trial or other Proceedings relative thereto, and any such action or Proceedings instituted by the Indenture Trustee shall be brought in its
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own name and as trustee of an express trust, and any recovery of judgment, subject to the payment of the expenses, disbursements and compensation of the Indenture Trustee, each predecessor Indenture Trustee and their respective agents and attorneys, shall be for the ratable benefit of the Noteholders of the affected Series as provided herein.
(d) In any Proceedings brought by the Indenture Trustee (and also any Proceedings to which the Indenture Trustee is a party involving the interpretation of any provision of this Indenture), the Indenture Trustee shall be held to represent all the Noteholders of the affected Series, and it shall not be necessary to make any such Noteholder a party to any such Proceedings.
SECTION 5.5 . Limitation of Suits . No Noteholder shall have any right to institute any Proceeding, with respect to this Indenture or any Indenture Supplement, or for the appointment of a receiver or trustee, or for any other remedy hereunder or thereunder, unless:
(i) such Noteholder has previously given written notice to the Indenture Trustee of a continuing Event of Default;
(ii) the Noteholder(s) of not less than 25% of the Outstanding Principal Balance of the Notes of each affected Series have made written request to the Indenture Trustee to institute such Proceeding in its own name as the Indenture Trustee hereunder;
(iii) such Noteholder or Noteholders has offered to the Indenture Trustee indemnity satisfactory to it against the costs, expenses and liabilities to be incurred in complying with such request;
(iv) the Indenture Trustee for 60 days after its receipt of such request and offer of indemnity has failed to institute such Proceeding; and
(v) no direction inconsistent with such written request has been given to the Indenture Trustee during such 60-day period by the Noteholders of more than a majority of the Outstanding Principal Balance of the Notes of such Series;
it being understood and intended that no one or more Noteholder(s) of the affected Series shall have any right in any manner whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice the rights of any other Noteholder of such Series or to obtain or to seek to obtain priority or preference over any other Noteholder(s) of such Series or to enforce any right under this Indenture, except in the manner herein provided and for the equal and ratable benefit of all the other Noteholders of the same Series. Nothing in this Section shall be construed as limiting the rights of otherwise qualified Noteholders to petition a court for the removal of an Indenture Trustee pursuant to Section 6.8 .
In the event the Indenture Trustee shall receive conflicting or inconsistent requests and indemnity from two or more groups of Noteholders of an affected Series, each representing less than a majority of the Outstanding Principal Balance of the Notes of such Series, the Indenture Trustee in its sole discretion may determine what action, if any, shall be taken, notwithstanding any other provisions of this Indenture.
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SECTION 5.6 . Unconditional Rights of Noteholders to Receive Principal and Interest . Notwithstanding any other provisions in this Indenture, each Noteholder shall have the right, which is absolute and unconditional, to receive payment of the principal of and interest, if any, on such Note on or after the respective due dates thereof expressed in such Note or in the applicable Indenture Supplement (or, in the case of redemption, on or after the applicable Redemption Date) and to institute suit for the enforcement of any such payment, and such right shall not be impaired without the consent of such Noteholder.
SECTION 5.7 . Restoration of Rights and Remedies . If the Indenture Trustee or any Noteholder has instituted any Proceeding to enforce any right or remedy under this Indenture and such Proceeding has been discontinued or abandoned for any reason or has been determined adversely to the Indenture Trustee or to such Noteholder, then and in every such case the Issuer, the Indenture Trustee and the Noteholders shall, subject to any determination in such Proceeding, be restored severally and respectively to their former positions hereunder, and thereafter all rights and remedies of the Indenture Trustee and the Noteholders shall continue as though no such Proceeding had been instituted.
SECTION 5.8 . Rights and Remedies Cumulative . Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed, lost, or stolen Notes in Section 2.5(d) , no right or remedy herein conferred upon or reserved to the Indenture Trustee or to the Noteholders is intended to be exclusive of any other right or remedy, and every right and remedy shall, to the extent permitted by law, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.9 . Delay or Omission Not a Waiver . No delay or omission of the Indenture Trustee or any Noteholder to exercise any right or remedy accruing upon any Event of Default shall impair any such right or remedy or constitute a waiver of any such Event of Default or an acquiescence therein. Every right and remedy given by this Article or by law to the Indenture Trustee or to the Noteholders may be exercised from time to time, and as often as may be deemed expedient, by the Indenture Trustee or by the Noteholders, as the case may be.
SECTION 5.10 . Control by Noteholders . Upon the occurrence and continuation of an Event of Default, except as otherwise expressly provided in this Indenture or any Indenture Supplement, the Noteholders of not less than a majority of the Outstanding Principal Balance of the Notes of any affected Series shall have the right to direct the time, method and place of conducting any Proceeding for any remedy available to the Indenture Trustee with respect to such Series; provided , that such direction shall not be in conflict with any rule of law or with this Indenture; provided , further , that, subject to Section 6.1 , the Indenture Trustee need not take any action that it determines might subject it to liability for which it is not indemnified to its satisfaction or might materially adversely affect the rights of any Noteholder(s) of an affected Series not consenting to such action. The Indenture Trustee may take any other action deemed proper by the Indenture Trustee that is not inconsistent with such direction.
SECTION 5.11 . Waiver of Past Defaults . Prior to the acceleration of the maturity of any Series of Notes pursuant to Section 5.3 , and subject to Section 5.3(b) , the Noteholders of not less
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than a majority of the Outstanding Principal Balance of the Notes of the affected Series (or with respect to any Series with two or more Classes, each Class) may waive any past Event of Default and its consequences except an Event of Default: (a) in payment of principal of or interest on any of the Notes of such Series or (b) in respect of a covenant or provision hereof that cannot be modified or amended without the consent of each Noteholder of such Series. In the case of any such waiver, the Issuer, the Indenture Trustee and the Noteholders of the affected Series shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereto.
Upon any such waiver, such Event of Default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising therefrom shall be deemed to have been cured and not to have occurred, for every purpose of this Indenture; but no such waiver shall extend to any subsequent or other Event of Default or impair any right consequent thereto.
SECTION 5.12 . Undertaking for Costs . All parties to this Indenture agree (and each Noteholder by such Noteholders acceptance thereof shall be deemed to have agreed) that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture, or in any suit against the Indenture Trustee for any action taken, suffered or omitted by it as the Indenture Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such suit, and that such court may in its discretion assess reasonable costs, including reasonable attorneys fees, against any party litigant in such suit, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section shall not apply to: (a) any suit instituted by the Indenture Trustee, (b) any suit instituted by any Noteholder(s) holding in the aggregate more than 10% of the Outstanding Principal Balance of the Notes of the affected Series or (c) any suit instituted by any Noteholder for the enforcement of the payment of principal of or interest on any Note on or after the respective due dates expressed in such Notes and the related Indenture Supplement (or, in the case of redemption, on or after the applicable Redemption Date).
SECTION 5.13 . Waiver of Stay or Extension Laws . The Issuer covenants (to the extent that it may lawfully do so) that it will not at any time insist upon, or plead or in any manner whatsoever, claim or take the benefit or advantage of, any stay or extension law wherever enacted, now or at any time hereafter in force, that may adversely affect the covenants or the performance of this Indenture; and the Issuer (to the extent that it may lawfully do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Indenture Trustee, but will suffer and permit the execution of every such power as though no such law had been enacted.
SECTION 5.14 . Action on Notes . The Indenture Trustees right to seek and recover judgment on the Notes or under this Indenture shall not be affected by the seeking, obtaining or application of any other relief under or with respect to this Indenture. Neither the Lien of this Indenture nor any rights or remedies of the Indenture Trustee or the Noteholders shall be impaired by the recovery of any judgment by the Indenture Trustee against the Issuer or by the levy of any execution under such judgment upon any portion of the Collateral. Any funds or other property collected by the Indenture Trustee shall be applied in accordance with the applicable Indenture Supplement.
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SECTION 5.15 . Performance and Enforcement of Certain Obligations . Promptly following a request from the Indenture Trustee to do so and at the Issuers expense, the Issuer shall take all such lawful action to compel or secure the performance and observance by the Servicer of its obligations to the Issuer under or in connection with the Servicing Agreement or by the Transferor of its obligations to the Issuer under or in connection with the Transfer Agreement in accordance with the terms thereof, and to exercise any and all rights, remedies, powers and privileges lawfully available to the Issuer under or in connection with the Servicing Agreement (or under or in connection with the Transfer Agreement), in each case to the extent and in the manner directed by the Indenture Trustee, including the transmission of notices of default on the part of the Servicer or the Transferor thereunder and the institution of legal or administrative actions or proceedings to compel or secure performance by the Servicer or the Transferor of each of their obligations under the Servicing Agreement or the Transfer Agreement.
SECTION 5.16 . Sale of Collateral . (a) The power to effect any sale of any portion of the Collateral described pursuant to Section 5.3 shall not be exhausted by any one or more sales as to any portion of the Collateral remaining unsold, but shall continue unimpaired until Collateral in an amount up to the Collateral Amount of the affected Series shall have been sold or all amounts due to the Noteholders of the affected Series under this Indenture and the applicable Indenture Supplement have been paid in full. The Indenture Trustee may from time to time, upon directions in accordance with Section 5.10 , postpone any public sale by public announcement made at the time and place of such sale. For any public sale of Collateral, the Indenture Trustee shall have provided each Noteholder of the affected Series with notice of such sale at least two weeks in advance of such sale, which notice shall specify the date, time and location of such sale.
(b) To the extent permitted by applicable law, the Indenture Trustee shall not sell Collateral, or any portion thereof, to a third party in any private sale unless,
(i) the Noteholders of not less than 66 2/3% of the then Outstanding Principal Balance of the Notes of the affected Series consent to or direct the Indenture Trustee in writing to make such sale; or
(ii) the proceeds of such sale would be not less than the sum of all amounts due to the Noteholders of the affected Series under this Indenture and the Indenture Supplement related to such Series.
The foregoing provisions shall not preclude or limit the ability of the Indenture Trustee to purchase all or any portion of the Collateral at a private sale.
(c) In connection with a sale of all or any portion of the Collateral:
(i) any one or more Noteholders (other than the Transferor and its Affiliates) may bid for and purchase the property offered for sale, and upon compliance with the terms of sale may hold, retain, and possess and dispose of such property, without further accountability, and any Noteholder of the affected Series may, in paying the purchase price therefor, deliver in lieu of cash any
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Outstanding Notes of such Series or claims for interest thereon for credit in the amount that shall, upon distribution of the net proceeds of such sale, be payable thereon, and the Notes of the affected Series, in case the amounts so payable thereon shall be less than the amount due thereon, shall be returned to the Noteholders of such Series after being appropriately stamped to show such partial payment;
(ii) the Indenture Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the Issuer to transfer and convey any portion of the Collateral in connection with a sale thereof, and to take all action necessary to effect such sale;
(iii) the Indenture Trustee shall execute and deliver an appropriate instrument of conveyance transferring, without representation, warranty or recourse, any portion of the Collateral in connection with a sale thereof; and
(iv) no purchaser or transferee at such a sale shall be bound to ascertain the Indenture Trustees authority, inquire into the satisfaction of any conditions precedent or see to the application of any funds.
(d) The method, manner, time, place and terms of any sale of all or any portion of the Collateral shall be commercially reasonable.
(e) The provisions of this Section shall not be construed to restrict the ability of the Indenture Trustee to exercise any rights and powers against the Issuer or all or a portion of the Collateral that are vested in the Indenture Trustee by this Indenture, including the power of the Indenture Trustee to proceed against the Collateral subject to the Lien of this Indenture and to institute judicial proceedings for the collection of any deficiency remaining thereafter.
(f) The purchase price received by the Indenture Trustee in respect of any sale made in accordance with this Section shall be deemed conclusive and binding on the parties hereto and the Noteholders and the proceeds of such sale shall be applied in accordance with Section 8.4 .
SECTION 5.17 . Aggregate Reassignment Amount . The sum of the Reassignment Amounts for each Outstanding Series (as specified in the applicable Indenture Supplement) is hereby specified as a portion of the minimum Aggregate Reassignment Amount as defined in the Bank Receivables Purchase Agreement, the Trust Receivables Purchase Agreement and the Transfer Agreement.
ARTICLE VI
THE INDENTURE TRUSTEE AND THE PAYING AGENT
SECTION 6.1 . Duties of the Indenture Trustee . (a) If an Event of Default has occurred and is continuing, the Indenture Trustee shall exercise the rights and powers vested in it by this
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Indenture and use the same degree of care and skill in their exercise of such rights and powers as a prudent person would exercise or use under the circumstances in the conduct of such persons own affairs.
(b) Except during the continuance of an Event of Default actually known to a Responsible Officer of the Indenture Trustee:
(i) the Indenture Trustee undertakes to perform such duties and only such duties as are specifically set forth in this Indenture and no implied covenants or obligations shall be read into this Indenture against the Indenture Trustee; and
(ii) in the absence of bad faith or negligence on its part, the Indenture Trustee may conclusively rely, as to the truth of the statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished to the Indenture Trustee and conforming to the requirements of this Indenture; provided , however , in the case of any such certificates or opinions that are specifically required to be furnished to the Indenture Trustee pursuant to any provision of this Indenture or any Indenture Supplement, the Indenture Trustee shall examine the certificates and opinions to determine whether or not they conform to the requirements of this Indenture or the applicable Indenture Supplement.
(c) If an Event of Default has occurred and is continuing and a Responsible Officer of the Indenture Trustee shall have actual knowledge of such Event of Default, the Indenture Trustee shall exercise such of the rights and powers vested in it by this Indenture, and use the same degree of care and skill in the exercise of such rights and powers, as a prudent person would exercise or use under the circumstances in the conduct of such Persons own affairs.
(d) The Indenture Trustee shall notify each Rating Agency (i) of any change in any rating of the Notes by any other Rating Agency of which a Responsible Officer of the Indenture Trustee has actual knowledge, and (ii) promptly after the occurrence thereof, of any Event of Default or Early Amortization Event of which a Responsible Officer of the Indenture Trustee has actual knowledge.
(e) No provision of this Indenture shall be construed to relieve the Indenture Trustee from liability for its own negligent action, its own negligent failure to act, or its own willful misconduct, except that:
(i) this clause (e) does not limit the effect of clauses (b) , (c) or (d) of this Section;
(ii) the Indenture Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer of the Indenture Trustee unless it is proved that the Indenture Trustee was negligent in ascertaining the pertinent facts;
(iii) the Indenture Trustee shall not be liable with respect to any action it takes or omits to take in good faith in accordance with a direction received by it pursuant to this Indenture;
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(iv) the Indenture Trustee shall not be charged with knowledge of an Event of Default, Early Amortization Event or Servicer Default unless a Responsible Officer of the Indenture Trustee obtains actual knowledge of such event or the Indenture Trustee receives written notice of such event from the Issuer or Note Owners beneficially owning Notes of the affected Series or all Series, as applicable, aggregating not less than 10% of the Outstanding Principal Balance of the Notes of the affected Series or all Series, as applicable; and
(v) the Indenture Trustee shall have no duty to monitor the performance of the Issuer or its agents, nor shall it have any liability in connection with malfeasance or nonfeasance by the Issuer. The Indenture Trustee shall have no liability in connection with compliance of the Issuer or its agents with statutory or regulatory requirements related to the Transferred Receivables. The Indenture Trustee shall not make or be deemed to have made any representations or warranties with respect to the Transferred Receivables or the validity or sufficiency of any assignment of the Receivables to the Collateral or the Indenture Trustee.
(f) The Indenture Trustee shall not be liable for interest on any amounts received by it, except as the Indenture Trustee may agree in writing with the Issuer.
(g) No provision of this Indenture shall require the Indenture Trustee 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 it reasonably believes that repayments of such funds or adequate indemnity satisfactory to it against any loss, liability or expense is not reasonably assured to it.
(h) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct or affecting the liability of or affording protection to the Indenture Trustee shall be subject to this Section and the TIA.
(i) The Indenture Trustee:
(i) shall at all times be a participant (as such term is defined in the Federal Book-Entry Regulations) in the Federal Reserve System;
(ii) shall, to the extent that any of the Trust Accounts is a Securities Account, comply with all of the obligations of a Securities Intermediary under Article 8 of the UCC with respect thereto;
(iii) agrees that each item of property including cash received by it for deposit in or credit to a Trust Account, and each investment made by it pursuant to Section 8.5 shall constitute and be treated by it as a Financial Asset; and
(iv) shall not, except with respect to the Indenture Trustee as provided herein, consent to or permit anyone to have control (as such term is defined in Section 8-106 of Article 8 of the UCC and Section 9-401 of Article 9 of the UCC) of any of the Trust Accounts.
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SECTION 6.2 . Rights of the Indenture Trustee . (a) Subject to the provisions of Section 6.1 :
(i) the Indenture Trustee may conclusively rely and shall be fully protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note, debenture, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties;
(ii) any request or direction or action of the Issuer mentioned herein shall be sufficiently evidenced by an Issuer Order;
(iii) whenever in the administration of this Indenture the Indenture Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Indenture Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, conclusively rely upon an Officers Certificate;
(iv) the Indenture Trustee may consult with counsel as to legal matters and the advice or opinion of any such counsel selected by the Indenture Trustee with respect to legal matters relating to this Indenture and the Notes shall be full and complete authorization and protection from liability in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(v) the Indenture Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Indenture at the request or direction of any of the Noteholders pursuant to this Indenture, if: (A) the Indenture Trustee is advised by counsel that the action its directed to take is in conflict with applicable laws or the Indenture, (B) the Indenture Trustee determines in good faith that the requested actions would be illegal or involve the Indenture Trustee in personal liability or be unjustly prejudicial to Noteholders not making the request or direction or (C) the Indenture Trustee reasonably believes it will not be adequately indemnified against the costs, expenses and liabilities which might be missed by it in complying with that request.
(vi) the Indenture Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, note, debenture, other evidence of indebtedness, or other paper or document, but the Indenture Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Indenture Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Issuer, personally or by agent or attorney;
(vii) the Indenture Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through agents,
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attorneys, custodians or nominees and the Indenture Trustee shall not be responsible for any misconduct or negligence on the part of any agent, attorney, custodian or nominee appointed with due care by it hereunder;
(viii) the Indenture Trustee shall not be required to give any bond or surety in respect of the performance of its powers and duties hereunder;
(ix) the Indenture Trustee shall not be bound to ascertain or inquire as to the performance or observance of any covenants, conditions or agreements on the part of the Issuer;
(x) the permissive rights of the Indenture Trustee to do things enumerated in this Indenture shall not be construed as a duty and the Indenture Trustee shall not be answerable for other than its gross negligence or willful default;
(xi) in the event that the Indenture Trustee is also acting as Paying Agent or Note Registrar hereunder, the rights and protections afforded to the Indenture Trustee pursuant to this Article VI shall also be afforded to such Paying Agent or Note Registrar; and
(xii) the Indenture Trustee shall at no time have any responsibility or liability for or with respect to the legality, validity or enforceability of any Collateral or any arrangement or agreement between the Issuer and any Person with respect thereto, or the perfection of any security interest created in any of the Collateral or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Collateral following an Event of Default.
(b) The recitals contained in the Agreement and in the Notes, except the Indenture Trustees certificates of authentication, shall be taken as the statements of the Issuer, and the Indenture Trustee assumes no responsibility for their correctness. The Indenture Trustee makes no representations as to the validity or sufficiency of the Agreement or the Notes, except to the extent provided by the Indenture Trustees certificate of authentication on the Notes. The Indenture Trustee shall not be accountable for the use or application by the Issuer of the proceeds of the Notes.
SECTION 6.3 . Individual Rights of the Indenture Trustee . The Indenture Trustee shall not, in its individual capacity, but may in a fiduciary capacity, become the owner of Notes or otherwise extend credit to the Issuer. The Indenture Trustee may otherwise deal with the Issuer or its Affiliates with the same rights it would have if it were not the Indenture Trustee. Any Paying Agent, Note Registrar, co-registrar or co-paying agent may do the same with like rights. However, the Indenture Trustee must comply with Sections 6.11 and 6.13 .
SECTION 6.4 . Funds Held in Trust . Funds and investments and other property held by the Indenture Trustee or Paying Agent shall be held in trust in one or more Trust Accounts hereunder, but need not be segregated from other funds except to the extent required by law.
SECTION 6.5 . Notice of Early Amortization Events or Events or Defaults . If any Early Amortization Event or Event of Default occurs and is continuing and is known to a Responsible
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Officer of the Indenture Trustee, the Indenture Trustee shall mail to the Rating Agencies and the affected Noteholders or all Noteholders, as applicable, notice of such Early Amortization Event or Event of Default within thirty days after it occurs or within ten Business Days after it receives notice or obtains actual notice, if later. Except in the case of an Early Amortization Event or an Event of Default relating to the failure to pay principal or interest on any Note (including payments pursuant to the mandatory redemption provisions of such Note), the Indenture Trustee may withhold the notice if and so long as a committee of its Responsible Officers in good faith determines that withholding the notice is in the interests of Noteholders.
SECTION 6.6 . Reports by Indenture Trustee to the Noteholders . The Issuer shall deliver, or cause the Servicer to deliver, to each Noteholder such information as may be required to enable such Noteholder to prepare its Federal, State and other income tax returns. To the extent required in the Indenture Supplement for any Series, on or before the date prescribed by applicable law, the Indenture Trustee shall mail to each Noteholder of a Note in such Series a brief report as of such date that complies with TIA § 313(a) (if required by said section).
SECTION 6.7 . Compensation and Indemnity . The Issuer shall pay to the Indenture Trustee from time to time reasonable compensation for its services hereunder as the Issuer and the Indenture Trustee may agree in writing (which compensation shall not be limited by any law on compensation of a trustee of an express trust). The Issuer shall reimburse the Indenture Trustee upon its request, for all reasonable out-of-pocket expenses incurred or made by it, including costs of collection, in addition to the compensation for its services. Such expenses shall include the reasonable compensation and expenses, disbursements and advances of the Indenture Trustees agents, counsel, accountants and experts. The Issuer shall indemnify the Indenture Trustee and its officers, directors, employees and agents against any and all loss, liability or expense (including reasonable attorneys fees and expenses) incurred by them to the extent related to or arising out of the administration of this Indenture and the performance of its duties hereunder including the costs and expenses of enforcing this Indenture (including this Section 6.7 and of defending itself against any claims (whether asserted by any Noteholder, the Issuer, the Servicer or any other Person). The Indenture Trustee shall notify the Issuer promptly of any claim for which it may seek indemnity. The Issuer need not reimburse any expense or indemnify against any loss, liability or expense incurred by the Indenture Trustee through the Indenture Trustees own willful misconduct, negligence or bad faith.
In the event any proceeding (including any governmental investigation) shall be instituted involving the Indenture Trustee pursuant to the preceding paragraph, the Indenture Trustee shall promptly notify the Issuer in writing and the Issuer shall assume the defense thereof, including the retention of counsel reasonably satisfactory to the Indenture Trustee to represent the Indenture Trustee in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding upon delivery to the Issuer of demand therefor. In any such proceeding, the Indenture Trustee shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of the Indenture Trustee unless (i) the Issuer has failed to assume the defense thereof, (ii) the Issuer and the Indenture Trustee shall have mutually agreed to the retention of such counsel or (iii) the named parties to any such proceeding (including any impleaded parties) include both the Issuer and the Indenture Trustee and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Issuer shall not, in
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connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for the Indenture Trustee. The Issuer shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Issuer agrees to indemnify the Indenture Trustee from and against any loss or liability by reason of such settlement or judgment. The Issuer shall not, without the prior written consent of the Indenture Trustee, effect any settlement of any pending or threatened proceeding in respect of which Indenture Trustee is or could have been a party and indemnity could have been sought hereunder by the Indenture Trustee, unless such settlement includes an unconditional release of the Indenture Trustee from all liability on claims that are the subject matter of such proceeding.
The Issuers payment obligations to the Indenture Trustee pursuant to this Section shall survive the discharge of this Indenture. When the Indenture Trustee incurs expenses after the occurrence of an Event of Default specified in Sections 5.2(c) or (d) , the expenses are intended to constitute expenses of administration under Title 11 of the United States Code or any other applicable Federal or State bankruptcy, insolvency or similar law.
SECTION 6.8 . Resignation and Removal; Appointment of Successor . No resignation or removal of the Indenture Trustee and no appointment of a successor Indenture Trustee shall become effective until the acceptance of appointment by the successor Indenture Trustee pursuant to this Section. The Indenture Trustee may resign at any time by giving 30 days written notice to the Issuer and the Rating Agencies. The Noteholders of not less than 66 2/3% of the Outstanding Principal Balance of the Notes for all Series may remove the Indenture Trustee by so notifying the Indenture Trustee in writing and may appoint a successor Indenture Trustee. The Issuer will provide the Rating Agencies with notice of any resignation or removal of the Indenture Trustee. The Issuer shall remove the Indenture Trustee if:
(i) the Indenture Trustee fails to comply with Section 6.11 ;
(ii) the Indenture Trustee is adjudged a bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Indenture Trustee or its property; or
(iv) the Indenture Trustee otherwise becomes incapable of acting.
If the Indenture Trustee resigns or is removed or if a vacancy exists in the office of the Indenture Trustee for any reason (the Indenture Trustee in such event being referred to herein as the retiring Indenture Trustee), the Issuer shall promptly appoint a successor the Indenture Trustee.
A successor Indenture Trustee shall deliver a written acceptance of its appointment to the retiring Indenture Trustee and to the Issuer. Thereupon the resignation or removal of the retiring Indenture Trustee shall become effective, and the successor Indenture Trustee shall have all the rights, powers and duties of the Indenture Trustee under this Indenture. The successor Indenture Trustee shall mail a notice of its succession to Noteholders. The retiring Indenture Trustee shall
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promptly transfer all property held by it as the Indenture Trustee to the successor Indenture Trustee.
If a successor Indenture Trustee does not take office within 60 days after the retiring Indenture Trustee resigns or is removed, the retiring Indenture Trustee, the Issuer or the Noteholders of not less than a majority of the Outstanding Principal Balance of the Notes for all Series may petition any court of competent jurisdiction for the appointment of a successor Indenture Trustee.
If the Indenture Trustee fails to comply with Section 6.11 , any Noteholder may petition any court of competent jurisdiction for the removal of the Indenture Trustee and the appointment of a successor Indenture Trustee.
Notwithstanding the replacement of the Indenture Trustee pursuant to this Section, the Issuers obligations under Section 6.7 shall continue for the benefit of the retiring Indenture Trustee. The retiring Indenture Trustee shall have no liability for any act or omission by any successor Indenture Trustee.
SECTION 6.9 . Successor Indenture Trustee by Merger . If the Indenture Trustee consolidates with, merges or converts into, or transfers all or substantially all its corporate trust business or assets to, another corporation or banking association, the resulting, surviving or transferee corporation without any further act shall be the successor Indenture Trustee. The Indenture Trustee shall provide the Issuer and the Rating Agencies prior written notice of any such transaction; provided , that such corporation or banking association shall be otherwise qualified and eligible under Section 6.11 .
In case at the time such successor(s) by merger, conversion or consolidation to the Indenture Trustee shall succeed to the trusts created by this Indenture any of the Notes shall have been authenticated but not delivered, any such successor to the Indenture Trustee may adopt the certificate of authentication of any predecessor trustee, and deliver such Notes so authenticated; and in case at that time any of the Notes shall not have been authenticated, any successor to the Indenture Trustee may authenticate such Notes either in the name of any predecessor trustee hereunder or in the name of the successor to the Indenture Trustee; and in all such cases such certificates of authentication shall have the full force and effect to the same extent given to the certificate of authentication of the Indenture Trustee anywhere in the Notes or in this Indenture.
SECTION 6.10 . Appointment of Co-Trustee or Separate Trustee . (a) Notwithstanding any other provisions of this Indenture, at any time, for the purpose of meeting any legal requirement of any jurisdiction in which any part of the Collateral may at the time be located, the Indenture Trustee shall have the power and may execute and deliver all instruments to appoint one or more Person(s) to act as co-trustee(s), or separate trustee(s) for the benefit of the Noteholders, and to vest in such Person(s), in such capacity, all rights hereunder with respect to the Collateral, or any part thereof, and, subject to the other provisions of this Section , such powers, duties, obligations, rights and trusts as the Indenture 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 6.11 and no notice to Noteholders of the appointment of any co-trustee or separate trustee shall be required under Section 6.8 .
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(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 Indenture Trustee shall be conferred or imposed upon and exercised or performed by the Indenture 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 Indenture Trustee joining in such act), except to the extent that under any law of any jurisdiction in which any particular act(s) are to be performed, the Indenture Trustee shall be incompetent or unqualified to perform such act(s), in which event such rights, powers, duties and obligations (including the holding of rights with respect to the Collateral 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 Indenture Trustee;
(ii) no trustee hereunder shall be personally liable by reason of any act or omission of any other trustee hereunder; and
(iii) the Indenture Trustee may at any time accept the resignation of or remove, in its sole discretion, any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Indenture 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 Indenture and the conditions of this Article VI . 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 Indenture Trustee or separately, as may be provided therein, subject to all the provisions of this Indenture, specifically including every provision of this Indenture relating to the conduct of, affecting the liability of, or affording protection to, the Indenture Trustee. Every such instrument shall be filed with the Indenture Trustee.
(d) Any separate trustee or co-trustee may at any time constitute the Indenture Trustee as its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Indenture 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 Indenture Trustee, to the extent permitted by law, without the appointment of a new or successor trustee.
(e) The Indenture Trustee shall have no obligation to determine whether a co-trustee or separate trustee is legally required in any jurisdiction in which any part of the Collateral may be located.
SECTION 6.11 . Eligibility; Disqualification . The Indenture Trustee shall at all times satisfy the requirements of TIA § 310(a) and Section 26(a)(1) of the Investment Company Act. There shall at all times be an Indenture Trustee hereunder which shall (a) be a corporation
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organized and doing business under the laws of the United States of America, any state thereof or the District of Columbia, authorized under such laws to exercise corporate trust powers; (b) have a combined capital and surplus of at least $50,000,000 as set forth in its most recent published annual report of condition; (c) be subject to supervision or examination by federal or state authority; and (d) at the time of appointment, shall have a long term senior, unsecured debt rating of Baa3 or better by Moodys, if rated by Moodys, and BBB or better by S&P, if rated by S&P (or, if not rated by Moodys or S&P, a comparable rating by another statistical rating agency). The Indenture Trustee shall comply with TIA § 310(b), including the optional provision permitted by the second sentence of TIA § 310(b)(9); provided , however , that there shall be excluded from the operation of TIA § 310(b)(1) any indenture(s) under which other securities of the Issuer are outstanding if the requirements for such exclusion set forth in TIA § 310(b)(1) are met.
If such corporation publishes reports of condition at least annually, pursuant to law or to the requirements of said supervising or examining authority, then for the purposes of this Section , 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. If at any time the Indenture Trustee shall cease to be eligible in accordance with the provisions of this Section , it shall resign immediately in the manner and with the effect hereinafter specified in this Article .
This Indenture shall always have a trustee who satisfies the requirements of Section 310(a)(1) of the TIA. The Indenture Trustee is subject to the provisions of Section 310(b) of the TIA regarding disqualification of a trustee upon acquiring any conflicting interest.
If a default occurs under this Indenture or any Indenture Supplement, and the Indenture Trustee is deemed to have a conflicting interest as a result of acting as trustee for more than one Series or Class of Notes, a successor Indenture Trustee shall be appointed for one or more of such Classes or Series, so that the Indenture Trustee for any one of the affected Classes or Series is different from the Indenture Trustees for the other affected Classes or Series. No such event shall alter the voting rights of the Noteholders of such Classes or Series under this Indenture, any Indenture Supplement or any other Related Document. However, so long as any amounts remain unpaid with respect to any Class of Notes, only the Indenture Trustee for the Noteholders of such Class will have the right to exercise remedies under this Indenture or the applicable Indenture Supplement (but subject to the express provisions of Section 5.3 and to the right of the Noteholders of any subordinate Class within the same Series to receive their share of any proceeds of enforcement). Upon repayment of the Class of Notes with the higher payment priority in full, all rights to exercise remedies under this Indenture will transfer to the Indenture Trustee for the next subordinate Class of Notes within the same Series.
In the case of the appointment hereunder of a successor Indenture Trustee with respect to any Series or Class of Notes, the Issuer, the retiring Indenture Trustee and the successor Indenture Trustee with respect to such Series or Class of Notes shall execute and deliver an indenture supplemental hereto wherein the successor Indenture Trustee shall accept such appointment and which (i) shall contain such provisions as shall be necessary or desirable to transfer and confirm to, and to vest in, the successor Indenture Trustee all the rights, powers, trusts and duties of the retiring Indenture Trustee with respect to the Notes of the Series or Class to which the appointment of such successor Indenture Trustee relates, (ii) if the retiring Indenture
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Trustee is not retiring with respect to all Series or Classes of Notes, shall contain such provisions as shall be deemed necessary or desirable to confirm that all the rights, powers, trusts and duties of the retiring Indenture Trustee with respect to the Notes of each Series or Class as to which the retiring Indenture Trustee is not retiring shall continue to be vested in the retiring Indenture Trustee, and (iii) shall add to or change any of the provisions of this Indenture and the applicable Indenture Supplement as shall be necessary to provide for or facilitate the administration of the trusts hereunder by more than one Indenture Trustee, it being understood that nothing herein or in such supplemental indenture shall constitute such Indenture Trustees co-trustees of the same trust and that each such Indenture Trustee shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts hereunder administered by any other such Indenture Trustee; and upon the execution and delivery of such supplemental indenture the resignation or removal of the retiring Indenture Trustee shall become effective to the extent provided therein.
SECTION 6.12 . Acceptance by Indenture Trustee . The Indenture Trustee hereby acknowledges the grant of a Lien on the Collateral and the receipt of a Lien on the assets constituting the Collateral granted by the Issuer hereunder and declares that the Indenture Trustee, through a custodian, will hold such Lien on the Collateral in trust, for the use and benefit of all Noteholders subject to the terms and provisions hereof.
SECTION 6.13 . Preferential Collection of Claims Against the Issuer . The Indenture Trustee shall comply with TIA § 311(a), excluding any creditor relationship listed in TIA § 311(b). An Indenture Trustee who has resigned or been removed shall be subject to TIA § 311(a) to the extent indicated.
SECTION 6.14 . Reports by Indenture Trustee to Noteholders . To the extent required by the TIA, on or before the date prescribed by applicable law, the Indenture Trustee shall mail to the Noteholders a brief report dated as of such reporting date that complies with TIA Section 313(a), if such a report is required pursuant to TIA Section 313(a). The Indenture Trustee also shall comply with TIA Section 313(b). The Indenture Trustee shall also transmit by mail all reports as required by TIA Section 313(c).
A copy of each such report required under TIA Section 313 shall, at the time of such transmission to Noteholders be filed with the Commission and with each stock exchange or other market system on which the Notes are listed. The Issuer shall notify the Indenture Trustee in writing if the Notes become listed on any stock exchange or market trading system.
SECTION 6.15 . Representations and Warranties . The Indenture Trustee hereby represents that:
(a) the Indenture Trustee is duly organized and validly existing as a banking corporation in good standing under the laws of the State of New York with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted;
(b) the Indenture Trustee has the power and authority to execute and deliver this Indenture and to carry out its terms; and the execution, delivery and performance of this
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Indenture have been duly authorized by the Indenture Trustee by all necessary corporate action;
(c) each of this Indenture and the other Related Documents to which it is a party has been duly executed and delivered by the Indenture Trustee and constitutes its legal, valid and binding obligation in accordance with its terms;
(d) the consummation of the transactions contemplated by this Indenture and the fulfillment of the terms hereof do not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under the articles of organization or bylaws of the Indenture Trustee or any material agreement or other instrument to which the Indenture Trustee is a party or by which it is bound; and
(e) to the best of the Indenture Trustees knowledge, there are no proceedings or investigations pending or threatened before any court, regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Indenture Trustee or its properties: (i) asserting the invalidity of this Indenture, (ii) seeking to prevent the consummation of any of the transactions contemplated by this Indenture or (iii) seeking any determination or ruling that might materially and adversely affect the performance by the Indenture Trustee of its obligations under, or the validity or enforceability of, this Indenture.
SECTION 6.16 . The Paying Agent . The Issuer hereby appoints the Indenture Trustee as the initial Paying Agent. All payments of amounts due and payable with respect to any Notes that are to be made from amounts withdrawn from any Trust Account pursuant to Section 4.2 and the applicable Indenture Supplement shall be made on behalf of the Issuer by the Paying Agent.
The Paying Agent hereby agrees that subject to the provisions of this Section, it shall:
(i) hold any sums held by it for the payment of amounts due with respect to the Notes in trust for the benefit of the Persons entitled thereto until such sums shall be paid to such Persons or otherwise disposed of as herein provided and pay such sums to such Persons as herein provided;
(ii) give the Indenture Trustee prompt notice of any default by the Issuer of which it has actual knowledge in the making of any payment required to be made with respect to the Notes;
(iii) at any time during the continuance of any such default, upon the written request of the Indenture Trustee, forthwith pay to the Indenture Trustee any sums so held in trust by such Paying Agent;
(iv) immediately resign as a Paying Agent and forthwith pay to the Indenture Trustee any sums held by it in trust for the payment of Notes if at any time it ceases to meet the standards required to be met by a Paying Agent; and
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(v) comply with all requirements of the Code and any applicable State law with respect to the withholding from any payments made by it on any Notes of any applicable withholding taxes imposed thereon and with respect to any applicable reporting requirements in connection therewith.
The Issuer shall at any time when necessary or required, for the purpose of obtaining the satisfaction and discharge of this Indenture with respect to all the Notes or for any other purpose, by Issuer Order, cause any Paying Agent other than the Indenture Trustee to pay to the Indenture Trustee any sums held in trust by such Paying Agent with respect to the Notes, such sums to be held by the Indenture Trustee upon the same trusts as those upon which the sums were held by such Paying Agent and, in the case of satisfaction and discharge of the Indenture, applied according to Section 4.1 ; and upon such payment by any Paying Agent to the Indenture Trustee, such Paying Agent shall be released from all further liability with respect to such sums.
Subject to applicable laws with respect to escheat of funds, any amounts held by the Indenture Trustee or any Paying Agent in trust for the payment of any amount due with respect to any Note and remaining unclaimed for two years after such amount has become due and payable shall be discharged from such trust and be paid to the Issuer on Issuer Request; and the related Noteholder shall thereafter, as an unsecured general creditor, look only to the Issuer for payment thereof (but only to the extent of the amounts so paid to the Issuer), and all liability of the Indenture Trustee or such Paying Agent with respect to such trust funds shall thereupon cease; provided , however , that the Indenture Trustee or such Paying Agent, before being required to make any such repayment, shall at the expense and direction of the Issuer cause to be published once, in a newspaper published in the English language, customarily published on each Business Day and of general circulation in The City of New York, notice that such funds remain unclaimed and that, after a date specified therein, which shall not be less than 30 days from the date of such publication, any unclaimed balance of such funds then remaining will be repaid to the Issuer. The Indenture Trustee shall also adopt and employ, at the expense of the Issuer, any other reasonable means of notification of such repayment (including mailing notice of such repayment to Noteholders whose Notes have been called but have not been surrendered for redemption or whose right to or interest in amounts due and payable but not claimed is determinable from the records of the Indenture Trustee or of any Paying Agent, at the last address of record for each such Noteholder).
Each Paying Agent (other than the initial Paying Agent) shall be appointed by Issuer Order with written notice thereof to the Indenture Trustee. Any Paying Agent appointed by the Issuer shall be a Person who would be eligible to be Indenture Trustee hereunder as provided in Section 6.11 . The Issuer shall not appoint any Paying Agent (other than the Indenture Trustee) which is not, at the time of such appointment, a depository institution or trust company, including the Indenture Trustee, that (a) is incorporated under the laws of the United States of America or any State thereof, (b) is subject to supervision and examination by federal or state banking authorities and (c) has outstanding unsecured commercial paper or other short-term unsecured debt obligations that are rated A-1+ by S&P or P-1 by Moodys (or its equivalent).
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ARTICLE VII
NOTEHOLDERS LISTS AND REPORTS
SECTION 7.1 . The Issuer to Furnish the Indenture Trustee Names and Addresses of Noteholders . The Issuer will furnish or cause to be furnished to the Indenture Trustee (a) upon each transfer of a Note, a list, in such form as the Indenture Trustee may reasonably require, of the names, addresses and taxpayer identification numbers of the as of such Record Date, and (b) at such other times, as the Indenture Trustee may request in writing, within 10 days after receipt by the Issuer of any such request, a list of similar form and content as of a date not more than 10 days prior to the time such list is furnished; provided , however , that so long as the Indenture Trustee is the Note Registrar, no such list shall be required to be furnished.
SECTION 7.2 . Preservation of Information; Communications to Noteholders . (a) The Indenture Trustee shall preserve, in as current a form as is reasonably practicable, the names and addresses of the Noteholders contained in the most recent list furnished to the Indenture Trustee as provided in Section 7.1 and the names and addresses of Noteholders received by the Indenture Trustee in its capacity as Note Registrar. The Indenture Trustee may destroy any list furnished to it as provided in Section 7.1 upon receipt of a new list so furnished.
(b) Noteholders may communicate pursuant to TIA § 312(b) with other Noteholders with respect to their rights under this Indenture or under the Notes.
(c) The Issuer, the Indenture Trustee and the Note Registrar shall have the protection of TIA § 312(c).
SECTION 7.3 . Reports by the Issuer .
(a) The Issuer shall:
(i) file with the Indenture Trustee, within fifteen days after the Issuer is required to file the same with the Commission, copies of the annual reports and of the information, documents and other reports (or copies of such portions of any of the foregoing as the Commission may from time to time by rules and regulations prescribe) which the Issuer may be required to file with the Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act;
(ii) file with the Indenture Trustee and the Commission in accordance with rules and regulations prescribed from time to time by the Commission such additional information, documents and reports with respect to compliance by the Issuer with the conditions and covenants of this Indenture as may be required from time to time by such rules and regulations; and
(iii) supply to the Indenture Trustee (and the Indenture Trustee shall transmit by mail to all Noteholders described in TIA §313(c)) such summaries of any information, documents and reports required to be filed by the Issuer pursuant to clauses (i) and (ii) of this Section 7.3(a) as may be required by rules and regulations prescribed from time to time by the Commission.
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(b) Unless the Issuer otherwise determines, the fiscal year of the Issuer shall end on December 31 of each year. The Issuer shall notify the Indenture Trustee in writing of any change in its fiscal year.
(c) Delivery of such reports, information and documents to the Indenture Trustee is for informational purposes only and the Indenture Trustees receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Issuers compliance with any of the covenants hereunder.
SECTION 7.4 . List of Noteholders .
Noteholders of not less than 10% of the Outstanding Principal Balance of any Series of Notes may obtain access to the list of Noteholders the Indenture Trustee maintains for the purpose of communicating with the other Noteholders. The Indenture Trustee may elect not to allow the requesting Noteholders access to the list of Noteholders if the Indenture Trustee agrees to mail the requested communication or proxy, on behalf and at the expense of the requesting Noteholders, to all Noteholders of record.
ARTICLE VIII
ACCOUNTS, DISBURSEMENTS AND RELEASES
SECTION 8.1 . Collection of Amounts Due . Except as otherwise expressly provided herein and in the related Indenture Supplement, the Indenture Trustee may demand payment or delivery of, and shall receive and collect, directly and without intervention or assistance of any fiscal agent or other intermediary, all sums and other property payable to or receivable by the Indenture Trustee pursuant to this Indenture. The Indenture Trustee shall apply all such amounts received by it as provided in this Indenture.
SECTION 8.2 . Trust Accounts . (a) On or prior to the Closing Date for the first Series (in respect of clause (i) and (ii) below) or the Closing Date for the applicable Series (in respect to clause (iii) below), the Issuer covenants to have established and shall thereafter maintain the following accounts (the Trust Accounts ), which accounts shall be Eligible Deposit Accounts:
(i) Collection Account;
(ii) Excess Funding Account; and
(iii) a Series Account for the applicable Series of Notes.
The Issuer shall provide written notice to the Rating Agencies if any Trust Account is not maintained with the Indenture Trustee pursuant to the Custody and Control Agreement.
(b) If any Trust Account is a Securities Account, such Trust Account will be maintained in accordance with the Custody and Control Agreement.
(c) (i) If, at any time, any of the Trust Accounts ceases to be an Eligible Deposit Account, the Issuer shall within 10 Business Days (or such longer period, not to exceed
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30 calendar days, as to which, if any Notes are Outstanding, each Rating Agency may consent) establish a new Trust Account as an Eligible Deposit Account and shall transfer any cash and/or any investments held in the no longer Eligible Deposit Account to such new Trust Account.
(ii) With respect to the Trust Account Property, the Issuer and Indenture Trustee agree, as security for the Issuers obligations under this Indenture, that:
(A) any Trust Account Property that constitutes, or is held through or in, a deposit account shall be, or shall be held through or in, an Eligible Deposit Account continuously identified in the deposit banks books and records as subject to a security interest of the Indenture Trustee and, except as may be expressly provided herein to the contrary, in order to perfect the security interest of the Indenture Trustee in accordance with Section 9-104 of the UCC, the Indenture Trustee shall have the power to direct the disposition of the funds in such deposit account without further consent by the Issuer; provided, however, that prior to the delivery by the Indenture Trustee to the Issuer of notice otherwise, the Issuer shall dispose of the funds in such deposit account in accordance with the terms of the Related Documents; provided further that the Indenture Trustee agrees that it will not deliver such notice or exercise its power to direct the disposition of the funds in such deposit account until an Event of Default has occurred; and
(B) all Permitted Investments and other investments shall be held by the Custodian in accordance with the Custody and Control Agreement and shall be subject to the Indenture Trustees security interest in such Trust Account Property.
(d) Funds on deposit in the Excess Funding Account shall be withdrawn and paid to the Transferor on any day to the extent that the Free Equity Amount exceeds the Minimum Free Equity Amount. On any Transfer Date on which one or more Series is in an Amortization Period, the Issuer shall determine the aggregate amounts of Principal Shortfalls, if any, with respect to each such Series that is a Principal Sharing Series (after giving effect to the allocation and payment provisions in the Indenture Supplement, including the application of Shared Principal Collections, with respect to each such Series), and Issuer shall instruct the Indenture Trustee to withdraw such amount from the Excess Funding Account (up to the lesser of (x) the amount on deposit in the Excess Funding Account after application of the preceding sentence on that day and (y) the amount, if any, by which the Free Equity Amount would be less than zero if there were no funds on deposit in the Excess Funding Account on that day) on such Transfer Date and allocate such amount among each such Series as specified in the related Indenture Supplement.
SECTION 8.3 . Rights of Noteholders . The Collateral shall secure the rights of the Noteholders of each Series to receive the portion of Collections allocable to the Noteholders of such Series pursuant to this Indenture and the related Indenture Supplement, funds and other property credited to the Collection Account (or any subaccount thereof) allocable to the
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Noteholders of such Series pursuant to this Indenture and such Indenture Supplement, funds and other property credited to any related Series Account and funds available pursuant to any related Series Enhancement, it being understood that, except as specifically set forth in the Indenture Supplement with respect thereto, the Notes of any Series or Class shall not be secured by any interest in any Series Account or Series Enhancement pledged for the benefit of any other Series or Class that is Outstanding.
SECTION 8.4 . Collections and Allocations . (a) Issuer shall apply all funds on deposit in the Collection Account as described in this Article VIII and in each Indenture Supplement. Except as otherwise provided below and in each Indenture Supplement, Issuer shall deposit Collections into the Collection Account no later than the second Business Day following the Date of Processing of such Collections. Except as otherwise required by any Indenture Supplement, an Originator may permit or require payments owed by any Retailer with respect to in-store payments to be netted against amounts owed by that Originator to that Retailer, and the Issuer shall deposit into the Collection Account on each Business Day an amount equal to the aggregate amount of in-store payments netted against amounts owed by that Originator to the various Retailers on that Business Day.
Subject to the express terms of any Indenture Supplement, but notwithstanding anything else in this Indenture to the contrary, if (x) for so long as the Servicer (or, so long as the Servicer Guaranty remains in effect, GE Capital) maintains a short term debt rating of, if rated by S&P, A-1 or better by S&P, if rated by Moodys, P-1 or better by Moodys, if rated by Fitch, F-1 or better by Fitch, and, if rated by any other rating agency, the equivalent rating by that rating agency (or such other rating below A-1, P-1, F-1 or such equivalent rating, as the case may be, which is satisfactory to each Rating Agency, if any) and has deposit insurance as required by law and by the FDIC, (y) with respect to Collections allocable to any Series, any other conditions specified in the related Indenture Supplement are satisfied or (z) the Servicer has provided to the Indenture Trustee a letter of credit, surety bond or other similar arrangement covering collection risk of Servicer and in each case acceptable to each Rating Agency (as evidenced by a letter from each Rating Agency to the effect that the Rating Agency Condition has been satisfied), if any, Issuer need not make the daily deposits of Collections into the Collection Account as provided in the preceding paragraph, but may make a single deposit in the Collection Account in immediately available funds not later than 12:00 noon, New York City time, on the related Transfer Date. The Issuer shall promptly notify the Indenture Trustee in writing if the conditions under this paragraph are not met and the Issuer is required to make daily deposits of Collections into the Collection Account.
(b) On each Date of Processing, Collections of Finance Charge Receivables and of Principal Receivables shall be allocated to each Series of Notes in accordance with the related Indenture Supplement. On each Determination Date, Charged-Off Receivables will be allocated to each Series of Notes in accordance with the related Indenture Supplement.
(c) Throughout the existence of the Issuer, unless otherwise stated in any Indenture Supplement, on each Date of Processing, Issuer shall allocate to Transferor an amount equal to the product of (A) the Transferor Percentage and (B) the aggregate amount of Collections allocated to Principal Receivables and Finance Charge
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Receivables, respectively, on that Date of Processing; provided that, if the Free Equity Amount (determined after giving effect to any transfer of Principal Receivables to the Issuer on such date), is less than or equal to the Minimum Free Equity Amount, Issuer shall deposit in the Excess Funding Account an amount equal to the lesser of (i) the amounts that would otherwise be allocated to the Transferor and (ii) the amount by which the Minimum Free Equity Amount exceeds the Free Equity Amount. Unless otherwise stated in any Indenture Supplement, neither the Servicer nor Transferor need deposit any amounts allocated to Transferor pursuant to the foregoing into the Collection Account and shall pay, or be deemed to pay, such amounts as collected to Transferor.
The payments to be made to Transferor, pursuant to this Section 8.4(c) do not include amounts that do not represent Collections, including payment of the purchase price for Transferred Receivables pursuant to the Transfer Agreement, proceeds from the sale, disposition or liquidation of Transferred Receivables pursuant to Section 5.3 or payment of the purchase price for the Notes of a specific Series pursuant to the related Indenture Supplement.
SECTION 8.5 . Shared Principal Collections . On each Transfer Date, (a) Issuer shall allocate Shared Principal Collections not previously so applied or paid to each applicable Principal Sharing Series, pro rata, in proportion to the Principal Shortfalls, if any, with respect to each such Series and (b) Issuer shall withdraw from the Collection Account and pay to Transferor any amounts representing Shared Principal Collections remaining after the allocations and applications referred to in clause (a) ; provided that, if, on any day the Free Equity Amount (determined after giving effect to any transfer of Principal Receivables to the Issuer on such day), is less than or equal to the Minimum Free Equity Amount, Issuer shall not distribute to Transferor any Shared Principal Collections that otherwise would be distributed to Transferor, but shall deposit such funds in the Excess Funding Account to the extent required so that the Free Equity Amount equals the Minimum Free Equity Amount.
SECTION 8.6 . Excess Finance Charge Collections . On each Transfer Date, (a) for each Group, Issuer shall allocate the aggregate amount for all outstanding Series in such Group of the amounts which the related Indenture Supplements specify are to be treated as Excess Finance Charge Collections for such Transfer Date to each Series in such Group, pro rata, in proportion to the Finance Charge Shortfalls, if any, with respect to each such Series, and (b) Issuer shall on the related Payment Date withdraw (or shall instruct the Indenture Trustee in writing to withdraw) from the Collection Account and pay to Transferor an amount equal to the excess, if any, of (x) the aggregate amount for all outstanding Series in a Group of the amounts which the related Indenture Supplements specify are to be treated as Excess Finance Charge Collections for such Payment Date over (y) the aggregate amount for all outstanding Series in such Group which the related Indenture Supplements specify are Finance Charge Shortfalls, for such Payment Date.
SECTION 8.7 . Release of Collateral .
(a) Subject to the payment of its fees and expenses pursuant to Section 6.7 , the Indenture Trustee may, and when required by this Indenture shall, execute instruments to release property from the Lien of this Indenture, or convey the Indenture Trustees interest in the same, in a manner and under circumstances that are not inconsistent with
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this Indenture. No party relying upon an instrument executed by the Indenture Trustee as provided in this Article shall be bound to ascertain the Indenture Trustees authority, inquire into the satisfaction of any conditions precedent or see to the application of any funds.
(b) The Indenture Trustee shall, at such time as there are no Notes outstanding, release and transfer, without recourse, all of the Collateral that secured the Notes (other than any cash held for the payment of the Notes pursuant to Section 4.2) the Indenture Trustee shall release property from the Lien of this Indenture pursuant to this Section 8.7(b) only upon receipt of an Issuer Request requesting such release accompanied by an Officers Certificate and an Opinion of Counsel and (if required by the TIA and the applicable Indenture Supplement) Independent Certificates in accordance with TIA §§314(c) and 314(d)(1) meeting the applicable requirements of Section 10.1 .
SECTION 8.8 . Opinion of Counsel . The Indenture Trustee shall receive at least seven days notice when requested by the Issuer to take any action pursuant to Section 8.7(a) , accompanied by copies of any instruments involved, and the Indenture Trustee shall also require, as a condition to such action, an Opinion of Counsel stating the legal effect of any such action, outlining the steps required to complete the same, and concluding that all conditions precedent to the taking of such action have been complied with and such action will not materially and adversely impair the security for the Notes or the rights of the Noteholders in contravention of this Indenture; provided , however , that such Opinion of Counsel shall not be required to express an opinion as to the fair value of the Collateral. Counsel rendering any such opinion may rely, without independent investigation, on the accuracy and validity of any certificate or other instrument delivered to the Indenture Trustee in connection with any such action.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 . Supplemental Indentures Without Consent of Noteholders . (a) Without the consent of the Noteholders but with prior written notice to each Rating Agency with respect to the Notes of all Series rated by such Rating Agency, if any, the Issuer and the Indenture Trustee, when authorized by an Issuer Order, at any time and from time to time, may enter into one or more indentures supplemental hereto or to any Indenture Supplement (which shall conform to the TIA as in force at the date of the execution thereof), in form satisfactory to the Indenture Trustee, for any of the following purposes:
(i) to correct or amplify the description of any property at any time subject to the Lien of this Indenture, or better to Grant unto the Indenture Trustee a Lien on any property subject or required to be subjected to the Lien of this Indenture, or to subject to the Lien of this Indenture additional property;
(ii) to evidence the succession, in compliance with the applicable provisions hereof, of another Person to the Issuer, and the assumption by any such successor of the covenants of the Issuer herein and in the Notes;
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(iii) to add to the covenants of the Issuer, for the benefit of the Noteholders, or to surrender any right or power herein conferred upon the Issuer; provided such surrender would not have a material adverse effect on the Noteholders;
(iv) to convey, transfer, assign, mortgage or pledge any property to or with the Indenture Trustee for the benefit of the Noteholders;
(v) to cure any ambiguity, to correct or supplement any provision herein or in any supplemental indenture that may be inconsistent with any other provision herein or in any supplemental indenture or to make any other provisions with respect to matters or questions arising under this Indenture or in any supplemental indenture; provided , that such action shall not materially adversely affect the interests of the Noteholders;
(vi) to evidence and provide for the acceptance of the appointment hereunder by a successor or additional trustee with respect to the Notes or any class thereof and to add to or change any of the provisions of this Indenture as shall be necessary to facilitate the administration of the trusts hereunder by more than one trustee, pursuant to the requirements of Article VI ;
(vii) to modify, eliminate or add to the provisions of this Indenture to such extent as shall be necessary to effect the qualification of this Indenture under the TIA or under any similar Federal statute hereafter enacted and to add to this Indenture such other provisions as may be expressly required by the TIA; or
(viii) to provide for the issuance of one or more new Series of Notes, in accordance with the provisions of Section 2.8 .
The Indenture Trustee is hereby authorized to join in the execution of any such supplemental indenture and to make any further appropriate agreements and stipulations that may be therein contained.
(b) The Issuer and the Indenture Trustee may when authorized by an Issuer Request, without the consent of any Noteholders of any Series then Outstanding but upon satisfaction of the Rating Agency Condition with respect to all Notes of all Series, enter into an indenture or indentures supplemental hereto or to any Indenture Supplement for the purpose of adding any provisions to, or changing in any manner or eliminating any of the provisions of, this Indenture or to any Indenture Supplement or modifying in any manner the rights of the Noteholders under this Indenture or under any Indenture Supplement; provided , however that the Issuer shall have delivered to the Indenture Trustee an Officers Certificate, dated the date of any such action, stating that all requirements for such amendments contained in the Agreement have been met, the Issuer reasonably believes that such action will not result in an Adverse Effect and a Tax Opinion. Additionally, notwithstanding the preceding sentence, the Issuer and the Indenture Trustee, when authorized by an Issuer Request, may, without the consent of any Noteholders of any Series then Outstanding, enter into an indenture or indentures
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supplemental hereto to add, modify or eliminate such provisions as may be necessary or advisable in order to enable all or a portion of the Issuer (i) FASIT election to be made with respect to all or part of RFS Funding Trust or the Issuer, (ii) so long as a FASIT election is in effect, all or part of RFS Funding Trust or the Issuer to qualify as a FASIT under the code, (iii) the termination of a FASIT election with respect to all or part of RFS Funding Trust or the Issuer, and (iv) to avoid the imposition of state or local income or franchise taxes imposed on the Issuers property or its income; provided , however , that (i) the Issuer delivers to the Indenture Trustee and the Issuer an Officers Certificate to the effect that the proposed amendments meet the requirements set forth in this Section 10.1(b) , (ii) the Rating Agency Condition will have been satisfied and (iii) such amendment does not affect the rights, duties, protections, indemnities, immunities or obligations of the Indenture Trustee or the Issuer hereunder. The amendments which the Issuer may make without the consent of Noteholders pursuant to this Section 9.1(b) may include the addition of Transferred Receivables.
SECTION 9.2 . Supplemental Indentures With Consent of Noteholders . The Issuer and the Indenture Trustee, when authorized by an Issuer Order, may, with prior written notice to the Rating Agencies, and with the consent of the Noteholders evidencing more than 66 2/3% of the Outstanding Principal Balance of the Notes of each adversely affected Series, by Act of such Noteholders delivered to the Issuer and the Indenture Trustee, enter into an indenture or indentures supplemental hereto or to any Indenture Supplement for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Indenture and the Indenture Supplement related to such affected Series or of modifying in any manner the rights of such Noteholders under this Indenture and such Indenture Supplement; provided , however , that no such supplemental indenture shall, without the consent of the Noteholder of each Outstanding Note affected thereby:
(a) change the due date of any installment of principal of or interest on any Note, or reduce the principal amount thereof, the interest rate specified thereon or the Redemption Price with respect thereto or change any place of payment where, or the coin or currency in which, any Note or any interest thereon is payable;
(b) impair the right to institute suit for the enforcement of the provisions of this Indenture requiring the application of funds available therefor, as provided in Article V, to the payment of any such amount due on or after the respective due dates thereof (or, in the case of redemption, on or after the Redemption Date);
(c) reduce the percentage of the Outstanding Principal Balance of Notes of any Series the consent of the Noteholders of which is required for any such supplemental indenture, or the consent of the Noteholders of which is required for any waiver of compliance with certain provisions of this Indenture or certain defaults hereunder and their consequences provided for in this Indenture;
(d) reduce the percentage of the Outstanding Principal Balance of Notes of any Series, the consent of the Noteholders of which is required to direct the Indenture Trustee to direct the Issuer to sell the Collateral or any portion thereof if the proceeds of such sale
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would be insufficient to pay the principal amount and accrued but unpaid interest on the Outstanding Notes of such Series;
(e) decrease the percentage of the Outstanding Principal Balance of Notes required to amend the sections of this Indenture which specify the applicable percentage of the Outstanding Principal Balance of Notes of any Series necessary to amend the Indenture or any Related Documents which require such consent;
(f) modify or alter the provisions of this Indenture prohibiting the voting of Notes held by the Issuer, any other obligor on the Notes, a Transferor or any affiliate thereof; or
(g) permit the creation of any Lien ranking prior to or on a parity with the Lien of this Indenture with respect to any part of the Collateral for any Notes or, except as otherwise permitted or contemplated herein, terminate the Lien of this Indenture on any such Collateral at any time subject hereto or deprive the Noteholders of the security provided by the Lien of this Indenture.
The Indenture Trustee may in its discretion determine whether or not any Notes would be affected by any supplemental indenture and any such determination shall be conclusive upon the Noteholders, whether theretofore or thereafter authenticated and delivered hereunder. The Indenture Trustee shall not be liable for any such determination made in good faith.
Satisfaction of the Rating Agency Condition shall not be required with respect to the execution of any supplemental indenture pursuant to this Section for which the consent of all of the affected Noteholders is required; provided that prior notice of any such supplemental indenture shall be given to each Rating Agency.
It shall not be necessary for any Act of the Noteholders under this Section to approve the particular form of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the substance thereof. The manner of obtaining such consents (and any other consents of Noteholders provided for in this Indenture or in any other Related Document) and of evidencing the authorization of the execution thereof by Noteholders shall be subject to such reasonable requirements as the Indenture Trustee may provide.
Promptly after the execution by the Issuer and the Indenture Trustee of any supplemental indenture pursuant to this Section, the Indenture Trustee shall mail to the Noteholders to which such amendment or supplemental indenture relates a notice setting forth in general terms the substance of such supplemental indenture. Any failure of the Indenture Trustee to mail such notice, or any defect therein, shall not, however, in any way impair or affect the validity of any such supplemental indenture.
SECTION 9.3 . Execution of Supplemental Indentures . In executing, or permitting the additional trusts created by, any supplemental indenture permitted by this Article IX or the modifications thereby of the trusts created by this Indenture, the Indenture Trustee shall be entitled to receive, and, subject to Sections 6.1 and 6.2 , shall be fully protected in relying upon, in addition to the documents required by Section 10.1 , an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or permitted by this Indenture. The Indenture Trustee may, but shall not be obligated to, enter into any such supplemental indenture
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that affects the Indenture Trustees own rights, duties, liabilities or immunities under this Indenture or otherwise.
SECTION 9.4 . Effect of Supplemental Indenture . Upon the execution of any supplemental indenture pursuant to the provisions hereof, this Indenture shall be and be deemed to be modified and amended in accordance therewith, and such supplemental indenture shall form a part of the terms and conditions of this Indenture for any and all purposes and every Noteholder, theretofore or thereafter authenticated and delivered hereunder shall be bound thereby. This Section does not apply to Indenture Supplements.
SECTION 9.5 . Reference in Notes to Supplemental Indentures . Notes authenticated and delivered after the execution of any supplemental indenture pursuant to this Article may, and if required by the Indenture Trustee shall, bear a notation in form approved by the Indenture Trustee as to any matter provided for in such supplemental indenture. If the Issuer or the Indenture Trustee shall so determine, new Notes so modified as to conform, in the opinion of the Indenture Trustee and the Issuer, to any such supplemental indenture may be prepared and executed by the Issuer and authenticated and delivered by the Indenture Trustee in exchange for Outstanding Notes.
SECTION 9.6 . Conformity with Trust Indenture Act . Every amendment of this Indenture and every supplemental indenture executed pursuant to this Article shall conform to the requirements of the TIA as then in effect so long as this Indenture shall then be qualified under the TIA.
ARTICLE X
MISCELLANEOUS
SECTION 10.1 . Compliance Certificates and Opinions, etc . (a) Upon any written application or request (or oral application with prompt written or facsimiled confirmation) by the Issuer to the Indenture Trustee to take any action under this Indenture, other than any request that (i) the Indenture Trustee authenticate the Notes specified in such request, or (ii) the Indenture Trustee pay amounts due and payable to the Issuer hereunder to the Issuers assignee specified in such request, the Issuer shall furnish to the Indenture Trustee: (A) an Officers Certificate stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed action have been complied with, (B) an Opinion of Counsel stating that in the opinion of such counsel all such conditions precedent, if any, have been complied with and (C) if required by the TIA and the applicable Indenture Supplement, an Independent Certificate from a firm of certified public accountants meeting the applicable requirements of this Section, except that, in the case of any such application or request as to which the furnishing of such documents is specifically required by this Indenture, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that each signatory of such certificate or opinion has read or has caused to be read such covenant or condition and the definitions herein relating thereto;
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(2) a brief statement as to the nature and scope of the examination or investigation upon which the statements or opinions contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such signatory, such signatory has made (or has caused to be made) such examination or investigation as is necessary to enable such signatory to express an informed opinion as to whether or not such covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such signatory, such condition or covenant has been complied with.
(b) (i) Prior to the deposit of any Collateral or other property or securities with the Indenture Trustee that is to be made the basis for the release of any property or securities subject to the Lien of this Indenture, the Issuer shall, in addition to any obligation imposed in Section 10.1(a) or elsewhere in this Indenture, furnish to the Indenture Trustee an Officers Certificate certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such deposit) to the Issuer of such Collateral or other property or securities to be so deposited.
(ii) Whenever the Issuer is required to furnish to the Indenture Trustee an Officers Certificate described in clause (i) , the Issuer shall also deliver to the Indenture Trustee an Independent Certificate as to the same matters if the fair value to the Issuer of such Collateral or other property or securities to be so deposited and of all other Collateral or other property or securities released from the Lien of this Indenture since the commencement of the then-current fiscal year of the Issuer, as set forth in the certificates required by clause (i) and this clause (ii) , equals 10% or more of the Outstanding Principal Balance of the Notes, but such certificate need not be furnished with respect to any Collateral or other property or securities so deposited if the fair value thereof to the Issuer as set forth in the related Officers Certificate is less than $25,000 or less than one percent of the then Outstanding Principal Balance of the Notes.
(iii) Other than with respect to the release of any Charged-Off Receivables and Receivables in Removed Accounts, whenever any property or investment property is to be released from the Lien of this Indenture, the Issuer shall also furnish to the Indenture Trustee an Officers Certificate certifying or stating the opinion of each person signing such certificate as to the fair value (within 90 days of such release) of the property or securities proposed to be released and stating that in the opinion of such person the proposed release will not impair the security under this Indenture in contravention of the provisions hereof.
(iv) Whenever the Issuer is required to furnish to the Indenture Trustee an Officers Certificate described in clause (iii) , the Issuer shall also deliver to the Indenture Trustee an Independent Certificate as to the same matters if the fair value to the Issuer of the Collateral or other property or securities and of all other such Collateral or other property, other than Charged-Off Receivables and
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Transferred Receivables in Removed Accounts, or securities released from the lien of this Indenture since the commencement of the then current calendar year, as set forth in the certificates required by clause (iii) and this clause (iv) , equals 10% or more of the Outstanding Principal Balance of the Notes, but such certificate need not be furnished in the case of any release of Collateral or other property or securities if the fair value thereof to the Issuer as set forth in the related Officers Certificate is less than $25,000 or less than one percent of the then Outstanding Principal Balance of the Notes.
(v) Notwithstanding any other provision of this Section, the Issuer may (A) collect, liquidate, sell or otherwise dispose of Transferred Receivables as and to the extent permitted or required by the Related Documents and (B) make cash payments out of the Series Accounts as and to the extent permitted or required by the Related Documents.
SECTION 10.2 . Form of Documents Delivered to the Indenture Trustee . In any case where several matters are required to be certified by, or covered by an opinion of, any specified Person, it is not necessary that all such matters be certified by, or covered by the opinion of, only one such Person, or that they be so certified or covered by only one document, but one such Person may certify or give an opinion with respect to some matters and one or more other such Persons as to other matters, and any such Person may certify or give an opinion as to such matters in one or several documents.
Any certificate or opinion of an Authorized Officer of the Issuer may be based, insofar as it relates to legal matters, upon a certificate or opinion of, or representations by, counsel, unless such officer knows, or in the exercise of reasonable care should know, that the certificate, opinion or representations with respect to the matters upon which his certificate or opinion is based is/are erroneous. Any such certificate of an Authorized Officer or Opinion of Counsel may be based, insofar as it relates to factual matters, upon a certificate or opinion of, or representations by, an officer or officers of any Originator, the Servicer, the Transferor, the Issuer, stating that the information with respect to such factual matters is in the possession of any Originator, the Servicer, the Transferor, the Issuer, as applicable, unless such Authorized Officer or counsel knows, or in the exercise of reasonable care should know, that the certificate, opinion or representations with respect to such matters is/are erroneous. Any Opinion of Counsel may be based on the written opinion of other counsel, in which event such Opinion of Counsel shall be accompanied by a copy of such other counsels opinion and shall include a statement to the effect that such counsel believes that such counsel and the Indenture Trustee may reasonably rely upon the opinion of such other counsel.
Where any Person is required or permitted to make, give or execute two or more applications, requests, consents, certificates, statements, opinions or other instruments under this Indenture, they may, but need not, be consolidated and form one instrument.
Whenever in this Indenture, in connection with any application, certificate or report to the Indenture Trustee, it is provided that the Issuer shall deliver any document as a condition of the granting of such application, or as evidence of the Issuers compliance with any term hereof, it is intended that the truth and accuracy, at the time of the granting of such application or at the
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effective date of such certificate or report (as the case may be), of the facts and opinions stated in such document shall in such case be conditions precedent to the right of the Issuer to have such application granted or to the sufficiency of such certificate or report. The foregoing shall not, however, be construed to affect the Indenture Trustees right to rely upon the truth and accuracy of any statement or opinion contained in any such document as provided in Article VI .
SECTION 10.3 . Acts of Noteholders . (a) Any request, demand, authorization, direction, notice, consent, waiver or other action provided by this Indenture to be given or taken by Noteholders may be embodied in and evidenced by one or more instrument(s) of substantially similar tenor signed by such Noteholders in person or by agents duly appointed in writing; and except as herein otherwise expressly provided, such action shall become effective when such instrument(s) are delivered to the Indenture Trustee, and, where it is hereby expressly required, to the Issuer. Such instrument(s) (and the action embodied therein and evidenced thereby) are herein sometimes referred to as the Act of the Noteholders signing such instrument(s). Proof of execution of any such instrument or of a writing appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to Section 6.1 ) conclusive in favor of the Indenture Trustee and the Issuer, if made in the manner provided in this Section. At any time the Notes of any Class are maintained on Book-Entry Notes, any reference in this Indenture to an Act of Noteholders or a Noteholder or Noteholders representing a specified portion of the Outstanding Principal Balance of the Notes or such Class of Notes shall be deemed to refer to an Act of Note Owners or a Note Owner or Note Owners holding such specified portion of the Outstanding Principal Balance of the Notes or Class, as the case may be.
(b) The fact and date of the execution by any Person of any such instrument or writing may be proved by the affidavit of a witness of such execution or by a certificate of a notary public or other officer authorized by law to take acknowledgments of deeds, certifying that the individual signing such instrument or writing acknowledged to him the execution thereof. Where such execution is by a signer acting in a capacity other than his individual capacity, such certificate or affidavit shall also constitute sufficient proof of his authority. The fact and date of the execution of any such instrument or writing, or the authority of the Person executing the same, may also be proved in any other manner which the Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver or Act by the Noteholder shall bind every Noteholder issued upon the registration of the related Note, in exchange therefor or in lieu thereof, in respect of anything done, omitted or suffered to be done by the Indenture Trustee or the Issuer in reliance thereon, whether or not notation of such action is made upon such Note.
(e) By accepting the Notes issued pursuant to this Indenture, each Noteholder irrevocably appoints the Indenture Trustee hereunder as the special attorney-in-fact for such Noteholder vested with full power on behalf of such Noteholder to effect and enforce the rights of such Noteholder and the revisions pursuant hereto for the benefit of such Noteholder; provided that nothing contained in this Section shall be deemed to confer upon the Indenture Trustee any duty or power to vote on behalf of the Noteholders
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with respect to any matter on which the Noteholders have a right to vote pursuant to the terms of this Indenture.
SECTION 10.4 . Notices, etc., to the Indenture Trustee, the Issuer and Rating Agencies . Any request, demand, authorization, direction, notice, consent, waiver or Act of Noteholders, or other documents provided or permitted by this Indenture, shall be in writing and, if such request, demand, authorization, direction, notice, consent, waiver or Act of Noteholders is to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by any Noteholder or by the Issuer, shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Indenture Trustee and received at its Corporate Trust Office, or
(b) the Issuer by the Indenture Trustee or by any Noteholder, shall be sufficient for every purpose hereunder if in writing and mailed, first-class, postage prepaid, to the Issuer addressed to: GE Capital Credit Card Master Note Trust, in care of General Electric Capital Corporation, 1600 Summer Street, Stamford, 4 th Floor, CT 06927, Attention: Portfolio Manager, or at any other address previously furnished in writing to the Indenture Trustee by the Issuer. The Issuer shall promptly transmit any notice received by it from the Noteholders to the Indenture Trustee.
Notices, if any, required to be given to the Rating Agencies by the Issuer, the Indenture Trustee or the Trustee shall be in writing, personally delivered or mailed by certified mail, return receipt requested, to their respective addresses set forth in the applicable Indenture Supplement.
SECTION 10.5 . Notices to Noteholders; Waiver . Where this Indenture provides for notice to Noteholders of any event or the mailing of any report to Noteholders, such notice shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed, first-class, postage prepaid or certified mail return receipt requested, or sent by private courier or confirmed telecopy to each Noteholder affected by such event or to whom such report is required to be mailed, at its address as it appears on the Note Register, not later than the latest date, and not earlier than the earliest date, prescribed for the giving of such notice or the mailing of such report. In any case where notice or report to Noteholders is given by mail, neither the failure to mail such notice or report nor any defect in any notice or report so mailed to any particular Noteholder shall affect the sufficiency of such notice or report with respect to other Noteholders, and any notice that is mailed in the manner herein provided shall conclusively be presumed to have been duly given.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by any Person entitled to receive such notice, either before or after the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Noteholders shall be filed with the Indenture Trustee but such filing shall not be a condition precedent to the validity of any action taken in reliance upon such a waiver.
In case by reason of the suspension of regular mail service or by reason of any other cause it shall be impracticable to mail or send notice to Noteholders, in accordance with this Section, of any event or any report to Noteholders when such notice or report is required to be
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delivered pursuant to any provision of this Indenture, then such notification or delivery as shall be made with the approval of the Indenture Trustee shall constitute a sufficient notification for every purpose hereunder.
Where this Indenture provides for notice to the Rating Agencies, failure to give such notice shall not affect any other rights or obligations created hereunder, and shall not under any circumstance constitute an Event of Default.
SECTION 10.6 . Alternate Payment and Notice Provisions . Notwithstanding any provision of this Indenture or any of the Notes to the contrary, the Issuer will, upon reasonable request of any Noteholder, enter into any agreement with such Noteholder providing for a method of payment, or notice by the Indenture Trustee or any Paying Agent to such Noteholder, that is different from the methods provided for in this Indenture or the Notes for such payments or notices, unless such agreement or the effects thereof could cause economic or administrative burden on the Issuer or is unlawful; provided, however, that any such agreement that imposes any duties or obligations on the Indenture Trustee (including in its capacity as Paying Agent) shall be subject to the prior written consent of the Indenture Trustee. The Issuer will furnish to the Indenture Trustee a copy of each such agreement and the Indenture Trustee will cause payments to be made and notices to be given in accordance with such agreements.
SECTION 10.7 . Successors and Assigns . All covenants and agreements in this Indenture and the Notes by the Issuer shall bind its successors and assigns, whether so expressed or not. All agreements of the Indenture Trustee in this Indenture shall bind its successors, co-trustees and agents of the Indenture Trustee, whether so expressed or not.
SECTION 10.8 . Severability . Any provision of this Indenture or the Notes that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or of the Notes, as applicable, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 10.9 . Benefits of Indenture . Nothing in this Indenture or in the Notes, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder, the Noteholders, any other party secured hereunder and any other Person with an ownership interest in any part of the Collateral, any benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 10.10 . Legal Holidays . In any case where the date on which any payment is due shall not be a Business Day, then (notwithstanding any other provision of the Notes or this Indenture) payment need not be made on such date, but may be made on the next Business Day with the same force and effect as if made on the date on which nominally due, and no interest shall accrue with respect to such payment for the period from and after any such nominal date.
SECTION 10.11 . Governing Law . (a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
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THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. TO THE EXTENT PROVIDED IN ANY APPLICABLE INDENTURE SUPPLEMENT, THIS INDENTURE IS SUBJECT TO THE TRUST INDENTURE ACT OF 1939, AS AMENDED, AND SHALL BE GOVERNED THEREBY AND CONSTRUED IN ACCORDANCE THEREWITH.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED , THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED , FURTHER , THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE INDENTURE TRUSTEE FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE NOTES, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE INDENTURE TRUSTEE. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 10.4 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTYS ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
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(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 10.12 . Counterparts . This Indenture may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Executed counterparts may be delivered electronically.
SECTION 10.13 . The Issuer Obligation . No recourse may be taken, directly or indirectly, with respect to the obligations of the Issuer on the Notes or under this Indenture or any certificate or other writing delivered in connection herewith or therewith, against (i) the Indenture Trustee or the Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Issuer or (iii) any partner, owner, beneficiary, agent, officer, director, employee or agent of the Indenture Trustee or the Trustee in its individual capacity, any holder of a beneficial interest in the Issuer, the Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity.
SECTION 10.14 . Communication by Noteholders with Other Noteholders . Subject to Section 7.2(b) , Noteholders may communicate, pursuant to TIA Section 312(b), with other Noteholders with respect to their rights under this Indenture or the Notes. The Issuer, the Indenture Trustee, the Note Registrar and all other parties shall have the protection of TIA Section 312(c).
SECTION 10.15 . Agents of the Issuer . The Indenture Trustee hereby acknowledges that it has been advised that any agent of the Issuer may act on behalf of the Issuer hereunder for purposes of all consents, amendments, waivers and other actions permitted or required to be taken, delivered or performed by the Issuer, and the Indenture Trustee agrees that any such action taken by an agent on behalf of the Issuer shall satisfy the Issuers obligations hereunder.
SECTION 10.16 . Survival of Representations and Warranties . The representations, warranties and certifications of the Issuer made in this Indenture or in any certificate or other writing delivered by the Issuer pursuant hereto shall survive the authentication and delivery of the Notes hereunder.
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SECTION 10.17 . Conflict with Trust Indenture Act . If any provision hereof limits, qualifies or conflicts with another provision hereof that is required to be included in this Indenture by the TIA, such required provision shall control.
The provisions of TIA §§ 310 through 317 that impose duties on any Person (including the provisions automatically deemed included herein unless expressly excluded by this Indenture) are a part of and govern this Indenture, whether or not physically contained herein.
SECTION 10.18 . Subordination . The Issuer and each Noteholder by accepting a Note acknowledge and agree that such Note represents indebtedness of the Issuer and does not represent an interest in any assets (other than the Trust Estate) of Transferor (including by virtue of any deficiency claim in respect of obligations not paid or otherwise satisfied from the Trust Estate and proceeds thereof). In furtherance of and not in derogation of the foregoing, to the extent Transferor enters into other securitization transactions, the Issuer as well as each Noteholder by accepting a Note acknowledge and agree that it shall have no right, title or interest in or to any assets (or interest therein) (other than Trust Estate) conveyed or purported to be conveyed by Transferor to another securitization trust or other Person or Persons in connection therewith (whether by way of a sale, capital contribution or by virtue of the granting of a lien) ( Other Assets ). To the extent that, notwithstanding the agreements and provisions contained in the preceding sentences of this subsection, the Issuer or any Noteholder either (i) asserts an interest or claim to, or benefit from, Other Assets, whether asserted against or through Transferor or any other Person owned by Transferor, or (ii) is deemed to have any such interest, claim or benefit in or from Other Assets, whether by operation of law, legal process, pursuant to applicable provisions of insolvency laws or otherwise (including by virtue of Section 1111(b) of the Bankruptcy Code or any successor provision having similar effect under the Bankruptcy Code), and whether deemed asserted against or through Transferor or any other Person owned by Transferor, then the Issuer and each Noteholder by accepting a Note further acknowledges and agrees that any such interest, claim or benefit in or from Other Assets is and shall be expressly subordinated to the indefeasible payment in full of all obligations and liabilities of Transferor which, under the terms of the relevant documents relating to the securitization of such Other Assets, are entitled to be paid from, entitled to the benefits of, or otherwise secured by such Other Assets (whether or not any such entitlement or security interest is legally perfected or otherwise entitled to a priority of distribution or application under applicable law, including insolvency laws, and whether asserted against Transferor or any other Person owned by Transferor), including, the payment of post-petition interest on such other obligations and liabilities. This subordination agreement shall be deemed a subordination agreement within the meaning of Section 510(a) of the Bankruptcy Code. Each Noteholder further acknowledges and agrees that no adequate remedy at law exists for a breach of this Section and the terms of this Section may be enforced by an action for specific performance.
SECTION 10.19 . Limitation of Liability of the Trustee . Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by The Bank of New York (Delaware), not in its individual capacity but solely in its capacity as Trustee of the Issuer, and in no event shall The Bank of New York (Delaware), in its individual capacity, or any beneficial owner of the Issuer have any liability for the representations, warranties, covenants, agreements or other obligations of the Issuer hereunder, as to all of which recourse shall be had solely to the assets of the Issuer. For all purposes of this Agreement, in the performance of any
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duties or obligations of the Issuer thereunder, the Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Article VII of the Trust Agreement.
SECTION 10.20 . Instructions to Indenture Trustee . The Issuer hereby instructs the Indenture Trustee to execute and deliver the Intercreditor Agreement and the Indenture Security Agreement.
[Signatures Follow]
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IN WITNESS WHEREOF , the parties hereto have caused this Indenture to be duly executed by their respective officers duly authorized as of the day and year first above written.
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GE CAPITAL CREDIT CARD MASTER NOTE TRUST |
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By: The Bank of New York (Delaware), not in its individual capacity, but solely on behalf of the Issuer |
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Name: Michael Santino |
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Title: Senior Vice President |
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DEUTSCHE BANK TRUST COMPANY AMERICAS, not in its individual capacity, but solely as Indenture Trustee |
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/s/ Susan Barstock |
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Susan Barstock |
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Vice President |
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S-1
EXHIBIT A
to Indenture
FORM OF SECTION 3.9 OFFICERS CERTIFICATE
[ , ]
Pursuant to Section 3.9 of the Indenture, dated as of September 25, 2003 (the Indenture ), between GE Capital Credit Card Master Note Trust (the Issuer ) and Deutsche Bank Trust Company Americas, as Indenture Trustee, the undersigned hereby certify that:
(a) a review of the activities of the Issuer during the previous fiscal year and of performance under the Indenture has been made under the supervision of the undersigned; and
(b) to the best knowledge of the undersigned, based on such review, the Issuer has complied with all conditions and covenants under the Indenture throughout such year or, if there has been a default in the compliance of any such condition or covenant, this certificate is to specify each such default known to the undersigned and the nature and status thereof.
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GENERAL ELECTRIC CAPITAL CORPORATION |
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A-1
Perfection Representations and Warranties
(b) In addition to the representations, warranties and covenants contained in the Indenture, the Issuer hereby represents, warrants and covenants to the Indenture Trustee as follows as of the Initial Closing Date:
(i) The Indenture creates a valid and continuing security interest (as defined in the applicable UCC) in the Note Trust Certificate in favor of the Indenture Trustee, which security interest is prior to all other Liens (other than Permitted Liens), and is enforceable as such against creditors of and purchasers from the Issuer.
(ii) The Note Trust Certificate constitutes an instrument, a general intangible or a certificated security within the meaning of the applicable Uniform Commercial Code.
(iii) The Issuer owns and has good and marketable title to the Note Trust Certificate free and clear of any Lien, claim or encumbrance of any Person (other than Permitted Liens)
(iv) There are no consents or approvals required by the terms of the Note Trust Certificate for the pledge of the Note Trust Certificate to the Indenture Trustee pursuant to the Indenture.
(v) The Issuer has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest granted to the Indenture Trustee under the Indenture in the Note Trust Certificate.
(vi) There is only one executed copy of the Note Trust Certificate and such copy has been delivered to the Indenture Trustee. The Note Trust Certificate is registered in the name of the Indenture Trustee, upon original issue or registration of transfer by the Issuer. The Note Trust Certificate does not have any marks or notations upon it indicating that it has been pledged, assigned or otherwise conveyed to any Person other than the Indenture Trustee.
(vii) Other than the pledge of the Note Trust Certificate to the Indenture Trustee pursuant to the Indenture, the Issuer has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed the Note Trust Certificate. The Issuer has not authorized the filing of and is not aware of any financing statements against the Issuer that include a description of collateral covering the Note Trust Certificate, except for the financing statement filed pursuant to the Indenture. The Issuer is not aware of any judgment or tax lien filings against the Issuer.
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(viii) The Note Trust Certificate does not have any marks or notations indicating that it has been pledged, assigned or otherwise conveyed to any Person other than the Indenture Trustee.
(ix) Notwithstanding any other provision of the Indenture, the representations and warranties set forth in this Schedule 1 shall be continuing, and remain in full force and effect, until such time as the Note Trust Certificate is retired.
(b) The Indenture Trustee covenants that it shall not, without satisfying the Rating Agency Condition, waive a breach of any representation or warranty set forth in this Schedule 1 .
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Exhibit 4.2
GE CAPITAL CREDIT CARD MASTER NOTE TRUST,
as Issuer
And
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Indenture Trustee
Series [200 - ] INDENTURE SUPPLEMENT
Dated as of [ , ]
TABLE OF CONTENTS
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EXHIBITS |
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FORM OF MONTHLY PAYMENT INSTRUCTIONS AND NOTIFICATION OF THE INDENTURE TRUSTEE |
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[EXHIBIT E-1 |
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FORM OF CLASS A SWAP] |
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[EXHIBIT E-2 |
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FORM OF CLASS B SWAP] |
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[EXHIBIT E-3 |
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FORM OF CLASS C SWAP] |
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SERIES [200 - ] INDENTURE SUPPLEMENT, dated as of [ , 200 ] (the Indenture Supplement ), between GE CAPITAL CREDIT CARD MASTER NOTE TRUST, a Delaware statutory trust (herein, the Issuer or the Trust ), and DEUTSCHE BANK TRUST COMPANY AMERICAS, a New York banking corporation, not in its individual capacity, but solely as indenture trustee (herein, together with its successors in the trusts thereunder as provided in the Master Indenture referred to below, the Indenture Trustee ) under the Master Indenture, dated as of September 25, 2003 (the Indenture ), between the Issuer and the Indenture Trustee, as amended by the Omnibus Amendment No. 1 to Securitization Documents, dated as of February 9, 2004, among RFS Holding, L.L.C., RFS Funding Trust, the Issuer, Deutsche Bank Trust Company Delaware, as trustee of RFS Funding Trust, RFS Holding, Inc., and the Indenture Trustee (the " Indenture ", together with this Indenture Supplement, the Agreement ).
The Principal Terms of this Series are set forth in this Indenture Supplement to the Indenture.
Definitions
SECTION 1.1 . Definitions .
(a) Capitalized terms used and not otherwise defined herein are used as defined in Section 1.1 of the Indenture. This Indenture Supplement shall be interpreted in accordance with the conventions set forth in Section 1.2 of the Indenture .
(b) Each capitalized term defined herein relates only to Series [200 - ] and to no other Series. Whenever used in this Indenture Supplement, the following words and phrases shall have the following meanings:
Accumulation Shortfall means (a) for the first Payment Date during the Controlled Accumulation Period, zero; and (b) thereafter, for any Payment Date during the Controlled Accumulation Period, the excess, if any, of the Controlled Deposit Amount for the previous Payment Date over the amount deposited into the Principal Accumulation Account pursuant to Section 4.4(c)(i) for the previous Payment Date.
Addition Date means (a) prior to the RFS Funding Trust Termination Date, an Addition Date as such term is defined in the Trust Receivables Purchase Agreement and (b) on or after the RFS Funding Trust Termination Date, an Addition Date as such term is defined in the Transfer Agreement.
Additional Interest means, for any Payment Date, Class A Additional Interest, Class B Additional Interest and Class C Additional Interest for such Payment Date.
Administration Agreement means the Administration Agreement, dated as of September 25, 2003, between the Administrator and the Issuer.
Administrator means General Electric Capital Corporation, in its capacity as Administrator under the Administration Agreement or any other Person designated as an Administrator under the Administration Agreement.
Agreement is defined in the preamble.
Allocation Percentage means, with respect to any Monthly Period, the percentage equivalent of a fraction:
(a) the numerator of which shall be equal to:
(i) for Principal Collections during the Revolving Period and for Finance Charge Collections and Default Amounts at any time, the Collateral Amount at the end of the last day of the prior Monthly Period (or, in the case of the first Monthly Period, on the Closing Date); or
(ii) for Principal Collections during the Early Amortization Period and the Controlled Accumulation Period, the Collateral Amount at the end of the last day of the Revolving Period; and
(b) the denominator of which shall be the greater of (x) the Aggregate Principal Receivables determined as of the close of business on the last day of the prior Monthly Period (or, in the case of the first Monthly Period, on the Closing Date) and (y) the sum of the numerators used to calculate the allocation percentages for allocations with respect to Finance Charge Collections, Principal Collections or Default Amounts, as applicable, for all outstanding Series on such date of determination; provided that if one or more Reset Dates occur in a Monthly Period, the denominator determined pursuant to clause (x) of this clause (b) shall be (A) the Aggregate Principal Receivables as of the close of business on the last day of the prior Monthly Period for the period from and including the first day of the current Monthly Period, to but excluding such Reset Date and (B) the Aggregate Principal Receivables as of the close of business on such Reset Date, for the period from and including such Reset Date to the earlier of the last day of such Monthly Period (in which case such period shall include such day) or the next succeeding Reset Date (in which case such period shall not include such succeeding Reset Date); and provided , further , that notwithstanding the preceding proviso, if a Reset Date occurs during any Monthly Period and the Issuer is permitted to make a single monthly deposit to the Collection Account pursuant to Section 8.4 of the Indenture for such Monthly Period, then the denominator determined pursuant to clause (x) of this clause (b) for each day during such Monthly Period shall equal the Average Principal Balance for such Monthly Period.
Available Finance Charge Collections means, for any Monthly Period, an amount equal to the sum of (a) the Investor Finance Charge Collections for such Monthly Period, (b) the Series [200 - ] Excess Finance Charge Collections for such Monthly Period, (c) Principal Accumulation Investment Proceeds, if any, with respect to the related Transfer Date, (d) interest and earnings on funds on deposit in the Reserve Account which will be deposited into the Finance Charge Account on the related Transfer Date to be treated as Available Finance Charge Collections pursuant to Section 4.10(a) , (e) amounts, if any, to be withdrawn from the Reserve Account which will be deposited into the Finance Charge Account on the related Transfer Date to be treated as Available Finance Charge Collections pursuant to Section 4.10(c) , and [(f) any Net Swap Receipts for the related Transfer Date].
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Available Principal Collections means, for any Monthly Period, an amount equal to the sum of (a) the Investor Principal Collections for such Monthly Period, minus (b) the amount of Reallocated Principal Collections with respect to such Monthly Period which pursuant to Section 4.7 are required to be applied on the related Payment Date, plus (c) the sum of (i) any Shared Principal Collections with respect to other Principal Sharing Series (including any amounts on deposit in the Excess Funding Account that are allocated to Series [200 - ] for application as Shared Principal Collections), (ii) the aggregate amount to be treated as Available Principal Collections pursuant to Sections 4.4(a)(vi) and (vii) , and (iii) during an Early Amortization Event, the amount of Available Finance Charge Collections used to pay principal on the Notes pursuant to Section 4.4(a)(xii) for the related Payment Date.
Available Reserve Account Amount means, for any Transfer Date, the lesser of (a) the amount on deposit in the Reserve Account (after taking into account any interest and earnings retained in the Reserve Account pursuant to Section 4.10(b) on such date, but before giving effect to any deposit made or to be made pursuant to Section 4.4(a)(viii) to the Reserve Account on such date) and (b) the Required Reserve Account Amount.
Available Spread Account Amount means, for any Transfer Date, an amount equal to the lesser of (a) the amount on deposit in the Spread Account (exclusive of Investment Earnings on such date and before giving effect to any deposit to, or withdrawal from, the Spread Account made or to be made with respect to such date) and (b) the Required Spread Account Amount, in each case on such Transfer Date.
Average Principal Balance means for any Monthly Period in which a Reset Date occurs, the sum of (i) the Aggregate Principal Receivables determined as of the close of business on the last day of the prior Monthly Period, multiplied by a fraction the numerator of which is the number of days from and including the first day of such Monthly Period, to but excluding the related Reset Date, and the denominator of which is the number of days in such Monthly Period, and (ii) for each such Reset Date, the product of the Aggregate Principal Receivables determined as of the close of business on such Reset Date, multiplied by a fraction, the numerator of which is the number of days from and including such Reset Date, to the earlier of the last day of such Monthly Period (in which case such period shall include such date) or the next succeeding Reset Date (in which case such period shall exclude such date), and the denominator of which is the number of days in such Monthly Period.
Base Rate means, for any Monthly Period, the annualized percentage equivalent of a fraction, the numerator of which is equal to the sum of (a) the Monthly Interest, [(b) the Net Swap Payments] and (c) the Noteholder Servicing Fee, each with respect to the related Payment Date, and the denominator of which is the Collateral Amount plus amounts on deposit in the Principal Accumulation Account, each as of the close of business on the last day of such Monthly Period.
Class A Additional Interest is defined in Section 4.1(a) .
[ Class A Counterparty means [ ] or the counterparty under any interest rate swap with respect to the Class A Notes obtained pursuant to Section 4.16 .]
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Class A Deficiency Amount is defined in Section 4.1(a) .
Class A Monthly Interest is defined in Section 4.1(a) .
[ Class A Net Interest Obligation means, for any Payment Date: (a) if there are Class A Net Swap Payments due on that Payment Date, the sum of the Class A Net Swap Payments and the Class A Monthly Interest for that Payment Date; (b) if there are Class A Net Swap Receipts due on that Payment Date, the result of the Class A Monthly Interest for that Payment Date, minus the Class A Net Swap Receipts for that Payment Date; and (c) if the Class A Swap has terminated for any reason, the Class A Monthly Interest for that Payment Date.]
[ Class A Net Swap Payment means, with respect to any Payment Date, any net amount payable by the Issuer under the Class A Swap as a result of LIBOR being less than the Class A Swap Rate. For the avoidance of doubt, Class A Net Swap Payments do not include early termination payments or payment of breakage or other miscellaneous costs.]
[ Class A Net Swap Receipt means, with respect to any Payment Date, any net amount payable by the Class A Counterparty as a result of LIBOR being greater than the Class A Swap Rate. For the avoidance of doubt, Class A Net Swap Receipts do not include early termination payments.]
Class A Note Initial Principal Balance means $[ ].
Class A Note Interest Rate means a per annum rate of [ ]% [in excess of LIBOR as determined on the LIBOR Determination Date for the applicable Interest Period].
Class A Note Principal Balance means, on any date of determination, an amount equal to (a) the Class A Note Initial Principal Balance, minus (b) the aggregate amount of principal payments made to the Class A Noteholders on or prior to such date.
Class A Noteholder means the Person in whose name a Class A Note is registered in the Note Register.
Class A Notes means any one of the Notes executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form of Exhibit A-1 .
Class A Regular Interest is defined in Section 9.1(b) .
Class A Required Amount means, for any Payment Date, an amount equal to the excess of the amounts described in Sections 4.4(a)(i) , (ii) and (iii) over Available Finance Charge Collections applied to pay such amount pursuant to Section 4.4(a) .
[ Class A Swap means an interest rate swap agreement with respect to the Class A Notes between the Trust and the Class A Counterparty substantially in the form of Exhibit E-1 to this Indenture Supplement, or such other form as shall have satisfied the Rating Agency Condition.]
[ Class A Swap Rate means [ ]% per annum.]
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Class B Additional Interest is defined in Section 4.1(b) .
[ Class B Counterparty means [ ] or the counterparty under any interest rate swap with respect to the Class B Notes obtained pursuant to Section 4.16 .]
Class B Deficiency Amount is defined in Section 4.1(b) .
Class B Monthly Interest is defined in Section 4.1(b) .
[ Class B Net Interest Obligation means, for any Payment Date (a) if there are Class B Net Swap Payments due on that Payment Date, the sum of the Class B Net Swap Payments and the Class B Monthly Interest for that Payment Date; (b) if there are Class B Net Swap Receipts due on that Payment Date, the result of the Class B Monthly Interest for that Payment Date, minus the Class B Net Swap Receipts for that Payment Date; and (c) if the Class B Swap has terminated for any reason, the Class B Monthly Interest for that Payment Date.]
[ Class B Net Swap Payment means, with respect to any Payment Date, any net amount payable by the Issuer under the Class B Swap as a result of LIBOR being less than the Class B Swap Rate. For the avoidance of doubt, Class B Net Swap Payments do not include early termination payments or payment of breakage or other miscellaneous costs.]
[ Class B Net Swap Receipt means, with respect to any Payment Date, any net amount payable by the Class B Counterparty as a result of LIBOR being greater than the Class B Swap Rate. For the avoidance of doubt, Class B Net Swap Receipts do not include early termination payments.]
Class B Note Initial Principal Balance means $[ ].
Class B Note Interest Rate means a per annum rate of [ ]% [in excess of LIBOR as determined on the LIBOR Determination Date for the applicable Interest Period].
Class B Note Principal Balance means, on any date of determination, an amount equal to (a) the Class B Note Initial Principal Balance, minus (b) the aggregate amount of principal payments made to the Class B Noteholders on or prior to such date.
Class B Noteholder means the Person in whose name a Class B Note is registered in the Note Register.
Class B Notes means any one of the Notes executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form of Exhibit A-2 .
Class B Regular Interest is defined in Section 9.1(b) .
Class B Required Amount means, for any Payment Date, an amount equal to the excess of the amount described in Section 4.4(a)(iv) over Available Finance Charge Collections applied to pay such amount pursuant to Section 4.4(a) .
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[ Class B Swap means an interest rate swap agreement between the Trust and the Class B Counterparty substantially in the form of Exhibit E-2 to this Indenture Supplement, or such other form as shall have satisfied the Rating Agency Condition.]
[ Class B Swap Rate means [ ]% per annum.]
Class C Additional Interest is defined in Section 4.1(c) .
[ Class C Counterparty means [ ] or the counterparty under any interest rate swap with respect to the Class C Notes obtained pursuant to Section 4.16 .]
Class C Deficiency Amount is defined in Section 4.1(c) .
Class C Monthly Interest is defined in Section 4.1(c) .
[ Class C Net Interest Obligation means, for any Payment Date: (a) if there are Class C Net Swap Payments due on that Payment Date, the sum of the Class C Net Swap Payments and the Class C Monthly Interest for that Payment Date; (b) if there are Class C Net Swap Receipts due on that Payment Date, the result of the Class C Monthly Interest for that Payment Date, minus the Class C Net Swap Receipts for that Payment Date; and (c) if the Class C Swap has terminated for any reason, the Class C Monthly Interest for that Payment Date.]
[ Class C Net Swap Payment means, with respect to any Payment Date, any net amount payable by the Issuer under the Class C Swap as a result of LIBOR being less than the Class C Swap Rate. For the avoidance of doubt, Class C Net Swap Payments do not include early termination payments or payment of breakage or other miscellaneous costs.]
[ Class C Net Swap Receipt means, with respect to any Payment Date, any net amount payable by the Class C Counterparty as a result of LIBOR being greater than the Class C Swap Rate. For the avoidance of doubt, Class C Net Swap Receipts do not include early termination payments.]
Class C Note Initial Principal Balance means $[ ].
Class C Note Interest Rate means a per annum rate of [ ]% [in excess of LIBOR as determined on the LIBOR Determination Date for the applicable Interest Period].
Class C Note Principal Balance means, on any date of determination, an amount equal to (a) the Class C Note Initial Principal Balance, minus (b) the aggregate amount of principal payments made to the Class C Noteholders on or prior to such date.
Class C Noteholder means the Person in whose name a Class C Note is registered in the Note Register.
Class C Notes means any one of the Notes executed by the Issuer and authenticated by or on behalf of the Indenture Trustee, substantially in the form of Exhibit A-3 .
Class C Regular Interest is defined in Section 9.1(b) .
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Class C Required Amount means with respect to any Payment Date, an amount equal to the excess of the amount described in Section 4.4(a)(v) over Available Finance Charge Collections applied to pay such amount pursuant to Section 4.4(a) .
[ Class C Swap means an interest rate swap agreement with respect to the Class C Notes between the Trust and the Class C Counterparty substantially in the form of Exhibit E-3 to this Indenture Supplement, or such other form as shall have satisfied the Rating Agency Condition.]
[ Class C Swap Rate means [ ]% per annum.]
Closing Date means [ , 200 ].
Collateral Amount means, as of any date of determination, an amount equal to the excess of (a) the sum of (i) the initial Note Principal Balance on the Closing Date, and (ii) the Initial Excess Collateral Amount, over (b) the sum of (i) the amount of principal previously paid to the Series [200 - ] Noteholders (other than any principal payments made from funds on deposit in the Spread Account), (ii) reductions in the Excess Collateral Amount due to reductions in the Required Excess Collateral Amount, (iii) the Principal Accumulation Account Balance, and (iv) the excess, if any, of the aggregate amount of Investor Charge-Offs and Reallocated Principal Collections over the reimbursements of such amounts pursuant to Section 4.4(a)(vii) prior to such date.
Controlled Accumulation Amount means, for any Transfer Date with respect to the Controlled Accumulation Period, $[ ]; provided , however , that if the Controlled Accumulation Period Length is determined to be less than or more than [ ] months pursuant to Section 4.13 or 4.14 , the Controlled Accumulation Amount for each Payment Date with respect to the Controlled Accumulation Period will be equal to (i) the initial Note Principal Balance divided by (ii) the Controlled Accumulation Period Length; provided , further , that the Controlled Accumulation Amount for any Payment Date shall not exceed the Note Principal Balance minus any amount already on deposit in the Principal Accumulation Account on such Transfer Date.
Controlled Accumulation Date means [ ], 20[ ].
Controlled Accumulation Period means, unless an Early Amortization Event shall have occurred prior thereto, the period commencing at the opening of business on [ , 200 ] or such other date as is determined in accordance with Sections 4.13 and 4.14 , and ending on the first to occur of (a) the commencement of the Early Amortization Period and (b) the Final Payment Date.
Controlled Accumulation Period Length is defined in Section 4.13 .
Controlled Deposit Amount means, for any Transfer Date with respect to the Controlled Accumulation Period, an amount equal to the sum of the Controlled Accumulation Amount for such Transfer Date and any existing Accumulation Shortfall.
[ Counterparty means the Class A Counterparty, the Class B Counterparty or the Class C Counterparty.]
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Covered Amount means an amount, determined as of each Transfer Date for any Interest Period, equal to the sum of:
(a) the product of (i) the Class A Net Interest Obligation and (ii) a fraction, (A) the numerator of which is equal to the lesser of the Principal Accumulation Account Balance and the Class A Note Principal Balance, each as of the last day of the calendar month preceding such Transfer Date, and (B) the denominator of which is equal to the Class A Note Principal Balance as of the last day of the calendar month preceding such Transfer Date; and
(b) the product of (i) the Class B Net Interest Obligation and (ii) a fraction (A) the numerator of which is equal to the lesser of (x) the excess of the Principal Accumulation Account Balance over the Class A Note Principal Balance as of the last day of the calendar month preceding such Transfer Date and (y) the Class B Note Principal Balance, as of the last day of the calendar month preceding such Transfer Date, and (B) the denominator of which is equal to the Class B Note Principal Balance as of the last day of the calendar month preceding such Transfer Date.
Default Amount means, as to any Defaulted Account, the amount of Principal Receivables (other than Ineligible Receivables, unless there is an Insolvency Event with respect to Originator or the Transferor) in such Defaulted Account on the day it became a Defaulted Account.
Defaulted Account means an Account in which there are Charged-Off Receivables.
Dilution means any downward adjustment made by Servicer in the amount of any Transferred Receivable (a) because of a rebate, refund or billing error to an accountholder, (b) because such Transferred Receivable was created in respect of merchandise which was refused or returned by an accountholder or (c) for any other reason other than receiving Collections therefor or charging off such amount as uncollectible.
Distribution Account means the account designated as such, established and owned by the Issuer and maintained in accordance with Section 4.2 .
Early Amortization Period means the period commencing on the date on which a Trust Early Amortization Event or a Series 200- - Early Amortization Event is deemed to occur and ending on the Final Payment Date.
Excess Collateral Amount means, at any time, the excess of (a) the sum of (i) the Collateral Amount, and (ii) the Principal Accumulation Account Balance, over (b) the Note Principal Balance.
Excess Spread Percentage means, for any Monthly Period, a percentage equal to (a) the Portfolio Yield for such Monthly Period, minus (b) the Base Rate for such Monthly Period.
Expected Principal Payment Date means [ , 200 ].
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FASIT means a financial asset securitization investment trust within the meaning of section 860L of the Code.
Final Payment Date means the earliest to occur of (a) the date on which the Note Principal Balance is paid in full, (b) the date on which the Collateral Amount is reduced to zero and (c) the Series Maturity Date.
Finance Charge Account means the account designated as such, established and owned by the Issuer and maintained in accordance with Section 4.2 .
Finance Charge Collections means Collections of Finance Charge Receivables (after giving effect to any recharacterization of Collections of Principal Receivables as Collections of Finance Charge Receivables pursuant to Section 2.8 of the Trust Receivables Purchase Agreement or the Transfer Agreement).
Finance Charge Shortfall is defined in Section 4.8 .
Group One means Series [200 - ] and each other outstanding Series previously or hereafter specified in the related Indenture Supplement to be included in Group One.
Indenture is defined in the preamble.
Indenture Trustee is defined in the preamble.
Initial Collateral Amount means $[ ], which equals the sum of (i) the Class A Note Initial Principal Balance, (ii) the Class B Note Initial Principal Balance, (iii) the Class C Note Initial Principal Balance and (iv) the Initial Excess Collateral Amount.
Initial Excess Collateral Amount means $[ ].
Interest Period means, for any Payment Date, the period from and including the Payment Date immediately preceding such Payment Date (or, in the case of the first Payment Date, from and including the Closing Date) to but excluding such Payment Date.
Investment Earnings means, for any Payment Date, all interest and earnings on Permitted Investments included in the Spread Account (net of losses and investment expenses) during the period commencing on and including the Payment Date immediately preceding such Payment Date and ending on but excluding such Payment Date.
Investor Charge-Offs is defined in Section 4.6 .
Investor Default Amount means, for any Monthly Period, the sum for all Accounts that became Defaulted Accounts during such Monthly Period, of the following amount: the product of (a) the Default Amount with respect to each such Defaulted Account and (b) the Allocation Percentage on the day such Account became a Defaulted Account.
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Investor Finance Charge Collections means, for any Monthly Period, an amount equal to the aggregate amount of Finance Charge Collections retained or deposited in the Finance Charge Account for Series [200 - ] pursuant to Section 4.3(b)(i) for such Monthly Period.
Investor Principal Collections means, for any Monthly Period, an amount equal to the aggregate amount of Principal Collections retained or deposited in the Principal Account for Series [200 - ] pursuant to Section 4.3(b)(ii) for such Monthly Period.
Investor Uncovered Dilution Amount means, for any Monthly Period, an amount equal to the product of (a) the Series Allocation Percentage for such Monthly Period (determined on a weighted average basis, if a Reset Date occurs during that Monthly Period), and (b) the aggregate Dilutions occurring during such Monthly Period as to which any deposit is required to be made but has not been made, provided that, if the Free Equity Amount is greater than zero at the time the deposit referred to in clause (b) is required to be made, the Investor Uncovered Dilution Amount shall be deemed to be zero.
Issuer is defined in the preamble.
[ LIBOR means, for any Interest Period, the London interbank offered rate for one-month United States dollar deposits determined by the Indenture Trustee for each Interest Period in accordance with the provisions of Section 4.15 .]
[ LIBOR Determination Date means (i) [ , 200 ] for the period from and including the Closing Date through and including [ , 200 ] and (ii) the second London Business Day prior to the commencement of the second and each subsequent Interest Period.]
[ London Business Day means any day on which dealings in deposits in United States dollars are transacted in the London interbank market.]
Minimum Free Equity Percentage means, for purposes of [Series 200 - ], [ ]%.
Monthly Interest means, for any Payment Date, the sum of the Class A Monthly Interest, the Class B Monthly Interest, and the Class C Monthly Interest for such Payment Date.
Monthly Period means, as to each Payment Date, the period beginning on the 22 nd day of the second preceding calendar month and ending on the 21 st day of the immediately preceding calendar month; provided that the Monthly Period related to the [ 200 ] Payment Date shall mean the period from and including the Closing Date to and including the last day of [ 200 ].
Monthly Principal is defined in Section 4.1(d) .
Monthly Principal Reallocation Amount means, for any Monthly Period, an amount equal to the sum of:
(c) the lesser of (i) the Class A Required Amount and (ii) $[ ] minus the sum of (x) the amount of unreimbursed Investor Charge-Offs (after giving effect to
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Investor Charge-Offs for the related Monthly Period) and unreimbursed Reallocated Principal Collections (as of the previous Payment Date) and (y) any reductions to the Collateral Amount on account of reductions to the Required Excess Collateral Amount, but not less than zero;
(d) the lesser of (i) the Class B Required Amount and (ii) $[ ] minus the sum of (x) the amount of unreimbursed Investor Charge-Offs (after giving effect to Investor Charge-Offs for the related Monthly Period) and unreimbursed Reallocated Principal Collections (as of the previous Payment Date and as required in clause (a) above) and (y) any reductions to the Collateral Amount on account of reductions to the Required Excess Collateral Amount, but not less than zero; and
(e) the lesser of (i) the Class C Required Amount and (ii) $[ ] minus the sum of (x) the amount of unreimbursed Investor Charge-Offs after giving effect to Investor Charge-Offs for the related Monthly Period) and unreimbursed Reallocated Principal Collections (as of the previous Payment Date and as required in clauses (a) and (b) above) and (y) any reduction to the Collateral Amount on account of reductions to the Required Excess Collateral Amount, but not less than zero.
Net Interest Obligation means, for any Payment Date, the sum of the Class A Net Interest Obligation, the Class B Net Interest Obligation and the Class C Net Interest Obligation for such Payment Date.
Net Swap Payments means, for any Payment Date, collectively, the Class A Net Swap Payment, the Class B Net Swap Payment and the Class C Net Swap Payment for such Payment Date.
Net Swap Receipts means, for any Payment Date, collectively, the Class A Net Swap Receipt, the Class B Net Swap Receipt and the Class C Net Swap Receipt for such Payment Date.
Note Principal Balance means, on any date of determination, an amount equal to the sum of the Class A Note Principal Balance, the Class B Note Principal Balance and the Class C Note Principal Balance.
Noteholder Servicing Fee means, for any Transfer Date, an amount equal to one-twelfth of the product of (a) the Series Servicing Fee Percentage and (b) the Collateral Amount as of the last day of the Monthly Period preceding such Transfer Date; provided however , that with respect to the first Transfer Date, the Noteholder Servicing Fee shall be equal to [$ ].
Ownership Interest means the interest issued by the RFS FASIT which (i) represents solely the right to receive amounts specified in Section 4.4(a)(xii) to be paid to the Issuer and (ii) represents the sole ownership interest in the RFS FASIT within the meaning of section 860L of the Code.
Payment Date means [ , 200 ] and the 15 th day of each calendar month thereafter, or if such 15th day is not a Business Day, the next succeeding Business Day.
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Percentage Allocation is defined in Section 4.3(b)(ii)(y) .
Portfolio Yield means, for any Monthly Period, the annualized percentage equivalent of a fraction, (a) the numerator of which is equal to the excess of (i) the Available Finance Charge Collections (excluding any Excess Finance Charge Collections), over (ii) the Aggregate Investor Default Amount for such Monthly Period and (b) the denominator of which is the Collateral Amount plus amounts on deposit in Principal Accumulation Account, each as of the close of business on the last day of such Monthly Period.
Principal Account means the account designated as such, established and owned by the Issuer and maintained in accordance with Section 4.2 .
Principal Accumulation Account means the account designated as such, established and owned by the Issuer and maintained in accordance with Section 4.2 .
Principal Accumulation Account Balance means, for any date of determination, the principal amount, if any, on deposit in the Principal Accumulation Account on such date of determination.
Principal Accumulation Investment Proceeds means, with respect to each Transfer Date, the investment earnings on funds in the Principal Accumulation Account (net of investment expenses and losses) for the period from and including the immediately preceding Transfer Date to but excluding such Transfer Date.
Principal Shortfall is defined in Section 4.9 .
Quarterly Excess Spread Percentage means (a) with respect to the [ 200 ] Payment Date, the Excess Spread Percentage for the Monthly Period relating to such Payment Date, (b) with respect to the [ 200 ] Payment Date, the percentage equivalent of a fraction the numerator of which is the sum of (i) the Excess Spread Percentage for the Monthly Period relating to the [ 200 ] Payment Date and (ii) the Excess Spread Percentage for the Monthly Period relating to the [ 200 ] Payment Date and the denominator of which is two, (c) with respect to the [ 200 ] Payment Date, the percentage equivalent of a fraction the numerator of which is the sum of (i) the Excess Spread Percentage for the Monthly Period relating to the [ 200 ] Payment Date (ii) the Excess Spread Percentage with respect to the Monthly Period relating to the [ 200 ] Payment Date and (iii) the Excess Spread Percentage for the Monthly Period relating to the [ 200 ] Payment Date and the denominator of which is three and (d) with respect to the [ 200 ] Payment Date and each Payment Date thereafter, the percentage equivalent of a fraction the numerator of which is the sum of the Excess Spread Percentages determined with respect to the Monthly Periods relating to such Payment Date and the immediately preceding two Payment Dates and the denominator of which is three.
Rating Agency means each of [Fitch, Moodys and Standard & Poors].
Reallocated Principal Collections means, for any Transfer Date, Investor Principal Collections applied in accordance with Section 4.7 in an amount not to exceed the Monthly Principal Reallocation Amount for the related Monthly Period.
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Redemption Amount means, for any Transfer Date, after giving effect to any deposits and payments otherwise to be made on the related Payment Date, the sum of (i) the Note Principal Balance on the related Payment Date, (ii) Monthly Interest for the related Payment Date and any Monthly Interest previously due but not distributed to the Series [200 - ] Noteholders, (iii) the amount of Additional Interest, if any, for the related Payment Date and any Additional Interest previously due but not distributed to the Series [200 - ] Noteholders on a prior Payment Date [and (iv) any amounts owing to any Counterparty pursuant to the terms of the Class A Swap, Class B Swap or Class C Swap].
Reference Banks means four major banks in the London interbank market selected by the Servicer.
Related Interest is defined in Section 9.1(b) .
Removal Date means (a) prior to the RFS Funding Trust Termination Date, the Removal Date as such term is defined in the Trust Receivables Purchase Agreement and (b) on or after the RFS Funding Trust Termination Date, a Removal Date as such term is defined in the Transfer Agreement.
Required Excess Collateral Amount means, at any time, [ ]% of the Collateral Amount; provided that:
(a) except as provided in clause (c) , the Required Excess Collateral Amount shall never be less than [ ]% of the Initial Collateral Amount;
(b) except as provided in clause (c) , the Required Excess Collateral Amount shall not decrease during an Early Amortization Period; and
(c) the Required Excess Collateral Amount shall never be greater than the excess of the Note Principal Balance over the balance on deposit in the Principal Accumulation Account.
Required Reserve Account Amount means, for any Transfer Date on or after the Reserve Account Funding Date, an amount equal to (a) [ ]% of the Note Principal Balance or (b) any other amount designated by the Issuer; provided , however , that if such designation is of a lesser amount, the Issuer shall (i) provide the Indenture Trustee with evidence that the Rating Agency Condition shall have been satisfied and (ii) deliver to the Indenture Trustee a certificate of an Authorized Officer to the effect that, based on the facts known to such officer at such time, in the reasonable belief of the Issuer, such designation will not cause an Early Amortization Event or an event that, after the giving of notice or the lapse of time, would cause an Early Amortization Event to occur with respect to Series [200 - ].
Required Spread Account Amount means, for any Payment Date, the product of (i) the Spread Account Percentage in effect on such date and (ii) during (x) the Revolving Period, the Collateral Amount, and (y) during the Controlled Accumulation Period or the Early Amortization Period, the Collateral Amount as of the last day of the Revolving Period; provided that prior to the occurrence of an Event of Default and an acceleration of the Series [200 - ] Notes under Section 5.3 of the Indenture, the Required Spread Account Amount for any Payment
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Date will in no event exceed the Class C Note Principal Balance (after taking into account any payments to be made on such Payment Date).
Reserve Account means the account designated as such, established and owned by the Issuer and maintained in accordance with Section 4.2 .
Reserve Account Funding Date means the Transfer Date designated by the Issuer which occurs not later than the earliest of the Transfer Date with respect to the Monthly Period which commences [ ] months prior to the commencement of the Controlled Accumulation Period (which commencement shall be subject to postponement pursuant to Section 4.14 ); provided , however , if the Rating Agency Condition is satisfied, the Issuer may postpone the Reserve Account Funding Date.
Reserve Account Surplus means, as of any Transfer Date following the Reserve Account Funding Date, the amount, if any, by which the amount on deposit in the Reserve Account exceeds the Required Reserve Account Amount.
Reserve Draw Amount means, with respect to each Transfer Date relating to the Controlled Accumulation Period or the first Transfer Date relating to the Early Amortization Period, the amount, if any, by which the Principal Accumulation Investment Proceeds for such Payment Date are less than the Covered Amount determined as of such Transfer Date.
Reset Date means:
(a) each Addition Date;
(b) each Removal Date on which, if any Series of Notes or any Series under (and as defined in) the RFS Funding Trust Agreement has been paid in full, Principal Receivables for that Series are removed from the Receivables Trust;
(c) each date on which there is an increase in the outstanding balance of any Variable Interest; and
(d) each date on which a new Series or Class of Notes is issued.
Revolving Period means the period beginning on the Closing Date and ending at the close of business on the day immediately preceding the earlier of the day the Controlled Accumulation Period commences or the day the Early Amortization Period commences.
RFS FASIT means the Trust Estate designated as a FASIT within the meaning of section 860L of the Code.
RFS Funding Trustee means Deutsche Bank Trust Company Delaware, not in its individual capacity but solely in its capacity as trustee under the RFS Funding Trust Agreement.
Series Accounts is defined in Section 4.2 .
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Series Allocation Percentage means, with respect to any Monthly Period, the percentage equivalent of a fraction, the numerator of which is the numerator used in determining the Allocation Percentage for Finance Charge Collections for that Monthly Period and the denominator of which is the sum of the numerators used in determining the Allocation Percentage for Finance Charge Receivables for all outstanding Series on such date of determination; provided that if one or more Reset Dates occur in a Monthly Period, the Series Allocation Percentage for the portion of the Monthly Period falling on and after each such Reset Date and prior to any subsequent Reset Date will be determined using a denominator which is equal to the sum of the numerators used in determining the Allocation Percentage for Finance Charge Collections for all outstanding Series as of the close of business on the subject Reset Date.
Series Servicing Fee Percentage means [2]% per annum .
Series Maturity Date means, with respect to Series [200 - ], the [ , 200 ] Payment Date.
Series [200 - ] means the Series of Notes the terms of which are specified in this Indenture Supplement.
Series [200 - ] Early Amortization Event is defined in Section 6.1 .
Series [200 - ] Excess Finance Charge Collections means Excess Finance Charge Collections allocated from other Series in Group One to Series [200 - ] pursuant to Section 8.6 of the Indenture.
Series [200 - ] Note means a Class A Note, a Class B Note or a Class C Note.
Series [200 - ] Noteholder means a Class A Noteholder, a Class B Noteholder or a Class C Noteholder.
Spread Account means the account designated as such, established and owned by the Issuer and maintained in accordance with Section 4.2 .
Spread Account Deficiency means the excess, if any, of the Required Spread Account Amount over the Available Spread Account Amount.
Spread Account Percentage means, (i) [ ]% if the Quarterly Excess Spread Percentage on such Payment Date is greater than or equal to [ ]%, (ii) [ ]% if the Quarterly Excess Spread Percentage on such Payment Date is less than [ ]% and greater than or equal to [ ]%, (iii) [ ]% if the Quarterly Excess Spread Percentage on such Payment Date is less than [ ]% and greater than or equal [ ]%, (iv) [ ]% if the Quarterly Excess Spread Percentage on such Payment Date is less than [ ]% and greater than or equal to [ ]%, (v) [ ]% if the Quarterly Excess Spread Percentage on such Payment Date is less than [ ]% and greater than or equal to [ ]%, (vi) [ ]% if the Quarterly Excess Spread Percentage on such Payment Date is less than [ ]% and greater than or equal to [ ]%, (vii) [ ]% if the Quarterly Excess Spread Percentage on such Payment Date is less than [ ]% and greater than or equal to [ ]%, and (viii) [ ]% if the Quarterly Excess Spread Percentage on such Payment Date is less than [ ]%;
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provided , that if an Early Amortization Event is deemed to occur, the Spread Account Percentage shall be [ ]% and may not be reduced.
Surplus Collateral Amount means, at any time, the excess, if any, of the Excess Collateral Amount over the Required Excess Collateral Amount.
Target Amount is defined in Section 4.3(b)(i) .
Trust is defined in the preamble.
SECTION 1.2 . Incorporation of Terms . The terms of the Indenture are incorporated in this Supplement as if set forth in full herein. As supplemented by this Supplement, the Indenture is in all respects ratified and confirmed and both together shall be read, taken and construed as one and the same agreement. If the terms of this Supplement and the terms of the Indenture conflict, the terms of this Supplement shall control with respect to the Series [200 - ].
Creation of the Series [200 - ] Notes
SECTION 2.1 . Designation .
(a) There is hereby created and designated a Series of Notes to be issued pursuant to the Indenture and this Indenture Supplement to be known as GE Capital Credit Card Master Note Trust, Series [200 - ] or the Series [200 - ] Notes . The Series [200 - ] Notes shall be issued in three Classes, known as the Class A Series [200 - ] [Floating Rate] Asset Backed Notes , the Class B Series [200 - ] [Floating Rate] Asset Backed Notes , and the Class C Series [200 - ] [Floating Rate] Asset Backed Notes .
(b) Series [200 - ] shall be included in Group One and shall be a Principal Sharing Series. Series [200 - ] shall be an Excess Allocation Series with respect to Group One only. Series [200 - ] shall not be subordinated to any other Series.
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 . Representations and Warranties . The parties hereto agree that the representations, warranties and covenants set forth in Schedule I shall be a part of this Indenture Supplement for all purposes.
Rights of Series [200 - ] Noteholders and Allocation and Application of Collections
SECTION 4.1 . Determination of Interest and Principal.
(a) The amount of monthly interest ( Class A Monthly Interest ) due and payable with respect to the Class A Notes on any Payment Date shall be an amount equal to the product of (i) a fraction, the numerator of which is [the actual number of days in the related Interest Period] [30] and the denominator of which is 360, (ii) the Class A Note Interest Rate in effect
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with respect to the related Interest Period and (iii) the Class A Note Principal Balance as of the close of business on the last day of the preceding Monthly Period (or, with respect to the initial Payment Date, the Class A Note Initial Principal Balance); provided that Class A Monthly Interest for the first Interest Period will be $[ ].
With respect to each Payment Date, the Issuer shall determine the excess, if any (the Class A Deficiency Amount ), of (x) the aggregate amount of Class A Monthly Interest payable pursuant to this Section 4.1(a) as of the prior Payment Date over (y) the amount of Class A Monthly Interest actually paid on such Payment Date. If the Class A Deficiency Amount for any Payment Date is greater than zero, on each subsequent Payment Date until such Class A Deficiency Amount is fully paid, an additional amount ( Class A Additional Interest ) equal to the product of (i) a fraction, the numerator of which is the actual number of days in the related Interest Period and the denominator of which is 360, (ii) the Class A Note Interest Rate in effect with respect to the related Interest Period plus 2% per annum and (iii) such Class A Deficiency Amount (or the portion thereof which has not been paid to the Class A Noteholders) shall be payable as provided herein with respect to the Class A Notes. Notwithstanding anything to the contrary herein, Class A Additional Interest shall be payable or distributed to the Class A Noteholders only to the extent permitted by applicable law.
(b) The amount of monthly interest ( Class B Monthly Interest ) due and payable with respect to the Class B Notes on any Payment Date shall be an amount equal to the product of (i) a fraction, the numerator of which is [the actual number of days in the related Interest Period] [30] and the denominator of which is 360, (ii) the Class B Note Interest Rate in effect with respect to the related Interest Period and (iii) the Class B Note Principal Balance as of the close of business on the last day of the preceding Monthly Period (or, with respect to the initial Payment Date, the Class B Note Initial Principal Balance), provided that Class B Monthly Interest for the first Interest Period will be [$ ].
With respect to each Payment Date, the Issuer shall determine the excess, if any (the Class B Deficiency Amount ), of (x) the aggregate amount of Class B Monthly Interest payable pursuant to this Section 4.1(b) as of the prior Payment Date over (y) the amount of Class B Monthly Interest actually paid on such Payment Date. If the Class B Deficiency Amount for any Payment Date is greater than zero, on each subsequent Payment Date until such Class B Deficiency Amount is fully paid, an additional amount ( Class B Additional Interest ) equal to the product of (i) a fraction, the numerator of which is the actual number of days in the related Interest Period and the denominator of which is 360, (ii) the Class B Note Interest Rate in effect with respect to the related Interest Period plus 2% per annum and (iii) such Class B Deficiency Amount (or the portion thereof which has not been paid to the Class B Noteholders) shall be payable as provided herein with respect to the Class B Notes. Notwithstanding anything to the contrary herein, Class B Additional Interest shall be payable or distributed to the Class B Noteholders only to the extent permitted by applicable law.
(c) The amount of monthly interest ( Class C Monthly Interest ) due and payable with respect to the Class C Notes on any Payment Date shall be an amount equal to the product of (i) a fraction, the numerator of which is [the actual number of days in the related Interest Period] [30] and the denominator of which is 360, (ii) the Class C Interest Rate in effect with respect to the related Interest Period and (iii) the Class C Note Principal Balance as of the close
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of business on the last day of the preceding Monthly Period (or, with respect to the initial Payment Date, the Class C Note Initial Principal Balance), provided that Class C Monthly Interest for the first Interest Period will be $[ ].
With respect to each Payment Date, the Issuer shall determine the excess, if any (the Class C Deficiency Amount ), of (x) the aggregate amount of Class C Monthly Interest payable pursuant to this Section 4.1(c) as of the prior Payment Date over (y) the amount of Class C Monthly Interest actually paid on such Payment Date. If the Class C Deficiency Amount for any Payment Date is greater than zero, on each subsequent Payment Date until such Class C Deficiency Amount is fully paid, an additional amount ( Class C Additional Interest ) equal to the product of (i) a fraction, the numerator of which is the actual number of days in the related Interest Period and the denominator of which is 360, (ii) the Class C Note Interest Rate in effect with respect to the related Interest Period plus 2% per annum and (iii) such Class C Deficiency Amount (or the portion thereof which has not been paid to the Class C Noteholders) shall be payable as provided herein with respect to the Class C Notes. Notwithstanding anything to the contrary herein, Class C Additional Interest shall be payable or distributed to the Class C Noteholders only to the extent permitted by applicable law.
(d) The amount of monthly principal to be transferred from the Principal Account with respect to the Notes on each Payment Date (the Monthly Principal ), beginning with the Payment Date in the month following the month in which the Controlled Accumulation Period or, if earlier, the Early Amortization Period, begins, shall be equal to the least of (i) the Available Principal Collections on deposit in the Principal Account with respect to such Payment Date, (ii) for each Payment Date with respect to the Controlled Accumulation Period, the Controlled Deposit Amount for such Payment Date, (iii) the Collateral Amount (after taking into account any adjustments to be made on such Payment Date pursuant to Sections 4.6 and 4.7 ) prior to any deposit into the Principal Accumulation Account on such Payment Date, and (iv) the Note Principal Balance, minus any amount already on deposit in the Principal Accumulation Account on such Payment Date.
SECTION 4.2 . Establishment of Accounts.
(a) As of the Closing Date, the Issuer covenants to have established and shall thereafter maintain the Finance Charge Account, the Principal Account, the Principal Accumulation Account, the Distribution Account, the Reserve Account and the Spread Account (collectively, the Series Accounts ) each of which shall be an Eligible Deposit Account.
(b) If the depositary institution wishes to resign as depositary of any of the Series Accounts for any reason or fails to carry out the instructions of the Issuer for any reason, then the Issuer shall promptly notify the Indenture Trustee on behalf of the Noteholders.
(c) On or before the Closing Date, the Issuer shall enter into a depositary agreement to govern the Series Accounts pursuant to which such accounts are continuously identified in the depositary institutions books and records as subject to a security interest in favor of the Indenture Trustee on behalf of the Noteholders and, except as may be expressly provided herein to the contrary, in order to perfect the security interest of the Indenture Trustee on behalf of the Noteholders under the UCC, the Indenture Trustee on behalf of the Noteholders shall have the
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power to direct disposition of the funds in the Series Accounts without further consent by the Issuer; provided however , that prior to the delivery by the Indenture Trustee on behalf of the Noteholders of notice otherwise, the Issuer shall have the right to direct the disposition of funds in the Series Accounts; provided further that the Indenture Trustee on behalf of the Noteholders agrees that it will not deliver such notice or exercise its power to direct disposition of the funds in the Series Accounts unless an Event of Default has occurred and is continuing.
(d) The Issuer shall not close any of the Series Accounts unless it shall have (i) received the prior consent of the Indenture Trustee on behalf of the Noteholders, (ii) established a new Eligible Deposit Account with the depositary institution or with a new depositary institution satisfactory to the Indenture Trustee on behalf of the Noteholders, (iii) entered into a depositary agreement to govern such new account(s) with such new depositary institution which agreement is satisfactory in all respects to the Indenture Trustee on behalf of the Noteholders (whereupon such new account(s) shall become the applicable Series Account(s) for all purposes of this Indenture Supplement), and (iv) taken all such action as the Indenture Trustee on behalf of the Noteholders shall reasonably require to grant and perfect a first priority security interest in such account(s) under this Indenture Supplement.
SECTION 4.3 . Calculations and Series Allocations.
(a) Allocations . Finance Charge Collections, Principal Collections and Charged-Off Receivables allocated to Series [200 - ] pursuant to Article VIII of the Indenture shall be allocated and distributed as set forth in this Article. During any period when the Issuer is permitted by Section 8.4 of the Indenture to make a single monthly deposit to the Collection Account, amounts allocated to the Noteholders pursuant to Sections 4.3(a) and (b) with respect to any Monthly Period need not be deposited into the Collection Account or any Series Account prior to the related Transfer Date, and, when so deposited, (x) may be deposited net of any amounts required to be distributed to Transferor and, if the Originator is Servicer, any amounts owed to the Servicer, and (y) shall be deposited into the Finance Charge Account (in the case of Collections of Finance Charge Receivables) and the Principal Account (in the case of Collections of Principal Receivables (not including any Shared Principal Collections allocated to Series [200 - ] pursuant to Section 8.5 of the Indenture)).
(b) Allocations to the Series [200 - ] Noteholders . The Issuer shall on each Date of Processing, allocate to the Series [200 - ] Noteholders the following amounts as set forth below:
(i) Allocations of Finance Charge Collections . The Issuer shall allocate to the Series [200 - ] Noteholders an amount equal to the product of (A) the Allocation Percentage and (B) the aggregate Finance Charge Collections processed on such Date of Processing and shall deposit such amount into the Finance Charge Account; provided that, so long as, with respect to each Monthly Period falling in the Revolving Period (and with respect to that portion of each Monthly Period in the Controlled Accumulation Period falling on or after the day on which Collections of Principal Receivables equal to the related Controlled Deposit Amount have been allocated pursuant to Section 4.3(b)(ii) and deposited pursuant to Section 4.3(a) ), Collections of Finance Charge Receivables shall be transferred into the Finance Charge Account only until such time as the aggregate amount so deposited equals the sum (the Target Amount ) of (A) the fees
19
payable to the Indenture Trustee, the RFS Funding Trustee, the Trustee and the Administrator on the related Payment Date, (B) the Net Interest Obligations on the related Payment Date, (C) if the Originator is not the Servicer, the Noteholder Servicing Fee (and if the Originator is the Servicer, then the Issuer covenants to pay directly to the Servicer as payment of the Noteholder Servicing Fee amounts that otherwise would have been transferred into the Finance Charge Account pursuant to this clause (C) ) , and (D) any amount required to be deposited in the Reserve Account and the Spread Account on the related Transfer Date; provided further , that, notwithstanding the preceding proviso, if on any Business Day the Issuer determines that the Target Amount for a Monthly Period exceeds the Target Amount for that Monthly Period as previously calculated by Issuer, then (x) Issuer shall (on the same Business Day) inform Transferor of such determination, and (y) within two Business Days thereafter cause Transferor to deposit into the Finance Charge Account funds in an amount equal to the amount of Collections of Finance Charge Receivables allocated to the Noteholders for that Monthly Period but not deposited into the Finance Charge Account due to the operation of the preceding proviso (but not in excess of the amount required so that the aggregate amount deposited for the subject Monthly Period equals the Target Amount); and provided , further , if on any Transfer Date the Free Equity Amount is less than the Minimum Free Equity Amount after giving effect to all transfers and deposits on that Transfer Date, the Issuer shall cause Transferor, on that Transfer Date, to deposit into the Principal Account funds in an amount equal to the amounts of Available Finance Charge Collections that are required to be treated as Available Principal Collections pursuant to Section 4.4(a)(vi) and (vii) but are not available from funds in the Finance Charge Account as a result of the operation of the second preceding proviso.
With respect to any Monthly Period when deposits of Collections of Finance Charge Receivables into the Finance Charge Account are limited to deposits up to the Target Amount in accordance with clause (i) above, notwithstanding such limitation: (1) Reallocated Principal Collections for the related Transfer Date shall be calculated as if the full amount of Finance Charge Collections allocated to the Noteholders during that Monthly Period had been deposited in the Finance Charge Account and applied on such Transfer Date in accordance with Section 4.4(a) ; and (2) Collections of Finance Charge Receivables released to Transferor pursuant to clause (i) above shall be deemed, for purposes of all calculations under this Indenture Supplement, to have been applied to the items specified in Section 4.4(a) to which such amounts would have been applied (and in the priority in which they would have been applied) had such amounts been available in the Finance Charge Account on such Transfer Date. To avoid doubt, the calculations referred to in the preceding clause (2) include the calculations required by the definition of Portfolio Yield and by clause (b)(iv) of the definition of Collateral Amount.
(ii) Allocations of Principal Collections . The Issuer shall allocate to the Series [200 - ] Noteholders the following amounts as set forth below:
(x) Allocations During the Revolving Period .
(1) During the Revolving Period an amount equal to the product of the Allocation Percentage and the aggregate amount of Principal Collections processed on such Date of Processing, shall be allocated to the Series
20
[200 - ] Noteholders and first, if any other Principal Sharing Series is outstanding and in its accumulation period or amortization period, retained in the Principal Account for application, to the extent necessary, as Shared Principal Collections to other Principal Sharing Series on the related Payment Date, second deposited in the Excess Funding Account to the extent necessary so that the Free Equity Amount is not less than the Minimum Free Equity Amount and third paid to the holders of the Transferor Interest.
(2) With respect to each Monthly Period falling in the Revolving Period, to the extent that Collections of Principal Receivables allocated to the Series [200 - ] Noteholders pursuant to this Section 4.3(b)(ii) are paid to Transferor, the Issuer shall cause Transferor to make an amount equal to the Reallocated Principal Collections for the related Transfer Date available on that Transfer Date for application in accordance with Section 4.7 .
(y) Allocations During the Controlled Accumulation Period . During the Controlled Accumulation Period an amount equal to the product of the Allocation Percentage and the aggregate amount of Principal Collections processed on such Date of Processing (the product for any such date is hereinafter referred to as a Percentage Allocation ) shall be allocated to the Series [200 - ] Noteholders and transferred to the Principal Account until applied as provided herein; provided , however, that if the sum of such Percentage Allocation and all preceding Percentage Allocations with respect to the same Monthly Period exceeds the Controlled Deposit Amount during the Controlled Accumulation Period for the related Payment Date, then such excess shall not be treated as a Percentage Allocation and shall be first, if any other Principal Sharing Series is outstanding and in its accumulation period or amortization period, retained in the Principal Account for application, to the extent necessary, as Shared Principal Collections to other Principal Sharing Series on the related Payment Date, second deposited in the Excess Funding Account to the extent necessary so that the Free Equity Amount is not less than the Minimum Free Equity Amount and third paid to the holders of the Transferor Interest.
(z) Allocations During the Early Amortization Period . During the Early Amortization Period, an amount equal to the product of the Allocation Percentage and the aggregate amount of Principal Collections processed on such Date of Processing shall be allocated to the [200 - ] Noteholders and transferred to the Principal Account until applied as provided herein; provided , however, that after the date on which an amount of such Principal Collections equal to the Note Principal Balance has been deposited into the Principal Account such amount shall be first, if any other Principal Sharing Series is outstanding and in its accumulation period or amortization period, retained in the Principal Account for
21
application, to the extent necessary, as Shared Principal Collections to other Principal Sharing Series on the related Payment Date, second deposited in the Excess Funding Account to the extent necessary so that the Free Equity Amount is not less than the Minimum Free Equity Amount and third paid to the holders of the Transferor Interest.
SECTION 4.4 . Application of Available Finance Charge Collections and Available Principal Collections . On each Transfer Date or related Payment Date, as applicable, the Issuer shall withdraw, to the extent of available funds, the amount required to be withdrawn from the Finance Charge Account, the Principal Accumulation Account, the Principal Account and the Distribution Account as follows:
(a) On each Transfer Date, an amount equal to the Available Finance Charge Collections with respect to the related Payment Date will be paid or deposited in the following priority:
(i) on a pari passu basis (A) the payment to the Indenture Trustee of the accrued and unpaid fees and other amounts owed to the Indenture Trustee up to a maximum amount of $25,000 for each calendar year, (B) the payment to the RFS Funding Trustee of the accrued and unpaid fees and other amounts owed to the RFS Funding Trustee up to a maximum amount of $25,000 for each calendar year, (C) the payment to the Trustee of the accrued and unpaid fees and other amounts owed to Trustee up to a maximum amount of $25,000 for each calendar year and (D) the payment to the Administrator of the accrued and unpaid fees and other amounts owed to the Administrator up to a maximum amount of $25,000 for each calendar year.
(ii) an amount equal to the Noteholder Servicing Fee for such Transfer Date, plus the amount of any Noteholder Servicing Fee previously due but not paid to the Issuer on a prior Transfer Date, shall be paid to the Servicer;
(iii) on a pari passu basis (A) an amount equal to Class A Monthly Interest for such Payment Date, plus any Class A Deficiency Amount, plus the amount of any Class A Additional Interest for such Payment Date, plus the amount of any Class A Additional Interest previously due but not paid to Class A Noteholders on a prior Payment Date, shall be deposited into the Distribution Account, [and (B) any Class A Net Swap Payments for such Payment Date and any unpaid Class A Net Swap Payments owed to the Class A Counterparty in respect of any prior Payment Date shall be paid to the Class A Counterparty];
(iv) on a pari passu basis (A) an amount equal to Class B Monthly Interest for such Payment Date, plus any Class B Deficiency Amount, plus the amount of any Class B Additional Interest for such Payment Date, plus the amount of any Class B Additional Interest previously due but not paid to Class B Noteholders on a prior Payment Date, shall be deposited into the Distribution Account, and (B) [any Class B Net Swap Payment for such Payment Date shall be paid to the Class B Counterparty and any unpaid Class B Net Swap Payments owed to the Class B Counterparty in respect of any prior Payment Date];
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(v) on a pari passu basis (A) an amount equal to Class C Monthly Interest for such Payment Date, plus any Class C Deficiency Amount, plus the amount of any Class C Additional Interest for such Payment Date, plus the amount of any Class C Additional Interest previously due but not paid to the Class C Noteholders on a prior Payment Date shall be deposited into the Distribution Account , [and (B) any Class C Net Swap Payment for such Payment Date and any unpaid Class C Net Swap Payments owed to the Class C Counterparty in respect of any prior Payment Date shall be paid to the Class C Counterparty] ; provided , however , that, in the event that the sum of Class C Monthly Interest exceeds the amount of Available Finance Charge Collections available (after giving effect to Sections 4.4(a)(i) through (iv) above) to fund such Class C Monthly Interest and Class C Additional Interest, a draw will be made from amounts available for distribution in the Spread Account (at the times and in the amounts specified in Section 4.11 ) and shall be deposited into the Distribution Account for payment to the Class C Noteholders on such Payment Date in accordance with this Section 4.4(a)(v) ;
(vi) an amount equal to the Investor Default Amount and any Investor Uncovered Dilution Amount for such Payment Date shall be treated as a portion of Available Principal Collections for such Payment Date and, during the Controlled Accumulation Period or the Early Amortization Period, deposited into the Principal Account on the related Transfer Date;
(vii) an amount equal to the sum of the aggregate amount of Investor Charge-Offs and the amount of Reallocated Principal Collections which have not been previously reimbursed pursuant to this Section 4.4(a)(vii) shall be treated as a portion of Available Principal Collections for such Payment Date and during the Controlled Accumulation Period or Early Amortization Period shall be deposited into the Principal Account on the related Transfer Date;
(viii) on each Transfer Date from and after the Reserve Account Funding Date, but prior to the date on which the Reserve Account terminates as described in Section 4.10(d) , an amount up to the excess, if any, of the Required Reserve Account Amount over the Available Reserve Account Amount shall be deposited into the Reserve Account;
(ix) an amount equal to the amounts required to be deposited in the Spread Account pursuant to Section 4.11(d) shall be deposited into the Spread Account;
(x) on a pari passu basis (A) an amount equal to any partial or early termination payments or other additional payments owed to the Class A Counterparty under the Class A Swap shall be paid to the Class A Counterparty, (B) an amount equal to any partial or early termination payments or other additional payments owed to the Class B Counterparty under the Class B Swap shall be paid to the Class B Counterparty and (C) an amount equal to any partial or early termination payments or other additional payments owed to the Class C Counterparty under the Class C Swap shall be paid to the Class C Counterparty;
23
(xi) on a pari passu basis any amounts owed to such Persons listed in clause (i) above and not paid pursuant to clause (i) above shall be paid to such Persons; and
(xii) the balance, if any, will constitute a portion of Excess Finance Charge Collections for such Payment Date and will be applied in accordance with Section 8.6 of the Indenture; provided that during an Early Amortization Period, if any such Excess Finance Charge Collections would be paid to the Transferor in accordance with Section 8.6 of the Indenture, the portion of such Excess Finance Charge Collections that would otherwise be payable to the Transferor shall first be used to pay Monthly Principal to the extent not paid in full pursuant to Section 4.4(c) , and any amounts remaining after payment in full of the Monthly Principal shall be paid to the Issuer in respect of the Ownership Interest.
(b) On each Transfer Date with respect to the Revolving Period, an amount equal to the Available Principal Collections for the related Monthly Period shall be treated as Shared Principal Collections and applied in accordance with Section 8.5 of the Indenture.
(c) On each Transfer Date or Payment Date, as applicable, with respect to the Controlled Accumulation Period or the Early Amortization Period, an amount equal to the Available Principal Collections for the related Monthly Period shall be paid or deposited in the following order of priority:
(i) during the Controlled Accumulation Period, an amount equal to the Monthly Principal for each Transfer Date shall be deposited into the Principal Accumulation Account on such Transfer Date;
(ii) during the Early Amortization Period, an amount equal to the Monthly Principal for each Transfer Date shall be deposited into the Distribution Account on such Transfer Date and on the related Payment Date shall be paid, first to the Class A Noteholders on the related Payment Date until the Class A Note Principal Balance has been paid in full; second to the Class B Noteholders until the Class B Note Principal Balance has been paid in full; and third to the Class C Noteholders until the Class C Note Principal Balance has been paid in full; and
(iii) in the case of each of the Controlled Accumulation Period and the Early Amortization Period, the balance of such Available Principal Collections remaining after application in accordance with clauses (i) and (ii) above shall be treated as Shared Principal Collections and applied in accordance with Section 8.5 of the Indenture. As of any Payment Date during the Controlled Accumulation Period or Early Amortization Period on which Available Principal Collections are treated as Shared Principal Collections, the Collateral Amount shall be reduced by an amount equal to the lesser of (x) the amount of Available Principal Collections applied as Shared Principal Collections and (y) the excess, if any, of the Excess Collateral Amount over the Required Excess Collateral Amount.
(d) On each Payment Date, the Issuer shall pay in accordance with Section 4.5 to the Class A Noteholders from the Distribution Account, the amount deposited into the Distribution
24
Account pursuant to Section 4.4(a)(iii) on the preceding Transfer Date, to the Class B Noteholders from the Distribution Account, the amount deposited into the Distribution Account pursuant to Section 4.4(a)(iv) on the preceding Transfer Date and to the Class C Noteholders from the Distribution Account, the amount deposited into the Distribution Account pursuant to Section 4.4(a)(v) on the preceding Transfer Date.
(e) On the earlier to occur of (i) the first Transfer Date with respect to the Early Amortization Period and (ii) the Transfer Date immediately preceding the Expected Principal Payment Date, the Issuer shall withdraw from the Principal Accumulation Account and deposit into the Distribution Account the amount deposited into the Principal Accumulation Account pursuant to Section 4.4(c)(i) and on the related Payment Date shall pay such amount first to the Class A Noteholders, until the Class A Note Principal Balance is paid in full; second to the Class B Noteholders until the Class B Principal Balance is paid in full; and third to the Class C Noteholders until the Class C Note Principal Balance is paid in full.
(f) The Issuer shall distribute any funds received in respect of the Ownership Interest to RFS Holding, L.L.C. as a distribution on RFS Holding, L.L.C.s beneficial interest in the Issuer.
SECTION 4.5 . Distributions .
(a) On each Payment Date, the Issuer shall pay to each Class A Noteholder of record on the related Record Date such Class A Noteholders pro rata share of the amounts on deposit in the Distribution Account that are allocated and available on such Payment Date and as are payable to the Class A Noteholders pursuant to this Indenture Supplement.
(b) On each Payment Date, the Issuer shall pay to each Class B Noteholder of record on the related Record Date such Class B Noteholders pro rata share of the amounts on deposit in the Distribution Account that are allocated and available on such Payment Date and as are payable to the Class B Noteholders pursuant to this Indenture Supplement.
(c) On each Payment Date, the Issuer shall pay to each Class C Noteholder of record on the related Record Date such Class C Noteholders pro rata share of the amounts on deposit in the Distribution Account (including amounts withdrawn from the Spread Account (at the times and in the amounts specified in Section 4.11 )) that are allocated and available on such Payment Date and as are payable to the Class C Noteholders pursuant to this Indenture Supplement.
(d) The payments to be made pursuant to this Section 4.5 are subject to the provisions of Section 7.1 of this Indenture Supplement;
(e) Noteholders hereunder shall be made by (i) check mailed to each Series [200 - ] Noteholder (at such Noteholders address as it appears in the Note Register), except that for any Series [200 - ] Notes registered in the name of the nominee of a Clearing Agency, such payment shall be made by wire transfer of immediately available funds and (ii) except as provided in Section 2.7(b) of the Indenture, without presentation or surrender of any Series [200 - ] Note or the making of any notation thereon.
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SECTION 4.6 . Investor Charge-Offs . On each Determination Date, the Issuer shall calculate the Investor Default Amount and any Investor Uncovered Dilution Amount for the preceding Monthly Period. If, on any Transfer Date, the sum of the Investor Default Amount and any Investor Uncovered Dilution Amount for the preceding Monthly Period exceeds the amount of Available Finance Charge Collections allocated with respect thereto pursuant to Section 4.4(a)(vi) with respect to such Transfer Date, the Collateral Amount will be reduced (but not below zero) by the amount of such excess (such reduction, an Investor Charge-Off ).
SECTION 4.7 . Reallocated Principal Collections . On each Transfer Date, the Issuer shall apply Reallocated Principal Collections with respect to that Transfer Date, to fund any deficiency pursuant to and in the priority set forth in Sections 4.4(a)(i) , (ii) , (iii) , (iv) and (v) . On each Transfer Date, the Collateral Amount shall be reduced by the amount of Reallocated Principal Collections for such Transfer Date.
SECTION 4.8 . Excess Finance Charge Collections . Series [200 - ] shall be an Excess Allocation Series with respect to Group One only. Subject to Section 8.6 of the Indenture, Excess Finance Charge Collections with respect to the Excess Allocation Series in Group One for any Transfer Date will be allocated to Series [200 - ] in an amount equal to the product of (x) the aggregate amount of Excess Finance Charge Collections with respect to all the Excess Allocation Series in Group One for such Payment Date and (y) a fraction, the numerator of which is the Finance Charge Shortfall for Series [200 - ] for such Payment Date and the denominator of which is the aggregate amount of Finance Charge Shortfalls for all the Excess Allocation Series in Group One for such Payment Date. The Finance Charge Shortfall for Series [200 - ] for any Payment Date will be equal to the excess, if any, of (a) the full amount required to be paid, without duplication, pursuant to Sections 4.4(a)(i) through (xi) on such Payment Date over (b) the Available Finance Charge Collections with respect to such Payment Date (excluding any portion thereof attributable to Excess Finance Charge Collections).
SECTION 4.9 . Shared Principal Collections . Subject to Section 8.5 of the Indenture, Shared Principal Collections allocable to Series [200 - ] on any Transfer Date will be equal to the product of (x) the aggregate amount of Shared Principal Collections with respect to all Principal Sharing Series for such Transfer Date and (y) a fraction, the numerator of which is the Principal Shortfall for Series [200 - ] for such Transfer Date and the denominator of which is the aggregate amount of Principal Shortfalls for all the Series which are Principal Sharing Series for such Transfer Date. The Principal Shortfall for Series [200 - ] will be equal to (a) for any Transfer Date with respect to the Revolving Period or any Transfer Date during the Early Amortization Period prior to the Transfer Date relating to the Expected Principal Payment Date, zero, (b) for any Transfer Date with respect to the Controlled Accumulation Period, the excess, if any, of the Controlled Deposit Amount with respect to such Transfer Date over the amount of Available Principal Collections for such Transfer Date (excluding any portion thereof attributable to Shared Principal Collections) and (c) for any Transfer Date relating to any Payment Date on or after the Expected Principal Payment Date, the Note Principal Balance.
SECTION 4.10 . Reserve Account .
(a) On each Transfer Date, all interest and earnings (net of losses and investment expenses) accrued since the preceding Transfer Date on funds on deposit in the Reserve Account
26
shall be retained in the Reserve Account (to the extent that the Available Reserve Account Amount is less than the Required Reserve Account Amount) and any remaining interest and earnings (net of losses and investment expenses) shall be deposited into the Finance Charge Account and included in Available Finance Charge Collections for such Transfer Date. For purposes of determining the availability of funds or the balance in the Reserve Account for any reason under this Indenture Supplement, except as otherwise provided in the preceding sentence, investment earnings on such funds shall be deemed not to be available or on deposit.
(b) On or before each Transfer Date with respect to the Controlled Accumulation Period and on or before the first Transfer Date with respect to the Early Amortization Period, the Issuer shall calculate the Reserve Draw Amount; provided , however , that such amount will be reduced to the extent that funds otherwise would be available for deposit in the Reserve Account under Section 4.4(a)(viii) with respect to such Transfer Date.
(c) If for any Transfer Date the Reserve Draw Amount is greater than zero, the Reserve Draw Amount, up to the Available Reserve Account Amount, shall be withdrawn from the Reserve Account on such Transfer Date by the Issuer and deposited into the Finance Charge Account for application as Available Finance Charge Collections for such Transfer Date.
(d) If the Reserve Account Surplus on any Transfer Date, after giving effect to all deposits to and withdrawals from the Reserve Account with respect to such Transfer Date, is greater than zero, the Indenture Trustee, acting in accordance with the written instructions of the Issuer, shall withdraw from the Reserve Account an amount equal to such Reserve Account Surplus and distribute any such amounts to the holders of the Transferor Interest.
(e) Upon the earliest to occur of (i) the termination of the Trust pursuant to Article VIII of the Trust Agreement, (ii) the first Transfer Date relating to the Early Amortization Period and (iii) the Expected Principal Payment Date for the Class C Notes, the Issuer, after the prior payment of all amounts owing to the Series [200 - ] Noteholders that are payable from the Reserve Account as provided herein, shall withdraw from the Reserve Account all amounts, if any, on deposit in the Reserve Account and distribute any such amounts to the holders of the Transferor Interest. The Reserve Account shall thereafter be deemed to have terminated for purposes of this Indenture Supplement.
SECTION 4.11 . Spread Account .
(a) On or before each Transfer Date, if the aggregate amount of Available Finance Charge Collections is less than the aggregate amount required to be deposited pursuant to Section 4.4(a)(v) , the Issuer shall withdraw from the Spread Account the amount of such deficiency up to the Available Spread Account Amount and if the Available Spread Account Amount is less than such deficiency, Investment Earnings credited to the Spread Account and shall apply such amount in accordance with Section 4.4(a)(v) .
(b) Unless an Early Amortization Event occurs, the Issuer will withdraw from the Spread Account and deposit in the Collection Account for payment to the Class C Noteholders on the Expected Principal Payment Date for the Class C Notes an amount equal to the lesser of:
27
(i) the amount on deposit in the Spread Account after application of any amounts set forth in clause (a) above and (ii) the Class C Note Principal Balance.
(c) Upon an Early Amortization Event, the amount, if any, remaining on deposit in the Spread Account, after making the payments described in clause (a) above, shall be applied to pay principal on the Class C Notes on the earlier of the Series Maturity Date and the first Payment Date on which the Class A Note Principal Balance and the Class B Note Principal Balance have been paid in full.
(d) On any day following the occurrence of an Event of Default with respect to Series 200[ ]-[ ] that has resulted in the acceleration of the Series 200[ ]-[ ] Notes, the Issuer shall withdraw from the Spread Account the Available Spread Account Amount and deposit such amount in the Distribution Account for payment to the Series 200[ ]-[ ] Notes in the following order of priority until all amounts owed to such Noteholders have been paid in full: (i) the Class C Noteholders, (ii) the Class A Noteholders and (iii) the Class B Noteholders.
(e) If on any Transfer Date, after giving effect to all withdrawals from the Spread Account, the Available Spread Account Amount is less than the Required Spread Account Amount then in effect, Available Finance Charge Collections shall be deposited into the Spread Account pursuant to Section 4.4(a)(ix) up to the amount of the Spread Account Deficiency.
(f) If, after giving effect to all deposits to and withdrawals from the Spread Account with respect to any Transfer Date, the amount on deposit in the Spread Account exceeds the Required Spread Account Amount, the Issuer shall withdraw an amount equal to such excess from the Spread Account and distribute such amount to the Transferor. On the date on which the Class C Note Principal Balance has been paid in full, after making any payments to the Noteholders required pursuant to Sections 4.11(a) , (b) , (c) and (d) , the Issuer shall withdraw from the Spread Account all amounts then remaining in the Spread Account and pay such amounts to the holders of the Transferor Interest.
SECTION 4.12 . Investment of Accounts . (a) To the extent there are uninvested amounts deposited in the Series Accounts, the Issuer shall cause such amounts to be invested in Permitted Investments selected by the Issuer that mature no later than the immediately preceding Transfer Date.
(b) On each Transfer Date with respect to the Controlled Accumulation Period and on the first Transfer Date with respect to the Early Amortization Period, the Issuer shall transfer from the Principal Accumulation Account to the Finance Charge Account the Principal Accumulation Investment Proceeds on deposit in the Principal Accumulation for application as Available Finance Charge Collections in accordance with Section 4.4 .
(c) Principal Accumulation Investment Proceeds (including reinvested interest) shall not be considered part of the amounts on deposit in the Principal Accumulation Account for purposes of this Indenture Supplement.
(d) On each Transfer Date (but subject to Section 4.11(a) ), the Investment Earnings, if any, accrued since the preceding Transfer Date on funds on deposit in the Spread Account shall be paid to the holders of the Transferor Interest. For purposes of determining the
28
availability of funds or the balance in the Spread Account for any reason under this Indenture Supplement (subject to Section 4.11(a) ), all Investment Earnings shall be deemed not to be available or on deposit; provided that after the maturity of the Series [200 - ] Notes has been accelerated as a result of an Event of Default, all Investment Earnings shall be added to the balance on deposit in the Spread Account and treated like the rest of the Available Spread Account Amount.
SECTION 4.13 . Controlled Accumulation Period . The Controlled Accumulation Period is scheduled to commence at the beginning of business on [ , 200 ]; provided that if the Controlled Accumulation Period Length (determined as described below) on any Determination Date on or after the [ 200 ] Determination Date is less than or more than the number of months in the scheduled Controlled Accumulation Period, upon written notice to the Indenture Trustee, with a copy to each Rating Agency, the Issuer shall either postpone or accelerate, as applicable, the date on which the Controlled Accumulation Period actually commences, so that, as a result, the number of Monthly Periods in the Controlled Accumulation Period will equal the Controlled Accumulation Period Length; provided that the length of the Controlled Accumulation Period will not be less than one month. The Controlled Accumulation Period Length will mean a number of whole months such that the amount available for payment of principal on the Notes on the Expected Principal Payment Date is expected to equal or exceed the Note Principal Balance, assuming for this purpose that (1) the payment rate with respect to Principal Collections remains constant at the lowest level of such payment rate during the twelve preceding Monthly Periods, (2) the total amount of Principal Receivables in the Trust (and the principal amount on deposit in the Excess Funding Account, if any) remains constant at the level on such date of determination, (3) no Early Amortization Event with respect to any Series will subsequently occur and (4) no additional Series (other than any Series being issued on such date of determination) will be subsequently issued. Any notice by Issuer modifying the commencement of the Controlled Accumulation Period pursuant to this Section 4.13 shall specify (i) the Controlled Accumulation Period Length, (ii) the commencement date of the Controlled Accumulation Period and (iii) the Controlled Accumulation Amount with respect to each Monthly Period during the Controlled Accumulation Period.
SECTION 4.14 . [Determination of LIBOR].
(a) [On each LIBOR Determination Date in respect of an Interest Period, the Indenture Trustee shall determine LIBOR on the basis of the rate per annum displayed in the Bloomberg Financial Markets system as the composite offered rate for London interbank deposits for a one-month period, as of 11:00 a.m., London time, on that date. If that rate does not appear on that display page, LIBOR for that Interest Period will be the rate per annum shown on page 3750 of the Bridge Telerate Services Report screen or any successor page as the composite offered rate for London interbank deposits for a one-month period, as shown under the heading USD as of 11:00 a.m., London time, on the LIBOR Determination Date. If no rate is shown as described in the preceding two sentences, LIBOR for that Interest Period will be the rate per annum based on the rates at which Dollar deposits for a one-month period are displayed on page LIBOR of the Reuters Monitor Money Rates Service or such other page as may replace the LIBOR page on that service for the purpose of displaying London interbank offered rates of major banks as of 11:00 a.m., London time, on the LIBOR Determination Date; provided that if at lease two rates appear on that page, the rate will be the arithmetic mean of the displayed
29
rates and if fewer than two rates are displayed, or if no rate is relevant, the rate for that Interest Period shall be determined on the basis of the rates at which deposits in United States dollars are offered by the Reference Banks at approximately 11:00 a.m., London time, on that day to prime banks in the London interbank market for a one-month period. The Indenture Trustee shall request the principal London office of each of the Reference Banks to provide a quotation of its rate. If at least two (2) such quotations are provided, the rate for that Interest Period shall be the arithmetic mean of the quotations. If fewer than two (2) quotations are provided as requested, the rate for that Interest Period will be the arithmetic mean of the rates quoted by major banks in New York City, selected by the Servicer, at approximately 11:00 a.m., New York City time, on that day for loans in United States dollars to leading European banks for a one-month period.]
(b) The Class A Note Interest Rate, Class B Note Interest Rate and Class C Note Interest Rate applicable to the then current and the immediately preceding Interest Periods may be obtained by telephoning the Indenture Trustee at its corporate trust office at [( ) - ] or such other telephone number as shall be designated by the Indenture Trustee for such purpose by prior written notice by the Indenture Trustee to each Series [200 - ] Noteholder from time to time.
(c) On each LIBOR Determination Date, the Indenture Trustee shall send to the Issuer by facsimile transmission, notification of LIBOR for the following Interest Period.]
SECTION 4.15 . Swaps. (a) On or prior to the Closing Date, the Issuer shall enter into a Class A Swap with the Class A Counterparty, a Class B Swap with the Class B Counterparty and a Class C Swap with the Class C Counterparty for the benefit of the Class A Noteholders, the Class B Noteholders and the Class C Noteholders, respectively. The aggregate notional amount under the Class A Swap shall, at any time, be equal to the Class A Note Principal Balance at such time. The aggregate notional amount under the Class B Swap shall, at any time, be equal to the Class B Note Principal Balance at such time. The aggregate notional amount under the Class C Swap shall, at any time, be equal to the Class C Note Principal Balance. The Issuer shall cause the Class A Counterparty, the Class B Counterparty or the Class C Counterparty to deposit Net Swap Receipts payable in the Collection Account. On any Payment Date when there shall be a Class A Net Swap Payment, the Issuer shall pay such Class A Net Swap Payment subject to the priority of payments set forth in Section 4.4(a)(iii) . On any Payment Date when there shall be a Class B Net Swap Payment, the Issuer shall pay such Class B Net Swap Payment subject to the priority of payments set forth in Section 4.4(a)(iv) . On any Payment Date when there shall be a Class C Net Swap Payment, the Issuer shall pay such Class C Net Swap Payment subject to the priority of payments set forth in Section 4.4(a)(v) . On any Payment Date when there shall be early termination payments or any other miscellaneous payments payable by the Issuer to the Counterparties, the Issuer shall pay such amounts subject to the priority of payments set forth in Section 4.4(a)(x) .
(b) When required under the terms of the existing Class A Swap, Class B Swap or Class C Swap, the Issuer shall obtain a replacement Class A Swap, Class B Swap or Class C Swap, as applicable, upon satisfaction of the Rating Agency Condition.]
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Delivery of Series [200
-
]
Notes;
Reports to Series [200
-
] Noteholders
SECTION 5.1 . Delivery and Payment for the Series [200 - ] Notes.
The Issuer shall execute and issue, and the Indenture Trustee shall authenticate, the Series [200 - ] Notes in accordance with Section 2.2 of the Indenture. The Indenture Trustee shall deliver the Series [200 - ] Notes to or upon the written order of the Issuer when so authenticated.
SECTION 5.2. Reports and Statements to Series [200 - ] Noteholders.
(a) On each Payment Date, the Indenture Trustee shall forward to each Series [200 - ] Noteholder a statement substantially in the form of Exhibit C prepared by the Servicer .
(b) Not later than the second Business Day preceding each Payment Date, the Issuer shall deliver or cause the Servicer to deliver to the Trustee, the Indenture Trustee and each Rating Agency (i) a statement substantially in the form of Exhibit B prepared by the Servicer and (ii) a certificate of an Authorized Officer substantially in the form of Exhibit D ; provided that the Issuer may amend the form of Exhibit B from time to time, with the prior written consent of the Indenture Trustee.
(c) A copy of each statement or certificate provided pursuant to paragraph (a) or (b) may be obtained by any Series [200 - ] Noteholder by a request in writing to the Issuer.
(d) On or before January 31 of each calendar year, beginning with January 31, 2005, the Issuer shall furnish or cause to be furnished to each Person who at any time during the preceding calendar year was a Series [200 - ] Noteholder the information for the preceding calendar year, or the applicable portion thereof during which the Person was a Noteholder, as is required to be provided by an issuer of indebtedness under the Code to the holders of the Issuers indebtedness and such other customary information as is necessary to enable such Noteholder to prepare its federal income tax returns. Notwithstanding anything to the contrary contained in this Agreement, the Issuer shall, to the extent required by applicable law, from time to time furnish to the appropriate Persons, at least five Business Days prior to the end of the period required by applicable law, the informed required to complete a Form 1099-INT.
Series [200 - ] Early Amortization Events
SECTION 6.1 . Series [200 - ] Early Amortization Events . If any one of the following events shall occur with respect to the Series [200 - ] Notes:
(a) (i) failure on the part of Transferor to make any payment or deposit required to be made by it by the terms of the Trust Receivables Purchase Agreement or the Transfer Agreement on or before the date occurring five (5) Business Days after the date such payment or deposit is required to be made therein or herein or (ii) failure of the Transferor duly to observe or perform in any material respect any of their respective covenants or agreements set forth in the Trust
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Receivables Purchase Agreement or the Transfer Agreement (excluding, in the case of Issuer, matters addressed by clause (i) above, which failure has a material adverse effect on the Series [200 - ] Noteholders and which continues unremedied for a period of sixty days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Transferor by the Indenture Trustee, or to the Transferor and the Indenture Trustee by any Noteholder of the Series [200 - ] Notes;
(b) any representation or warranty made by Transferor in the Transfer Agreement or the Trust Receivables Purchase Agreement or any information contained in an account schedule required to be delivered by it pursuant to Section 2.1 or Section 2.6(c) of the Transfer Agreement, Trust Agreement or the Bank Receivables Sale Agreement shall prove to have been incorrect in any material respect when made or when delivered, which continues to be incorrect in any material respect for a period of sixty days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Transferor by the Indenture Trustee, or to the Transferor and the Indenture Trustee by any Noteholder of the Series [200 - ] Notes and as a result of which the interests of the Series [200 - ] Noteholders are materially and adversely affected for such period; provided , however , that a Series [200 - ] Early Amortization Event pursuant to this Section 6.1(b) shall not be deemed to have occurred hereunder if the Transferor has accepted reassignment of the related Transferred Receivable, or all of such Transferred Receivables, if applicable, during such period in accordance with the provisions of the Transfer Agreement or the Trust Receivables Purchase Agreement;
(c) a failure by Transferor under the Trust Receivables Purchase Agreement or the Transfer Agreement to convey Transferred Receivables in Additional Accounts or Participations to the Receivables Trust when it is required to convey such Transferred Receivables pursuant to Section 2.6(a) of the Trust Receivables Purchase Agreement or the Transfer Agreement;
(d) any Servicer Default or any Indenture Servicer Default shall occur;
(e) the Portfolio Yield averaged over three consecutive Monthly Periods is less than the Base Rate averaged over the same Monthly Periods;
(f) the Note Principal Balance shall not be paid in full on the Expected Principal Payment Date; or
(g) without limiting the foregoing, the occurrence of an Event of Default with respect to Series [200 - ] and acceleration of the maturity of the Series [200 - ] Notes pursuant to Section 5.3 of the Indenture;
then, in the case of any event described in subsection (a) , (b) or (d) , after the applicable grace period, if any, set forth in such subparagraphs, either the Indenture Trustee or the holders of Series [200 - ] Notes evidencing more than 50% of the aggregate unpaid principal amount of Series [200 - ] Notes by notice then given in writing to the Issuer (and to the Indenture Trustee if given by the Series [200 - ] Noteholders) may declare that a Series Early Amortization Event with respect to Series [200 - ] (a Series [200 - ] Early Amortization Event ) has occurred as of the date of such notice, and, in the case of any event described in subsection (c) , (e) , (f) or (g) a Series [200 - ] Early Amortization Event shall occur without any notice or other
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action on the part of the Indenture Trustee or the Series [200 - ] Noteholders immediately upon the occurrence of such event.
Redemption of Series [200 - ] Notes; Final Distributions; Series Termination
SECTION 7.1 . Optional Redemption of Series [200 - ] Notes; Final Distributions.
(a) On any day occurring on or after the date on which the outstanding principal balance of the Series [200 - ] Notes is reduced to 10% or less of the initial outstanding principal balance of Series [200 - ] Notes, Transferor has the option pursuant to the Trust Agreement to reduce the Collateral Amount to zero by paying a purchase price equal to the greater of (x) the Collateral Amount, plus the applicable Allocation Percentage of outstanding Finance Charge Receivables and (y) a minimum amount equal to (i) if such day is a Payment Date, the Redemption Amount for such Payment Date or (ii) if such day is not a Payment Date, the Redemption Amount for the Payment Date following such day. If Transferor exercises such option, Issuer will apply such purchase price to repay the Notes in full as specified below.
(b) Issuer shall give the Indenture Trustee at least thirty (30) days prior written notice of the date on which Transferor intends to exercise such optional redemption. Not later than 12:00 noon, New York City time, on such day Issuer shall deposit into the Distribution Account in immediately available funds the excess of the Redemption Amount over the amount, if any, on deposit in the Principal Accumulation Account. Such redemption option is subject to payment in full of the Redemption Amount. Following such deposit into the Distribution Account in accordance with the foregoing, the Collateral Amount for Series [200 - ] shall be reduced to zero and the Series [200 - ] Noteholders shall have no further security interest in the Transferred Receivables. The Redemption Amount shall be paid as set forth in Section 7.1(d) .
(c) (i) The amount to be paid by the Transferor with respect to Series [200 - ] in connection with a reassignment of Transferred Receivables to the Transferor pursuant to Section 6.1(d) of the Transfer Agreement shall not be less than the Redemption Amount for the first Payment Date following the Monthly Period in which the reassignment obligation arises under the Transfer Agreement.
(ii) The amount to be paid by the Issuer with respect to Series [200 - ] in connection with a repurchase of the Notes pursuant to Section 10.1 of the Trust Agreement shall not be less than the Redemption Amount for the Payment Date of such repurchase.
(d) With respect to (i) the Redemption Amount deposited into the Distribution Account pursuant to Section 7.1 or (ii) the proceeds of any sale of Transferred Receivables pursuant to Section 5.3 of the Indenture with respect to Series [200 - ], the Indenture Trustee shall, in accordance with the written direction of the Issuer, not later than 12:00 noon, New York City time, on the related Payment Date, make payments of the following amounts (in the priority set forth below and, in each case, after giving effect to any deposits and payments otherwise to be made on such date) in immediately available funds: (i) (x) the Class A Note Principal Balance on such Payment Date will be paid to the Class A Noteholders and (y) an amount equal
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to the sum of (A) Class A Monthly Interest due and payable on such Payment Date or any prior Payment Date, (B) any Class A Deficiency Amount for such Payment Date and (C) the amount of Class A Additional Interest, if any, for such Payment Date and any Class A Additional Interest previously due but not paid to the Class A Noteholders on any prior Payment Date, will be paid to the Class A Noteholders, (ii) (x) the Class B Note Principal Balance on such Payment Date will be paid to the Class B Noteholders and (y) an amount equal to the sum of (A) Class B Monthly Interest due and payable on such Payment Date or any prior Payment Date, (B) any Class B Deficiency Amount for such Payment Date and (C) the amount of Class B Additional Interest, if any, for such Payment Date and any Class B Additional Interest previously due but not paid to the Class B Noteholders on any prior Payment Date, will be paid to the Class B Noteholders, (iii) (x) the Class C Note Principal Balance on such Payment Date will be paid to the Class C Noteholders and (y) an amount equal to the sum of (A) Class C Monthly Interest due and payable on such Payment Date or any prior Payment Date, (B) any Class C Deficiency Amount for such Payment Date, and (C) the amount of Class C Additional Interest, if any, for such Payment Date and any Class C Additional Interest previously due but not paid to the Class C Noteholders on any prior Payment Date will be paid to the Class C Noteholders and (iv) on a pari passu basis, (A) any amounts owed to the Counterparty under the Class A Swap will be paid to the Class A Counterparty, (B) any amounts owed to the Class B Counterparty under the Class B Swap will be paid to the Class B Counterparty and (C) any amounts owed to the Class C Counterparty under the Class C Swap will be paid to the Class C Counterparty and (v) any excess shall be released to the Issuer.
SECTION 7.2 . Series Termination .
On the Series Maturity Date, the unpaid principal amount of the Series [200 - ] Notes shall be due and payable.
Miscellaneous Provisions
SECTION 8.1 . Ratification of Indenture; Amendments . As supplemented by this Indenture Supplement, the Indenture is in all respects ratified and confirmed and the Indenture as so supplemented by this Indenture Supplement shall be read, taken and construed as one and the same instrument. This Indenture Supplement may be amended only by a Supplemental Indenture entered in accordance with the terms of Section 10.1 or 10.2 of the Indenture. For purposes of the application of Section 10.2 to any amendment of this Indenture Supplement, the Series [200 - ] Noteholders shall be the only Noteholders whose vote shall be required.
SECTION 8.2 . Form of Delivery of the Series [200 - ] Notes . The Class A Notes, the Class B Notes and the Class C Notes shall be Book-Entry Notes and shall be delivered as provided in Sections 2.1 and 2.2 of the Indenture.
SECTION 8.3 . Counterparts . This Indenture Supplement may be executed in two or more counterparts, and by different parties on separate counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument.
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SECTION 8.4 . GOVERNING LAW . (a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA. THIS INDENTURE SUPPLEMENT IS SUBJECT TO THE TRUST INDENTURE ACT OF 1939, AS AMENDED, AND SHALL BE GOVERNED THEREBY AND CONSTRUED IN ACCORDANCE THEREWITH.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED , THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED , FURTHER , THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE INDENTURE TRUSTEE FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE NOTES, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE INDENTURE TRUSTEE. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 11.4 OF THE INDENTURE AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTYS ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE,
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TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS INDENTURE SUPPLEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.5 . Limitation of Liability . Notwithstanding any other provision herein or elsewhere, this Agreement has been executed and delivered by The Bank of New York (Delaware), not in its individual capacity, but solely in its capacity as Trustee of the Trust, in no event shall The Bank of New York (Delaware) in its individual capacity have any liability in respect of the representations, warranties, or obligations of the Issuer hereunder or under any other document, as to all of which recourse shall be had solely to the assets of the Trust, and for all purposes of this Agreement and each other document, the Trustee (as such or in its individual capacity) shall be subject to, and entitled to the benefits of, the terms and provisions of the Trust Agreement.
SECTION 8.6 . Rights of the Indenture Trustee . The Indenture Trustee shall have herein the same rights, protections, indemnities and immunities as specified in the Master Indenture.
SECTION 8.7 . Notice Address for Rating Agencies . Notices, if any, required to be delivered to the Rating Agencies by the Issuer, the Indenture Trustee or the Trustee shall be sent to the following address:
[Fitch Ratings
One State Street Plaza
New York, NY ,10004
Telephone: (212) 908-0247
Facsimile: (212) 514-9879]
[Moodys Rating Service
99 Church Street
New York, NY 10007]
[Standard & Poors
55 Water Street
New York, NY 10041]
FASIT MATTERS
SECTION 9.1 . FASIT Administration . (a) FASIT Matters . An election has been made to treat the Trust Estate as a FASIT known as the RFS FASIT. December 30, 2002 was designated as the Startup Day of the RFS FASIT within the meaning of section 860L(d)(1) of the Code. The Ownership Interest was designated as the single class of ownership interest (within the meaning of section 860L(b)(2) of the Code) in the RFS FASIT. Notwithstanding any
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provision of the Indenture or this Indenture Supplement to the contrary, each class of Series [200 -] Regular Interests shall mature on or before December 1, 2020.
(b) Series [200 -] Regular Interests . Each Class of Notes is hereby designated a separate class of regular interests in the RFS FASIT within the meaning of section 860L(b)(1)(A) of the Code and each Note is hereby designated a separate regular interest within such Class. Each of the Class A Notes is hereby designated a Class A Regular Interest , each of the Class B Notes is hereby designated a Class B Regular Interest and each of the Class C Notes is hereby designated a Class C Regular Interest (the Class A Regular Interests, the Class B Regular Interests and the Class C Regular Interests being referred to collectively as the Series [200 -] Regular Interests ). The Series [200 -] Regular Interest shall bear interest at a rate equal to the rate of interest on the related Class A Note, Class B Note or Class C Note, as applicable (such related interest, a Related Interest ). The rate of interest on each Related Interest is intended to qualify as a qualifying variable rate under section 860L(b)(1)(A)(ii) of the Code. Interest shall be paid on each Class of Series [200 -] Regular Interest at the same times as Interest is paid on the Class A Notes, Class B Notes and Class C Notes (which Interest shall be allocated among the Series [200 -] Regular Interests in proportion to the amount of Interest owning on the respective Related Interests if there is more than one class of such Series [200 -] Regular Interests and Interest with respect to each class is not paid in full). The principal amount of each Series [200 -] Regular Interest shall equal the respective amount of the Class A Note Principal Balance, Class B Note Principal Balance or Class C Note Principal Balance, as applicable, with respect to the Related Interest for such Series [200 -] Regular Interest.
(c) Payment of Principal on Class A Regular Interests . On each Payment Date, beginning with the Payment Date in the month following the month in which the Controlled Accumulation Period or, if earlier, the Early Amortization Period, begins, the principal amount of each Class A Regular Interest related to a Class A Note shall be reduced by such Class A Notes pro rata share of an amount equal to the least of (i) the Available Principal Collections on deposit in the Principal Account with respect to such Payment Date, (ii) for each Payment Date with respect to the Controlled Accumulation Period, the Controlled Deposit Amount for such Payment Date, (iii) the Collateral Amount (after taking into account any adjustments to be made on such Payment Date pursuant to Sections 4.6 and 4.7 ) prior to any deposit into the Principal Accumulation Account on such Payment Date, and (iv) the Note Principal Balance, minus any amount already on deposit in the Principal Accumulation Account on such Payment Date.
(d) Payment of Principal on Class B Regular Interests . On each Payment Date, beginning with the Payment Date in the month following the month in which the Controlled Accumulation Period or, if earlier, the Early Amortization Period, begins, the principal amount of each Class B Regular Interest related to a Class B Note shall be reduced by such Class B Notes pro rata share of an amount equal to the least of (i) the Available Principal Collections on deposit in the Principal Account with respect to such Payment Date, (ii) for each Payment Date with respect to the Controlled Accumulation Period, the Controlled Deposit Amount for such Payment Date, (iii) the Collateral Amount (after taking into account any adjustments to be made on such Payment Date pursuant to Sections 4.6 and 4.7 ) prior to any deposit into the Principal Accumulation Account on such Payment Date, and (iv) the Note Principal Balance, minus any amount already on deposit in the Principal Accumulation Account on such Payment Date.
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(e) Payment of Principal on Class C Regular Interests . On each Payment Date, beginning with the Payment Date in the month following the month in which the Controlled Accumulation Period or, if earlier, the Early Amortization Period, begins, the principal amount of each Class C Regular Interest related to a Class C Note shall be reduced by such Class C Notes pro rata share of an amount equal to the least of (i) the Available Principal Collections on deposit in the Principal Account with respect to such Payment Date, (ii) for each Payment Date with respect to the Controlled Accumulation Period, the Controlled Deposit Amount for such Payment Date, (iii) the Collateral Amount (after taking into account any adjustments to be made on such Payment Date pursuant to Sections 4.6 and 4.7 ) prior to any deposit into the Principal Accumulation Account on such Payment Date, and (iv) the Note Principal Balance, minus any amount already on deposit in the Principal Accumulation Account on such Payment Date.
(f) The Issuer hereby agrees to take such further actions as may be required to effectuate this Article IX and the intent that the RFS FASIT be treated as a FASIT.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have caused this Indenture Supplement to be duly executed and delivered by their respective duly authorized officers on the day and year first above written.
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S-1
FORM OF CLASS A SERIES [200 - ] [FLOATING RATE] ASSET BACKED NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST RFS FUNDING TRUST, THE TRANSFEROR OR THE ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE OR ENCOURAGE ANY INSTITUTION IN INSTITUTING AGAINST RFS FUNDING TRUST, THE TRANSFEROR OR THE ISSUER, ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO THE NOTES, THE INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS A NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS A NOTES AS INDEBTEDNESS OF THE ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
A-1-1
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GE
CAPITAL CREDIT CARD
MASTER NOTE TRUST SERIES [200
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CLASS A SERIES [2 00 - ] [FLOATING RATE] ASSET BACKED NOTE
GE Capital Credit Card Master Note Trust (herein referred to as the Issuer or the Trust), a Delaware statutory trust governed by a Trust Agreement dated as of , 2003, for value received, hereby promises to pay to Cede & Co., or registered assigns, subject to the following provisions, the principal sum of DOLLARS, or such greater or lesser amount as determined in accordance with the Indenture, on the [ ] 200[ ] Payment Date, except as otherwise provided below or in the Indenture. The Issuer will pay interest on the unpaid principal amount of this Note at the Class A Note Interest Rate on each Payment Date until the Final Payment Date (which is the earlier to occur of (a) the Payment Date on which the Note Principal Balance is paid in full, (b) the date on which the Collateral Amount is reduced to zero and (c) the [ ], 200[ ] Payment Date). Interest on this Note will accrue for each Payment Date from and including the most recent Payment Date on which interest has been paid to but excluding such Payment Date or, for the initial Payment Date, from and including the Closing Date to but excluding such Payment Date. Interest will be computed on the basis of a [360-day] year and the [actual] number of days elapsed. Principal of this Note shall be paid in the manner specified in the Indenture Supplement referred to on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by or on behalf of the Indenture Trustee, by manual signature, this Note shall not be entitled to any benefit under the Indenture or the Indenture Supplement referred to on the reverse hereof, or be valid for any purpose.
A-1-2
IN WITNESS WHEREOF, the Issuer has caused this Class A Note to be duly executed.
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A-1-3
INDENTURE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Class A Notes described in the within-mentioned Indenture.
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A-1-4
GE CAPITAL CREDIT CARD
MASTER NOTE TRUST SERIES [200
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CLASS A SERIES [200 - ] [FLOATING RATE] ASSET BACKED NOTE
Summary of Terms and Conditions
This Class A Note is one of a duly authorized issue of Notes of the Issuer, designated as GE Capital Credit Card Master Note Trust, Series [200 - ] (the Series [200 - ] Notes ), issued under a Master Indenture dated as of , 2001 (the Master Indenture ), between the Issuer and Deutsche Bank Trust Company Americas, as indenture trustee (the Indenture Trustee ), as supplemented by the Indenture Supplement dated as of , 2003 (the Indenture Supplement ), and representing the right to receive certain payments from the Issuer. The term Indenture, unless the context otherwise requires, refers to the Master Indenture as supplemented by the Indenture Supplement. The Notes are subject to all of the terms of the Indenture. All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in or pursuant to the Indenture. In the event of any conflict or inconsistency between the Indenture and this Note, the Indenture shall control.
The Class B Notes and the Class C Notes will also be issued under the Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will look solely to the property of the Issuer allocated to the payment of this Note for payment hereunder and that neither the Owner Trustee nor the Indenture Trustee is liable to the Noteholders for any amount payable under the Notes or the Indenture or, except in the case of the Indenture Trustee as expressly provided in the Indenture, subject to any liability under the Indenture.
This Note does not purport to summarize the Indenture and reference is made to the Indenture for the interests, rights and limitations of rights, benefits, obligations and duties evidenced thereby, and the rights, duties and immunities of the Indenture Trustee.
THIS CLASS A NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN, THE ISSUER, MONOGRAM CREDIT CARD BANK OF GEORGIA, RFS HOLDING, L.L.C., OR ANY OF THEIR AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
The Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee shall treat the person in whose name this Class A Note is registered as the owner hereof for all purposes, and neither the Issuer, the Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
THIS CLASS A NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-1-5
ASSIGNMENT
Social Security or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto (name and address of assignee) the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints attorney, to transfer said certificate on the books kept for registration thereof, with full power of substitution in the premises.
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** The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever.
A-1-6
FORM OF CLASS B SERIES [200 - ] [FLOATING RATE] ASSET BACKED NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST RFS FUNDING TRUST, THE TRANSFEROR OR THE ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE OR ENCOURAGE ANY INSTITUTION IN INSTITUTING AGAINST RFS FUNDING TRUST, THE TRANSFEROR OR THE ISSUER, ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO THE NOTES, THE INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS B NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS B NOTES AS INDEBTEDNESS OF THE ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
A-2-1
REGISTERED |
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No. R- |
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CUSIP NO. |
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GE CAPITAL CREDIT CARD
MASTER NOTE TRUST SERIES [200
-
]
CLASS B SERIES [200 - ] [FLOATING RATE] ASSET BACKED NOTE
GE Capital Credit Card Master Note Trust (herein referred to as the Issuer or the Trust), a Delaware statutory trust governed by a Trust Agreement dated as of , 2003, for value received, hereby promises to pay to Cede & Co., or registered assigns, subject to the following provisions, the principal sum of DOLLARS, or such greater or lesser amount as determined in accordance with the Indenture, on the [ ], 200[ ] Payment Date, except as otherwise provided below or in the Indenture. The Issuer will pay interest on the unpaid principal amount of this Note at the Class B Note Interest Rate on each Payment Date until the Final Payment Date (which is the earlier to occur of (a) the Payment Date on which the Note Principal Balance is paid in full, (b) the date on which the Collateral Amount is reduced to zero and (c) the [ ], 200[ ] Payment Date). Interest on this Note will accrue for each Payment Date from and including the most recent Payment Date on which interest has been paid to but excluding such Payment Date or, for the initial Payment Date, from and including the Closing Date to but excluding such Payment Date. Interest will be computed on the basis of a [360-day] year and the [actual] number of days elapsed. Principal of this Note shall be paid in the manner specified in the Indenture Supplement referred to on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by or on behalf of the Indenture Trustee, by manual signature, this Note shall not be entitled to any benefit under the Indenture or the Indenture Supplement referred to on the reverse hereof, or be valid for any purpose.
THIS CLASS B NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND PAYMENTS ON THE CLASS A NOTES TO THE EXTENT SPECIFIED IN THE INDENTURE SUPPLEMENT.
A-2-2
IN WITNESS WHEREOF, the Issuer has caused this Class B Note to be duly executed.
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GE CAPITAL CREDIT CARD MASTER NOTE TRUST, as Issuer |
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By: |
[ ], not in its individual capacity but solely as Trustee on behalf of Issuer |
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By: |
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Name: |
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Dated: , |
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A-2-3
INDENTURE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Class B Notes described in the within-mentioned Indenture.
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[ ], |
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as Indenture Trustee |
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By: |
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Authorized Signatory |
A-2-4
GE CAPITAL CREDIT CARD
MASTER NOTE TRUST SERIES 2001-
CLASS B SERIES [200 - ] [FLOATING RATE] ASSET BACKED NOTE
Summary of Terms and Conditions
This Class B Note is one of a duly authorized issue of Notes of the Issuer, designated as GE Capital Credit Card Master Note Trust, Series [200 - ] (the Series [200 - ] Notes ), issued under a Master Indenture dated as of , 2001 (the Master Indenture ), between the Issuer and Deutsche Bank Trust Company Americas, as indenture trustee (the Indenture Trustee ), as supplemented by the Indenture Supplement dated as of , 2003 (the Indenture Supplement ), and representing the right to receive certain payments from the Issuer. The term Indenture, unless the context otherwise requires, refers to the Master Indenture as supplemented by the Indenture Supplement. The Notes are subject to all of the terms of the Indenture. All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in or pursuant to the Indenture. In the event of any conflict or inconsistency between the Indenture and this Note, the Indenture shall control.
The Class A Notes and the Class C Notes will also be issued under the Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will look solely to the property of the Issuer allocated to the payment of this Note for payment hereunder and that neither the Owner Trustee nor the Indenture Trustee is liable to the Noteholders for any amount payable under the Notes or the Indenture or, except in the case of the Indenture Trustee as expressly provided in the Indenture, subject to any liability under the Indenture.
This Note does not purport to summarize the Indenture and reference is made to the Indenture for the interests, rights and limitations of rights, benefits, obligations and duties evidenced thereby, and the rights, duties and immunities of the Indenture Trustee.
THIS CLASS B NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN, THE ISSUER, MONOGRAM CREDIT CARD BANK OF GEORGIA, RFS HOLDING, L.L.C., OR ANY OF THEIR AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
The Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee shall treat the person in whose name this Class B Note is registered as the owner hereof for all purposes, and neither the Issuer, the Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
THIS CLASS B NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-2-5
ASSIGNMENT
Social Security or other identifying number of assignee .
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto (name and address of assignee) the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints attorney, to transfer said certificate on the books kept for registration thereof, with full power of substitution in the premises.
Dated: , |
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** |
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Signature Guaranteed: |
** The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever.
A-2-6
FORM OF CLASS C SERIES [200 - ] [FLOATING RATE] ASSET BACKED NOTE
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (DTC), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THE HOLDER OF THIS NOTE BY ITS ACCEPTANCE HEREOF COVENANTS AND AGREES THAT IT WILL NOT AT ANY TIME INSTITUTE AGAINST RFS FUNDING TRUST, THE TRANSFEROR OR THE ISSUER, OR SOLICIT OR JOIN OR COOPERATE WITH OR ENCOURAGE OR ENCOURAGE ANY INSTITUTION IN INSTITUTING AGAINST RFS FUNDING TRUST, THE TRANSFEROR OR THE ISSUER, ANY BANKRUPTCY, REORGANIZATION, ARRANGEMENT, INSOLVENCY OR LIQUIDATION PROCEEDINGS, OR OTHER PROCEEDINGS UNDER ANY UNITED STATES FEDERAL OR STATE BANKRUPTCY OR SIMILAR LAW IN CONNECTION WITH ANY OBLIGATION RELATING TO THE NOTES, THE INDENTURE OR ANY OF THE TRANSACTION DOCUMENTS.
THE HOLDER OF THIS CLASS C NOTE, BY ACCEPTANCE OF THIS NOTE, AND EACH HOLDER OF A BENEFICIAL INTEREST THEREIN, AGREE TO TREAT THE CLASS C NOTES AS INDEBTEDNESS OF THE ISSUER FOR APPLICABLE FEDERAL, STATE, AND LOCAL INCOME AND FRANCHISE TAX LAW AND FOR PURPOSES OF ANY OTHER TAX IMPOSED ON, OR MEASURED BY, INCOME.
A-3-1
REGISTERED |
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No. R- |
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CUSIP NO. |
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GE CAPITAL CREDIT CARD
MASTER NOTE TRUST SERIES [200
-
]
CLASS C SERIES [200 - ] [FLOATING RATE] ASSET BACKED NOTE
GE Capital Credit Card Master Note Trust (herein referred to as the Issuer or the Trust ), a Delaware statutory trust governed by a Trust Agreement dated as of , 2003, for value received, hereby promises to pay to Cede & Co., or registered assigns, subject to the following provisions, the principal sum of DOLLARS, or such greater or lesser amount as determined in accordance with the Indenture, on the [ ], 200[ ] Payment Date, except as otherwise provided below or in the Indenture. The Issuer will pay interest on the unpaid principal amount of this Note at the Class C Note Interest Rate on each Payment Date until the Final Payment Date (which is the earlier to occur of (a) the Payment Date on which the Note Principal Balance is paid in full, (b) the date on which the Collateral Amount is reduced to zero and (c) the [ ], 200[ ] Payment Date). Interest on this Note will accrue for each Payment Date from and including the most recent Payment Date on which interest has been paid to but excluding such Payment Date or, for the initial Payment Date, from and including the Closing Date to but excluding such Payment Date. Interest will be computed on the basis of a [360-day] year and the [actual] number of days elapsed. Principal of this Note shall be paid in the manner specified in the Indenture Supplement referred to on the reverse hereof.
The principal of and interest on this Note are payable in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts.
Reference is made to the further provisions of this Note set forth on the reverse hereof, which shall have the same effect as though fully set forth on the face of this Note.
Unless the certificate of authentication hereon has been executed by or on behalf of the Indenture Trustee, by manual signature, this Note shall not be entitled to any benefit under the Indenture or the Indenture Supplement referred to on the reverse hereof, or be valid for any purpose.
THIS CLASS C NOTE IS SUBORDINATED TO THE EXTENT NECESSARY TO FUND PAYMENTS ON THE CLASS A AND CLASS B NOTES TO THE EXTENT SPECIFIED IN THE INDENTURE SUPPLEMENT.
A-3-2
IN WITNESS WHEREOF, the Issuer has caused this Class C Note to be duly executed.
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GE CAPITAL CREDIT CARD MASTER NOTE TRUST, as Issuer |
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By: |
[ ], not in its individual capacity but solely as Trustee on behalf of Issuer |
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By: |
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Name: |
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Title: |
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Dated: , |
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, |
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A-3-3
INDENTURE TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Class C Notes described in the within-mentioned Indenture.
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[ ], |
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as Indenture Trustee |
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By: |
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Authorized Signatory |
A-3-4
GE CAPITAL CREDIT CARD
MASTER NOTE TRUST SERIES [200
-
]
CLASS C SERIES [200 - ] [FLOATING RATE] ASSET BACKED NOTE
Summary of Terms and Conditions
This Class C Note is one of a duly authorized issue of Notes of the Issuer, designated as GE Capital Credit Card Master Note Trust, Series [200 - ] (the Series [200 - ] Notes ), issued under a Master Indenture dated as of , 2001 (the Master Indenture ), between the Issuer and Deutsche Bank Trust Company Americas, as indenture trustee (the Indenture Trustee ), as supplemented by the Indenture Supplement dated as of , 2003 (the Indenture Supplement ), and representing the right to receive certain payments from the Issuer. The term Indenture, unless the context otherwise requires, refers to the Master Indenture as supplemented by the Indenture Supplement. The Notes are subject to all of the terms of the Indenture. All terms used in this Note that are defined in the Indenture shall have the meanings assigned to them in or pursuant to the Indenture. In the event of any conflict or inconsistency between the Indenture and this Note, the Indenture shall control.
The Class A Notes and the Class B Notes will also be issued under the Indenture.
The Noteholder, by its acceptance of this Note, agrees that it will look solely to the property of the Issuer allocated to the payment of this Note for payment hereunder and that neither the Owner Trustee nor the Indenture Trustee is liable to the Noteholders for any amount payable under the Notes or the Indenture or, except in the case of the Indenture Trustee as expressly provided in the Indenture, subject to any liability under the Indenture.
This Note does not purport to summarize the Indenture and reference is made to the Indenture for the interests, rights and limitations of rights, benefits, obligations and duties evidenced thereby, and the rights, duties and immunities of the Indenture Trustee.
THIS CLASS C NOTE DOES NOT REPRESENT AN OBLIGATION OF, OR AN INTEREST IN, THE ISSUER, MONOGRAM CREDIT CARD BANK OF GEORGIA, RFS HOLDING, L.L.C., OR ANY OF THEIR AFFILIATES, AND IS NOT INSURED OR GUARANTEED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER GOVERNMENTAL AGENCY OR INSTRUMENTALITY.
The Issuer, the Indenture Trustee and any agent of the Issuer or the Indenture Trustee shall treat the person in whose name this Class C Note is registered as the owner hereof for all purposes, and neither the Issuer, the Indenture Trustee nor any agent of the Issuer or the Indenture Trustee shall be affected by notice to the contrary.
THIS CLASS C NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-3-5
ASSIGNMENT
Social Security or other identifying number of assignee
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto (name and address of assignee) the within certificate and all rights thereunder, and hereby irrevocably constitutes and appoints attorney, to transfer said certificate on the books kept for registration thereof, with full power of substitution in the premises.
Dated: , |
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** |
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Signature Guaranteed: |
** The signature to this assignment must correspond with the name of the registered owner as it appears on the face of the within Note in every particular, without alteration, enlargement or any change whatsoever.
A-3-6
FORM OF MONTHLY PAYMENT INSTRUCTIONS AND
NOTIFICATION TO INDENTURE TRUSTEE
GE CAPITAL CREDIT CARD MASTER NOTE TRUST
SERIES [200
-
]
The undersigned, a duly authorized representative of Monogram Credit Card Bank of Georgia, as Servicer, pursuant to the Indenture (as defined below), does hereby certify as follows:
A. Capitalized terms used in this Certificate have their respective meanings set forth in the Master Indenture dated as of [ , , 200 ] (the Indenture ) between the GE Capital Credit Card Master Note Trust (the Issuer ) and [ ], as indenture trustee (the Indenture Trustee ) as supplemented by the [200 - ] Indenture Supplement dated as of [ , 200 ] between the Issuer and Indenture Trustee (as amended and supplemented, the Indenture Supplement ).
B. The undersigned is an Authorized Officer of the Issuer.
I. INSTRUCTION TO MAKE A WITHDRAWAL
Pursuant to Section 4.4 , the Servicer does hereby instruct the Indenture Trustee (i) to make a withdrawal from the Distribution Account (or other Series Account as specified below) on , 200 , which date is a Payment Date under the Indenture Supplement, in an aggregate amount (equal to the Available Finance Charge Collections) as set forth below in respect of the following amounts and (ii) to apply the proceeds of such withdrawal in accordance with Section 4.4(a) :
A. |
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Pursuant to Section 4.4(a)(i) : |
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Unpaid Fees and other amounts owed to Indenture Trustee |
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$ |
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Unpaid Fees and other amounts owed to RFS Funding Trustee |
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$ |
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Unpaid Fees and other amounts owed to Trustee |
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$ |
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Unpaid Fees and other amounts owed to Administrator |
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$ |
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B. |
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Pursuant to Section 4.4(a)(ii) : |
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Noteholder Servicing Fee for such Payment Date, plus the amount of any Noteholder Servicing Fee previously due but not distributed to the Servicer on a prior Payment Date |
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$ |
B-1
C. |
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Pursuant to Section 4.4(a)(iii) : |
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Class A Monthly Interest for the preceding Interest Period |
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$ |
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Monthly Interest previously due but not distributed to Class A Noteholders |
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$ |
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Additional Interest previously due but not distributed to Class A Noteholders |
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$ |
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Class A Net Swap Payment |
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$ |
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D. |
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Pursuant to Section 4.4(a)(iv) : |
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Class B Monthly Interest for the preceding Interest Period |
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$ |
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Monthly Interest previously due but not distributed to Class B Noteholders |
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$ |
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Additional Interest previously due but not distributed to Class B Noteholders |
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$ |
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Class B Net Swap Payment |
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$ |
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D. |
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Pursuant to Section 4.4(a)(iv) : |
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Noteholder Servicing Fee for such Payment Date, plus the amount of any Noteholder Servicing Fee previously due but not distributed to the Servicer on a prior Payment Date |
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$ |
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E. |
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Pursuant to Section 4.4(a)(v) : |
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Class C Monthly Interest for the preceding Interest Period |
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$ |
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Monthly Interest previously due but not distributed to Class C Noteholders |
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$ |
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Additional Interest previously due but not distributed to Class C Noteholders |
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$ |
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Class C Net Swap Payment |
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$ |
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F. |
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Pursuant to Section 4.4(a)(vi) from the Principal Account: |
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$ |
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Investor Default Amount to be treated as Available Principal Collections |
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$ |
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Investor Uncovered Dilution Amount for such Payment Date to be treated as Available Principal Collections |
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$ |
B-2
G. |
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Pursuant to Section 4.4(a)(vii) : |
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Investor Charge Offs and the amount of Reallocated Principal Collections not previously reimbursed to be treated as Available Principal Collections |
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$ |
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H. |
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Pursuant to Section 4.4(a)(viii) : |
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Amount to be deposited into the Reserve Account |
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$ |
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I. |
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Pursuant to Section 4.4(a)(ix) |
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Amount to be deposited in the Spread Account |
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$ |
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J. |
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Pursuant to Section 4.4(a)(x) : |
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Partial or early termination payments or other additional payments owed to the Class A Counterparty |
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$ |
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Partial or early termination payments or other additional payments owed to the Class B Counterparty |
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$ |
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Partial or early termination payments or other additional payments owed to the Class C Counterparty |
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$ |
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K. |
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Pursuant to Section 4.4(a)(xi) : |
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Amounts owed to Persons listed in (A) above but not paid pursuant to (A) |
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L. |
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Pursuant to Section 4.4(a)(x) : |
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The balance, if any, will constitute a portion of Excess Finance Charge Collections for such Payment Date and first will be available for allocation to other Series in Group One, second deposited in the Excess Funding Account to the extent necessary so that the Free Equity Amount is not less than the Minimum Free Equity Amount and third paid to the Holders of the Transferor Interest as described in Section 8.6 of the Indenture |
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$ |
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M. |
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Pursuant to Section 4.4(a)(xiii) : |
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During an Early Amortization Event, the remaining balance, if any, will be used to make principal payments on the Notes in the following order of priority: |
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$ |
B-3
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Class A Notes |
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$ |
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Class B Notes |
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$ |
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Class C Notes |
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$ |
Pursuant to Section 4.4(b) and (c) , the Issuer does hereby instruct the Indenture Trustee (i) to make a withdrawal from the Distribution Account (or other Series Account specified below) on , 200 , which date is a Payment Date under the Indenture Supplement, in an aggregate amount (equal to the Available Principal Collections) as set forth below in respect of the following amounts and (ii) to apply the proceeds of such withdrawal in accordance with Section 4.4(b) and (c) :
A. |
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Pursuant to Section 4.4(b) : |
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During the Revolving Period, amount equal to the Available Principal Collections to be treated as Shared Principal Collections and applied in accordance with Section 8.5 of the Indenture |
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$ |
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B. |
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Pursuant to Section 4.4(c)(i) : |
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During the Controlled Accumulation Period, Monthly Principal for such Payment Date to be deposited into the Principal Accumulation Account |
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$ |
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C. |
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Pursuant to Section 4.4(c)(ii) : |
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During the Early Amortization Period, Monthly Principal for such Payment Date for payment to the Class A Noteholders on such Payment Date until the Class A Note Principal Balance has been paid in full |
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$ |
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D. |
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Pursuant to Section 4.4(c)(iii) : |
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Amount, if any, remaining after giving effect to Clauses (B) through (D) above, to be treated as Shared Principal Collections |
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$ |
Pursuant to Section 4.7 , the Issuer does hereby instruct the Indenture Trustee (i) to make a withdrawal from the Distribution Account on , 200 , which date is a Payment Date under the Indenture Supplement, in an aggregate amount (equal to the Available Principal Collections) as set forth below in respect of the following amounts and (ii) to apply the proceeds of such withdrawal in accordance with Section 4.7 :
B-4
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Reallocated Principal Collections to fund any deficiency pursuant to and in the priority set forth Sections 4.4(a)(i) , (ii) , (iii) , (iv) and (v) of the Indenture Supplement |
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$ |
Pursuant to Section 4.10 , the Issuer does hereby instruct the Indenture Trustee to withdraw from the Reserve Account an amount equal to any Reserve Account Surplus to be deposited into the Spread Account in accordance with Section 4.10(e) , in the following amount.
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$ |
Pursuant to Section 4.11 , the Issuer does hereby instruct the Indenture Trustee to withdraw from the Spread Account an amount equal to a deficiency in Class C Monthly Interest up to the Available Spread Account Amount, in the following amount.
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$ |
Pursuant to Section 4.12 , the Issuer does hereby instruct the Indenture Trustee to transfer from the Principal Accumulation Account to the Collection Account, the Principal Accumulation Investment Proceeds on deposit in the Principal Accumulation Account for application as Available Finance Charge Collections in the following amount.
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$ |
II. INSTRUCTIONS TO MAKE CERTAIN PAYMENTS
Pursuant to Section 5.2 , the Issuer does hereby instruct the Indenture Trustee or the Paying Agent as the case may be, to pay in accordance with Section 5.2 from the Collection Account or the Principal Account, as applicable, on , which date is a Payment Date under the Indenture Supplement, the following amounts:
A. |
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Pursuant to Section 5.2(a) : |
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(1) |
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Class A Noteholders pro rata share of the amounts on deposit in the Distribution Account that are allocated and available on such Payment Date to pay interest on the Class A Notes pursuant to the Indenture Supplement |
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$ |
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(2) |
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Class A Noteholders pro rata share of the amounts on deposit in the Distribution Account that are allocated and available on such Payment Date to pay principal of the Class A Notes pursuant to the Indenture Supplement |
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$ |
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B. |
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Pursuant to Section 5.2(b) : |
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(1) |
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Class B Noteholders pro rata share of the amounts on deposit in the Distribution |
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$ |
B-5
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Account that are allocated and available on such Payment Date to pay interest on the Class B Notes pursuant to the Indenture Supplement |
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(2) |
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Class B Noteholders pro rata share of the amounts on deposit in the Distribution Account that are allocated and available on such Payment Date to pay principal of the Class B Notes pursuant to the Indenture Supplement |
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$ |
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C. |
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Pursuant to Section 5.2(c) : |
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(1) |
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Class C Noteholders pro rata share of the amounts on deposit in the Distribution Account that are allocated and available on such Payment Date to pay interest of the Class C Notes pursuant to the Indenture Supplement, including amounts withdrawn from the Spread Account |
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$ |
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(2) |
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Class C Noteholders pro rata share of the amounts on deposit in the Distribution Account that are allocated and available on such Payment Date to pay principal on the Class C Notes pursuant to the Indenture Supplement |
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$ |
B-6
IN WITNESS WHEREOF, the undersigned has duly executed this certificate this day of , 2000 .
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MONOGRAM CREDIT CARD BANK OF GEORGIA, as Servicer |
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By: |
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Name: |
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Title: |
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B-7
FORM OF MONTHLY NOTEHOLDERS STATEMENT
GE CAPITAL CREDIT CARD MASTER NOTE TRUST
SERIES [200
-
]
Pursuant to the Master Indenture, dated as of [200 - ], (as amended and supplemented, the Indenture ) between GE Capital Credit Card Master Note Trust (the Issuer ) and Deutsche Bank Trust Company Americas, as indenture trustee (the Indenture Trustee ), as supplemented by the Series [200 - ] Indenture Supplement (the Indenture Supplement ), dated as of [200 - ], between the Issuer and the Indenture Trustee, the Issuer is required to prepare certain information each month regarding current distributions to the Series [200 - ] Noteholders and the performance of the Trust during the previous month. The information required to be prepared with respect to the Payment Date of , and with respect to the performance of the Trust during the month of is set forth below. Capitalized terms used herein are defined in the Indenture and the Indenture Supplement.
A. Information regarding distributions in respect of the Notes
1.. |
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The total amount of the distribution in respect of Class A Notes |
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$ |
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2. |
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The amount of the distribution set forth in paragraph 1 above in respect of principal of the Class A Notes |
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$ |
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3. |
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The amount of the distribution set forth in paragraph 1 above in respect of interest on the Class A Notes |
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$ |
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4. |
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The total amount of the distribution in respect of Class B Notes |
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$ |
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5. |
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The amount of the distribution set forth in paragraph 4 above in respect of principal of the Class B Notes |
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$ |
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6. |
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The amount of the distribution set forth in paragraph 4 above in respect of interest on the Class B Notes |
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$ |
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7. |
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The total amount of the distribution in respect of Class C Notes |
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$ |
C-1
8. |
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The amount of the distribution set forth in paragraph 7 above in respect of principal of the Class C Notes |
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$ |
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9. |
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The amount of the distribution set forth in paragraph 7 above in respect of interest on the Class C Notes |
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$ |
RECEIVABLES - |
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Beginning of the Month Principal Receivables: |
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$ |
Beginning of the Month Finance Charge Receivables: |
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$ |
Beginning of the Month Recharacterized Option Receivables: |
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$ |
Beginning of the Month Total Receivables: |
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$ |
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Removed Principal Receivables: |
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$ |
Removed Finance Charge Receivables: |
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$ |
Removed Total Receivables: |
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$ |
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Additional Principal Receivables: |
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$ |
Additional Finance Charge Receivables: |
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$ |
Additional Total Receivables: |
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$ |
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Discount Option Receivables Generated this Period: |
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$ |
Recoveries for month of 200 |
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$ |
End of the Month Principal Receivables: |
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$ |
End of the Month Finance Charge Receivables: |
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$ |
End of the Month Recharacterized Receivables: |
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$ |
End of the Month Total Receivables: |
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$ |
Excess Funding Account Balance: |
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$ |
Aggregate Principal Balance: |
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$ |
Minimum Aggregate Principal Balance: |
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$ |
End of the Month Free Equity Amount: |
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$ |
Minimum Free Equity Amount: |
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$ |
C-2
C-3
INVESTOR UNCOVERED DILUTION AMOUNT |
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$ |
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INVESTOR CHARGEOFFS AND REALLOCATED PRINCIPAL COLLECTIONS NOT PREVIOUSLY REIMBURSED |
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$ |
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AMOUNTS TO BE DEPOSITED IN THE RESERVE ACCOUNT |
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$ |
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AMOUNTS TO BE DEPOSITED IN THE SPREAD ACCOUNT |
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$ |
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EXCESS FINANCE CHARGES COLLECTIONS - |
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TOTAL EXCESS FINANCE CHARGE COLLECTIONS FOR ALL ALLOCATION SERIES |
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$ |
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SHARED PRINCIPAL COLLECTIONS - |
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TOTAL SHARED PRINCIPAL COLLECTIONS FOR ALL ALLOCATIONS SERIES |
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$ |
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YIELD AND BASE RATE - |
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Base Rate (Current Month) |
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% |
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Base Rate (Prior Month) |
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% |
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Base Rate (Two Months Ago) |
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% |
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THREE MONTH AVERAGE BASE RATE |
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% |
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Portfolio Yield (Current Month) |
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% |
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Portfolio Yield (Prior Month) |
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% |
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Portfolio Yield (Two Months Ago) |
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% |
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THREE MONTH AVERAGE PORTFOLIO YIELD |
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% |
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PORTFOLIO ADJUSTED YIELD |
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% |
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PRINCIPAL COLLECTIONS - |
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MONTHLY PRINCIPAL |
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% |
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C-4
PRINCIPAL ACCUMULATION ACCOUNT BALANCE |
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$ |
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SERIES [200 - ] PRINCIPAL SHORTFALL |
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$ |
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SHARED PRINCIPAL COLLECTIONS ALLOCABLE FROM OTHER PRINCIPAL SHARING SERIES |
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$ |
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INVESTOR CHARGE OFFS AND REDUCTIONS - |
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INVESTOR CHARGE OFFS |
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$ |
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REALLOCATED PRINCIPAL COLLECTIONS |
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$ |
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REDUCTIONS IN COLLATERAL AMOUNT (OTHER THAN BY PRINCIPAL PAYMENTS) |
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$ |
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REDUCTIONS IN COLLATERAL AMOUNT DUE TO APPLICATION OF AVAILABLE PRINCIPAL COLLECTIONS AS SHARED PRINCIPAL COLLECTIONS |
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$ |
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PREVIOUS REDUCTIONS IN COLLATERAL AMOUNT REIMBURSED |
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$ |
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MONOGRAM CREDIT CARD BANK OF GEORGIA, as Servicer |
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By: |
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Name: |
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Title: |
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C-5
MONOGRAM CREDIT CARD BANK OF GEORGIA
GE CAPITAL CREDIT CARD MASTER NOTE TRUST SERIES
The undersigned, a duly authorized representative of Monogram Credit Card Bank of Georgia ( Monogram ) pursuant to the Servicing Agreement, dated as of June 27, 2003 (as amended and supplemented, the Servicing Agreement ), along with RFS Funding Trust, as Servicer and GE Credit Card Master Note Trust (the Trust ), as Issuer, does hereby certify as follows:
1. Capitalized terms used in this Certificate have their respective meanings set forth in the Servicing Agreement or the Master Indenture dated as of [ ], 2003 (as amended or supplemented, the Master Indenture ), between the Trust and Deutsche Bank Trust Company Americas, as indenture trustee (the Indenture Trustee ) as supplemented by the Series [200 - ] Indenture Supplement, dated as of [ ], 200 , between the Trust and the Indenture Trustee (as amended and supplemented, the Indenture Supplement and together with the Master Indenture, the Indenture ), as applicable.
2. Monogram is, as of the date hereof, the Servicer under the Servicing Agreement.
3. The undersigned is an Authorized Officer of the Servicer.
4. This certificate relates to the Payment Date occurring on [ ], 200 .
5. As of the date hereof, to the best knowledge of the undersigned, the Servicer has performed in all material respects all of its obligations under the Servicing Agreement through the Monthly Period preceding such Payment date [or, if there has been a default in the performance of any such obligation, set forth in detail the (i) nature of such default, (ii) the action taken by the Servicer, if any, to remedy such default and (iii) the current status of each such default]; if applicable, insert None.
6. As of the date hereof, to the best knowledge of the undersigned, no Early Amortization Event occurred on or prior to such Distribution Date.
IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Certificate this [ ] day of [ ], 200[ ].
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MONOGRAM CREDIT CARD BANK OF GEORGIA, as Servicer |
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By: |
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Name: |
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Title: |
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D-1
PERFECTION REPRESENTATIONS, WARRANTIES
AND COVENANTS
(a) In addition to the representations, warranties and covenants contained in the Indenture, the Issuer hereby represents, warrants and covenants to the Indenture Trustee as follows as of the Closing Date:
(1) The Indenture creates a valid and continuing security interest (as defined in the applicable UCC) in the Net Swap Receipts in favor of the Indenture Trustee, which security interest is prior to all other Liens, and is enforceable as such against creditors of and purchasers from Issuer.
(2) The Net Swap Receipts constitute general intangibles within the meaning of the applicable UCC.
(3) Issuer owns and has good and marketable title to the Net Swap Receipts free and clear of any Lien, claim or encumbrance of any Person.
(4) There are no consents or approvals required by the terms of the Class A Swap, Class B Swap or Class C Swap for the pledge of the Net Swap Receipts to the Indenture Trustee pursuant to the Indenture.
(5) Issuer (or the Administrator on behalf of the Issuer) has caused the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest granted to the Indenture Trustee under the Indenture in the Net Swap Receipts.
(6) Other than the pledge of the Net Swap Receipts to Indenture Trustee pursuant to the Indenture, Issuer has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed the Net Swap Receipts. Issuer has not authorized the filing of and is not aware of any financing statements against Issuer that include a description of the Net Swap Receipts, except for the financing statement filed pursuant to the Indenture.
(7) Notwithstanding any other provision of the Indenture, the representations and warranties set forth in this Schedule I shall be continuing, and remain in full force and effect, until such time as the Series 200[ ]-[ ] Notes are retired.
(b) Indenture Trustee covenants that it shall not, without satisfying the Rating Agency Condition, waive a breach of any representation or warranty set forth in this Schedule I .
(c) The Issuer covenants that in order to evidence the interests of Issuer and Indenture Trustee under the Indenture, Issuer shall take such action, or execute and deliver such instruments as may be necessary or advisable (including, without limitation, such actions as are requested by Indenture Trustee) to maintain and perfect, as a first priority interest, Indenture Trustees security interest in the Net Swap Receipts.
i
EXHIBIT 4.3
GE CAPITAL CREDIT CARD MASTER NOTE TRUST
TRUST AGREEMENT
between
RFS HOLDING, L.L.C.
and
THE
BANK OF NEW YORK (DELAWARE),
as the Trustee
Dated as of September 25, 2003
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Restrictions on Transfer; Issuance of Supplemental Certificates |
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No Duties Except as Specified in this Agreement or in Instructions |
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EXHIBITS |
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iii
TRUST AGREEMENT (as amended or supplemented from time to time, this Agreement ) dated as of September 25, 2003 between RFS HOLDING, L.L.C. ( RFS Holding ), a Delaware limited liability company, and THE BANK OF NEW YORK (DELAWARE), a Delaware banking corporation, as Trustee (the Trustee ).
SECTION 1.1 . Definitions .
Account means, at any time, each credit card account then included as an Account pursuant to (and as defined in) the Trust Receivables Purchase Agreement on or prior to the RFS Funding Trust Termination Date and thereafter pursuant to (and as defined in) the Transfer Agreement.
Administration Agreement means the Administration Agreement, dated as of September 25, 2003, among the Administrator, the Trustee and the Trust.
Administrator means General Electric Capital Corporation, in its capacity as Administrator under the Administration Agreement or any other Person designated as an Administrator under the Administration Agreement.
Affiliate means, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, five percent (5%) or more of the securities having ordinary voting power in the election of directors of such Person, (b) each Person that controls, is controlled by or is under common control with such Person, or (c) each of such Persons officers, directors, joint venturers and partners. For the purposes of this definition, control of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
Aggregate Principal Receivables means, as of any date of determination, the aggregate Outstanding Balance of Principal Receivables as of such date (excluding Principal Receivables that are Specified Retailer Receivables with respect to any date of determination prior to the RFS Funding Trust Termination Date), plus the principal amount of any Participation Interests, minus the Borrowing Base (as defined in the RFS Funding Trust Agreement) for that Monthly Period; provided that for purposes of calculating the Note Trust Principal Balance, the Borrowing Base (as defined in the RFS Funding Trust Agreement) shall not be subtracted from the Aggregate Principal Receivables.
Agreement is defined in the preamble .
Allocation Percentage is defined, for any Series, with respect to Finance Charge Collections, in the related Indenture Supplement.
Authorized Officer means, with respect to any corporation or statutory trust, the Chairman or Vice-Chairman of the Board, the President, any Vice President, the Secretary, the Treasurer, any Assistant Secretary, any Assistant Treasurer and each other officer of such
corporation or trustee or administrator of such trust specifically authorized in resolutions of the Board of Directors of such corporation or by the governing documents or agreements of such trust to sign agreements, instruments or other documents on behalf of such corporation or statutory trust in connection with the transactions contemplated by the Related Documents.
Bank Receivables Sale Agreement means the Receivables Sale Agreement, dated as of June 27, 2003, between Monogram and RFS Holding.
Business Day means any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in the State of New York, the State of Connecticut or the State of Georgia (or, with respect to any Series, any additional state specified by the related Indenture Supplement).
Certificate means the Transferor Certificate or a Supplemental Certificate, as applicable.
Certificate of Trust shall mean the Certificate of Trust executed by the Trustee, substantially in the form attached hereto as Exhibit B.
Certificate Register and Certificate Registrar are defined in Section 3.5 .
Charged-Off Receivable means a Principal Receivable (or any portion thereof) arising in an Account which either (a) is 180 days past due or (b) has otherwise been written off as uncollectible in accordance with the Credit and Collection Policies. To avoid doubt, a Principal Receivable shall become a Charged-Off Receivable upon the earlier of the events described in clause (a) or clause (b) to occur with respect to the related Account.
Class means, any Class of Notes of any Series.
Closing Date means September 25, 2003.
Code means the Internal Revenue Code of 1986, as amended from time to time, and Treasury Regulations promulgated thereunder.
Collateral is defined in the Granting Clause of the Indenture.
Collateral Amount is defined, with respect to any Series, in the related Indenture Supplement.
Collection Account means the account designated as such, established and owned by the Trust and maintained in accordance with Section 8.2 of the Indenture.
Collections means, for any Receivable for any period, (a) the sum of all amounts, whether in the form of cash, checks, drafts, or other instruments, received in payment of, or applied to, any amount owed by an Obligor on account of such Receivable during such period, including all amounts received on account of such Receivable, all other fees and charges, (b) Recoveries and cash proceeds of Related Security with respect to such Receivable and (c) any in-store payments received with respect to such Receivable. Amounts paid by RFS Holding
2
pursuant to Section 2.5 of either of the Trust Receivables Purchase Agreement or the Transfer Agreement shall be deemed to be Principal Collections. Amounts paid by RFS Holding pursuant to Section 6.1(e) of either of the Trust Receivables Purchase Agreement or the Transfer Agreement and amounts paid by the Servicer pursuant to Section 2.6 of the Servicing Agreement shall be deemed to be Principal Collections to the extent that they represent the purchase price of Principal Receivables and shall be deemed to be Finance Charge Collections to the extent that they represent the purchase price of Finance Charge Receivables. Recoveries shall be treated as Collections of Finance Charge Receivables.
Commission means the Securities and Exchange Commission.
Contract means the agreement and Federal Truth in Lending Statement for revolving credit card accounts between any Obligor and Originator, as such agreements may be amended, modified, or otherwise changed from time to time.
Corporate Trust Office means, the office of the Trustee at which at any particular time its corporate trust business shall be administered, which office at the date of this Agreement is located at 101 Barclay Street, Floor 8 West (ABS Unit), New York, New York 10286 Attention: Antonia Vayas, facsimile: (212) 815-2493, or 3883.
Credit and Collection Policies means, with respect to each credit card program from which Accounts are drawn, Trusts policies and procedures relating to the operation of such credit card program, including the policies and procedures for determining the creditworthiness of Obligors and the extension of credit to Obligors, and relating to the maintenance of credit card accounts and collection of credit card receivables, as such policies and procedures may be amended from time to time.
Custody and Control Agreement means the Custody and Control Agreement, dated as of September 25, 2003 between the Trust and the Indenture Trustee.
ERISA means the Employee Retirement Income Security Act of 1974, as amended.
Excess Funding Account means the account designated as such, established and owned by the Trust and maintained in accordance with Section 8.2 of the Indenture.
Expenses is defined in Section 7.2 .
Finance Charge Collections means Collections of Finance Charge Receivables (after giving effect to any recharacterization of Collections of Principal Receivables as Collections of Finance Charge Receivables pursuant to Section 2.8 of the Trust Receivables Purchase Agreement or the Transfer Agreement).
Finance Charge Receivables means Receivables created in respect of periodic finance charges, late fees, returned check fees and all other similar fees and charges billed or accrued and unpaid on an Account.
3
Free Equity Amount means, on any date of determination, the result of (a) the Note Trust Principal Balance, minus (b) the aggregate of the Collateral Amounts for all outstanding Series of Notes.
GE Capital means General Electric Capital Corporation, a Delaware corporation.
Governmental Authority means any nation or government, any state, county, city, town, district, board, bureau, office commission, any other municipality or other political subdivision thereof (including any educational facility, utility or other Person operated thereby), and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Grant means to create and grant a Lien pursuant to the Indenture, and other forms of the verb to Grant shall have correlative meanings.
Holder means a holder of the Transferor Certificate or a Supplemental Certificate, as applicable.
Indemnified Parties is defined in Section 7.2 .
Indenture means the Master Indenture, dated as of September 25, 2003, between the Trust and the Indenture Trustee, as the same may be amended, supplemented or otherwise modified from time to time.
Indenture Security Agreement means the Indenture Security Agreement, dated as of September 25, 2003 between RFS Funding Trust and the Indenture Trustee.
Indenture Supplement means, with respect to any Series, a supplement to the Indenture, executed and delivered in connection with the original issuance of the Notes of such Series pursuant to Section 2.8 of the Indenture, and an amendment to the Indenture executed pursuant to Sections 9.1 or 9.2 of the Indenture, and, in either case, including all amendments thereof and supplements thereto.
Indenture Trustee means Deutsche Bank Trust Company Americas, not in its individual capacity but solely as Indenture Trustee under the Indenture, or any successor Indenture Trustee under the Indenture.
Lien means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any conditional sale, lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction); provided , however , Permitted Encumbrances shall not constitute a Lien.
Loan Agreement means, with respect to any Series, a Loan Agreement among the Trust, the lenders party thereto and the managing agents party thereto.
4
Monogram means Monogram Credit Card Bank of Georgia, a bank organized under the laws of Georgia.
Montgomery Ward means Montgomery Ward & Co. Incorporated.
Monthly Period means, as to each Payment Date, the period beginning on the 22nd day of the second preceding calendar month and ending on the 21st day of the immediately preceding calendar month.
Monthly Period means as to each Payment Date, the period beginning on the 22 nd day of the second preceding calendar month and ending on the 21 st day of the immediately preceding calendar month.
Moodys means Moodys Investors Service, Inc.
New Issuance means one or more new Series of Notes issued pursuant to the Indenture and an Indenture Supplement.
Note means one of the Notes issued by the Trust pursuant to the Indenture and an Indenture Supplement, substantially in the form attached to the related Indenture Supplement.
Note Register and Note Registrar are defined in Section 2. 4 of the Indenture.
Note Trust Certificate means the certificate captioned Note Trust Certificate and dated June 27, 2003, representing a beneficial interest in a portion of the assets held by RFS Funding Trust, issued pursuant to the RFS Funding Trust Agreement.
Note Trust Principal Balance means, as of any time of determination falling within or relating to a Monthly Period, the result of (a) the Aggregate Principal Receivables at that time, plus (b) the amount on deposit in the Excess Funding Account at that time (exclusive of any investment earnings on such amount), minus (c) before the RFS Funding Trust Termination Date, the Borrowing Base (as defined in the RFS Funding Trust Agreement) for that Monthly Period.
Noteholder means the Person in whose name a Note is registered on the Note Register and, if applicable, the holder of any Note, as the case may be, or such other Person deemed to be a Noteholder in any related Indenture Supplement.
Obligor means, with respect to any Transferred Receivable, any Person obligated to make payments in respect thereof.
Officers Certificate means, with respect to any Person, a certificate signed by an Authorized Officer of such Person.
Opinion of Counsel means a written opinion of counsel (who may be an employee of or counsel to the Trust or an Affiliate of the Trust), which counsel and opinion shall be acceptable to the Indenture Trustee, or the Rating Agencies, as applicable.
5
Originator means Monogram or any other originator so designated pursuant to Section 2.10 of the Trust Receivables Purchase Agreement or the Transfer Agreement.
Outstanding Balance means, with respect to any Principal Receivable: (a) as of the Transfer Date for that Principal Receivable, the outstanding amount of such Principal Receivable as reflected on the Trusts books and records after giving effect to any recharacterization of any portion of such Principal Receivable as a Finance Charge Receivable pursuant to Section 2.8 of either the Trust Receivables Purchase Agreement or Transfer Agreement; and (b) thereafter, the amount referred to in clause (a) minus Collections with respect to that Principal Receivable that are allocable to a reduction of the Outstanding Balance thereof minus any subsequent discounts to or any other modifications that reduce such Outstanding Balance; provided , that the Outstanding Balance of a Charged-Off Receivable shall equal zero.
Outstanding Principal Balance means the aggregate principal amount of all Notes outstanding at the date of determination as determined under the Indenture.
Participation Interest is defined in the Bank Receivables Sale Agreement.
Paying Agent means with respect to the Notes, initially the Indenture Trustee or any other Person that meets the eligibility standards in Section 6.11 of the Indenture.
Payment Date means, with respect to any Series, the date specified in the related Indenture Supplement.
Permitted Encumbrances means the following encumbrances: (a) Liens for taxes or assessments or other governmental charges not yet due and payable; (b) inchoate and unperfected workers, mechanics, suppliers or similar Liens arising in the ordinary course of business; and (c) presently existing or hereinafter created Liens in favor of, or created by, the Trust.
Person means any individual, sole proprietorship, partnership, joint venture, unincorporated organization, trust, association, corporation (including a business or statutory trust), limited liability company, institution, public benefit corporation, joint stock company, Governmental Authority or any other entity of whatever nature.
Principal Collections means Collections of Principal Receivables (after giving effect to any recharacterization of Collections of Principal Receivables as Collections of Finance Charge Receivables pursuant to Section 2.8 of the Trust Receivables Purchase Agreement or the Transfer Agreement).
Principal Receivable means each Receivable, other than a Finance Charge Receivable.
Rating Agency means, as to each Series, the rating agency or agencies, if any, specified in the related Indenture Supplement.
Rating Agency Condition means, with respect to any action, that each Rating Agency, if any, shall have notified the Trust in writing that such action will not result in a reduction or
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withdrawal of the rating, if any, of any outstanding Series or Class with respect to which it is a Rating Agency.
Reassignment Amount means, with respect to any Series, the amount specified in the related Indenture Supplement.
Receivable means any amount owing by an Obligor under an Account from time to time.
Receivables Trust means (a) prior to the RFS Funding Trust Termination Date, RFS Funding Trust and (b) on and after the RFS Funding Trust Termination Date, the Trust.
Records means all Contracts and other documents, books, records and other information (including computer programs, tapes, disks, data processing software and related property and rights) prepared and maintained by any Originator, the Servicer, or Sub-Servicer with respect to the Transferred Receivables and the Obligors thereunder.
Recoveries means (a) so long as the arrangement described in Section 2.1(b) of the Bank Receivables Sale Agreement remains in effect, amounts allocated to the Transferred Receivables pursuant to that Section and (b) if at any time that arrangement no longer remains in effect, with respect to any Transferred Receivable, (i) Collections of such Transferred Receivable received after such Transferred Receivable was charged off as uncollectible but before any sale or other disposition of such Transferred Receivable after charge off; and (ii) any proceeds from such a sale or other disposition by RFS Holding of such Transferred Receivable.
Related Documents means the Transfer Agreement, the Trust Receivables Purchase Agreement, the Servicing Agreement, the Indenture Security Agreement, the Administration Agreement, the Notes, this Trust Agreement, the Custody and Control Agreement, the Indenture, any Indenture Supplement, any Loan Agreement and including all other pledges, powers of attorney, consents, assignments, contracts, notices, and all other written matter whether heretofore, now or hereafter executed by or on behalf of any Person, or any employee of any Person, and delivered in connection with any of the foregoing. Any reference in the foregoing documents to a Related Document shall include all Annexes, Exhibits and Schedules thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to such Related Documents as the same may be in effect at any and all times such reference becomes operative.
Related Security means with respect to any Receivable: (a) all of the Originators interest, if any, in the goods, merchandise (including returned merchandise) or equipment, if any, the sale of which gave rise to such Receivable; (b) all guarantees, insurance or other agreements or arrangements of any kind from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise; and (c) all Records relating to such Receivable.
Retailer is defined in the Indenture.
RFS Funding Trust means RFS Funding Trust, a Delaware statutory trust.
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RFS Funding Trust Agreement means the Amended and Restated Trust Agreement dated as of December 19, 2002 among RFS Holding, General Electric Capital Services, Inc., and Deutsche Bank Trust Company Delaware, as trustee, and as amended and restated on June 27, 2003 among RFS Holding, Inc. (as assignee of General Electric Capital Services, Inc.) and Deutsche Bank Trust Company Delaware, as trustee.
RFS Funding Trust Termination Date means the date on which the RFS Funding Trust is terminated and all of the Transferred Receivables held by the RFS Funding Trust are transferred to the Trust.
RFS Holding is defined in the preamble.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill Companies, Inc.
Securities Act means the Securities Act of 1933, 15 U.S.C. Sections 77 a et seq. and any regulations promulgated thereunder.
Series means any series of Notes, which may include within any such Series a Class or Classes of Notes subordinate to another such Class or Classes of Notes.
Series Account means any deposit, trust, escrow or similar account maintained for the benefit of the Noteholders of any Series or Class, as specified in any Indenture Supplement.
Servicer means Monogram, in its capacity as the Servicer under the Servicing Agreement, or any other Person designated as a Successor Servicer pursuant to the Servicing Agreement.
Servicing Agreement means the Servicing Agreement dated as of June 27, 2003, among the Servicer, RFS Funding Trust and the Trust (upon its accession in accordance with the terms thereof).
Specified Retailer Receivables means the Transferred Receivables arising in the Originators programs for Montgomery Ward. Transferred Receivables arising in the Originators program for Montgomery Ward that have been transferred to the Originators program for Wal-Mart Retailers shall not be considered Specified Retailer Receivables.
Sub-Servicer means any Person with whom the Servicer enters into a Sub-Servicing Agreement.
Sub-Servicing Agreement means any written contract entered into between the Servicer and any Sub-Servicer relating to the servicing, administration or collection of the Transferred Receivables.
Successor Servicer means the successor servicer to the Servicer as appointed under the Servicing Agreement.
Supplemental Certificate is defined in Section 3.4 .
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Tax Opinion means, with respect to any action, an Opinion of Counsel to the effect that, for Federal income tax purposes, (a) such action will not adversely affect the tax characterization as debt of Notes of any outstanding Series or Class with respect to which an Opinion of Counsel was delivered at the time of their issuance that such Notes would be characterized as debt, (b) such actions will not cause the Trust to be classified, for federal income tax purposes, as an association (or publicly traded partnership) taxable as a corporation and, (c) such action will not cause or constitute an event in which gain or loss would be recognized by any Noteholder and (d) with respect to a New Issuance, unless otherwise specified in the Indenture Supplement, the Notes of the new Series will be treated as debt.
Transfer Agreement means the Transfer Agreement, dated as of September 25, 2003, between RFS Holding and the Trust.
Transfer Date means the Business Day preceding each Payment Date.
Transferor Certificate means the certificate, substantially in the form of Exhibit A attached hereto, representing a fractional undivided beneficial interest in the Trust.
Transferred Assets is defined in Section 2.1 of the Transfer Agreement.
Transferred Receivable means a Receivable that has been transferred by RFS Holding to RFS Funding Trust under the Trust Receivables Purchase Agreement or the Trust under the Transfer Agreement.
Trust means the GE Capital Credit Card Master Note Trust.
Trust Accounts means any Series Account, the Collection Account or Excess Funding Account.
Trust Estate means all right, title and interest of the Trust in and to the property and rights assigned to the Trust pursuant to the Trust Receivables Purchase Agreement and the Transfer Agreement, all monies, investment property, instruments and other property on deposit from time to time in the Trust Accounts and all other property of the Trust from time to time, including any rights of the Trustee and the Trust pursuant to the Related Documents.
Trust Receivables Purchase Agreement means the Receivables Purchase and Contribution Agreement dated as of June 27, 2003, between RFS Holding and RFS Funding Trust.
Trust Statute means Chapter 38 of Title 12 of the Delaware Code, 12 Del . Code §3801 et seq., as the same may be amended from time to time.
Trust Termination Date is defined in Section 8.1 .
Trustee is defined in preamble.
UCC means, with respect to any jurisdiction, the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in such jurisdiction.
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Wal-Mart Retailers means Retailer as such term is defined in the Wal-Mart Program Agreement.
SECTION 1.2. Other Interpretive Matters . All terms defined directly or by incorporation in this Agreement shall have the defined meanings when used in any document delivered pursuant thereto unless otherwise defined therein. For purposes of this Agreement, unless the context otherwise requires: (a) accounting terms not otherwise defined herein and accounting terms partly defined herein to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; and unless otherwise provided, references to any month, quarter or year refer to a fiscal month, quarter or year as determined in accordance with the GE Capital fiscal calendar; (b) unless defined in this Agreement or the context otherwise requires, capitalized terms used in this Agreement which are defined in the UCC shall have the meaning given such term in the UCC; (c) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (d) the words hereof, herein and hereunder and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Agreement, and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (f) the term including means including without limitation; (g) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (h) references to any agreement refer to that agreement as from time to time amended, restated or supplemented or as the terms of such agreement are waived or modified in accordance with its terms; (i) references to any Person include that Persons successors and assigns and (j) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
SECTION 2.1 . Name . The Trust created hereby shall be known as GE Capital Credit Card Master Note Trust, in which name the Trustee may conduct the business of the Trust, make and execute contracts and other instruments on behalf of the Trust and sue and be sued.
SECTION 2.2. Office . The office of the Trust shall be in care of the Trustee at the Corporate Trust Office or at such other address as the Trustee may designate by written notice to RFS Holding.
SECTION 2.3 . Purposes and Powers . The purpose of the Trust is, and the Trust shall have the power and authority to, engage in the following activities:
(a) to issue the Notes pursuant to the Indenture and the related Indenture Supplement and the Transferor Certificate pursuant to this Agreement and to issue the Supplemental Certificates, if any, pursuant to this Agreement;
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(b) with the proceeds of the issuance of the Notes, to acquire the Transferred Assets pursuant to the Transfer Agreement and pay to RFS Holding the amounts owed pursuant to Section 2.4 of the Transfer Agreement;
(c) to Grant the Collateral pursuant to the Indenture and to hold, manage and distribute to the Holders any portion of the Collateral released from the Lien of the Indenture;
(d) to enter into and perform its obligations under the Related Documents to which it is to be a party;
(e) to engage in those activities, including entering into agreements, that are necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Related Documents, to engage in such other activities as may be required in connection with conservation of the Collateral and the making of distributions to the Holders and payments to the Noteholders.
The Trust shall not engage in any activity other than in connection with the foregoing or other than as required or authorized by this Agreement or the Related Documents.
SECTION 2.4 . Appointment of the Trustee . RFS Holding hereby appoints the Trustee as trustee of the Trust effective as of the date hereof, to have all the rights, powers and duties set forth herein and in the Trust Statute.
SECTION 2.5 . Initial Capital Contribution of Trust Estate . Pursuant to the Transfer Agreement, RFS Holding shall assign, transfer, convey and set over to the Trust, as of the date hereof, the assets specified in the Transfer Agreement. The Trust hereby acknowledges receipt in trust from RFS Holding, as of the date hereof, of the foregoing contribution, which shall constitute the initial Trust Estate. RFS Holding shall pay organizational expenses of the Trust as they may arise or shall, upon the request of the Trustee, promptly reimburse the Trustee for any such expenses paid by the Trustee. RFS Holding may also take steps necessary, including the execution and filing of any necessary filings, to ensure that the Trust is in compliance with any applicable state securities law.
SECTION 2.6 . Declaration of Trust . The Trustee hereby declares that it will hold the Trust Estate in trust upon and subject to the conditions set forth herein for the use and benefit of RFS Holding, subject to the obligations of the Trust under the Related Documents. It is the intention of the parties hereto that the Trust constitute a statutory trust under the Trust Statute and that this Agreement constitute the governing instrument of such statutory trust. It is the intention of the parties hereto that, solely for income and franchise tax purposes, until the interest in the Transferor Certificate is held by more than one Person, the Trust be disregarded as an entity separate from RFS Holding. At such time as the interest in the Transferor Certificate is held by more than one person, it is the intention of the parties hereto that, solely for income and franchise tax purposes, the Trust be treated as a partnership, with the assets of the partnership being the Transferred Receivables and other assets held by the Trust, the partners of the partnership being the Holder of the Transferor Certificate and the Holders of the Supplemental
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Certificates. The parties agree that, unless otherwise required by appropriate tax authorities, until the interest in the Transferor Certificate is held by more than one Person, the Trust will not file or cause to be filed annual or other returns, reports and other forms consistent with the characterization of the Trust as an entity separate from RFS Holding. Effective as of the date hereof, the Trustee shall have all rights, powers and duties set forth herein and in the Trust Statute with respect to accomplishing the purposes of the Trust.
SECTION 2.7 . Liability of Beneficiaries . Except as provided in any Related Document, the Holders shall be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware.
SECTION 2.8 . Title to Trust Property . Subject to the Lien granted in the Indenture, legal title to all the Trust Estate shall be vested at all times in the Trust as a separate legal entity except where applicable law in any jurisdiction requires title to any part of the Trust Estate to be vested in a trustee or trustees, in which case title shall be deemed to be vested in the Trustee, a co-trustee and/or a separate trustee, as the case may be.
SECTION 2.9 . Situs of Trust . The Trust will be located in Delaware and administered in the States of Delaware and New York.
SECTION 2.10 . Representations and Warranties of RFS Holding . RFS Holding hereby represents and warrants to the Trustee that:
(a) RFS Holding is duly organized and validly existing as a limited liability company in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted.
(b) RFS Holding is duly qualified to do business as a foreign limited liability company in good standing, and has obtained all necessary licenses and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications.
(c) RFS Holding has the power and authority to execute and deliver this Agreement and to carry out its terms; RFS Holding has full power and authority to sell and assign the property to be sold and assigned to the Trust and RFS Holding has duly authorized such sale and assignment to the Trust by all necessary corporate or other action; and the execution, delivery and performance of this Agreement have been duly authorized by RFS Holding by all necessary corporate or other action.
(d) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the certificate of formation or limited liability company agreement of RFS Holding, or any indenture, agreement or other instrument to which RFS Holding is a party or by which it is bound; or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other
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instrument (other than pursuant to the Related Documents); or violate any law or, to the best of RFS Holdings knowledge, any order, rule or regulation applicable to RFS Holding of any court or of any Federal or State regulatory body, administrative agency or other governmental instrumentality having jurisdiction over RFS Holding or its properties.
(e) RFS Holding has duly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding obligation of RFS Holding, enforceable in accordance with its terms, except as enforceability may be subject to or limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
ARTICLE III
Beneficial Interests
SECTION 3.1 . Initial Ownership . Upon the formation of the Trust by the contribution by RFS Holding pursuant to Section 2.5 , RFS Holding shall be the sole beneficiary of the Trust.
SECTION 3.2 . Certificates . The Transferor Certificate shall represent an undivided beneficial interest in the Trust Estate subject to the Lien of the Notes created pursuant to the Indenture, including the right to receive Collections with respect to the Transferred Receivables and other amounts at the times and in the amounts specified in the Indenture and any Indenture Supplement to be paid to the Holders.
SECTION 3.3 . Authentication of the Certificates . Concurrently with the transfer of the Note Trust Certificate to the Trust pursuant to the Transfer Agreement, the Trustee is hereby authorized and shall execute, authenticate and deliver on behalf of the Trust the Transferor Certificate to RFS Holding. No further Certificates shall be issued except pursuant to Section 3.4 or 3.5 hereunder. The Transferor Certificate and any further Certificates issued pursuant to Sections 3.4 or 3.5 shall be executed on behalf of the Trust by the manual or facsimile signature of an authorized officer of the Trustee. Certificates bearing the manual or facsimile signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Trust, shall be, when authenticated pursuant to this Agreement, validly issued and entitled to the benefits of this Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the authentication and delivery of such Certificates or did not hold such offices at the date of authentication and delivery of such Certificates. No Certificate shall entitle its holder to any benefit under this Agreement, or shall be valid for any purpose, unless there shall appear on the Certificate a certificate of authentication substantially in the form set forth in Exhibit A , executed by the Trustee by the manual signature of one of its authorized signatories; such certificate of authentication shall constitute conclusive evidence, and the only evidence, that the Certificate shall have been duly authenticated and delivered hereunder. The Certificates shall be dated the date of their authentication.
SECTION 3.4 . Restrictions on Transfer; Issuance of Supplemental Certificates . RFS Holding may from time to time transfer a portion of the Transferor Certificate by causing the
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issuance of one or more additional certificates (each a Supplemental Certificate ). The form and terms of any Supplemental Certificate shall be defined in a supplement to this Agreement (which supplement shall be subject to Section 10.2 to the extent that it amends any of the terms of this Agreement) to be delivered to or upon the order of RFS Holding (or the Holder of a Supplemental Certificate, in the case of the transfer or exchange thereof, as provided below). The issuance of any such Supplemental Certificate to any Person shall be subject to satisfaction of the following conditions:
(i) the Rating Agency Condition shall have been satisfied with respect to such action; and
(ii) RFS Holding shall have delivered to the Trustee, the Indenture Trustee and each Rating Agency a Tax Opinion, dated the date of such action (or transfer, exchange or other disposition provided below), with respect to such action and an Opinion of Counsel to the effect that such action, transfer, exchange or other disposition does not require registration of the interest under the Securities Act or any state securities law except for any such registration that has been duly completed and become effective.
A Supplemental Certificate may be transferred or exchanged, and the Transferor Certificate may be pledged, only upon satisfaction of the conditions set forth in clause (ii) .
SECTION 3.5 . Registration of Transfer and Exchange of Certificates .
(a) The Trust shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.9 , a register (the Certificate Register ) in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of transfers and exchanges of Certificates. The Trustee shall be the Certificate Registrar for the purpose of registering Certificates and the transfers of Certificates as herein provided. Upon any resignation of any Certificate Registrar, RFS Holding shall promptly appoint a successor or, if it elects not to make such an appointment, assume the duties of the Certificate Registrar.
Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.9 , if the requirements of Section 8-401(a) of the UCC are met, the Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate amount.
At the option of a Holder, Certificates may be exchanged for other Certificates of authorized denominations, of a like aggregate amount upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.9 . Whenever any Certificates are so surrendered for exchange, if the requirements of Section 8-401(a) of the UCC are met, the Trustee shall execute, authenticate and deliver the Certificates that the Holder making the exchange is entitled to receive.
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All Certificates issued upon any registration of transfer or exchange of Certificates shall be entitled to the same benefits under this Agreement as the Certificates surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer or exchange shall be duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing. No transfer of a Certificate shall be registered unless the transferee shall have provided an opinion of counsel that no registration is required under the Securities Act, or applicable state laws. Each Certificate surrendered for registration of transfer or exchange shall be canceled and subsequently disposed of by the Trustee in accordance with its customary practice.
No service charge shall be made to a Holder for any registration of transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Certificates.
(b) The Transferor Certificate may be transferred in its entirety to a Person which is a member of the affiliated group as defined in Section 1504(a) of the Code of which RFS Holding is a member without the consent or approval of the Noteholders, provided that (i) the Rating Agency Condition shall have been satisfied with respect to such transfer and (ii) RFS Holding shall have delivered to the Trustee, the Indenture Trustee and each Rating Agency a Tax Opinion and an Opinion of Counsel of the type described in Section 3.4(ii) , dated the date of such transfer, with respect thereto. In connection with any such transfer, the Person to whom the Transferor Certificate is transferred will, by its acquisition and holding of an interest in the Transferor Certificate, assume all of the rights and obligations of RFS Holding as described in this Agreement, each Related Document and in any supplement or amendment thereto (including the right under this paragraph (b) with respect to subsequent transfers of an interest in the Transferor Certificate).
(c) The Transferor Certificate and each Supplemental Certificate, and any beneficial interest in the Transferor Certificate or any Supplemental Certificate, may not be purchased by or transferred to (i) an employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, (ii) a plan described in Section 4975(e)(1) of the Code or (iii) any entity whose underlying assets include plan assets by reason of investment by an employee benefit plan or plans (including an insurance company general account) in such entity.
SECTION 3.6 . Mutilated, Destroyed, Lost or Stolen Certificates . If: (a) any mutilated Certificate shall be surrendered to the Certificate Registrar, or if the Certificate Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of any Certificate ( provided , that the Trustee shall not be required to verify the evidence provided to it), and (b) there shall be delivered to the Certificate Registrar and the Trustee such security or indemnity as may be required by them to hold each of them harmless, then, in the absence of notice that such Certificate shall have been acquired by a bona fide purchaser, and provided that the requirements
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of Section 8-405 of the UCC are met, the Trustee on behalf of the Trust shall execute, authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a replacement Certificate of like tenor and denomination.
In connection with the issuance of any replacement Certificate under this Section, the Trustee and the Certificate Registrar may require the payment by the Holder of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
Any replacement Certificate issued pursuant to this Section in replacement of any mutilated, destroyed, lost or stolen Certificate shall constitute conclusive evidence of ownership in the Trust, as if originally issued, whether or not the mutilated, lost, stolen or destroyed Certificate shall be found at any time, and shall be entitled to all the benefits of this Agreement.
SECTION 3.7 . Persons Deemed Holders . Prior to due presentation of a Certificate for registration of transfer of any Certificate, the Trustee or the Certificate Registrar may treat the Person in whose name any Certificate shall be registered in the Certificate Register (as of the day of determination) as the owner of such Certificate for all purposes whatsoever, and neither the Trustee nor the Certificate Registrar shall be bound by any notice to the contrary.
SECTION 3.8 . Access to List of Holders Names and Addresses . The Trustee shall furnish or cause to be furnished to the Servicer and RFS Holding, within 15 days after receipt by the Trustee of a request therefor from the Servicer or RFS Holding in writing, a list, in such form as the Servicer or RFS Holding may reasonably require, of the names and addresses of the Holders. If a Holder applies in writing to the Trustee, and such application states that the applicants desire to communicate with other Holders with respect to their rights under this Agreement or under the Certificates and such application shall be accompanied by a copy of the communication that such applicants propose to transmit, then the Trustee shall, within five Business Days after the receipt of such application, afford such applicants access during normal business hours to the current list of Holders. Each Holder, by receiving and holding a Certificate, shall be deemed to have agreed not to hold any of RFS Holding, the Certificate Registrar or the Trustee accountable by reason of the disclosure of its name and address, regardless of the source from which such information was derived.
SECTION 3.9 . Maintenance of Office or Agency . The Trustee shall maintain in an office or offices or agency or agencies where Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Trustee in respect of the Certificates and the Related Documents may be served. The Trustee initially designated The Bank of New York (Delaware), c/o The Bank of New York, 101 Barclay Street, Floor 8 West (ABS Unit), New York, New York 10286, as its principal corporate trust office for such purposes. The Trustee shall give prompt written notice to RFS Holding and to the Holders of any change in the location of the Certificate Register or any such office or agency.
ARTICLE IV
Actions by the Trustee
SECTION 4.1 . Prior Notice to Holders with Respect to Certain Matters . With respect to the following matters, the Trustee shall not take action unless, at least 30 days before the taking
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of such action, the Trustee shall have notified the Holders in writing of the proposed action and the Holders shall not have notified the Trustee in writing prior to the 30 th day after such notice is given that the Holders withheld consent or shall not have provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or lawsuits brought in connection with the collection of the Trust Estate) and the compromise of any action, claim or lawsuit brought by or against the Trust (except with respect to the aforementioned claims or lawsuits for collection of Trust Estate);
(b) the election by the Trust to file an amendment to the Certificate of Trust;
(c) the amendment of the Indenture;
(d) the amendment, change or modification of the Administration Agreement, except to cure any ambiguity or to amend or supplement any provision in a manner, or add any provision, that would not materially adversely affect the interests of the Holders; or
(e) the appointment pursuant to the Indenture of a successor Note Registrar, Paying Agent or Indenture Trustee, or the consent to the assignment by the Note Registrar, Paying Agent or Indenture Trustee of its obligations under the Indenture or this Agreement, as applicable.
SECTION 4.2 . Action by the Holders with Respect to Certain Matters . The Trustee shall not have the power, except upon the direction of the Holders, to: (a) remove the Administrator under the Administration Agreement, (b) appoint a successor Administrator, or (c) except as expressly provided in the Related Documents, sell the Transferred Receivables after the termination of the Indenture. The Trustee shall take the actions referred to in the preceding sentence only upon written instructions signed by the Holders.
SECTION 4.3 . Action by the Holders with Respect to Bankruptcy . The Trustee shall not have the power to commence a voluntary proceeding in bankruptcy relating to the Trust without the prior approval of the Holders and the delivery to the Trustee by the Holders of a certificate certifying that the Holders reasonably believe that the Trust is insolvent.
SECTION 4.4. Restrictions on Power . The Holders shall not direct the Trustee to take or refrain from taking any action if such action or inaction would be contrary to any obligation of the Trust or the Trustee under this Agreement or any of the Related Documents or would be contrary to Section 2.3 , nor shall the Trustee be obligated to follow any such direction, if given.
ARTICLE V
Authority and Duties of the Trustee
SECTION 5.1 . General Authority . The Trustee is authorized and directed to execute and deliver the Related Documents to which the Trust is to be a party and each certificate or other document attached as an exhibit to or contemplated by the Related Documents to which the Trust is to be a party, in each case in such form as RFS Holding shall approve as evidenced conclusively by the Trustees execution thereof, and, on behalf of the Trust, to direct the
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Indenture Trustee, from time to time, to authenticate and deliver Notes in the amount specified in a letter of instruction from RFS Holding to the Trustee. In addition to the foregoing, the Trustee is authorized, but shall not be obligated, to take all actions required of the Trust pursuant to the Related Documents. Except as otherwise provided in this Agreement, the Trustee is further authorized from time to time to take such action as RFS Holding or the Administrator recommends with respect to the Related Documents.
SECTION 5.2 . General Duties . It shall be the duty of the Trustee to discharge (or cause to be discharged) all of its responsibilities pursuant to this Agreement and the Related Documents to which the Trust is a party and to administer the Trust in the interest of the Holders, subject to the Related Documents and in accordance with this Agreement. Notwithstanding the foregoing, the Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the Related Documents to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Trustee or Trust hereunder or under any Related Document, and the Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement.
SECTION 5.3 . Action upon Instruction . (a) Subject to Article IV and in accordance with the Related Documents, the Holders may by written instruction direct the Trustee in the management of the Trust. Such direction may be exercised at any time by written instruction of the Holders pursuant to Article IV .
(b) The Trustee shall not be required to take any action hereunder or under any Related Document if the Trustee shall have reasonably determined, or shall have been advised by counsel, that such action is likely to result in liability on the part of the Trustee or is contrary to the terms hereof or of any Related Document or is otherwise contrary to law.
(c) Whenever the Trustee is unable to decide between alternative courses of action permitted or required by this Agreement or any Related Document, the Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Holders requesting instruction as to the course of action to be adopted, and to the extent the Trustee acts in good faith in accordance with any written instruction of the Holders received, the Trustee shall not be liable on account of such action to any Person. If the Trustee shall not have received appropriate instruction within 10 days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action, not inconsistent with this Agreement or the Related Documents, as it shall deem to be in the best interests of the Holders, and shall have no liability to any Person for such action or inaction.
(d) In the event that the Trustee is unsure as to the application of any provision of this Agreement or any Related Document or any such provision is ambiguous as to its application, or is, or appears to be, in conflict with any other applicable provision, or in the event that this Agreement permits any determination by the Trustee or is silent or is incomplete as to the course of action that the Trustee is required to take with respect to a particular set of facts, the Trustee may give notice (in such form
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as shall be appropriate under the circumstances) to the Holders requesting instruction and, to the extent that the Trustee acts or refrains from acting in good faith in accordance with any such instruction received, the Trustee shall not be liable, on account of such action or inaction, to any Person. If the Trustee shall not have received appropriate instruction within 10 days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action, not inconsistent with this Agreement or the Related Documents, as it shall deem to be in the best interests of the Holders, and shall have no liability to any Person for such action or inaction.
SECTION 5.4 . No Duties Except as Specified in this Agreement or in Instructions . The Trustee shall not have any duty or obligation to manage, make any payment with respect to, register, record, sell, dispose of or otherwise deal with the Trust Estate, or to otherwise take or refrain from taking any action under, or in connection with, any document contemplated hereby to which the Trustee is a party, except as expressly provided by this Agreement or in any document or written instruction received by the Trustee pursuant to this Agreement; and no implied duties or obligations shall be read into this Agreement or any Related Document against the Trustee. The Trustee shall have no responsibility for filing any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or Lien granted to it hereunder or to prepare or file any Commission filing for the Trust or to record this Agreement or any Related Document. Notwithstanding anything to the contrary herein or in any Related Document, the Trustee shall not be required to execute, deliver or certify on behalf of the Trust or any other Person any filings, certificates, affidavits or other instruments required under the Sarbanes-Oxley Act of 2002, if applicable. The Trustee nevertheless agrees that it will, at its own cost and expense, promptly take all action as may be necessary to discharge any Liens on any part of the Trust Estate that result from the negligence or willful misconduct of the Trustee.
SECTION 5.5 . No Action Except Under Specified Documents or Instructions . The Trustee shall not manage, control, use, sell, dispose of or otherwise deal with any part of the Trust Estate except: (i) in accordance with the powers granted to and the authority conferred upon the Trustee pursuant to this Agreement, (ii) in accordance with the Related Documents and (iii) in accordance with any document or instruction delivered to the Trustee pursuant to this Agreement.
SECTION 5.6 . Restrictions . The Trustee shall not take any action: (a) that is inconsistent with the purposes of the Trust set forth in Section 2.3 or (b) that, to the actual knowledge of the Trustee, would result in the Trust becoming taxable as a corporation for Federal income tax purposes. RFS Holding shall not direct the Trustee to take action that would violate this Section.
SECTION 5.7 . Tax Returns . In the event the Trust shall be required to file tax returns, the Trustee, upon request, will furnish the Administrator with all such information in the Trustees actual custody or possession as may be reasonably requested by the Administrator 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 be liable for any liabilities, costs or expenses of the Trust arising under any tax law, including federal, state or local income or excise taxes or any
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other tax imposed on or measured by income (or any interest or penalty with respect thereto arising from a failure to comply therewith).
ARTICLE VI
Concerning the Trustee
SECTION 6.1 . Acceptance of Trusts and Duties . The Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts but only upon the terms of this Agreement. The Trustee also agrees to disburse all moneys actually received by it constituting part of the Trust Estate upon the terms of the Related Documents and this Agreement. The Trustee shall not be answerable or accountable hereunder or under any Related Document under any circumstances, except: (i) for its own willful misconduct or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 6.3 expressly made by the Trustee. In particular, but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Trustee shall not be liable for any error of judgment made in good faith by a responsible officer of the Trustee unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(b) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in accordance with the instructions of the Administrator, the Servicer or RFS Holding;
(c) no provision of this Agreement or any Related Document shall require the Trustee to expend or risk funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder or under any Related Document, if the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Trustee be liable for indebtedness evidenced by or arising under any of the Related Documents, including the principal of and interest on the Notes or any representation, warranty or covenant of the Trust;
(e) the Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by RFS Holding or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Estate or for or in respect of the validity or sufficiency of the Related Documents, other than the certificate of authentication on the Certificates, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Noteholder or to any Holder, other than as expressly provided for herein and in the Related Documents;
(f) the Trustee shall not be liable for the default or misconduct of the Administrator, RFS Holding, the Indenture Trustee or the Servicer under any of the Related Documents or otherwise and the Trustee shall have no obligation or liability to perform the obligations of the Trust under this Agreement or the Related Documents that are required to be performed by the Administrator under the Administration Agreement,
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the Indenture Trustee under the Indenture or the Servicer under the Servicing Agreement; and the Trustee shall have no obligation to monitor such persons with respect to such obligations.
(g) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any Related Document, at the request, order or direction of the Holders unless the Holders offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Trustee therein or thereby. The right of the Trustee to perform any discretionary act enumerated in this Agreement or in any Related Document shall not be construed as a duty, and the Trustee shall not be answerable for other than its gross negligence or willful misconduct in the performance of any such act.
SECTION 6.2 . Furnishing of Documents . The Trustee shall furnish to a Holder promptly upon receipt of a written request therefor, and at the expense of such Holder, duplicates or copies of all reports, notices, requests, demands, certificates, financial statements and any other instruments furnished to the Trustee under the Related Documents.
SECTION 6.3 . Representations and Warranties . The Trustee hereby represents and warrants to the Holders, that:
(a) it is a banking corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement,
(b) it has taken all corporate action necessary to authorize the execution and delivery by it of this Agreement, and this Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver this Agreement on its behalf,
(c) the execution and delivery of this Agreement, the consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Trustee, or to the best of its knowledge without independent investigation any indenture, agreement or other instrument to which the Trustee is a party or by which it is bound; or violate any Federal or state law governing the banking or trust powers of the Trustee; or, to the best of the Trustees knowledge, violate any order, rule or regulation applicable to the Trustee of any court or of any Federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Trustee or its properties, and
(d) this Agreement, assuming due authorization, execution and delivery by RFS Holding, constitutes a valid, legal and binding obligation of the Trustee, enforceable against it in accordance with the terms hereof subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of
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creditors rights generally and to general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
SECTION 6.4 . Reliance; Advice of Counsel . (a) Except to the extent otherwise provided in Section 6.1 , the Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper (whether in its original or facsimile form believed by it to be genuine and believed by it to be signed by the proper party or parties. The Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the method of the determination of which is not specifically prescribed herein, the Trustee may for all purposes hereof rely on a certificate, signed by the president, any vice president, the treasurer or other authorized officers of the relevant party as to such fact or matter, and such certificate shall constitute full protection to the Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the performance of its duties and obligations under this Agreement or the Related Documents, the Trustee: (i) may act directly or through its agents or attorneys pursuant to agreements entered into with any of them, and the Trustee shall not be liable for the conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Trustee with reasonable care, and (ii) may consult with counsel, accountants and other skilled Persons to be selected with reasonable care and employed by it. The Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the written opinion or advice of any such counsel, accountants or other such Person.
SECTION 6.5 . Not Acting in Individual Capacity . Except as provided in this Article VI , in accepting the trusts hereby created The Bank of New York (Delaware) acts solely as the Trustee hereunder and not in its individual capacity and all Persons having any claim against the Trustee by reason of the transactions contemplated by this Agreement or any Related Document shall look only to the Trust Estate for payment or satisfaction thereof.
SECTION 6.6 . Trustee Not Liable for Notes or Receivables . The recitals contained herein and in the Certificates (other than the signature and counter-signature of the Trustee on the Certificates) shall be taken as the statements of RFS Holding, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representations as to the validity or sufficiency of this Agreement, of any Related Document, of the Certificates, or of any Transferred Receivable or related documents. The Trustee shall at no time have any responsibility or liability for or with respect to the legality, validity and enforceability of any Transferred Receivable, or the perfection and priority of any security interest created by any Transferred Receivable or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Trust Estate or its ability to generate the payments to be distributed to the Holders under this Agreement or the Noteholders under the Indenture, including: (a) the existence, condition and ownership of the Transferred Assets, (b) the existence and enforceability of any insurance thereon, (c) the existence and contents of any Transferred Receivable on any computer or other record thereof, (d) the validity of the assignment of any
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Transferred Receivable to the Receivables Trust or of any intervening assignment, (e) the completeness of any Transferred Receivable, (f) the performance or enforcement of any Transferred Receivable, and (g) the compliance by RFS Holding or the Servicer with any warranty or representation made under any Related Document or in any related document or the accuracy of any such warranty or representation or any action of the Administrator, the Indenture Trustee or the Servicer or any subservicer taken in the name of the Trust or Trustee.
SECTION 6.7 . Trustee May Not Own Notes . The Trustee shall not, in its individual capacity, but may in a fiduciary capacity, become the owner or pledgee of Notes or otherwise extend credit to the Trust. The Trustee may otherwise deal with RFS Holding, the Administrator, the Indenture Trustee and the Servicer with the same rights as it would have if it were not the Trustee.
ARTICLE VII
Compensation of the Trustee
SECTION 7.1 . Trustees Fees and Expenses . The Trustee shall receive as compensation for its services hereunder such fees as have been separately agreed upon before the date hereof between RFS Holding and the Trustee, and the Trustee shall be entitled to be reimbursed by RFS Holding for its other reasonable expenses hereunder, including the reasonable compensation, expenses and disbursements of such agents, representatives, experts and counsel as the Trustee may employ in connection with the exercise and performance of its rights and its duties hereunder.
SECTION 7.2 . Indemnification . RFS Holding shall be liable as primary obligor for, and shall indemnify the Trustee and its successors, assigns, agents and servants (collectively, the Indemnified Parties ) from and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever (collectively, Expenses ), which may at any time be imposed on, incurred by or asserted against the Trustee or any other Indemnified Party in any way relating to or arising out of this Agreement, the Related Documents, the Trust Estate, the administration of the Trust Estate or the action or inaction of the Trustee hereunder, except only that RFS Holding shall not be liable for or required to indemnify an Indemnified Party from and against Expenses arising or resulting from: (a) such Indemnified Partys willful misconduct or gross negligence or (b) with respect to the Trustee, the inaccuracy of any representation or warranty contained in Section 6.3 expressly made by the Trustee. The indemnities contained in this Section shall survive the resignation or termination of the Trustee or the termination of this Agreement.
In the event any proceeding (including any governmental investigation) shall be instituted involving any Indemnified Party pursuant to the preceding paragraph, such person shall promptly notify RFS Holding in writing and RFS Holding shall assume the defense thereof, including the retention of counsel reasonably satisfactory to such Indemnified Party to represent such Indemnified Party in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding upon delivery to RFS Holding of demand therefor. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i)
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RFS Holding has failed to assume the defense thereof, (ii) RFS Holding and the Indemnified Party shall have mutually agreed to the retention of such counsel or (iii) the named parties to any such proceeding (including any impleaded parties) include both RFS Holding and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that RFS Holding shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such Indemnified Parties. RFS Holding shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, RFS Holding agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. RFS Holding shall not, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding.
SECTION 7.3. Payments to the Trustee . Any amounts paid to the Trustee pursuant to this Article VII shall be deemed not to be a part of the Trust Estate immediately after such payment.
ARTICLE VIII
Termination of Trust Agreement
SECTION 8.1 . Termination of Trust Agreement . (a) The Trust shall dissolve upon the date specified by RFS Holding (the Trust Termination Date , written notice of which shall be provided to the Trustee), provided that the Trust Termination Date shall not be earlier than the day on which the rights of all Series of Notes to receive payments from the Trust have terminated. After satisfaction of liabilities of the Trust as provided by applicable law, any money or other property held as part of the Trust Estate following such distribution shall be distributed to RFS Holding. The bankruptcy, liquidation, dissolution, termination, death or incapacity of RFS Holding shall not (x) operate to terminate this Agreement or annul, dissolve or terminate the Trust, (y) entitle RFS Holdings legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of all or any part of the Trust or Trust Estate or (z) otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 8.1(a) , neither RFS Holding nor any Holder shall be entitled to dissolve, revoke or terminate the Trust.
(c) Upon the dissolution of the Trust and the payment of all liabilities of the Trust in accordance with applicable law and upon written direction from the Holders, the Trustee shall cause the Certificate of Trust to be canceled by filing a certificate of cancellation with the Secretary of State in accordance with the provisions of Section 3810 (or successor section) of the Trust Statute, at which time the Trust and this Agreement (other than Article VII ) shall terminate.
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ARTICLE IX
Successor Trustees and Additional
Trustees
SECTION 9.1 . Eligibility Requirements for the Trustee . The Trustee shall at all times: (a) be a bank within the meaning of the Investment Company Act of 1940, as amended, (b) be authorized to exercise corporate trust powers, (c) have a combined capital and surplus of at least $50,000,000 and be subject to supervision or examination by Federal or State authorities, and (d) have (or have a parent that has) a rating of at least Baa3 by Moodys or at least BBB- by S&P. If such corporation shall publish reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising or examining authority, then for the purpose of this Section, 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. At all times, at least one the Trustee of the Trust shall satisfy the requirements of Section 3807(a) of the Trust Statute. In case at any time the Trustee shall cease to be eligible in accordance with this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 9.2 .
SECTION 9.2 . Resignation or Removal of the Trustee . The Trustee may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Administrator. Upon receiving such notice of resignation, the Administrator, on behalf of the Trust, shall promptly appoint a successor trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the resigning the 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 the Trustee may petition any court of competent jurisdiction for the appointment of a successor trustee.
If at any time the Trustee shall cease to be eligible in accordance with Section 9.1 and shall fail to resign after written request therefor by the Administrator, or if at any time the Trustee shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or 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 Administrator, on behalf of the Trust, may remove the Trustee. If the Administrator, on behalf of the Trust, shall remove the Trustee under the authority of the preceding sentence, the Administrator, on behalf of the Trust, shall promptly appoint a successor trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the outgoing Trustee so removed and one copy to the successor trustee, and pay all fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a successor trustee pursuant to this Section shall not become effective until acceptance of appointment by the successor trustee pursuant to Section 9.3 and payment of all fees and expenses owed to the outgoing trustee. The Administrator shall provide notice of such resignation or removal of the trustee to each of the Rating Agencies.
SECTION 9.3 . Successor Trustee . Any successor trustee appointed pursuant to Section 9.3 shall execute, acknowledge and deliver to the Administrator and to its predecessor Trustee an instrument accepting such appointment under this Agreement, and thereupon the resignation or removal of the predecessor Trustee shall become effective and such successor trustee, without
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any further act, deed or conveyance, shall become fully vested with all the rights, powers, duties, and obligations of its predecessor under this Agreement, with like effect as if originally named as the trustee. The predecessor Trustee shall upon payment of its fees and expenses deliver to the successor trustee all documents and statements and monies held by it under this Agreement; and the Administrator 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, powers, duties and obligations.
No successor trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor trustee shall be eligible pursuant to Section 9.1 .
Upon acceptance of appointment by a successor trustee pursuant to this Section, the Administrator shall mail notice of such appointment to the Holders, the Indenture Trustee, the Noteholders and the Rating Agencies. If the Administrator shall fail to mail such notice within 10 days after acceptance of appointment by the successor trustee, the successor trustee shall cause such notice to be mailed at the expense of the Administrator.
SECTION 9.4. Merger or Consolidation of the Trustee . Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided , such corporation shall be eligible pursuant to Section 9.1 , without the execution or filing of any instrument or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; and provided further , that the Trustee shall mail notice of such merger or consolidation to the Rating Agencies.
SECTION 9.5 . Appointment of Co-Trustee or Separate Trustee . Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Trust or Trust Estate may at the time be located, the Administrator, on behalf of the Trust, and the Trustee acting jointly shall have the power and may execute and deliver all instruments to appoint one or more Person(s) approved by the Trustee to act as co-trustee(s), jointly with the Trustee, or separate trustee(s), of all or any part of the Trust Estate, and to vest in such Person(s), in such capacity and for the benefit of the Holders, such title to the Trust Estate, or any part thereof, and, subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Administrator, on behalf of the Trust, and the Trustee may consider necessary or desirable. If the Administrator, on behalf of the Trust, shall not have joined in such appointment within 15 days after the receipt by it of a request so to do, the Trustee alone shall have the power to make such appointment. No co-trustee or separate trustee under this Agreement shall be required to meet the terms of eligibility as a successor trustee pursuant to Section 9.1 and no notice of the appointment of any co-trustee or separate trustee shall be required pursuant to Section 9.3 .
Each separate trustee and co-trustee shall, to the extent permitted by law, be appointed and act subject to the following provisions and conditions:
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(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(s) are to be performed, the Trustee shall be incompetent or unqualified to perform such act(s), in which event such rights, powers, duties and obligations (including the holding of title to the Trust Estate 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 under this Agreement shall be personally liable by reason of any act or omission of any other trustee under this Agreement; and
(iii) the Administrator, on behalf of the Trust, and the Trustee acting jointly may at any time accept the resignation of or remove any separate trustee or co-trustee.
Any notice, request or other writing given to the Trustee shall be deemed to have been given to each of 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. 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, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Each such instrument shall be filed with the Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Trustee as its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement 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.
The Trustee shall have no obligation to determine whether a co-trustee or separate trustee is legally required in any jurisdiction in which any part of the Trust Estate may be located.
SECTION 10.1 . Clean-Up Call . On any day occurring on or after the date on which the outstanding principal balance of any Series of Notes is reduced to 10% or less of the initial outstanding principal balance of such Series, RFS Holding shall have the option to reduce the Collateral Amount for that Series to zero and transfer that portion of the Note Trust Principal Balance to the Free Equity Amount by paying the Trust a redemption price equal to the greater
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of (x) the Collateral Amount, plus the applicable Allocation Percentage of outstanding Finance Charge Receivables and (y) a minimum amount equal to (i) if such day is a Payment Date, the Reassignment Amount for such Payment Date or (ii) if such day is not a Payment Date, the Reassignment Amount of the Payment Date following such day. RFS Holding shall give the Trust at least thirty days prior written notice on the date on which RFS Holding intends to excise such option.
SECTION 10.2. Supplements and Amendments . This Agreement may be amended from time to time by a written amendment duly executed and delivered by RFS Holding and the Trustee, with prior written notice to the Rating Agencies, without the consent of the Holders, to cure any ambiguity, to correct or supplement any provisions in this Agreement or, for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions in this Agreement or of modifying in any manner the rights of the Holders; provided , however , that (i) such action shall not as evidenced by an Officers Certificate of RFS Holding, adversely affect in any material respect the interests of the Holders or Noteholders and (ii) the Rating Agency Condition shall have been satisfied.
Without the consent of all Noteholders, no amendment shall (a) increase or reduce in any manner the amount of, or accelerate or delay the timing of distributions that are required to be made for the benefit of the Noteholders or (b) reduce the aforesaid percentage of the Outstanding Principal Balance of the Notes, the holders of which are required to consent to any such amendment.
Promptly after the execution of any such amendment or consent, RFS Holding shall furnish written notification of the substance of such amendment or consent to the Indenture Trustee and each Rating Agency.
It shall not be necessary for the consent of the Holders pursuant to this Section 10.1 to approve the particular form of any proposed amendment or consent, but it shall be sufficient if such consent shall approve the substance thereof
Promptly after the execution of any amendment to the Certificate of Trust, the Trustee shall cause the filing of such amendment with the Secretary of State of the State of Delaware.
The Trustee shall be entitled to receive, and shall be fully protected in relying upon, an Officers Certificate of RFS Holding to the effect that the conditions to amendment have been satisfied.
The Trustee may, but shall not be obligated to, enter into any such amendment that affects the Trustees own rights, duties or immunities under this Agreement or otherwise.
SECTION 10.3. No Legal Title to Trust Estate in RFS Holding . RFS Holding shall not have legal title to any part of the Trust Estate. No transfer, by operation of law or otherwise, of any right, title or interest of RFS Holding in, to and under their ownership interest in the Trust Estate shall operate to terminate this Agreement or the trusts hereunder or entitle any transferee to an accounting or to the transfer to it of legal title to any part of the Trust Estate.
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SECTION 10.4 . Limitations on Rights of Others . The provisions of this Agreement are solely for the benefit of the Trustee, RFS Holding, and the Holders and nothing in this Agreement, whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Trust Estate or under or in respect of this Agreement or any covenants, conditions or provisions contained herein.
SECTION 10.5 . Notices . Unless otherwise expressly specified or permitted by the terms hereof, all notices shall be in writing, personally delivered or mailed by certified mail, postage prepaid and return receipt requested, and shall be deemed to have been duly given upon receipt: (i) if to the Trustee, addressed to the Corporate Trust Office, and (ii) if to RFS Holding, c/o General Electric Capital Services, Inc., 1600 Summer Street, 6 th Floor, Stamford, CT 06927, Attn: Manager of Finance - Securitization; or, as to each party, at such other address as shall be designated by such party in a written notice to the other party.
SECTION 10.6 . Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 10.7 . Separate Counterparts . This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
SECTION 10.8 . Successors and Assigns . All covenants and agreements contained herein shall be binding upon, and inure to the benefit of, RFS Holding and its successors, the Trustee and its successors and RFS Holding and its successors and permitted assigns, all as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by the Holders of the Transferor Certificate shall bind the successors and assigns of RFS Holding and any other Holder.
SECTION 10.9 . No Petition . The Trustee on behalf of the Trust, by entering into this Agreement and the Holders, by accepting a Certificate, hereby covenant and agree that they will not at any time institute against RFS Holding or the Trust, or join in any institution against RFS Holding or the Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any Federal or State bankruptcy or similar law in connection with any obligations relating to the Notes, this Agreement or any of the Related Documents; provided that nothing in this paragraph shall preclude, or be deemed to estop, the Trustee or the Holders from taking any action prior to the expiration of the applicable preference period in any involuntary proceeding filed or commenced against RFS Holding or the Trust by a Person other than the Trustee or the Holders or to otherwise limit any claims that the Trustee or the Holders may have against RFS Holding or the Trustee. This Section 10.9 shall survive the termination of the Trust.
SECTION 10.10 . No Recourse . A Holder (or any interest therein), by accepting a Certificate (or its interest therein), acknowledges that the Certificate represents a beneficial interest in the Trust only and the Certificate does not represent an interest in or obligation of RFS
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Holding, the Servicer, the Administrator, the Trustee, the Indenture Trustee or any Affiliate thereof, and no recourse may be had against such parties or their assets except as may be expressly set forth or contemplated provided in this Agreement or the Related Documents.
SECTION 10.11 . Governing Law . This Agreement shall be construed in accordance with the laws of the State of Delaware, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
SECTION 10.12 . Administrator . RFS Holding and Trustee acknowledge that the Administrator is authorized to execute on behalf of the Trust all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Trust or Trustee to prepare, file or deliver pursuant to this Agreement and the Related Documents. Upon written request, the Trustee shall execute and deliver to the Administrator a power of attorney appointing the Administrator its agent and attorney-in-fact to execute all such documents, reports, filings, instruments, certificates and opinions.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed by their respective officers hereunto duly authorized as of the day and year first above written.
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THE BANK OF NEW YORK (DELAWARE), |
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as Trustee |
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By: |
/s/ Michael Santino |
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Name: Michael Santino |
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Title: Senior Vice President |
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RFS HOLDING, L.L.C. |
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By: |
/s/ Iain J. Mackay |
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Name: Iain J. Mackay |
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Title: Chief Financial Officer and Manager |
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EXHIBIT A
to Trust Agreement
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THIS CERTIFICATE (OR ANY INTEREST HEREIN) MAY NOT BE TRANSFERRED TO ANY PERSON EXCEPT IN ACCORDANCE WITH THE TRUST AGREEMENT.
THIS CERTIFICATE (OR ANY INTEREST HEREIN) MAY NOT BE PURCHASED BY OR TRANSFERRED TO (I) AN EMPLOYEE BENEFIT PLAN (AS DEFINED IN SECTION 3(3) OF ERISA) THAT IS SUBJECT TO THE PROVISIONS OF TITLE I OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED, (II) A PLAN DESCRIBED IN SECTION 4975(e)(1) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED OR (III) ANY ENTITY WHOSE UNDERLYING ASSETS INCLUDE PLAN ASSETS BY REASON OF INVESTMENT BY AN EMPLOYEE BENEFIT PLAN OR PLAN (INCLUDING AN INSURANCE COMPANY GENERAL ACCOUNT) IN SUCH ENTITY.
TRANSFEROR CERTIFICATE
R-[ ]
GE CAPITAL CREDIT CARD MASTER NOTE TRUST
TRANSFEROR CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the property of which includes a pool of credit card receivables sold or contributed to the Trust by RFS HOLDING, L.L.C.
THIS CERTIFIES THAT RFS HOLDING, L.L.C. is the owner of a ONE HUNDRED PERCENT nonassessable, fully-paid, undivided interest in the GE Capital Credit Card Master Note Trust (the Trust ) formed by RFS HOLDING, L.L.C., a Delaware limited liability company (the RFS Holding ).
The Trust was created pursuant to a Trust Agreement dated as of September 25, 2003 (the Trust Agreement ) between RFS Holding and The Bank of New York (Delaware), as trustee (the Trustee ). To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Trust Agreement. This Certificate is one of the duly authorized Certificates designated as Transferor Certificate (herein called the Transferor Certificate ) issued under and subject to the terms, provisions and conditions of the Trust Agreement, to which the Holder of this Transferor Certificate by virtue of the acceptance hereof assents and by which holder is bound.
It is the intent of RFS Holding, and the Holder of the Transferor Certificate that, for purposes of Federal income, State and local income and franchise and any other income taxes measured in whole or in part by income, until the interest in the Transferor Certificate is held by one or more person other than RFS Holding, the Trust be disregarded as an entity separate from its owner. At such time that the interest in the Transferor Certificate is held by more than one person, it is the intent of RFS Holding, and the Holder of a Transferor Certificate and the Holders of the Supplemental Certificates that, for purposes of Federal income, State and local
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income and franchise and any other income taxes measured in whole or in part by income, the Trust be treated as a partnership, the assets of which are the assets held by the Trust, and the Holder of the Transferor Certificate and the Holders of the Supplemental Interests will be treated as partners in that partnership. RFS Holding and the Holder of the Transferor Certificate, by acceptance of the Transferor Certificate, agree to treat, and to take no action inconsistent with the treatment of, the Transferor Certificate as such for tax purposes.
The Holder of the Transferor Certificate, by its acceptance of the Transferor Certificate, covenants and agrees that the Holder of the Transferor Certificate will not at any time institute against RFS Holding or the Trust, or join in any institution against RFS Holding or the Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States Federal or State bankruptcy or similar law in connection with any obligations relating to any of the Related Documents.
The Transferor Certificate does not represent an obligation of, or an interest in, RFS Holding, the Servicer, General Electric Capital Services, Inc., General Electric Capital Corporation or General Electric Company, the Trustee or any affiliates of any of them and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated herein or in the Trust Agreement or the Related Documents.
Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Trustee, by manual signature, this Transferor Certificate shall not entitle the holder hereof to any benefit under the Trust Agreement or be valid for any purpose.
This Transferor Certificate shall be construed in accordance with the laws of the State of Delaware, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
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IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its individual capacity has caused this Transferor Certificate to be duly executed.
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GE CAPITAL CREDIT CARD MASTER NOTE TRUST |
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By: The Bank of New York (Delaware), not in its individual capacity, but solely as Trustee |
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TRUSTEES CERTIFICATE OF AUTHENTICATION
This is the Transferor Certificate referred to in the within-mentioned Trust Agreement.
The Bank of New York (Delaware), as Trustee
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Date: [ ], 200[ ] |
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A-4
EXHIBIT B
to Trust Agreement
CERTIFICATE OF TRUST
OF
GE CAPITAL CREDIT CARD MASTER NOTE TRUST
THIS CERTIFICATE OF TRUST of GE Capital Credit Card Master Note Trust (the Trust ), is being duly executed and filed by The Bank of New York (Delaware), a Delaware banking corporation, as trustee, to form a statutory trust under the Delaware Statutory Trust Act (12 Del. C. §3801, et seq .).
(i) Name . The name of the statutory trust being formed hereby is GE Capital Credit Card Master Note Trust.
(ii) Delaware Trustee . The name and business address of the trustee of the Trust in the State of Delaware are The Bank of New York (Delaware), 700 White Clay Center, Route 273, Newark, Delaware 19711.
(iii) Effective Date . This Certificate of Trust shall be effective as of its filing.
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IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust, has executed this Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
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THE BANK OF NEW YORK (DELAWARE), not in its individual capacity, but solely as trustee under a Trust Agreement dated as of September , 2003 |
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B-2
EXHIBIT 4.4
RFS FUNDING TRUST
AMENDED AND RESTATED TRUST AGREEMENT
among
RFS HOLDING, L.L.C.,
RFS HOLDING, INC.
and
DEUTSCHE
BANK TRUST COMPANY DELAWARE
,
as Trustee
Dated
as of December 19, 2002
and amended and restated as of June 27, 2003
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EXHIBITS |
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iv
AMENDED AND RESTATED TRUST AGREEMENT (as amended or supplemented from time to time, this Agreement ) dated as of December 19, 2002 and amended and restated as of June 27, 2003 between RFS HOLDING, INC., a Delaware corporation, RFS HOLDING, L.L.C., a Delaware limited liability company, and DEUTSCHE BANK TRUST COMPANY DELAWARE, a Delaware banking corporation, as Trustee.
Section 1.1 Definitions .
Account means, at any time, any credit card account that is at that time an Account within the meaning of the Trust Receivables Purchase Agreement.
Additional Trust Regular Interest Certificate means a certificate representing a beneficial interest in the Trust Estate issued pursuant to a Trust Regular Interest Supplement and in such form as may be specified in the Trust Regular Interest Supplement.
Additional Trust Regular Interest Percentage means the percentage of Collections and Charged-Off Receivables on Transferred Receivables other than the Specified Retailer Receivables allocated to the Holder of the related Additional Trust Regular Interest Certificate under this Agreement, which percentage shall be calculated as described in the related Trust Regular Interest Supplement.
Administration Agreement means that certain Administration Agreement dated as of the Restatement Date, among the Administrator, the Trust and the Trustee.
Administrator means GE Capital, in its capacity as Administrator under the Administration Agreement, or any other Person designated as a successor Administrator.
Advance means the advances made to the Trust pursuant to the Funding Agreement.
Affiliate means, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, five percent (5%) or more of the securities having ordinary voting power in the election of directors of such Person, (b) each Person that controls, is controlled by or is under common control with such Person, or (c) each of such Persons officers, directors, joint venturers and partners. For the purposes of this definition, control of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
Authorized Officer means, with respect to any corporation or statutory trust, the Chairman or Vice-Chairman of the Board, the President, any Vice President, the Secretary, the Treasurer, any Assistant Secretary, any Assistant Treasurer and each other officer of such corporation or trustee of such trust specifically authorized in resolutions of the Board of Directors of such corporation or trustee of such trust to sign agreements, instruments or other documents on behalf of such corporation or statutory trust in connection with the transactions contemplated by the Transfer Agreements, the Funding Agreement and the other Related Documents. An Authorized Officer of the Administrator shall be deemed an Authorized Officer of the Trust.
Banana Republic Program Agreement means that certain Amended and Restated Consumer Credit Card Program Agreement, dated as of August 29, 2000, by and among Gap, Inc. and Originator.
Banana Republic Retailers means Gap, Inc. d/b/a Banana Republic and its permitted assigns under the Banana Republic Program Agreement.
Bank Receivables Sale Agreement means that certain Bank Receivables Sale Agreement dated as of June 27, 2003, between Originator and RFS Holding, L.L.C..
Benefit Plan is defined in Section 3.4 .
Borrower Collateral is defined in Section 7.1 of the Funding Agreement.
Borrowing Base means, as of any Payment Date (the subject Payment Date), the result of (a) the Borrowing Base for the prior Payment Date, minus (b) the Lender Collateral Interest Percentage of the sum of Principal Collections and the amount of Principal Receivables that became Charged-Off Receivables during the Monthly Period related to the subject Payment Date. For purposes of clause (b) , Principal Collections for any Monthly Period shall be deemed to include the total amount of payments that RFS Holding, L.L.C. was required to make
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pursuant to Section 2.5 of the Trust Receivables Purchase Agreement, whether or not such payment was in fact made. For purposes of this definition, the Borrowing Base for the June, 2003 Payment Date was $8,153,982,107.75. The Borrowing Base shall be calculated based on the information specified in the Funding Agreement.
Business Day means any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in the State of New York, the State of Connecticut or the state of Servicers principal office (currently Georgia).
Certificate means the Owner Interest Certificate, the Note Trust Certificate or any Additional Trust Regular Interest Certificate.
Certificate Register and Certificate Registrar means the register mentioned and the registrar appointed pursuant to Section 3.4 of this Agreement.
Charged-Off Receivable means a Principal Receivable (or any portion thereof) arising in an Account which either (i) is 180 days past due or (ii) has otherwise been written off as uncollectible in accordance with the Credit and Collection Policies. To avoid doubt, a Principal Receivable shall become a Charged-Off Receivable upon the earlier of the events described in clause (i) or clause (ii) to occur with respect to the related Account.
Closing Date means, as to any Additional Trust Regular Interest Certificate, the date on which that Certificate is issued.
Collection Account means that certain segregated deposit account established and maintained in accordance with the Funding Agreement and referred to as the Collection Account therein.
Collections means, for any Receivable for any period, (i) the sum of all amounts, whether in the form of cash, checks, drafts, or other instruments, received by the Originator or the Servicer in payment of, or applied to, any amount owed by an Obligor on account of such Receivable during such period, including all amounts received on account of such Receivable, all other fees and charges, (ii) Recoveries and cash proceeds of Related Security with respect to such Receivable whether or not treated as Recoveries and (iii) any in-store payments received by a Retailer, Servicer or Originator with respect to such Receivable. Amounts paid by RFS Holding, L.L.C. pursuant to Section 2.5 of the Trust Receivables Purchase Agreement shall be deemed to be Principal Collections. Amounts paid by RFS Holding, L.L.C. pursuant to Section 2.7 or
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6.1(e) of the Trust Receivables Purchase Agreement shall be deemed to be Principal Collections to the extent that they represent the purchase price of Principal Receivables and otherwise shall be deemed to be Collections of Finance Charge Receivables. Recoveries shall be deemed to be Collections of Finance Charge Receivables.
Confidential Information is defined in Section 6.8 .
Contract means the agreement and Federal Truth in Lending Statement for Originator credit card accounts between any Obligor and Originator, as such agreements may be amended, modified, or otherwise changed from time to time.
Corporate Trust Office means the office of the Trustee at c/o Deutsche Bank Trust Company Americas, Corporate Trust & Agency Services, 280 Park Avenue, 9 th Floor, New York, NY 10017.
Credit and Collection Policies means, with respect to each credit card program from which Accounts are drawn, the Originators policies and procedures relating to the operation of such credit card program, including the policies and procedures for determining the creditworthiness of Obligors and the extension of credit to Obligors, and relating to the maintenance of credit card accounts and collection of credit card receivables, as such policies and procedures may be amended from time to time.
Eligible Corporation shall have the meaning set forth in Section 860L(a)(2) of the IRC.
Enhancement means the rights and benefits provided to the Lender Collateral Interest or the Holders of any Trust Regular Interests pursuant to an interest rate or foreign currency notional principal contract, letter of credit, insurance or other guarantee or hedge permitted by Section 86OL(c)(1)(D) of the IRC or any regulation issued thereunder.
ERISA means the Employee Retirement Income Security Act of 1974 and any regulations promulgated thereunder.
Existing Trust Agreement means this Trust Agreement as originally in effect, dated as of December 19, 2002, among GECS, Holding LLC and the Trustee.
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Finance Charge Receivables means Receivables created in respect of periodic finance charges, late fees, returned check fees and all other similar fees and charges billed or accrued and unpaid on an Account.
Funding Agreement means that certain Receivables Funding Agreement dated as of June 27, 2003 between the Trust and the lender identified therein, which amends and restates that certain Third Amended and Restated Receivables Funding and Servicing Agreement dated as of September 28, 1997 and amended and restated as of July 22, 1998, as of March 22, 2001 and as of December 30, 2002, among the Trust, the Servicer, GE Capital and the lender identified therein.
Funding Agreement Termination Date is defined in Section 9.1 .
Gap Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. and Originator.
Gap Retailers means Gap, Inc. and its permitted assigns under the Gap Program Agreement.
GE Capital means General Electric Capital Corporation, a Delaware corporation.
GECAF Retailer means each retailer who is from time to time a party to a dealer agreement with Originator relating to Originators GECAF private label credit card program.
GECS means General Electric Capital Services, Inc., a Delaware corporation.
Governmental Authority means any nation or government, any state or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Grant means to create and grant a Lien pursuant to the Funding Agreement, and other forms of the verb to Grant shall have correlative meanings.
Holder or Certificateholder means (a) as to the Owner Interest Certificate or any Additional Trust Regular Interest Certificate, the Person in whose name such Certificate is registered in the Certificate Register or such other Person as may be specified in an applicable Trust Regular Interest Supplement
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and (b) as to the Note Trust Certificate, (i) prior to the formation of the Note Trust, RFS Holding, L.L.C., (ii) upon the formation of the Note Trust but prior to the issuance of the first series of notes under the Indenture or any supplement thereto, the Note Trust and (iii) from and after the issuance of such notes, the indenture trustee under the Indenture, as registered pledgee of the Holder of the Note Trust Certificate.
Indenture means the Master Indenture to be entered into between the Note Trust and an indenture trustee.
Indenture Security Agreement means a security agreement to be entered into between the Trust and the indenture trustee under the Indenture covering the Transferred Receivables and the related assets.
Intercreditor Agreement means an intercreditor agreement to be entered into among the Trust, the lender under the Funding Agreement and the indenture trustee under the Indenture.
Interest Rate Swap means the ISDA Master Agreement, together with any schedules thereto and confirmations thereof, between the Trust and GE Capital, each dated as of March 24, 1997 and amended and restated as of June 26, 2001, and any other schedules thereto and confirmations thereof entered into thereafter, as each of the foregoing has been and may in the future be amended, modified or replaced.
IRC means the Internal Revenue Code of 1986, as amended.
JCPenney Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of December 6, 1999, by and between J.C. Penney Company, Inc. and Originator.
JCPenney Retailers means J.C. Penney Company, Inc. and other Authorized Entities as such term is defined in the J.C. Penney Program Agreement.
Lender Collateral Interest means an uncertificated interest in the Trust Estate consisting of the right to receive the Lender Collateral Interest Percentage of all Collections of Transferred Receivables.
Lender Collateral Interest Percentage means for any Monthly Period (a) for the Specified Retailer Receivables, and for related Finance Charge Receivables and Charged-Off Receivables, 100% and (b) for all Transferred
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Receivables other than Specified Retailer Receivables and the related Finance Charge Receivables and Charged-Off Receivables, the percentage equivalent of a fraction (x) the numerator of which is the Borrowing Base as of the Payment Date falling in that Monthly Period, but, for each Payment Date following the one in August 2003 after giving effect to any reduction occurring on that Payment Date minus the aggregate Outstanding Balance of the Specified Retailer Receivables as of the end of the prior Monthly Period, and (y) the denominator of which is the aggregate Outstanding Balance of all Transferred Receivables other than Specified Retailer Receivables as of the end of the prior Monthly Period..
Lender Pay Off Amount means, as of any Payment Date, the sum of Advances Outstanding (as defined in the Funding Agreement) and all Interest (as defined in the Funding Agreement) payable on that Payment Date (including Interest for the period between the end of the related Monthly Period and that Payment Date and additional interest to accrue thereafter on account of interest or discount on outstanding commercial paper issued to fund the Advances Outstanding (as defined in the funding Agreement)) and all other Borrower Secured Obligations (as defined in the Funding Agreement) accrued through that Payment Date.
Lien means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction).
Lowes Retailers means each of Lowes Companies, Inc., Lowes Home Centers, Inc., The Contractor Yard, Inc., Lowes HIW, Inc. and certain of their affiliates.
Montgomery Ward means Montgomery Ward & Co., Incorporated.
Monthly Period means each period beginning on the 22 nd day of one calendar month and ending on the 21 st day of the next calendar month; except that the Monthly Period that ends in July 2003 shall begin on June 19, 2003 and shall end on July 21, 2003.
Moodys means Moodys Investors Service, Inc. or any successor thereto.
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Note means the note issued by a predecessor to the Trust pursuant to the Funding Agreement and any replacement note.
Noteholder means the Holder of the Lender Collateral Interest.
Note Trust means GE Capital Credit Card Master Note Trust, a Delaware statutory trust.
Note Trust Certificate means the certificate in the form of Exhibit B to this Agreement, evidencing the beneficial interest of the Note Trust in the Trust Estate.
Note Trust Percentage means the percentage of Collections and Charged-Off Receivables on Transferred Receivables other than the Specified Retailer Receivables allocated to the Note Trust under this Agreement, which percentage is equal to 100% minus the sum of the Lender Collateral Interest Percentage for Transferred Receivables other than Specified Retailer Receivables and the aggregate amount of Additional Trust Regular Interest Percentages.
Obligor means, with respect to any Receivable, any Person obligated to make payments in respect thereof.
Officers Certificate means, with respect to any Person, a certificate signed by an Authorized Officer of such Person.
Old Navy Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. and Originator.
Old Navy Retailers means Gap, Inc. d/b/a Old Navy and its permitted assigns under the Old Navy Program Agreement.
Opinion of Counsel means a written opinion of counsel, who may be counsel for, or an employee of, the Person providing the opinion.
Originator means Monogram Credit Card Bank of Georgia, a bank organized under the laws of the State of Georgia.
Originator Performance Guaranty means that certain Originator Performance Guaranty dated as of June 27, 2003, by GE Capital, as Originator Performance Guarantor.
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Outstanding means, as of the date of determination, all Certificates theretofore authenticated and delivered under this Agreement except:
(i) Certificates theretofore canceled by the Certificate Registrar or delivered to the Certificate Registrar for cancellation;
(ii) Certificates or portions thereof the payment for which funds in the necessary amount have been theretofore deposited with the Trustee in trust for the Certificateholders ( provided , however , that if such Certificates are to be redeemed, notice of such redemption has been duly given pursuant to this Agreement); and
(iii) Certificates in exchange for or in lieu of other Certificates that have been authenticated and delivered pursuant to this Agreement unless proof satisfactory to the Trustee is presented that any such Certificates are held by a bona fide purchaser;
provided , that in determining whether the Certificateholders of the requisite portion of the Outstanding Ownership Amount have given any request, demand, authorization, direction, notice, consent or waiver hereunder or under any Related Document, Certificates owned by RFS Holding, L.L.C. or any Affiliate thereof 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 that a Responsible Officer of the Trustee actually knows to be so owned shall be so disregarded. Certificates so owned that have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the Pledgees right so to act with respect to such Certificates and that the pledgee is not the Trust or any Affiliate thereof.
Outstanding Balance means, with respect to any Principal Receivable: (a) as of the Transfer Date for that Principal Receivable, the outstanding amount of such Principal Receivable as reflected on the Servicers books and records (less any portion of such outstanding amount that is recharacterized as a Finance Charge Receivable pursuant to Section 2.8 of the Trust Receivables Purchase Agreement) and (b) thereafter, the amount referred to in clause (a) minus Collections with respect to that Principal Receivable that are allocable to a reduction of the Outstanding Balance thereof minus any subsequent discounts to or any other modifications that reduce such Outstanding Balance; provided , that the Outstanding Balance of a Charged-Off Receivable shall equal zero.
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Outstanding Ownership Amount means the aggregate Ownership Amount of all Certificates Outstanding at the date of determination.
Owner Interest Certificate means the certificate in the form of Exhibit A to this Agreement evidencing the residual beneficial interest in the Trust Estate, other than the Lender Collateral Interest and the beneficial interests evidenced by the Note Trust Certificate and any Additional Trust Regular Interest Certificates.
Ownership Amount means (a) as to the Owner Interest Certificate, zero, (b) as to the Note Trust Certificate, the excess, if any, of the aggregate Outstanding Balance of all Principal Receivables owned by the Trust other than Principal Receivables that are Specified Retailer Receivables, over the sum of (i) the Lender Collateral Interest Percentage of the Principal Receivables other than the Specified Retailer Receivables and (ii) the Ownership Amount of each Outstanding Additional Trust Regular Interest Certificate and (c) as to any Additional Trust Regular Interest Certificate, the amount specified in the related Trust Regular Interest Supplement.
Payment Date means, except as otherwise specified in any supplement to the Indenture, the 15 th day of each calendar month, or if the 15 th day is not a Business Day, the next Business Day.
Person means any individual, sole proprietorship, partnership, joint venture, unincorporated organization, trust, association, corporation (including a business trust), limited liability company, institution, public benefit corporation, joint stock company, Governmental Authority or any other entity of whatever nature.
Principal Collections means that portion of Collections attributable to Principal Receivables (after giving effect to any recharacterization of Collections of Principal Receivables as Collections of Finance Charge Receivables pursuant to Section 2.8 of the Trust Receivables Purchase Agreement). Amounts paid by RFS Holding, L.L.C. pursuant to Section 2.5 of the Trust Receivables Purchase Agreement shall be deemed to be Principal Collections. Amounts paid by RFS Holding, L.L.C. pursuant to Section 6.1(e) of the Trust Receivables Purchase Agreement shall be deemed to be Principal Collections to the extent that they represent the purchase price of Principal Receivables.
Principal Receivable means each Receivable, other than a Finance Charge Receivable.
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Principal Terms means, with respect to any Additional Trust Regular Interest Certificate: (a) its name or designation; (b) its initial principal amount (or method for calculating such amount) and its Ownership Amount in the Trust; and (c) any other terms of such Additional Trust Regular Interest Certificate.
Prior Transfer Agreement means that certain Third Amended and Restated Receivables Transfer Agreement dated as of September 25, 1997 and amended and restated as of July 22, 1998, as of March 22, 2001, and as of December 30, 2002, among the Originator and the Trust.
Proceeding is defined in Section 6.3 .
Rating Agency means, at any time: (a) with respect to the Lender Collateral Interest, Moodys and S&P; (b) with respect to the Note Trust Certificate, each nationally recognized statistical rating organization that maintains a credit rating on any outstanding securities issued by the Note Trust; and (c) with respect to any Additional Trust Regular Interest Certificate, each nationally recognized statistical rating organization specified in the related Trust Regular Interest Supplement.
Rating Agency Condition means, with respect to any action, that: (a) with respect to the Lender Collateral Interest, each Rating Agency has confirmed that such action will not result in a withdrawal or downgrade of the rating of any asset-backed commercial paper issued to fund or maintain the Advances; (b) with respect to the Note Trust Certificate, each Rating Agency has confirmed that such action will not result in a withdrawal or downgrade of the rating of any class of securities issued by the Note Trust; and (c) with respect to any Additional Trust Regular Interest Certificate, such confirmations from each applicable Rating Agency as are specified in the related Trust Regular Interest Supplement.
Receivable means any amount owing by an Obligor under an Account from time to time, including amounts owing for Principal Receivables and Finance Charge Receivables.
Records means all Contracts and other documents, books, records and other information (including computer programs, tapes, disks, data processing software and related property and rights) prepared and maintained by any Originator, the Servicer, any Sub-Servicer or the Borrower with respect to the Receivables and the Obligors thereunder, and the Borrower Collateral (as defined in the Funding Agreement) pledged by the Trust under the Funding Agreement.
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Recoveries means proceeds from the sale or other disposition of Charged-Off Receivables pursuant to Section 2.7(c) of the Trust Receivables Purchase Agreement.
Related Documents means the Funding Agreement, the Trust Receivables Purchase Agreement, the Note, the Interest Rate Swap, this Agreement, the Administration Agreement, the Contribution Agreement, the RFS Holding, Inc. Letter of Credit, the Servicing Agreement, the Servicer Performance Guaranty, the Originator Performance Guaranty, the Indenture, the Indenture Security Agreement, the Intercreditor Agreement and including all other pledges, powers of attorney, consents, assignments, contracts, notices, and all other written matter whether heretofore, now or hereafter executed by or on behalf of any Person, or any employee of any Person, and delivered in connection with any of the foregoing or the transactions contemplated thereby.
Related Security means with respect to any Receivable: (a) all of the Originators interest, if any, in the goods, merchandise (including returned merchandise) or equipment, if any, the sale of which gave rise to such Receivable; (b) all guarantees, insurance or other agreements or arrangements of any kind from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise; and (c) all Records relating to such Receivable.
Required Note Trust Ownership Amount means, at any time: (a) prior to the issuance of the first series of notes under the Indenture or any supplement thereto, zero; and (b) thereafter, an amount equal to the sum of the Collateral Amounts (as defined in the Indenture) for each outstanding series of notes and the Minimum Free Equity Amount (as defined in the Indenture).
Required Parties means, with respect to any matter as to which this Agreement states that the Trustee shall or may be instructed by the Required Parties:
(a) if the Lender Collateral Interest is affected by such matter, the Lender under (and as defined in) the Funding Agreement;
(b) if the interests of the Holder of the Note Trust Certificate are affected by such matter, the indenture trustee under the Indenture; and
(c) if the interests of the Holder of any other Trust Regular Interest Certificate are affected by such matter, such Holder or such other
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Person (other than GECS or any of its Affiliates) as may be designated in the applicable Trust Regular Interest Supplement.
For purposes of the foregoing, each of the Lender Collateral Interest, the interests of the Holder of the Note Trust Certificate and the interests of the Holder of any other Trust Regular Interest Certificate shall be presumed to be affected by any matter as to which this Agreement states that the Trustee shall or may be instructed by the Required Parties (x) if the applicable Required Party has notified the Trustee that in the judgment of such Required Party, the applicable interests are affected and (y) in the absence of such notice, unless (in the case of this clause (y) ) the Holder of the Owner Interest Certificate or the applicable Required Party has delivered an Officers Certificate to the Trustee to the effect that any such interests are not affected by such matter.
Responsible Officer means, with respect to the Trustee, any officer within the Corporate Trust Office of the Trustee, including any Vice President, Assistant Vice President, Secretary or Assistant Secretary, or any other officer of the Trustee customarily performing functions similar to those performed by any of the above designated officers and also, with respect to a particular matter, any other officer to whom such matter is referred because of such officers knowledge of and familiarity with the particular subject.
Restatement Date means June 27, 2003.
Retailer means the Banana Republic Retailers; the Gap Retailers; the GECAF Retailers; Home Depot U.S.A., Inc.; the JCPenney Retailers; the Lowes Retailers; Montgomery Ward; the Old Navy Retailers; the Sams Club Retailers; the Wal-Mart Retailers; and from time to time, any Additional Retailer designated pursuant to (and as defined in) the Trust Receivables Purchase Agreement. It is understood and agreed that additional retailers who from time to time become GECAF Retailers shall automatically be treated as Retailers with respect to the Originators GECAF program without the necessity of complying with the terms of the Trust Receivables Purchase Agreement.
RFS FASIT means the Borrower Collateral (other than amounts paid to the Borrower pursuant to Sections 6.3(a)(viii) , 6.3(a)(x) , 6.3(b)(vii) or 6.3(b)(ix) of the Funding Agreement) designated as a FASIT within the meaning of Section 860L of the IRC.
RFSHI Letter of Credit is defined in the RFS Holding, Inc. Letter of Credit Agreement.
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RFSHI Letter of Credit Agreement means that certain RFS Holding, Inc. Letter of Credit Agreement dated as of June 27, 2003 among RFS Holding, Inc., the Borrower and the lender under the Funding Agreement.
S&P means Standard & Poors Ratings Services, a division of the McGraw-Hill Companies, Inc., or any successor thereto.
Sams Club Program Agreement means that certain Third Amended and Restated Consumer Credit Card Program Agreement, dated as of February 1, 1999, by and among Wal-Mart Stores, Inc., Sams West, Inc., Sams East, Inc. and Originator.
Sams Club Retailers means Sams West, Inc., a Delaware corporation, Sams East, Inc., a Delaware corporation, and their respective successors and permitted assigns under the Sams Club Program Agreement.
Series Certificate is defined in Section 5.1(d) .
Servicer means the Originator, in its capacity as the Servicer under the Funding Agreement, or any other Person designated as a successor servicer pursuant to the Servicing Agreement.
Servicer Performance Guaranty means that certain Servicer Performance Guaranty dated as of June 27, 2003, by GE Capital, as Servicer Performance Guarantor.
Servicing Agreement means that certain Servicing Agreement dated as of June 27, 2003, among Originator, as Servicer, the Trust, and, upon its accession as provided therein, the Note Trust.
Specified Retailer Receivables means the Transferred Receivables arising in the Originators programs for Home Depot U.S.A., Inc. and Montgomery Ward. Transferred Receivables arising in the Originators program for Montgomery Ward that have been transferred to the Originators program for the Wal-Mart Retailers shall not be considered Specified Retailer Receivables.
Sub-Servicer means any Person with whom the Servicer enters into a Sub Servicing Agreement.
Sub-Servicing Agreement means any written contract entered into between the Servicer and any Sub-Servicer pursuant to and in accordance with the Servicing Agreement.
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Tax Opinion means, with respect to any action, an Opinion of Counsel to the effect that, for federal income tax purposes, (a) such action will not cause the Trust to be classified, for federal income tax purposes, as an association (or publicly traded partnership) taxable as a corporation and (b) such action will not cause or constitute an event in which gain or loss would be recognized by any Holder.
Transfer Agreements means the Prior Transfer Agreement and the Trust Receivables Purchase Agreement.
Transferred Receivable means any Receivable acquired by the Trust pursuant to the Prior Transfer Agreement, any predecessor agreement or the Trust Receivables Purchase Agreement, as applicable, but excluding any such Receivable that has subsequently been repurchased pursuant to either such Agreement or purchased by the Servicer pursuant to the Servicing Agreement.
Trust means RFS Funding Trust, the Delaware statutory trust created by this Agreement.
Trust Accounts means each of the Collection Account and any other account designated as a Trust Account in any Trust Regular Interest Supplement.
Trust Estate means all right, title and interest of the Trust in and to the property and rights assigned to the Trust pursuant to Article II of the Trust Receivables Purchase Agreement, all funds on deposit from time to time in the Trust Accounts and all other property of the Trust from time to time, including any rights of the Trustee and the Trust pursuant to the Transfer Agreements and the Administration Agreement.
Trust Receivables Purchase Agreement means that certain Receivables Purchase and Contribution Agreement dated as of June 27, 2003, between RFS Holding, L.L.C. and the Trust.
Trust Regular Interest Certificate means the Note Trust Certificate and each Additional Trust Regular Interest Certificate.
Trust Regular Interest Supplement means a supplement to this Agreement.
Trust Regular Interests means (i) the beneficial interest in the Trust Estate evidenced by the Note Trust Certificate and (ii) any additional regular
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interests in the RFS FASIT created pursuant to any Trust Regular Interest Supplement and represented by Additional Trust Regular Interest Certificates.
Trust Statute means Chapter 38 of Title 12 of the Delaware Code, 12 Del . Code , §3801 et. seq., as the same may be amended from time to time.
Trustee means Deutsche Bank Trust Company Delaware, not in its individual capacity but solely as trustee pursuant to this Agreement.
UCC means, with respect to any jurisdiction, the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in such jurisdiction.
Wal-Mart Program Agreement means that certain Consumer Credit Card Program Agreement dated as of August 26, 1999, by and between Wal-Mart Stores, Inc. and Originator.
Wal-Mart Retailers means Retailer as such term is defined in the Wal-Mart Program Agreement.
Section 1.2 Other Interpretive Matters . All terms defined directly or by incorporation in this Agreement shall have the defined meanings when used in any document delivered pursuant thereto unless otherwise defined therein. For purposes of this Agreement, unless the context otherwise requires: (a) accounting terms not otherwise defined herein and accounting terms partly defined herein to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; and unless otherwise provided, references to any month, quarter or year refer to a fiscal month, quarter or year as determined in accordance with the GE Capital fiscal calendar; (b) unless defined in this Agreement or the context otherwise requires, capitalized terms used in this Agreement which are defined in the UCC shall have the meaning given such term in the UCC; (c) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (d) the words hereof, herein and hereunder and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (e) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Agreement, and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (f) the term including means including without limitation; (g) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (h) references to
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any agreement refer to that agreement as from time to time amended, restated or supplemented or as the terms of such agreement are waived or modified in accordance with its terms; (i) references to any Person include that Persons successors and assigns; and (j) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
Section 2.1 Name . The Trust created hereby shall be known as RFS Funding Trust, in which name the Trustee shall conduct the business of the Trust, make and execute contracts and other instruments on behalf of the Trust and sue and be sued. The Trust is being formed by the conversion of RFS Funding Incorporated, a Delaware corporation, into a statutory trust. To evidence and effect such conversion and formation, Trustee is authorized and empowered to file the Certificate of Trust and a Certificate of Conversion to Statutory Trust, in the form set out in Exhibit D , with the Delaware Secretary of State.
Section 2.2 Office . The office of the Trust shall be in care of the Trustee at the Corporate Trust Office or at such other address as the Trustee may designate by written notice to the Certificateholders and RFS Holding, Inc.
Section 2.3 Purposes and Powers . The purpose of the Trust is, and the Trust shall have the power and authority to, engage in the following activities:
(a) to borrow Advances pursuant to the Funding Agreement and issue the Owner Interest Certificate and the Note Trust Certificate pursuant to this Agreement and to issue Additional Trust Regular Interest Certificates in one or more transactions;
(b) to purchase the Receivables pursuant to the Trust Receivables Purchase Agreement;
(c) to Grant the Lender Collateral Interest pursuant to the Funding Agreement and to hold, service and distribute (i) to the Note Trust the Note Trust Percentage of the Trust Estate and (ii) the Holder of any Additional Trust Regular Interest Certificate the applicable Additional Trust Regular Interest Percentage of the Trust Estate;
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(d) to enter into and perform its obligations under the Related Documents to which it is to be a party;
(e) to engage in those activities, including entering into agreements, that are necessary, suitable or convenient to accomplish the foregoing or are incidental thereto or connected therewith; and
(f) subject to compliance with the Related Documents, to engage in such other activities as may be required in connection with conservation of the Trust Estate and the making of distributions to the Certificateholders and payments to the Noteholder.
The Trust shall not engage in any activity other than in connection with the foregoing or other than as required or authorized by this Agreement or the Related Documents.
Section 2.4 Appointment of Trustee . RFS Holding, Inc. hereby appoints the Trustee as trustee of the Trust effective as of the date hereof, to have all the rights, powers and duties set forth herein and in the Trust Statute.
Section 2.5 Organizational Expenses . RFS Holding, Inc. shall, upon the request of the Trustee, promptly reimburse the Trustee for any organizational expenses of the Trust paid by the Trustee. RFS Holding, Inc. may also take steps necessary, including the execution and filing of any necessary filings, to ensure that the Trust is in compliance with any applicable state securities law.
Section 2.6 Declaration of Trust . The Trustee hereby declares that it will hold the Trust Estate in trust upon and subject to the conditions set forth herein for the use and benefit of the Certificateholders, subject to the obligations of the Trust under the Related Documents. It is the intention of the parties hereto that the Trust constitute a statutory trust under the Trust Statute and that this Agreement constitute the governing instrument of such statutory trust.
Section 2.7 Liability of the Certificateholders . Except as provided in any Related Document, no Certificateholder shall have any personal liability for any liability or obligation of the Trust.
Section 2.8 Title to Trust Property . Subject to the Lien Granted to the Lender Collateral Interest pursuant to the Funding Agreement, legal title to all the Trust Estate shall be vested at all times in the Trust as a separate legal entity, except where applicable law in any jurisdiction requires title to any part of the Trust Estate to be vested in a trustee or trustees, in which case title shall be
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deemed to be vested in the Trustee, a co-trustee and/or a separate trustee, as the case may be.
Section 2.9 Situs of Trust . The Trust will be located and administered in the State of Connecticut.
Section 2.10 Representations and Warranties of RFS Holding, Inc. . RFS Holding, Inc. hereby represents and warrants to the Trustee that:
(a) RFS Holding, Inc. is duly organized and validly existing as a corporation in good standing under the laws of the State of Delaware, with power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted.
(b) RFS Holding, Inc. is duly qualified to do business as a foreign corporation in good standing, and has obtained all necessary licenses and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications.
(c) RFS Holding, Inc. has the power and authority to execute and deliver this Agreement and to carry out its terms; and the execution, delivery and performance of this Agreement have been duly authorized by RFS Holding, Inc. by all necessary corporate or other action.
(d) The consummation of the transactions contemplated by this Agreement and the fulfillment of the terms hereof do not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of RFS Holding, Inc., or any indenture, agreement or other instrument to which RFS Holding, Inc. is a party or by which it is bound; or result in the creation or imposition of any Lien upon any of its properties pursuant to the terms of any such indenture, agreement or other instrument (other than pursuant to the Related Documents); or violate any law or, to the best of RFS Holding, Inc.s knowledge, any order, rule or regulation applicable to RFS Holding, Inc. of any court or of any Federal or State regulatory body, administrative agency or other governmental instrumentality having jurisdiction over RFS Holding, Inc. or its properties.
(e) RFS Holding, Inc. has duly executed and delivered this Agreement, and this Agreement constitutes a legal, valid and binding
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obligation of RFS Holding, Inc., enforceable in accordance with its terms, except as enforceability may be subject to or limited by bankruptcy, insolvency, reorganization or other similar laws affecting the enforcement of creditors rights generally and by general principles of equity (regardless of whether such enforcement is considered in a proceeding in equity or at law).
ARTICLE III
CERTIFICATES AND TRANSFER OF
INTERESTS
Section 3.1 Initial Ownership . Upon the execution of the Existing Trust Agreement and the filing of the Certificate of Conversion to Statutory Trust and Certificate of Trust as required under §3820 of the Trust Statute, GECS was the sole beneficial owner of the Trust. The Trustee executed the Owner Interest Certificate on behalf of the Trust, authenticated the same and upon delivery of the Owner Interest Certificate to RFS Holding, L.L.C., GECS ceased to be the beneficial owner of the Trust and until the issuance of the Note Trust Certificate, RFS Holding, L.L.C. was the sole beneficiary of the Trust. It was the intent of GECS that the delivery of the Owner Interest Certificate was a contribution of capital from GECS to RFS Holding, L.L.C.. Immediately prior to the amendment and restatement of the Existing Trust Agreement, GECS has assigned all of its rights and obligations under the Existing Trust Agreement to RFS Holding, Inc., RFS Holding, Inc. has accepted such rights and responsibilities, and GECS has been released from all of its obligations under the Existing Trust Agreement.
So long as a FASIT election has been made and is in effect for the RFS FASIT, RFS Holding, L.L.C. agrees that it shall not transfer the Owner Interest Certificate in a manner that would result in the Owner Interest Certificate of the RFS FASIT being held other than by an Eligible Corporation.
Section 3.2 The Certificates . The Certificates shall be executed on behalf of the Trust by manual or facsimile signature of an authorized officer of the Trustee. Certificates bearing the manual or facsimile signatures of individuals who were, at the time when such signatures shall have been affixed, authorized to sign on behalf of the Trust, shall be, when authenticated pursuant to Section 3.3 , validly issued and entitled to the benefits of this Agreement, notwithstanding that such individuals or any of them shall have ceased to be so authorized prior to the authentication and delivery of such Certificates or did not hold such offices at the date of authentication and delivery of such Certificates.
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Section 3.3 Authentication of Certificates . On written instruction from the Holder of the Owner Interest Certificate, the Trustee shall cause the Note Trust Certificate to be executed on behalf of the Trust, authenticated and delivered to or upon the written order of the Holder of the Owner Interest Certificate, signed by its principal executive officer or any vice president, without further corporate or other action by any Person. On written instruction from the Holder of the Owner Interest Certificate in connection with the execution of any Trust Regular Interest Supplement, and subject to compliance with Section 3.9 , the Trustee shall cause Additional Trust Regular Interest Certificates in an aggregate amount specified therein to be executed on behalf of the Trust, authenticated and delivered to or upon the written order of the Holder of the Owner Interest Certificate, signed by its principal executive officer or any vice president, without further corporate or other action by any Person, in authorized denominations. No Certificate shall entitle its holder to any benefit under this Agreement, or shall be valid for any purpose, unless there shall appear on such Certificate a certificate of authentication substantially in the form set forth in Exhibit E , executed by the Trustee by the manual signature of one of its authorized signatories; such certificate of authentication shall constitute conclusive evidence, and the only evidence, that such Certificate shall have been duly authenticated and delivered hereunder. All Certificates shall be dated the date of their authentication. No further Certificates shall be issued except pursuant to Section 3.4 , 3.5 or 3.9 .
Section 3.4 Registration of Transfer and Exchange of Certificates . The Trust shall keep or cause to be kept, at the office or agency maintained pursuant to Section 3.8 , a register (the Certificate Register ) in which, subject to such reasonable regulations as it may prescribe, the Trust shall provide for the registration of Certificates and of transfers and exchanges of Certificates. The Trustee shall be the Certificate Registrar for the purpose of registering Certificates and the transfers of Certificates as herein provided. Upon any resignation of any Certificate Registrar, RFS Holding, Inc. shall promptly appoint a successor or, if it elects not to make such an appointment, assume the duties of the Certificate Registrar. Any transfer of the Owner Interest Certificate is subject to the terms of Section 16.1(d) of the Funding Agreement.
Upon surrender for registration of transfer of any Certificate at the office or agency maintained pursuant to Section 3.8 , if the requirements of Section 8-401(a) of the UCC are met, the Trustee shall execute, authenticate and deliver, in the name of the designated transferee or transferees, one or more new Certificates in authorized denominations of a like aggregate Ownership Amount.
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At the option of a Holder, Certificates may be exchanged for other Certificates of authorized denominations, of a like aggregate Ownership Amount, upon surrender of the Certificates to be exchanged at the office or agency maintained pursuant to Section 3.8 . Whenever any Certificates are so surrendered for exchange, if the requirements of Section 8-401(a) of the UCC are met, the Trustee shall execute, authenticate and deliver the Certificates that the Certificateholder making the exchange is entitled to receive.
All Certificates issued upon any registration of transfer or exchange of Certificates shall be entitled to the same benefits under this Agreement as the Certificates surrendered upon such registration of transfer or exchange.
Every Certificate presented or surrendered for registration of transfer or exchange shall be duly endorsed by, or be accompanied by a written instrument of transfer in form satisfactory to the Trustee and the Certificate Registrar duly executed by, the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made to a Certificateholder for any registration of transfer or exchange of Certificates, but the Trustee or the Certificate Registrar may require payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection with any registration of transfer or exchange of Certificates.
The Owner Interest Certificate and, except as otherwise provided in the applicable Trust Regular Interest Supplement, each Additional Trust Regular Interest Certificate, and any beneficial interest in such Certificates may not be acquired by: (a) an employee benefit plan (as defined in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA, (b) a plan described in Section 4975(e)(1) of the Code or (c) any entity whose underlying assets include plan assets by reason of a plans investment in the entity (each a Benefit Plan ). Except as otherwise provided in any applicable Trust Regular Interest Supplement, by accepting and holding an Additional Trust Regular Interest Certificate or an interest therein, the Holder thereof shall be deemed to have represented and warranted that it is not a Benefit Plan. The Trustee shall have no obligation to determine whether or not a Holder of a Certificate is or is not a Benefit Plan. Any Holder of an Additional Trust Regular Interest Certificate or an interest therein shall, and does hereby agree to, indemnify the Trust, RFS Holding, Inc., the Administrator, the Trustee and the Certificate Registrar against any liability that may result if its acquisition is not made in accordance with the restrictions on transfer stated herein.
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Section 3.5 Mutilated, Destroyed, Lost or Stolen Certificates . If: (a) any mutilated Certificate shall be surrendered to the Certificate Registrar, or if the Certificate Registrar shall receive evidence to its satisfaction of the destruction, loss or theft of any Certificate ( provided , that the Trustee shall not be required to verify the evidence provided to it), and (b) there shall be delivered to the Certificate Registrar and the Trustee such security or indemnity as may be required by them to hold each of them harmless, then, in the absence of notice that such Certificate shall have been acquired by a bona fide purchaser, and provided that the requirements of Section 8-405 of the UCC are met, the Trustee on behalf of the Trust shall execute, authenticate and deliver, in exchange for or in lieu of any such mutilated, destroyed, lost or stolen Certificate, a replacement Certificate of like tenor and denomination.
In connection with the issuance of any replacement Certificate under this Section, the Trustee and the Certificate Registrar may require the payment by the Certificateholder of a sum sufficient to cover any tax or other governmental charge that may be imposed in connection therewith.
Any replacement Certificate issued pursuant to this Section in replacement of any mutilated, destroyed, lost or stolen Certificate shall constitute conclusive evidence of ownership in the Trust, as if originally issued, whether or not the mutilated, lost, stolen or destroyed Certificate shall be found at any time, and shall be entitled to all the benefits of this Agreement.
Section 3.6 Persons Deemed Certificateholders . Prior to due presentation of a Certificate for registration of transfer of any Certificate, the Trustee or the Certificate Registrar may treat the Person in whose name any Certificate shall be registered in the Certificate Register (as of the day of determination) as the owner of such Certificate for all purposes, and neither the Trustee nor the Certificate Registrar shall be bound by any notice to the contrary.
Section 3.7 Access to List of Certificateholders Names and Addresses . The Certificate Registrar shall furnish or cause to be furnished to the Servicer and RFS Holding, Inc., within 15 days after receipt by the Certificate Registrar of a request therefor from the Servicer or RFS Holding, Inc. in writing, a list, in such form as the Servicer or RFS Holding, Inc. may reasonably require, of the names and addresses of the Certificateholders as of the most recent Record Date. If three or more Certificateholders or one or more Holder(s) of Certificates evidencing not less than 25% of the Outstanding Ownership Amount apply in writing to the Trustee, and such application states that the applicants desire to communicate with other Certificateholders with respect to their rights under this Agreement or under the Certificates and such application shall be accompanied by a copy of the
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communication that such applicants propose to transmit, then the Trustee shall cause the Certificate Registrar to, within five Business Days after the receipt of such application, afford such applicants access during normal business hours to the current list of Certificateholders. Each Holder, by receiving and holding a Certificate, shall be deemed to have agreed not to hold any of RFS Holding, Inc., the Certificate Registrar or the Trustee accountable by reason of the disclosure of its name and address, regardless of the source from which such information was derived.
Section 3.8 Maintenance of Office or Agency . The Trustee shall maintain an office or offices or agency or agencies where Certificates may be surrendered for registration of transfer or exchange and where notices and demands to or upon the Trustee in respect of the Certificates and the Related Documents may be served. The Trustee initially designated Deutsche Bank Trust Company Delaware, c/o Deutsche Bank Trust Company Americas, Corporate Trust & Agency Services, 60 Wall Street, MS NYC60-2515, New York, NY 10005, as its principal corporate trust office for such purposes. The Trustee shall give prompt written notice to RFS Holding, Inc. and to the Certificateholders of any change in the location of the Certificate Register or any such office or agency.
Section 3.9 Issuances of Additional Trust Regular Interest Certificates . (a) The Holder of the Owner Interest Certificate may from time to time direct the Trustee, on behalf of the Trust, to execute, authenticate and deliver one or more new Additional Trust Regular Interest Certificates in accordance with Section 3.3 . All Outstanding Certificates shall be equally and ratably entitled as provided herein to the benefits of this Agreement without preference, priority or distinction, all in accordance with the terms and provisions of this Agreement and the applicable Trust Regular Interest Supplement except as provided in the related Trust Regular Interest Supplement.
(b) On or before the Closing Date for any new Additional Trust Regular Interest Certificate, the parties hereto will execute and deliver a Supplement specifying the Principal Terms of the new Additional Trust Regular Interest Certificate. Such Trust Regular Interest Supplement may modify or amend the terms of this Agreement solely as applied to the new Additional Trust Regular Interest Certificate and may grant the Holders of that Additional Trust Regular Interest Certificate, or an agent or other representative of such Holders, notice and consultation rights with respect to any rights or actions of Trustee. Trustees obligation to authenticate the new Additional Trust Regular Interest Certificate and to execute and deliver the related Trust Regular Interest Supplement is subject to the satisfaction of the following conditions:
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(i) on or before the fifth Business Day immediately preceding the Closing Date, the Holder of the Owner Interest Certificate shall have given Trustee, Servicer and each Rating Agency notice of such issuance and the Closing Date;
(ii) the Holder of the Owner Interest Certificate shall have delivered to Trustee the related Trust Regular Interest Supplement, executed by each party hereto other than Trustee and a written order in accordance with Section 3.3 ;
(iii) the Rating Agency Condition shall have been satisfied with respect to such issuance; and
(iv) the Holder of the Owner Interest Certificate shall have delivered to Trustee and each Rating Agency a Tax Opinion, dated the Closing Date, with respect to such issuance.
Upon satisfaction of the above conditions, Trustee shall execute the Trust Regular Interest Supplement and execute, authenticate and deliver the Additional Trust Regular Interest Certificate.
Section 3.10 Additional Advances . The Holder of the Owner Interest Certificate may from time to time direct the Trustee, on behalf of the Trust, to obtain additional Advances in accordance with the Funding Agreement, so long as the Holder of the Owner Interest Certificate has notified the Trustee that after giving effect to such Advance the Note Trust Ownership Amount will not be less than the Required Note Trust Ownership Amount. All Advances shall be equally and ratably entitled as provided herein to the benefits of this Agreement without preference, priority or distinction, all in accordance with the terms and provisions of this Agreement and the Funding Agreement.
Section 3.11 Clean-Up Call Relating to Lender Collateral Interest . On any Payment Date after the Borrowing Base has declined to $1,050,000,000 (which equals 10% of the highest ever outstanding amount of Advances) or less, RFS Holding, L.L.C. may reduce the Lender Collateral Interest to zero by depositing into the Collection Account an amount equal to the greater of (i) the Lender Collateral Interest Percentage of all Principal Receivables and Finance Charge Receivables outstanding at the end of the related Monthly Period and (ii) the Lender Pay Off Amount.
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Section 4.1 Prior Notice to Holder of Owner Interest Certificate with Respect to Certain Matters . With respect to the following matters, the Trustee shall not take action unless, at least 30 days before the taking of such action, the Trustee shall have notified the Holder of the Owner Interest Certificate in writing of the proposed action and the Holder of the Owner Interest Certificate shall not have notified the Trustee in writing prior to the 30th day after such notice is given that the Holder of the Owner Interest Certificate have withheld consent or shall not have provided alternative direction:
(a) the initiation of any claim or lawsuit by the Trust (except claims or lawsuits brought in connection with the collection of the Receivables) and the compromise of any action, claim or lawsuit brought by or against the Trust (except with respect to the aforementioned claims or lawsuits for collection of Receivables);
(b) the election by the Trust to file an amendment to the Certificate of Trust;
(c) the amendment of the Funding Agreement;
(d) the amendment, change or modification of the Administration Agreement, except to cure any ambiguity or to amend or supplement any provision in a manner, or add any provision, that would not materially adversely affect the interests of the Certificateholders as evidenced by an officers certificate delivered by the Administrator; or
(e) the appointment pursuant to this Agreement of a successor Certificate Registrar, or the consent to the assignment by the Certificate Registrar of its obligations under this Agreement.
Section 4.2 Action by Holder of Owner Interest Certificate with Respect to Certain Matters . The Trustee shall not have the power, except upon the direction of the Holder of the Owner Interest Certificate, except as expressly provided in the Related Documents, to sell the Receivables after the termination of the Funding Agreement and the reduction to zero of the Ownership Amounts of all Trust Regular Interests. The Trustee shall take the actions referred to in the
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preceding sentence only upon written instructions signed by the Holder of the Owner Interest Certificate.
Section 4.3 Action by Certificateholders with Respect to Bankruptcy . The Trustee shall not have the power to commence a voluntary proceeding in bankruptcy relating to the Trust without the unanimous prior approval of all Certificateholders and the delivery to the Trustee by each such Certificateholder of a certificate certifying that such Certificateholder reasonably believes that the Trust is insolvent.
Section 4.4 Restrictions on Certificateholders Power . The Certificateholders shall not direct the Trustee to take or refrain from taking any action if such action or inaction would be contrary to any obligation of the Trust or the Trustee under this Agreement or any of the Related Documents or would be contrary to Section 2.3 , nor shall the Trustee be obligated to follow any such direction, if given.
Section 4.5 Resignation of Servicer . Neither the Trust nor the Trustee shall consent to the appointment of a Successor Servicer under Section 6.1(a ) of Servicing Agreement without the prior written instruction of Required Parties.
ARTICLE V
RIGHTS OF HOLDERS; ALLOCATIONS
Section 5.1 Rights of Holders . (a) The Lender Collateral Interest has been pledged pursuant to the Funding Agreement, and all Collections and Charged-Off Receivables allocated to the Lender Collateral Interest shall be dealt with as provided in the Funding Agreement. The applicable Lender Collateral Interest Percentage of all Collections and Charged-Off Receivables shall be allocated to the Lender Collateral Interest.
(b) Trust Regular Interest Certificates shall represent fractional undivided interests in the Trust, which, with respect to the related Trust Regular Interests, shall consist of the right to receive or be allocated the Note Trust Percentage or applicable Additional Trust Regular Interest Percentage of Collections and Charged-Off Receivables with respect to the Transferred Receivables other than the Specified Receivables and funds available under any applicable Enhancement.
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(c) Unless otherwise specified in the Trust Regular Interest Supplements with respect to each affected Trust Regular Interest, no Trust Regular Interest Certificates shall represent any interest in any Trust Account or Enhancement for the benefit of the Lender Collateral Interest or any other Trust Regular Interest. The Holder of the Owner Interest Certificate shall own the remaining interest in the Trust Estate not allocated pursuant to this Agreement or any Trust Regular Interest Supplement to any Trust Regular Interest, including the right to receive or be allocated Collections and Charged-Off Receivables with respect to Transferred Receivables and other amounts at the times and in the amounts specified in this Agreement, the Funding Agreement or any Trust Regular Interest Supplement to be paid on account of the Owner Interest Certificate; provided that the Owner Interest Certificate shall not represent any interest in any Trust Account or any Enhancement, except as specifically provided in the Funding Agreement or any Trust Regular Interest Supplement.
(d) It is contemplated that RFS Holding, L.L.C. will assign the Note Trust Certificate to the Note Trust and that the Note Trust will pledge the Note Trust Certificate to the Indenture Trustee, as collateral for one or more series of notes to be issued by the Note Trust pursuant to the Indenture and one or more indenture supplements. The portion of the Note Trust Certificate primarily securing each series of notes shall be deemed to be a separate certificate (each, a Series Certificate ). This Section 5.1(d) is not intended to modify the amount of Collections and Charged-Off Receivables otherwise allocated to the Note Trust Certificate pursuant to this Agreement, but portions of the Collections and Charged-Off Receivables so allocated shall be deemed to be allocated to each Series Certificate, such portions to equal the portions of such Collections and Charged-Off Receivables actually allocated to the related series of notes issued pursuant to the Indenture. Unless and until the Trust has been terminated: (i) a new Series Certificate shall be deemed to be issued upon the issuance of each series of notes and shall have the same designation ( e.g. , Series 2003-1) as such series of notes; (ii) the amounts payable as interest and principal on such Series Certificate shall equal the aggregate of the amounts payable on the related series of notes and shall be payable at the times and in the amounts specified in the indenture supplement for such series of notes; and (iii) all amounts available and applied as credit enhancement with respect to such series of notes shall be deemed to be available and applied as credit enhancement with respect to such Series Certificate.
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Section 5.2 Foreclosure Rights . Pursuant to the Funding Agreement, the Trust has granted one or more parties the right, upon the occurrence of specified adverse events, to foreclose upon and sell a portion of the Transferred Receivables, and related Finance Charge Receivables, not to exceed the Specified Retailer Receivables and the Lender Collateral Interest Percentage of all other Transferred Receivables and all Finance Charge Receivables relating to both. Pursuant to the Indenture Security Agreement, the Indenture and one or more indenture supplements, the Note Trust may similarly grant to the indenture trustee under the Indenture the right, upon the occurrence of specified events of default, to foreclose upon and sell various portions of the Transferred Receivables (other than Specified Retailer Receivables), and related Finance Charge Receivables, not to exceed, in the aggregate, Principal Receivables in an amount equal to the Collateral Amount (as defined in an applicable supplement to the Indenture) and related Finance Charge Receivables. The Trustee shall cooperate with the indenture trustee under the Indenture in the exercise of any such right.
ARTICLE VI
AUTHORITY AND DUTIES OF TRUSTEE
Section 6.1 General Authority . The Trustee is authorized and directed to execute and deliver the Related Documents to which the Trust is to be a party and each certificate or other document attached as an exhibit to or contemplated by the Related Documents to which the Trust is to be a party, in each case in such form as the Holder of the Owner Interest Certificate shall approve as evidenced conclusively by the Trustees execution thereof. In addition to the foregoing, the Trustee is authorized, but shall not be obligated, to take all actions required of the Trust pursuant to the Related Documents. Except as otherwise provided below, the Trustee is further authorized from time to time to take such action as the Administrator recommends with respect to the Related Documents.
Section 6.2 General Duties . It shall be the duty of the Trustee to discharge (or cause to be discharged) all of its responsibilities pursuant to this Agreement and the Related Documents to which the Trust is a party and to administer the Trust in the interest of the Certificateholders, subject to the Related Documents and in accordance with this Agreement. Notwithstanding the foregoing, the Trustee shall be deemed to have discharged its duties and responsibilities hereunder and under the Related Documents to the extent the Administrator has agreed in the Administration Agreement to perform any act or to discharge any duty of the Trustee hereunder or under any Related Document,
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and the Trustee shall not be held liable for the default or failure of the Administrator to carry out its obligations under the Administration Agreement. Trustee shall have no power to vary the corpus of the Trust, except as expressly provided in the Related Documents.
Section 6.3 Action upon Instruction .
(a) The Required Parties shall have the right to direct the time, method, and place of conducting any proceeding for any remedy available to Trustee (a Proceeding ), or exercising any trust or power conferred on Trustee relating to such Proceeding. The Trustee shall not, however, be required to take any action hereunder or under any Related Document if the Trustee shall have reasonably determined, or shall have been advised by counsel, that such action is likely to result in liability on the part of the Trustee or is contrary to the terms hereof or of any Related Document or is otherwise contrary to law.
(b) Whenever Trustee is unable to decide between alternative courses of action permitted or required by this Agreement or any Related Document, Trustee shall promptly give notice (in such form as shall be appropriate under the circumstances) to the Holder of the Owner Interest Certificate and, if Trustee has actual knowledge that any Proceeding is pending or has received notice from any Required Party that a Proceeding is contemplated or is pending, each Required Party requesting instruction as to the course of action to be adopted, and to the extent Trustee acts in good faith in accordance with any written instruction received (i) from the Required Parties or (ii) if Trustee does not have actual knowledge that a Proceeding is pending and has not received notice from any Required Party that a Proceeding is contemplated or pending, or otherwise if no instruction has been received from the Required Parties, from the Holder of the Owner Interest Certificate. Trustee shall not be liable on account of such action to any Person. If Trustee shall not have received appropriate instruction within ten (10) days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action, not inconsistent with this Agreement or the Related Documents, as it shall deem to be in the best interests of the Certificateholders, and shall have no liability to any Person for such action or inaction.
(c) In the event that Trustee is unsure as to the application of any provision of this Agreement or any Related Document or any such
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provision is ambiguous as to its application, or is, or appears to be, in conflict with any other applicable provision, or in the event that this Agreement permits any determination by Trustee or is silent or is incomplete as to the course of action that Trustee is required to take with respect to a particular set of facts, Trustee may give notice (in such form as shall be appropriate under the circumstances) to the Holder of the Owner Interest Certificate, and, if Trustee has actual knowledge that any Proceeding is pending or has received notice from any Required Party that a Proceeding is contemplated or pending, each Required Party requesting instruction and, to the extent that Trustee acts or refrains from acting in good faith in accordance with any such instruction received (i) from the Required Parties or (ii) if Trustee does not have actual knowledge that a Proceeding is pending and has not received notice from any Required Party that a Proceeding is contemplated or pending, or otherwise if no instruction has been received from the Required Parties, from the Holder of the Owner Interest Certificate, Trustee shall not be liable, on account of such action or inaction, to any Person. If Trustee shall not have received appropriate instruction within ten (10) days of such notice (or within such shorter period of time as reasonably may be specified in such notice or may be necessary under the circumstances) it may, but shall be under no duty to, take or refrain from taking such action, not inconsistent with this Agreement or the Related Documents, as it shall deem to be in the best interests of the Certificateholders, and shall have no liability to any Person for such action or inaction.
Section 6.4 No Duties Except as Specified in this Agreement or in Instructions . The Trustee shall not have any duty or obligation to manage, make any payment with respect to, register, record, sell, dispose of or otherwise deal with the Trust Estate, or to otherwise take or refrain from taking any action under, or in connection with, any document contemplated hereby to which the Trustee is a party, except as expressly provided by this Agreement or in any document or written instruction received by the Trustee pursuant to Section 6.1 or 6.3 , and no implied duties or obligations shall be read into this Agreement or any Related Document against the Trustee. The Trustee shall have no responsibility for filing any financing or continuation statement in any public office at any time or to otherwise perfect or maintain the perfection of any security interest or Lien granted to it hereunder or to prepare or file any Securities and Exchange Commission filing for the Trust or to record this Agreement or any Related Document. Notwithstanding anything to the contrary herein or in any Related Document, the Trustee shall not be required to execute, deliver or certify on
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behalf of the Trust or any other Person any filings, certificates, affidavits or other instruments required under the Sarbanes-Oxley Act of 2002, if applicable.
Section 6.5 No Action Except Under Specified Documents or Instructions . The Trustee shall not manage, control, use, sell, dispose of or otherwise deal with any part of the Trust Estate except: (i) in accordance with the powers granted to and the authority conferred upon the Trustee pursuant to this Agreement, (ii) in accordance with the Related Documents and (iii) in accordance with any document or instruction delivered to the Trustee pursuant to Section 6.1 or 6.3 .
Section 6.6 Restrictions . The Trustee shall not take any action: (a) that is inconsistent with the purposes of the Trust set forth in Section 2.3 or (b) that, to the actual knowledge of the Trustee, would result in the Trust becoming taxable as a corporation for Federal income tax purposes. The Certificateholders shall not direct the Trustee to take action that would violate this Section.
Section 6.7 Trust May Enforce Claims Without Possession of Certificates . All rights of action and claims under this Agreement or the Certificates may be prosecuted and enforced by the Trust without the possession of any of the Certificates or the production thereof in any proceeding relating thereto, and any such proceeding instituted by the Trust shall be brought in the name of the Trust. Any recovery of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements and advances of Trustee, its agents and counsel, be for the ratable benefit of the Holders in respect of which such judgment has been obtained.
Section 6.8 Confidentiality . Information provided by RFS Holding, Inc. or RFS Holding, L.L.C. to Trustee related to the transaction effected hereunder, including all information related to the Obligors with respect to the Receivables, and any computer software provided to Trustee in connection with the transaction effected hereunder or under any Trust Regular Interest Supplement, in each case whether in the form of documents, reports, lists, tapes, discs or any other form, shall be Confidential Information . Trustee and its agents, representatives or employees shall at all times maintain the confidentiality of all Confidential Information and shall not, without the prior written consent of RFS Holding, Inc. or RFS Holding, L.L.C., as applicable, disclose to third parties (including Holders) or use such information to compete or assist any other Person in competing with RFS Holding, Inc. or RFS Holding, L.L.C. or in any manner whatsoever, in whole or in part, except as expressly permitted under this Agreement or under any Trust Regular Interest Supplement or as required to fulfill an obligation of Trustee under this Agreement or under any Trust Regular
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Interest Supplement, in which case such Confidential Information shall be revealed only to the extent expressly permitted or only to Trustees agents, representatives and employees who need to know such Confidential Information to the extent required for the purpose of fulfilling an obligation of Trustee under this Agreement or under any Trust Regular Interest Supplement. Notwithstanding the above, Confidential Information may be disclosed to the extent required by law, statute, rule, regulation or legal process (including any subpoena, civil investigative demand or similar demand or request of any court, regulatory authority, arbitrator or arbitration to which the Trustee or an affiliate or an officer, director, employee or shareholder thereof is a party), provided that Trustee gives prompt written notice to RFS Holding, Inc. or RFS Holding, L.L.C., as applicable, of the nature and scope of such disclosure. Notwithstanding anything herein to the contrary, the foregoing shall not be construed to prohibit (i) disclosure of any and all information that is or becomes publicly known, or information obtained by the Trustee from sources other than RFS Holding, Inc. or RFS Holding, L.L.C., (ii) disclosure of any and all information (A) to any government agency or regulatory body having or claiming authority to regulate or oversee any aspects of the Trustees business or that of its affiliates, (B) in any preliminary or final offering circular, registration statement or contract or other document pertaining to the transactions contemplated herein approved in advance by RFS Holding, Inc. or RFS Holding, L.L.C. or (C) to any affiliate, independent or internal auditor, or attorney of the Trustee having a need to know the same, provided that the Trustee executes a written confidentiality agreement with such recipient substantially in the form of this Section 6.8 , or (iv) any other disclosure authorized by RFS Holding, Inc. or RFS Holding, L.L.C..
ARTICLE VII
CONCERNING THE TRUSTEE
Section 7.1 Acceptance of Trusts and Duties . The Trustee accepts the trusts hereby created and agrees to perform its duties hereunder with respect to such trusts but only in accordance with the terms of this Agreement. The Trustee also agrees to disburse all moneys actually received by it constituting part of the Trust Estate upon the terms of the Related Documents and this Agreement. The Trustee shall not be answerable or accountable hereunder or under any Related Document under any circumstances, except: (i) for its own willful misconduct or gross negligence or (ii) in the case of the inaccuracy of any representation or warranty contained in Section 7.3 expressly made by the Trustee. In particular,
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but not by way of limitation (and subject to the exceptions set forth in the preceding sentence):
(a) the Trustee shall not be liable for any error of judgment made in good faith by a responsible officer of the Trustee unless it is proved that the Trustee was grossly negligent in ascertaining the pertinent facts;
(b) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in accordance with the instructions of the Administrator, the Holder of the Owner Interest Certificate or the Required Parties delivered in accordance with the terms of this Agreement;
(c) no provision of this Agreement or any Related Document shall require the Trustee to expend or risk funds or otherwise incur any financial liability in the performance of any of its rights or powers hereunder or under any Related Document, if the Trustee shall have reasonable grounds for believing that repayment of such funds or adequate indemnity against such risk or liability is not reasonably assured or provided to it;
(d) under no circumstances shall the Trustee be liable for indebtedness evidenced by or arising under any of the Related Documents, including the principal of and interest on the Notes or any representation, warranty or covenant of the Trust;
(e) the Trustee shall not be responsible for or in respect of the validity or sufficiency of this Agreement or for the due execution hereof by RFS Holding, Inc. or RFS Holding, L.L.C. or for the form, character, genuineness, sufficiency, value or validity of any of the Trust Estate or for or in respect of the validity or sufficiency of the Related Documents, other than the certificate of authentication and the Trustees signature on the Certificates, and the Trustee shall in no event assume or incur any liability, duty or obligation to any Noteholder or to any Certificateholder, other than as expressly provided for herein and in the Related Documents;
(f) the Trustee shall not be liable for the default or misconduct of the Administrator, RFS Holding, Inc., the Servicer or any other Person under any of the Related Documents or otherwise and the Trustee shall have no obligation or liability to perform the obligations of the Trust under this Agreement or the Related Documents that are required to be performed by the Administrator under the Administration Agreement or
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the Servicer under the Related Documents, and Trustee shall have no obligation to monitor such persons with respect to such obligations;
(g) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Agreement, or to institute, conduct or defend any litigation under this Agreement or otherwise or in relation to this Agreement or any Related Document, at the request, order or direction of any of the Required Parties unless such Required Parties have offered to the Trustee security or indemnity satisfactory to it against the costs, expenses and liabilities that may be incurred by the Trustee therein or thereby. The right of the Trustee to perform any discretionary act enumerated in this Agreement or in any Related Document shall not be construed as a duty, and the Trustee shall not be answerable for other than its gross negligence or willful misconduct in the performance of any such act; and
(h) to the extent that, at law or in equity, Trustee has duties and liabilities relating thereto to any Person, such Persons agree that those duties and liabilities are replaced by the terms of this Agreement.
Section 7.2 Furnishing of Documents . The Trustee shall furnish to the Certificateholders promptly upon receipt of a written request therefor, and at the expense of the Certificateholders, duplicates or copies of all reports, notices, requests, demands, certificates, financial statements and any other instruments furnished to the Trustee under the Related Documents.
Section 7.3 Representations and Warranties . The Trustee hereby represents and warrants to RFS Holding, Inc., for the benefit of the Certificateholders, that:
(a) it is a banking corporation duly organized and validly existing in good standing under the laws of the State of Delaware, with the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement,
(b) it has taken all corporate action necessary to authorize the execution and delivery by it of this Agreement, and this Agreement will be executed and delivered by one of its officers who is duly authorized to execute and deliver this Agreement on its behalf,
(c) the execution and delivery of this Agreement, the consummation of the transactions contemplated by this Agreement and the
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fulfillment of the terms hereof do not conflict with, result in any breach of any of the terms and provisions of, or constitute (with or without notice or lapse of time) a default under, the certificate of incorporation or by-laws of the Trustee, or any indenture, agreement or other instrument to which the Trustee is a party or by which it is bound; or violate any Federal or state law governing the banking or trust powers of the Trustee; or violate any order, rule or regulation applicable to the Trustee of any court or of any Federal or state regulatory body, administrative agency or other governmental instrumentality having jurisdiction over the Trustee or its properties, and
(d) this Agreement, assuming due authorization, execution and delivery by RFS Holding, L.L.C. and RFS Holding, Inc., constitutes a valid, legal and binding obligation of the Trustee, enforceable against it in accordance with the terms hereof subject to applicable bankruptcy, insolvency, reorganization, moratorium and other laws affecting the enforcement of creditors rights generally and to general principles of equity, regardless of whether such enforcement is considered in a proceeding in equity or at law.
Section 7.4 Reliance; Advice of Counsel . (a) Except to the extent otherwise provided in Section 7.1 , the Trustee shall incur no liability to anyone in acting upon any signature, instrument, notice, resolution, request, consent, order, certificate, report, opinion, bond or other document or paper (whether in its original or facsimile form) believed by it to be genuine and believed by it to be signed by the proper party or parties. The Trustee may accept a certified copy of a resolution of the board of directors or other governing body of any party as conclusive evidence that such resolution has been duly adopted by such body and that the same is in full force and effect. As to any fact or matter the method of the determination of which is not specifically prescribed herein, the Trustee may for all purposes hereof rely on a certificate, signed by the president, any vice president, the treasurer or other authorized officers of the relevant party as to such fact or matter, and such certificate shall constitute full protection to the Trustee for any action taken or omitted to be taken by it in good faith in reliance thereon.
(b) In the exercise or administration of the trusts hereunder and in the performance of its duties and obligations under this Agreement or the Related Documents, the Trustee: (i) may act directly or through its agents or attorneys pursuant to agreements entered into with any of them, and the Trustee shall not be liable for the conduct or misconduct of such agents or attorneys if such agents or attorneys shall have been selected by the Trustee with reasonable care, and (ii) may consult with counsel,
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accountants and other skilled Persons to be selected with reasonable care and employed by it. The Trustee shall not be liable for anything done, suffered or omitted in good faith by it in accordance with the opinion or advice of any such counsel, accountants or other such Persons.
Section 7.5 Not Acting in Individual Capacity . Except as provided in this Article VII , in accepting the trusts hereby created Deutsche Bank Trust Company Delaware acts solely as Trustee hereunder and not in its individual capacity and all Persons having any claim against the Trustee by reason of the transactions contemplated by this Agreement or any Related Document shall look only to the Trust Estate for payment or satisfaction thereof.
Section 7.6 Trustee Not Liable for Certificates or Receivables . The recitals contained herein and in the Certificates (other than the signature and counter-signature of the Trustee on the Certificates) shall be taken as the statements of RFS Holding, Inc. and RFS Holding, L.L.C., and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representations as to the validity or sufficiency of this Agreement, of any Related Document, of the Certificates (other than the signature and authentication of the Trustee on the Certificates) or of the Notes, or of any Receivable or related documents. The Trustee shall at no time have any responsibility or liability for or with respect to the legality, validity and enforceability of any Receivable, or the perfection and priority of any security interest created by any Receivable or the maintenance of any such perfection and priority, or for or with respect to the sufficiency of the Trust Estate or its ability to generate the payments to be distributed to Certificateholders under this Agreement or the Lender under the Funding Agreement, including: (a) the existence, condition and ownership of any Receivable, (b) the existence and enforceability of any insurance thereon, (c) the existence and contents of any Receivable on any computer or other record thereof, (d) the validity of the assignment of any Receivable to the Trust or of any intervening assignment, (e) the completeness of any Receivable, (f) the performance or enforcement of any Receivable, and (g) the compliance by RFS Holding, Inc. or the Servicer with any warranty or representation made under any Related Document or the accuracy of any such warranty or representation or any action of the Administrator or the Servicer or any subservicer taken in the name of the Trustee.
Section 7.7 Trustee May Not Own Notes . The Trustee shall not, in its individual capacity, but may in a fiduciary capacity, become the owner or pledgee of Notes or otherwise extend credit to the Trust. The Trustee may otherwise deal with RFS Holding, Inc., the Administrator and the Servicer with the same rights as it would have if it were not the Trustee.
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ARTICLE VIII
COMPENSATION OF TRUSTEE
Section 8.1 Trustees Fees and Expenses . The Trustee shall receive as compensation for its services hereunder such fees as have been separately agreed upon before the date hereof between GECS and the Trustee pursuant to the Existing Trust Agreement, and the Trustee shall be entitled to be reimbursed by RFS Holding, Inc. for its other reasonable expenses hereunder, including the reasonable compensation, expenses and disbursements of such agents, representatives, experts and counsel as the Trustee may employ in connection with the exercise and performance of its rights and its duties hereunder.
Section 8.2 Indemnification . RFS Holding, Inc. shall be liable as primary obligor for, and shall indemnify the Trustee and its successors, assigns and agents (collectively, the Indemnified Parties ) from and against, any and all liabilities, obligations, losses, damages, taxes, claims, actions and suits, and any and all reasonable costs, expenses and disbursements (including reasonable legal fees and expenses) of any kind and nature whatsoever (collectively, Expenses ), which may at any time be imposed on, incurred by or asserted against the Trustee or any other Indemnified Party in any way relating to or arising out of this Agreement, the Related Documents, the Trust Estate, the administration of the Trust Estate or the action or inaction of the Trustee hereunder, except only that RFS Holding, Inc. shall not be liable for or required to indemnify an Indemnified Party from and against Expenses arising or resulting from: (a) such Indemnified Partys willful misconduct or gross negligence or (b) with respect to the Trustee, the inaccuracy of any representation or warranty contained in Section 7.3 expressly made by the Trustee. The indemnities contained in this Section shall survive the resignation or termination of the Trustee or the termination of this Agreement.
In the event any proceeding (including any governmental investigation) shall be instituted involving any Indemnified Party pursuant to the preceding paragraph, such person shall promptly notify RFS Holding, Inc. in writing and RFS Holding, Inc. shall have the option to assume the defense thereof, including the retention of counsel reasonably satisfactory to such Indemnified Party to represent such Indemnified Party in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding upon delivery to RFS Holding, Inc. of demand therefor. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless
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(i) RFS Holding, Inc. has failed to assume the defense thereof, (ii) RFS Holding, Inc. and the Indemnified Party shall have mutually agreed to the retention of such counsel or (iii) the named parties to any such proceeding (including any impleaded parties) include both RFS Holding, Inc. and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that RFS Holding, Inc. shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such Indemnified Parties. RFS Holding, Inc. shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, RFS Holding, Inc. agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. RFS Holding, Inc. shall not, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding.
Section 8.3 Payments to the Trustee . Any amounts paid to the Trustee pursuant to this Article VIII shall be deemed not to be a part of the Trust Estate immediately after such payment.
ARTICLE IX
TERMINATION OF TRUST AGREEMENT
Section 9.1 Termination of Trust Agreement . (a) If all outstanding interest, fees and other amounts under the Funding Agreement have been paid and upon the earlier of (i) the Payment Date (as defined in the Funding Agreement) on which the Borrowing Base decreases to zero or, (ii) the date on which the outstanding Advances have been reduced to zero (the Funding Agreement Termination Date ) if at such time no Additional Trust Regular Interest Certificate has been issued and has a positive Ownership Amount, the Trust shall dissolve, and the Trust Estate shall automatically, and without the necessity of further action by any Person, be distributed to the Holder of the Note Trust Certificate. If any Additional Trust Regular Interest Certificate has been issued and has a positive Ownership Amount on the Funding Agreement Termination
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Date, then dissolution of the Trust shall be governed by the applicable Trust Regular Interest Supplement. The bankruptcy, liquidation, dissolution, death or incapacity of any Certificateholder shall not: (x) operate to dissolve or terminate this Agreement or the Trust, (y) entitle such Certificateholders legal representatives or heirs to claim an accounting or to take any action or proceeding in any court for a partition or winding up of all or any part of the Trust or Trust Estate or (z) otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.1(a) , neither RFS Holding, Inc. nor any Certificateholder shall be entitled to dissolve, revoke or terminate the Trust.
(c) Upon the dissolution of the Trust and the payment of all liabilities of the Trust in accordance with applicable law and upon written direction from the holder of the Owner Interest Certificate, the Trustee shall cause the Certificate of Trust to be canceled by filing a certificate of cancellation with the Secretary of State in accordance with the provisions of Section 3810 (or successor section) of the Trust Statute, at which time the Trust and this Agreement (other than Article VIII ) shall terminate. The Trustee shall assign and convey to the Note Trust or any of its designees, without recourse, representation or warranty, all right, title and interest of Trustee in the Trust Estate and all proceeds thereof. Trustee shall execute and deliver such instruments of transfer and hereby authorizes, to the extent provided in applicable law, the filing without its signature of UCC termination statements, in each case without recourse, as shall reasonably be requested in writing by the Holder of the Owner Interest Certificate to vest in the Holder of the Note Trust Certificate all rights, title and interest that Trustee had in the Trust Estate and such other property.
ARTICLE X
SUCCESSOR TRUSTEES AND ADDITIONAL
TRUSTEES
Section 10.1 Eligibility Requirements for Trustee . The Trustee shall at all times: (a) be authorized to exercise corporate trust powers, (b) be a bank within the meaning of the Investment Company Act of 1940, have a combined capital and surplus of at least $50,000,000 and be subject to supervision or examination by Federal or State authorities, and (c) have (or have a parent that
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has) a rating of at least Baa3 by Moodys or at least BBB- by S&P. If such corporation shall publish reports of condition at least annually, pursuant to law or the requirements of the aforesaid supervising or examining authority, then for the purpose of this Section, 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. At all times, at least one Trustee of the Trust shall satisfy the requirements of Section 3807(a) of the Trust Statute. In case at any time the Trustee shall cease to be eligible in accordance with this Section, the Trustee shall resign immediately in the manner and with the effect specified in Section 10.2 .
Section 10.2 Resignation or Removal of Trustee . The Trustee may at any time resign and be discharged from the trusts hereby created by giving written notice thereof to the Administrator. Upon receiving such notice of resignation, the Administrator, on behalf of the Trust, 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.
If at any time the Trustee shall cease to be eligible in accordance with Section 10.1 and shall fail to resign after written request therefor by the Administrator, or if at any time the Trustee shall be legally unable to act, or shall be adjudged bankrupt or insolvent, or 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 Administrator, on behalf of the Trust, may remove the Trustee. If the Administrator, on behalf of the Trust, shall remove the Trustee under the authority of the preceding sentence, the Administrator, on behalf of the Trust, shall promptly appoint a successor Trustee by written instrument, in duplicate, one copy of which instrument shall be delivered to the outgoing Trustee so removed and one copy to the successor Trustee, and pay all fees owed to the outgoing Trustee.
Any resignation or removal of the Trustee and appointment of a successor Trustee pursuant to this Section shall not become effective until acceptance of appointment by the successor Trustee pursuant to Section 10.3 and payment of all fees and expenses owed to the outgoing Trustee. The Administrator shall provide notice of such resignation or removal of the Trustee to each of the Rating Agencies.
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Section 10.3 Successor Trustee . Any successor Trustee appointed pursuant to Section 10.2 shall execute, acknowledge and deliver to the Administrator and to its predecessor Trustee an instrument accepting such appointment under this Agreement, 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 under this Agreement, with like effect as if originally named as the Trustee. The predecessor Trustee shall upon payment of its fees and expenses deliver to the successor Trustee all documents and statements and monies held by it under this Agreement; and the Administrator 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, powers, duties and obligations.
No successor Trustee shall accept appointment as provided in this Section unless at the time of such acceptance such successor Trustee shall be eligible pursuant to Section 10.1 .
Upon acceptance of appointment by a successor Trustee pursuant to this Section, the Administrator shall mail notice of such appointment to all Certificateholders, the Operating Agent and the Rating Agencies. If the Administrator shall fail to mail such notice within 10 days after acceptance of appointment by the successor Trustee, the successor Trustee shall cause such notice to be mailed at the expense of the Administrator.
Section 10.4 Merger or Consolidation of Trustee . Any corporation or other entity into which the Trustee may be merged or converted or with which it may be consolidated, or any corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a party, or any corporation succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the successor of the Trustee hereunder; provided , such corporation shall be eligible pursuant to Section 10.1 , without the execution or filing of any instrument or any further act on the part of any of the parties hereto, anything herein to the contrary notwithstanding; and provided further , that the Trustee shall mail notice of such merger or consolidation to the Rating Agencies.
Section 10.5 Appointment of Co-Trustee or Separate Trustee . Notwithstanding any other provisions of this Agreement, at any time, for the purpose of meeting any legal requirements of any jurisdiction in which any part of the Trust or any Receivable may at the time be located, the Administrator, on behalf of the Trust, and the Trustee acting jointly shall have the power and may
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execute and deliver all instruments to appoint one or more Person(s) approved by the Trustee to act as co-trustee(s), jointly with the Trustee, or separate trustee(s), of all or any part of the Trust Estate, and to vest in such Person(s), in such capacity and for the benefit of the Certificateholders, such title to the Trust Estate, or any part thereof, and, subject to the other provisions of this Section, such powers, duties, obligations, rights and trusts as the Administrator, on behalf of the Trust, and the Trustee may consider necessary or desirable. If the Administrator, on behalf of the Trust, shall not have joined in such appointment within 15 days after the receipt by it of a request so to do, the Trustee alone shall have the power to make such appointment. No co-trustee or separate trustee under this Agreement shall be required to meet the terms of eligibility as a successor trustee pursuant to Section 10.1 and no notice of the appointment of any co-trustee or separate trustee shall be required pursuant to Section 10.3 .
Each 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(s) are to be performed, the Trustee shall be incompetent or unqualified to perform such act(s), in which event such rights, powers, duties and obligations (including the holding of title to the Trust Estate 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 under this Agreement shall be personally liable by reason of any act or omission of any other trustee under this Agreement; and
(iii) the Administrator, on behalf of the Trust, and the Trustee acting jointly may at any time accept the resignation of or remove any separate trustee or co-trustee.
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
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trustee or co-trustee shall refer to this Agreement and the conditions of this Article. 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, specifically including every provision of this Agreement relating to the conduct of, affecting the liability of, or affording protection to, the Trustee. Each such instrument shall be filed with the Trustee and a copy thereof given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Trustee as its agent or attorney-in-fact with full power and authority, to the extent not prohibited by law, to do any lawful act under or in respect of this Agreement 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.
The Trustee shall have no obligation to determine whether a co-trustee or separate trustee is legally required in any jurisdiction in which any part of the Trust Estate may be located.
Section 11.1 Amendment; Waiver of Past Defaults . (a) This Agreement or any Trust Regular Interest Supplement may be amended from time to time (including in connection with (i) adding covenants, restrictions or conditions applicable to the rights, responsibilities or duties of RFS Holding, Inc. or the Holder of the Owner Interest Certificate, such further covenants, restrictions or conditions as the Board of Directors of RFS Holding, Inc. and Trustee shall consider to be for the benefit or protection of the Holders, (ii) curing any ambiguity or correcting or supplementing any provision contained herein or in any Trust Regular Interest Supplement which may be defective or inconsistent with any other provision contained herein or in any Trust Regular Interest Supplement or to surrender any right or power conferred upon RFS Holding, Inc. or the Holder of the Owner Interest Certificate, or (iii) the provision of additional Enhancement for the benefit of Holders of any Additional Trust Regular Interest) by RFS Holding, Inc., the Holder of the Owner Interest Certificate and Trustee without consent of the Required Parties as provided for in the applicable Trust
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Regular Interest Supplement, provided that (x) RFS Holding, Inc. shall have delivered to Trustee an Officers Certificate to the effect that RFS Holding, Inc. reasonably believes that such action shall not adversely affect in any material respect the interests of any Holder, (y) the Rating Agency Condition shall have been satisfied with respect to any such amendment and (z) a Tax Opinion is delivered in connection with any such amendment.
(b) This Agreement or any Trust Regular Interest Supplement may also be amended from time to time by RFS Holding, Inc., the Holder of the Owner Interest Certificate and Trustee, with the consent of the Required Parties for the purpose of adding any provisions to or changing in any manner or eliminating any of the provisions of this Agreement or any Trust Regular Interest Supplement or of modifying in any manner the rights of the Holders.
(c) Promptly after the execution of any such amendment or consent (other than an amendment pursuant to paragraph (a) ), Trustee shall furnish notification of the substance of such amendment to each Required Party; and RFS Holding, Inc. shall furnish prior notification of the substance of such amendment to each Rating Agency.
(d) It shall not be necessary for the consent of Required Parties under this Section 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 Holders shall be subject to such reasonable requirements as Trustee may prescribe.
(e) Any Trust Regular Interest Supplement executed in accordance with the provisions of Section 3.9 shall not be considered an amendment to this Agreement for the purposes of this Section.
(f) The Required Parties may, on behalf of all related Holders, waive any default by RFS Holding, Inc. or RFS Holding, L.L.C. in the performance of their obligations hereunder and its consequences, except the failure to make any distributions required to be made to Holders or to make any required deposits of any amounts to be so distributed. 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.
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Section 11.2 No Legal Title to Trust Estate in Certificateholders . The Certificateholders shall not have legal title to any part of the Trust Estate. The Certificateholders shall be entitled to receive distributions with respect to their undivided ownership interest therein only in accordance with Articles V and IX . No transfer, by operation of law or otherwise, of any right, title or interest of the Certificateholders in, to and under their ownership interest in the Trust Estate shall operate to terminate this Agreement or the trusts hereunder or entitle any transferee to an accounting or to the transfer to it of legal title to any part of the Trust Estate.
Section 11.3 Limitations on Rights of Others . The provisions of this Agreement are solely for the benefit of the Trustee, RFS Holding, L.L.C.. and the Certificateholders, and nothing in this Agreement, whether express or implied, shall be construed to give to any other Person any legal or equitable right, remedy or claim in the Trust Estate or under or in respect of this Agreement or any covenants, conditions or provisions contained herein, except that the Required Parties shall be express third-party beneficiaries with respect to the rights expressly provided to them herein.
Section 11.4 Notices . (a) Unless otherwise expressly specified or permitted by the terms hereof, all notices shall be in writing, personally delivered or mailed by certified mail, postage prepaid and return receipt requested, and shall be deemed to have been duly given upon receipt: (i) if to the Trustee, addressed to Deutsche Bank Trust Company Delaware, c/o Deutsche Bank Trust Company Americas, Corporate Trust & Agency Services, 60 Wall Street, 26 th Floor - MS NYC60-2606, New York, New York, 10005, and (ii) if to RFS Holding, Inc., addressed to c/o General Electric Capital Services, Inc., 1600 Summer Street, 6 th Floor, Stamford, CT 06927 , Attention: Manager of Finance - Securitization; or, as to each party, at such other address as shall be designated by such party in a written notice to the other party.
(b) Any notice required or permitted to be given to a Certificateholder shall be given by first-class mail, postage prepaid, at the address of such Holder 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.
Section 11.5 Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or
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unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
Section 11.6 Separate Counterparts . This Agreement may be executed by the parties hereto in separate counterparts, each of which when so executed and delivered shall be an original, but all such counterparts shall together constitute but one and the same instrument.
Section 11.7 Successors and Assigns . All covenants and agreements contained herein shall be binding upon, and inure to the benefit of, RFS Holding, Inc. and its successors, the Trustee and its successors and each Certificateholder and its successors and permitted assigns, all as herein provided. Any request, notice, direction, consent, waiver or other instrument or action by a Certificateholder shall bind the successors and assigns of such Certificateholder.
Section 11.8 No Petition . (a) The Trustee on behalf of the Trust, by entering into this Agreement and each Certificateholder, by accepting a Certificate, hereby covenant and agree that they will not at any time institute against RFS Holding, L.L.C. or the Trust, or join in any institution against RFS Holding, L.L.C. or the Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any Federal or State bankruptcy or similar law in connection with any obligations relating to the Certificates, the Notes, this Agreement or any of the Related Documents; provided that nothing in this paragraph shall preclude, or be deemed to estop, the Trustee or any Certificateholder from taking any action prior to the expiration of the applicable preference period in any involuntary proceeding filed or commenced against RFS Holding, L.L.C. or the Trust by a Person other than the Trustee or such Certificateholder or to otherwise limit any claims that the Trustee or any Certificateholder may have against RFS Holding, L.L.C. or the Trustee.
(b) Without prejudice to the survival of any other agreement of the parties hereunder, the agreements and obligations of the Trustee and each Certificateholder contained in this Section 11.8 shall survive the termination of this Agreement.
Section 11.9 No Recourse . Each Certificateholder by accepting a Certificate acknowledges that such Certificateholders Certificates represent beneficial interests in the Trust only and do not represent interests in or obligations of RFS Holding, Inc., RFS Holding, L.L.C., the Servicer, the Administrator, the Trustee or any Affiliate thereof and no recourse may be had against such parties or their assets, except as may be expressly set forth or contemplated in this Agreement, the Certificates or the Related Documents.
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Section 11.10 Headings . The headings of the various Articles and Sections herein are for convenience of reference only and shall not define or limit any of the terms or provisions hereof.
Section 11.11 GOVERNING LAW . THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 11.12 Administrator . RFS Holding, Inc. and Trustee acknowledge that the Administrator is authorized to execute on behalf of the Trust all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Trust to prepare, file or deliver pursuant to this Agreement and the Related Documents. Upon written request, the Trustee shall execute and deliver to the Administrator a power of attorney appointing the Administrator its agent and attorney-in-fact to execute all such documents, reports, filings, instruments, certificates and opinions.
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IN WITNESS WHEREOF, the parties hereto have caused this Trust Agreement to be duly executed by their respective officers hereunto duly authorized as of the day and year first above written.
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DEUTSCHE BANK TRUST COMPANY DELAWARE |
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as Trustee |
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/s/ Elizabeth B. Ferry |
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Name: Elizabeth B. Ferry |
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Title: Assistant Vice President |
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Rfs Holding, Inc. |
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By: |
/s/ Iain J. Mackay |
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Name: Iain J. Mackay |
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Title: Chief Financial Officer |
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RFS Holding, L.L.C. |
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By: |
/s/ Iain J. Mackay |
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Name: Iain J. Mackay |
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Title: Chief Financial Officer and Manager |
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S-1
EXHIBIT A
to Trust Agreement
FORM OF OWNER INTEREST CERTIFICATE
REGISTERED
NUMBER R-
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT PLAN.
RFS FUNDING TRUST CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the property of which includes a pool of credit card receivables sold to the Trust by Monogram Credit Card Bank of Georgia and RFS Holding, L.L.C..
(This Certificate does not represent an interest in or obligation of General Electric Capital Services, Inc., General Electric Capital Corporation, Monogram Credit Card Bank of Georgia or General Electric Company, or any of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT RFS HOLDING, L.L.C. is the registered owner of a nonassessable, fully-paid, undivided interest in the RFS Funding Trust (the Trust ) formed by General Electric Capital Services, Inc., a Delaware corporation ( GECS ).
The Trust was created pursuant to a Trust Agreement dated as of December 19, 2002 among GECS, RFS HOLDING, L.L.C. and DEUTSCHE BANK TRUST COMPANY DELAWARE, as trustee (the Trustee ), as amended and restated by the Amended and Restated Trust Agreement dated as of June 27, 2003 (as so amended and restated, the Trust Agreement ) among RFS HOLDING, INC., RFS HOLDING, L.L.C. and the Trustee. To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Trust Agreement. This Certificate is the duly authorized Certificate designated as Owner Interest Certificate issued under and subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the holder of this Certificate by virtue of the acceptance hereof assents and by which holder is bound.
A-1
The Certificateholder, by its acceptance of this Certificate, covenants and agrees that such Certificateholder will not at any time institute against the Trust, or join in any institution against the Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States Federal or State bankruptcy or similar law in connection with any obligations relating to any of the Related Documents.
Pursuant to Section 14.1(e) of the Funding Agreement, the Owner Interest Certificates may not be acquired by any Person who is not an Eligible Corporation. By accepting and holding this Certificate, the Holder shall be deemed to have represented and warranted that it is an Eligible Corporation.
Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Trustee, by manual signature, this Certificate shall not entitle the holder hereof to any benefit under the Trust Agreement or the Funding Agreement or be valid for any purpose.
This Certificate shall be construed in accordance with the laws of the State of Delaware, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
A-2
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its individual capacity has caused this Certificate to be duly executed.
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RFS Funding Trust |
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By: Deutsche Bank Trust Company Delaware , not in its individual capacity, but solely as Trustee |
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A-3
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust Agreement.
Deutsche
Bank Trust Company Delaware,
as Trustee
By: |
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Authorized Officer |
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Date: [ ], 200[ ] |
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A-4
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably constituting and appointing
Attorney to transfer said Certificate on the books of the Certificate Registrar, with full power of substitution in the premises.
Dated: |
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Signature Guaranteed: |
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*NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Certificate in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company.
A-5
EXHIBIT B
to Trust Agreement
FORM OF NOTE TRUST CERTIFICATE
REGISTERED
NUMBER R-
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT PLAN.
RFS FUNDING TRUST CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the property of which includes a pool of credit card receivables sold to the Trust by Monogram Credit Card Bank of Georgia and RFS Holding, L.L.C..
(This Certificate does not represent an interest in or obligation of General Electric Capital Services, Inc., General Electric Capital Corporation, Monogram Credit Card Bank of Georgia or General Electric Company, or any of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT _________________ is the registered owner of a nonassessable, fully-paid, undivided interest in the RFS Funding Trust (the Trust ) formed by General Electric Capital Services, Inc., a Delaware corporation ( GECS ).
The Trust was created pursuant to a Trust Agreement dated as of December 19, 2002 among GECS, RFS HOLDING, L.L.C. and DEUTSCHE BANK TRUST COMPANY DELAWARE, as trustee (the Trustee ), as amended and restated by the Amended and Restated Trust Agreement dated as of June 27, 2003 (as so amended and restated, the Trust Agreement ) among RFS HOLDING, INC., RFS HOLDING, L.L.C. and the Trustee. To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Trust Agreement. This Certificate is the duly authorized Certificate designated as Note Trust Certificate issued under and subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the holder of this Certificate by virtue of the acceptance hereof assents and by which holder is bound.
B-1
The Certificateholder, by its acceptance of this Certificate, covenants and agrees that such Certificateholder will not at any time institute against the Trust, or join in any institution against the Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States Federal or State bankruptcy or similar law in connection with any obligations relating to any of the Related Documents.
Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Trustee, by manual signature, this Certificate shall not entitle the holder hereof to any benefit under the Trust Agreement or the Funding Agreement or be valid for any purpose.
This Certificate shall be construed in accordance with the laws of the State of Delaware, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
B-2
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its individual capacity has caused this Certificate to be duly executed.
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By: Deutsche Bank Trust Company Delaware , not in its individual capacity, but solely as Trustee |
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B-3
TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust Agreement.
Deutsche
Bank Trust Company Delaware,
as Trustee
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Date: [ ], 200[ ] |
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B-4
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL
SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably constituting and appointing
Attorney to transfer said Certificate on the books of the Certificate Registrar, with full power of substitution in the premises.
Dated: |
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Signature Guaranteed: |
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*NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Certificate in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company.
B-5
EXHIBIT C
to Trust Agreement
CERTIFICATE OF TRUST
OF
RFS FUNDING TRUST
This Certificate of Trust of RFS Funding Trust (the Trust ), is being duly executed and filed by [Trustee Name], a [ ], as trustee, to form a statutory trust under the Delaware Statutory Trust Act (12 Del. C. §3801, et seq .).
1. Name . The name of the statutory trust being formed hereby is RFS Funding Trust .
2. Delaware Trustee . The name and business address of the trustee of the Trust in the State of Delaware are [Trustee Name], [Address].
3. Effective Date . This Certificate of Trust shall be effective as of its filing.
C-1
IN WITNESS WHEREOF, the undersigned, being the trustee of the Trust, has executed this Certificate of Trust in accordance with Section 3811(a)(1) of the Act.
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Deutsche
Bank Trust Company Delaware
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C-2
to Trust Agreement
CERTIFICATE OF CONVERSION TO A STATUTORY TRUST
OF
RFS FUNDING INCORPORATED
TO
RFS FUNDING TRUST
This Certificate of Conversion to Statutory Trust (the Certificate of Conversion), dated as of December , 2002, is being duly executed and filed by RFS Funding Incorporated, a Delaware corporation (the Corporation), and Deutsche Bank Trust Company Delaware, not in its individual capacity but solely as trustee of RFS Funding Trust, a Delaware statutory trust (the Trust), to convert the Corporation to the Trust, under the Delaware Statutory Trust Act (12 Del. C. § 3801, et seq .) (the Trust Act) and the General Corporation Law of the State of Delaware (8 Del. C. § 101, et seq .) (the DGCL).
1. The name of the Corporation when it was originally incorporated and immediately prior to the filing of this Certificate of Conversion was RFS Funding Incorporated.
2. The Corporation filed its original certificate of incorporation with the Secretary of State of the State of Delaware and was first incorporated on September 18, 1997 in the State of Delaware, and was incorporated in the State of Delaware immediately prior to the filing of this Certificate of Conversion.
3. The name of the statutory trust into which the Corporation shall be converted is RFS Funding Trust, as set forth in the Certificate of Trust of RFS Funding Trust filed in accordance with the Trust Act.
4. The conversion of the Corporation to the Trust (the Conversion) has been approved by the board of directors and the stockholders of the Corporation in accordance with the provisions of Sections 228 and 266 of the DGCL.
5. The Conversion shall be effective upon the filing of this Certificate of Conversion and the Certificate of Trust of RFS Funding Trust with the Secretary of State of the State of Delaware.
D-1
IN WITNESS WHEREOF, the undersigned have executed this Certificate of Conversion as of the ____ day of December, 2002.
D-2
RFS FUNDING INCORPORATED |
DEUTSCHE BANK TRUST COMPANY DELAWARE, not in its individual capacity but solely as trustee of RFS Funding Trust |
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D-3
to Trust Agreement
FORM OF TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust Agreement.
Deutsche
Bank Trust Company Delaware,
as Trustee
By: |
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Authorized Officer |
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Date: [ ], 200[ ] |
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E-1
EXHIBIT 4.5
NOTE TRUST CERTIFICATE
REGISTERED
NUMBER R-
3
THIS CERTIFICATE MAY NOT BE ACQUIRED BY OR FOR THE ACCOUNT OF A BENEFIT PLAN.
RFS FUNDING TRUST CERTIFICATE
evidencing a fractional undivided interest in the Trust, as defined below, the property of which includes a pool of credit card receivables sold to the Trust by Monogram Credit Card Bank of Georgia and RFS Holding, L.L.C.
(This Certificate does not represent an interest in or obligation of General Electric Capital Services, Inc., General Electric Capital Corporation, Monogram Credit Card Bank of Georgia or General Electric Company, or any of their respective affiliates, except to the extent described below.)
THIS CERTIFIES THAT DEUTSCHE BANK TRUST COMPANY AMERICAS, in its capacity as Indenture Trustee ( Indenture Trustee ) under the Indenture, dated as of September 25, 2003, between GE Capital Credit Card Master Note Trust and the Indenture Trustee, is the registered owner of a nonassessable, fully-paid, undivided interest in the RFS Funding Trust (the Trust ) formed by General Electric Capital Services, Inc., a Delaware corporation ( GECS ).
The Trust was created pursuant to a Trust Agreement dated as of December 19, 2002 among GECS, RFS HOLDING, L.L.C. and DEUTSCHE BANK TRUST COMPANY DELAWARE, as trustee (the Trustee ), as amended and restated by the Amended and Restated Trust Agreement dated as of June 27, 2003 (as so amended and restated, the Trust Agreement ) among RFS HOLDING, INC., RFS HOLDING, L.L.C. and the Trustee. To the extent not otherwise defined herein, the capitalized terms used herein have the meanings assigned to them in the Trust Agreement. This Certificate is the duly authorized Certificate designated as Note Trust Certificate issued under and subject to the terms, provisions and conditions of the Trust Agreement, to which Trust Agreement the holder of this Certificate by virtue of the acceptance hereof assents and by which holder is bound.
The Certificateholder, by its acceptance of this Certificate, covenants and agrees that such Certificateholder will not at any time institute against the Trust, or join in any institution against the Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States Federal or State bankruptcy or similar law in connection with any obligations relating to any of the Related Documents.
Unless the certificate of authentication hereon shall have been executed by an authorized officer of the Trustee, by manual signature, this Certificate shall not entitle the holder hereof to any benefit under the Trust Agreement or the Funding Agreement or be valid for any purpose.
This Certificate shall be construed in accordance with the laws of the State of Delaware, without reference to its conflict of law provisions, and the obligations, rights and remedies of the parties hereunder shall be determined in accordance with such laws.
IN WITNESS WHEREOF, the Trustee on behalf of the Trust and not in its individual capacity has caused this Certificate to be duly executed.
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By: Deutsche Bank Trust Company Delaware
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TRUSTEES CERTIFICATE OF AUTHENTICATION
This is one of the Certificates referred to in the within-mentioned Trust Agreement.
Deutsche Bank Trust Company Delaware
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as Trustee
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/s/ Susan Barstock |
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Date: September 26, 2003 |
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ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
the within Certificate, and all rights thereunder, hereby irrevocably constituting and appointing
Attorney to transfer said Certificate on the books of the Certificate Registrar, with full power of substitution in the premises.
Dated: |
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Signature Guaranteed: |
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*NOTICE: The signature to this assignment must correspond with the name as it appears upon the face of the within Certificate in every particular, without alteration, enlargement or any change whatever. Such signature must be guaranteed by a member firm of the New York Stock Exchange or a commercial bank or trust company.
EXHIBIT 4.6
RFS FUNDING TRUST,
as Grantor,
DEUTSCHE BANK TRUST COMPANY AMERICAS,
as Indenture Trustee.
INDENTURE SECURITY AGREEMENT
Dated as of September 25, 2003
relating to
GE CAPITAL CREDIT CARD MASTER NOTE TRUST,
as Issuer
INDENTURE SECURITY AGREEMENT , dated as of September 25, 2003 (this Agreement or this Indenture Security Agreement ), between RFS FUNDING TRUST, a Delaware statutory trust (the Grantor ), and Deutsche Bank Trust Company Americas, a New York banking corporation, as trustee and not in its individual capacity (the Indenture Trustee ).
GRANTING CLAUSE
The Grantor, as security for the Issuers obligations under the Notes and the Indenture, hereby Grants to Deutsche Bank Trust Company Americas, as the Indenture Trustee for the benefit of the Noteholders and the Indenture Trustee, a security interest in all of the Grantors right, title and interest in, to and under the following, whether now existing or hereafter arising or acquired (collectively, the Collateral ):
(a) the Transferred Receivables;
(b) Collections related to and all money, instruments, investment property and other property distributed or distributable in respect of (together with all earnings, dividends, distributions, income, issues, and profits relating to) the Transferred Receivables;
(c) all rights, remedies, powers, privileges and claims of the Grantor under or with respect to the Servicing Agreement, the Trust Receivables Purchase Agreement and the Bank Receivables Sale Agreement (whether arising pursuant to the terms of the Servicing Agreement, the Trust Receivables Purchase Agreement or the Bank Receivables Sale Agreement or otherwise available to the Grantor at law or in equity), including the rights of the Grantor to enforce the Servicing Agreement or the Trust Receivables Purchase Agreement, and to give or withhold any and all consents, requests, notices, directions, approvals, extensions or waivers under or with respect to the Servicing Agreement or the Trust Receivables Purchase Agreement to the same extent as the Grantor could but for the assignment and security interest granted to the Indenture Trustee for the benefit of the Noteholders;
(d) all Insurance Proceeds;
(e) all money, accounts, general intangibles, chattel paper, instruments, goods consisting of, arising from or related to the foregoing;
(f) all present and future claims, demands and causes in action in respect of any or all of the foregoing and all payments on or under and all proceeds of every kind and nature whatsoever in respect of any or all of the foregoing, including all proceeds, products, rents, receipts or profits of the conversion, voluntary or involuntary, into cash or other property, all cash and non-cash proceeds, and other property consisting of, arising from or relating to all or any part of any of the foregoing; and
(g) any proceeds of the foregoing.
Deutsche Bank Trust Company Americas, as Indenture Trustee on behalf of the Noteholders, (i) acknowledges such Grant, and (ii) agrees to apply any proceeds of the Collateral in accordance with the trusts under the Indenture in accordance with the Indenture.
The Grantor shall file, and hereby authorizes the Indenture Trustee to file, a UCC financing statement with a collateral description covering the Collateral, whether now existing or arising in the future.
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions . Except as otherwise specified or as the context may otherwise require, the following capitalized terms only have the meanings set forth below for all purposes of this Indenture Security Agreement.
Account means, at any time, each credit card account then included as an Account pursuant to (and as defined in) the Trust Receivables Purchase Agreement.
Additional Retailer means any retailer for which Originator maintains a private label credit card program, a dual card program or both, which is designated as an Additional Retailer in accordance with the Trust Receivables Purchase Agreement.
Agreement is defined in the preamble .
Bank Receivables Sale Agreement means the Bank Receivables Sale Agreement, dated as of June 27, 2003, between Monogram and the Transferor.
Banana Republic Program Agreement means that certain Amended and Restated Consumer Credit Card Program Agreement, dated as of August 29, 2000, by and among Gap, Inc. and Monogram.
Banana Republic Retailers means Gap, Inc. d/b/a Banana Republic and its permitted assigns under the Banana Republic Program Agreement.
Class means any class of Notes of any Series.
Collateral is defined in the Granting Clause of this Indenture Security Agreement.
Collections means, for any Receivable for any period, (a) the sum of all amounts, whether in the form of cash, checks, drafts, or other instruments, received by the Originator or the Servicer in payment of, or applied to, any amount owed by an Obligor on account of such Receivable during such period, including all amounts received on account of such Receivable, all other fees and charges, (b) cash proceeds of Related Security with respect to such Receivable and (c) any in-store payments received by a Retailer, the Servicer or Originator with respect to such Receivable. Amounts paid by Transferor pursuant to Section 2.5 of the Trust Receivables Purchase Agreement shall be deemed to be
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Principal Collections. Amounts paid by Transferor pursuant to Section 6.1(e) of the Trust Receivables Purchase Agreement shall be deemed to be Principal Collections to the extent that they represent the purchase price of Principal Receivables.
Contract means the agreement and Federal Truth in Lending Statement for private label revolving credit card accounts between any Obligor and Originator, as such agreements may be amended, modified, or otherwise changed from time to time.
Corporate Trust Office means the office of the Indenture Trustee from time to time designated as the Corporate Trust Office pursuant to the Indenture.
Event of Default is defined in the Indenture.
Finance Charge Receivables means Receivables created in respect of periodic finance charges, late fees, returned check fees and all other similar fees and charges billed or accrued and unpaid on an Account.
Funding Agreement means that certain Receivables Funding Agreement dated as of June 27, 2003, between the Grantor and the lender specified therein, which amends and restates that certain Third Amended and Restated Receivables Funding and Servicing Agreement dated as of September 25, 1997 and amended and restated as of July 22, 1998, as of March 22, 2001, and as of December 30, 2002, among the Grantor, the same lender, the Servicer and GE Capital.
Gap Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000 by and among Gap, Inc. and Monogram.
Gap Retailers means Gap, Inc. and its permitted assigns under the Gap Program Agreement.
GECAF Retailer means each retailer who is from time to time a party to a dealer agreement with Monogram relating to Monograms GECAF private label credit card program.
GE Capital means General Electric Capital Corporation, a Delaware corporation.
Grant means to create and grant a Lien pursuant to this Indenture Security Agreement, and other forms of the verb to Grant shall have correlative meanings. A Grant with respect to the Collateral or any other agreement or instrument shall include a grant of a Lien upon all rights, powers and options (but none of the obligations) of the granting party thereunder, including the right, upon the occurrence of a default and declaration thereof by the party to whom such Grant is made, to claim for, collect, receive and give receipt for principal and interest payments in respect of the Collateral and all other amounts payable thereunder, to give and receive notices and other communications, to make waivers or other agreements, to exercise all rights and options, to bring Proceedings in the name of the granting party or otherwise and generally to do and receive anything that the granting party is or may be entitled to do or receive thereunder or with respect thereto.
Grantor means RFS Funding Trust, a Delaware statutory trust.
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Indenture means the Indenture, dated as of September 25, 2003 between the Issuer and the Indenture Trustee.
Indenture Supplement means, with respect to any Series, a supplement to the Indenture, executed and delivered in connection with the original issuance of the Notes of such Series pursuant to Section 2.8 of the Indenture, and any amendment to the Indenture executed pursuant to Sections 9.1 or 9.2 of the Indenture, and in either case, including all amendments thereof and supplements thereto.
Indenture Trustee means Deutsche Bank Trust Company Americas, not in its individual capacity but solely as Indenture Trustee under the Indenture and this Agreement, or any successor Indenture Trustee under the Indenture and this Agreement.
Insurance Proceeds means any amounts payable to Originator pursuant to any credit insurance policies covering any Obligor with respect to Transferred Receivables under such Obligors Account.
Issuer means GE Capital Credit Card Master Note Trust, a Delaware statutory trust.
JCPenney Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of December 6, 1999, by and between J.C. Penney Company, Inc. and Monogram Credit Card Bank of Georgia.
JCPenney Retailers means J.C. Penney Company, Inc. and other Authorized Entities as such term is defined in the J.C. Penney Program Agreement.
Lien means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction); provided , however , Permitted Encumbrances shall not constitute a Lien.
Lowes Retailers means each of Lowes Companies, Inc., Lowes Home Centers, Inc., The Contractor Yard, Inc., Lowes HIW, Inc. and certain of their affiliates.
Monogram means Monogram Credit Card Bank of Georgia, a bank organized under the laws of Georgia.
Note means any note issued by the Issuer, and authenticated by the Indenture Trustee pursuant to the Indenture.
Note Register is defined in the Indenture.
Noteholder means the Person whose name is registered on the Note Register or such other Person deemed to be a Noteholder in any related Indenture Supplement.
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Obligor means, with respect to any Receivable, any Person obligated to make payments in respect thereof.
Old Navy Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. and Monogram.
Old Navy Retailers means Gap, Inc. d/b/a Old Navy and its permitted assigns under the Old Navy Program Agreement.
Originator means Monogram or any other originator so designated pursuant to Section 2.10 of the Trust Receivables Purchase Agreement.
Permitted Encumbrances means the following encumbrances: (a) Liens for taxes or assessments or other governmental charges not yet due and payable; and (b) inchoate and unperfected workers, mechanics, suppliers or similar Liens arising in the ordinary course of business.
Person means any individual, sole proprietorship, partnership, joint venture, unincorporated organization, trust, association, corporation (including a business trust), limited liability company, institution, public benefit corporation, joint stock company, governmental authority or any other entity of whatever nature.
Principal Collections means Collections of Principal Receivables (after giving effect to any recharacterization of Collections of Principal Receivables as Collections of Finance Charge Receivables pursuant to Section 2.8 of the Trust Receivables Purchase Agreement). Amounts paid by Transferor pursuant to Section 2.5 of the Trust Receivables Purchase Agreement shall be deemed to be Principal Collections. Amounts paid by Transferor pursuant to Section 6.1(e) of the Trust Receivables Purchase Agreement shall be deemed to be Principal Collections to the extent that they represent the purchase price of Principal Receivables.
Principal Receivable means each Receivable, other than a Finance Charge Receivable.
Proceeding means any suit in equity, action at law or other judicial or administrative proceeding.
Rating Agency Condition is defined in the Indenture.
Receivable means any amount owing by an Obligor under an Account from time to time.
Records means all Contracts and other documents, books, records and other information (including computer programs, tapes, disks, data processing software and related property and rights) prepared and maintained by any Originator, the Servicer, or Sub-Servicer with respect to the Transferred Receivables and the Obligors thereunder.
Related Security means with respect to any Receivable: (a) all of the Originators interest, if any, in the goods, merchandise (including returned merchandise) or equipment, if any, the sale of which gave rise to such Receivable; (b) all guarantees, insurance or other agreements
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or arrangements of any kind from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise; and (c) all Records relating to such Receivable.
Retailer means any of the Banana Republic Retailers; the Gap Retailers; the GECAF Retailers; the JCPenney Retailers; the Lowes Retailers; Montgomery Ward & Co., Incorporated; the Old Navy Retailers; the Sams Club Retailers; the Wal-Mart Retailers and from time to time, any Additional Retailer.
RFS Funding Trust Agreement means the Amended and Restated Trust Agreement, dated as of December 19, 2002 among the Transferor, General Electric Capital Services, Inc. and the Trustee, as amended and restated on June 27, 2003 among the Transferor, RFS Holding, Inc. (as assignee of General Electric Capital Services, Inc.) and the Trustee.
Sams Club Program Agreement means that certain Third Amended and Restated Consumer Credit Card Program Agreement, dated as of February 1, 1999, by and among Wal-Mart Stores, Inc., Sams West, Inc., Sams East, Inc. and Monogram.
Sams Club Retailers means Sams West, Inc., a Delaware corporation, Sams East, Inc., a Delaware corporation, and their respective successors and permitted assigns under the Sams Club Program Agreement.
Series means any series of Notes, which may include within any such Series a Class or Classes of Notes subordinate to another such Class or Classes of Notes.
Servicer means Monogram, in its capacity as the Servicer under the Servicing Agreement, or any other Person designated as a Successor Servicer pursuant to the Servicing Agreement.
Servicing Agreement means the Servicing Agreement dated as of June 27, 2003, among the Servicer, the Grantor and, upon its accession as provided therein, the Issuer.
Sub-Servicer means any Person with whom the Servicer enters into a Sub-Servicing Agreement.
Sub-Servicing Agreement means any written contract entered into between the Servicer and any Sub-Servicer relating to the servicing, administration or collection of the Transferred Receivables.
Successor Servicer means a successor to the initial Servicer as appointed under the Servicing Agreement.
Transferor means RFS Holding, L.L.C. or any additional transferor designated as a Transferor pursuant to the Trust Receivables Purchase Agreement.
Transferred Receivable means a Receivable that has been transferred by Transferor to Grantor under the Trust Receivables Purchase Agreement.
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Trust Receivables Purchase Agreement means the Receivables Purchase and Contribution Agreement dated as of June 27, 2003 and as amended as of September 25, 2003 by the First Amendment to the Receivables Purchase and Contribution Agreement, between Transferor and Grantor.
Trustee means Deutsche Bank Trust Company Delaware, not in its individual capacity, but solely as trustee of the Grantor.
UCC means, unless the context otherwise requires, the Uniform Commercial Code as in effect in the relevant jurisdiction.
Wal-Mart Program Agreement means that certain Consumer Credit Card Program Agreement dated as of August 26, 1999, by and between Wal-Mart Stores, Inc. and Monogram.
Wal-Mart Retailers means Retailer as such term is defined in the Wal-Mart Program Agreement.
SECTION 1.2. Other Interpretive Matters . All terms defined directly or by reference in this Indenture Security Agreement shall have the defined meanings when used in any certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Indenture Security Agreement, each and all such certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined herein and accounting terms partly defined herein to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; and unless otherwise provided , references to any month, quarter or year refer to a fiscal month, quarter or year as determined in accordance with the Issuers fiscal calendar; (b) unless defined in this Indenture Security Agreement or the context otherwise requires, capitalized terms used in this Indenture Security Agreement which are defined in the UCC shall have the meaning given such term in the UCC; (c) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (d) the words hereof, herein and hereunder and words of similar import refer to this Indenture Security Agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of this Indenture Security Agreement (or the certificate or other document in which reference is made); (e) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Indenture Security Agreement, and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (f) the term including means including without limitation; (g) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (h) references to any agreement refer to that agreement as from time to time amended, restated or supplemented or as the terms of such agreement are waived or modified in accordance with its terms; and (i) references to any Person include that Persons successors and permitted assigns.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1. Perfection Representations and Warranties . The parties hereto agree that the representations, warranties and covenants set forth in Schedule 1 shall be a part of this Indenture Security Agreement for all purposes.
ARTICLE III
REMEDIES
SECTION 3.1. Remedies . If an Event of Default shall have occurred and be continuing under the Indenture with respect to any Series, and pursuant to the Indenture the Indenture Trustee is entitled to cause the Grantor to sell Transferred Receivables, then Grantor agrees that the Indenture Trustee shall have the right to sell such Transferred Receivables.
SECTION 3.2. Limitations and other Indenture Provisions . In exercising its rights under this Indenture Security Agreement, the Indenture Trustee shall be subject to the same limitations, and entitled to the same protections, indemnity and immunity, as if such rights were exercised by the Indenture Trustee directly against the Issuer pursuant to the Indenture.
ARTICLE IV
MISCELLANEOUS
SECTION 4.1. Notices, etc., to the Indenture Trustee and the Grantor . Any request, demand, authorization, direction, notice, consent or waiver, or other documents provided or permitted by this Indenture Security Agreement, shall be in writing and, if such request, demand, authorization, direction, notice, consent or waiver is to be made upon, given or furnished to or filed with:
(a) the Indenture Trustee by the Grantor, shall be sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the Indenture Trustee and received at its Corporate Trust Office, or
(b) the Grantor by the Indenture Trustee, shall be sufficient for every purpose hereunder if in writing and mailed, first-class, postage prepaid, to the Issuer addressed to (and received at): RFS Funding Trust, c/o Deutsche Bank Trust Company Americas Corporate Trust and Agencies Services - Structured Finance Services, 60 Wall Street, 26 th Floor, MS NYC60-2606, New York, New York 10005, with a copy to General Electric Capital Corporation, as Administrator, 3001 Summer Street, Stamford, CT 06927, Attention: Program Manager, or at any other address previously furnished in writing to the Indenture Trustee by the Grantor.
SECTION 4.2. Successors and Assigns . All covenants and agreements in this Indenture Security Agreement by the Grantor shall bind its successors and assigns, whether so expressed or not. All agreements of the Indenture Trustee in this Indenture Security Agreement shall bind its successors, co-trustees and agents of the Indenture Trustee, whether so expressed or not.
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SECTION 4.3. Severability . Any provision of this Indenture Security Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 4.4. Governing Law . (a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED , THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED , FURTHER , THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE INDENTURE TRUSTEE FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL OR ANY OTHER SECURITY FOR THE NOTES, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE INDENTURE TRUSTEE. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 4.1 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTYS ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY
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HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS INDENTURE SECURITY AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 4.5. Counterparts . This Indenture Security Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all such counterparts shall together constitute but one and the same instrument. Executed counterparts may be delivered electronically.
SECTION 4.6. Grantor Obligation . No recourse may be taken, directly or indirectly, with respect to the obligations of the Grantor under this Indenture Security Agreement or any certificate or other writing delivered in connection herewith or therewith, against (i) the Indenture Trustee or the Trustee in its individual capacity, (ii) any owner of a beneficial interest in the Grantor or (iii) any partner, owner, beneficiary, agent, officer, director, employee or agent of the Indenture Trustee or the Trustee in its individual capacity, any holder of a beneficial interest in the Grantor, the Trustee or the Indenture Trustee or of any successor or assign of the Indenture Trustee or the Trustee in its individual capacity, except as any such Person may have expressly agreed (it being understood that the Indenture Trustee and the Trustee have no such obligations in their individual capacity) and except that any such partner, owner or beneficiary shall be fully liable, to the extent provided by applicable law, for any unpaid consideration for stock, unpaid capital contribution or failure to pay any installment or call owing to such entity. For all purposes of this Indenture Security Agreement, the Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Articles VI, VII and VIII of the RFS Funding Trust Agreement.
Agents of the Grantor . The Indenture Trustee hereby acknowledges that it has been advised that any agent of the Grantor may act on behalf of the Grantor hereunder for purposes of all consents, amendments, waivers and other actions permitted or required to be taken, delivered or performed by the Grantor, and the Indenture Trustee agrees that any such action taken by an agent on behalf of the Grantor shall satisfy the Grantors obligations hereunder.
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SECTION 4.7. No Petition . The Indenture Trustee hereby covenants and agrees that it will not at any time institute against the Grantor, or solicit or join or cooperate with or encourage any institution against the Grantor of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state bankruptcy or similar law, except as permitted by the Intercreditor Agreement referred to in the Indenture.
SECTION 4.8. Trust Receivables Purchase Agreement . The Grantor will not consent to any amendment or other modification to the Trust Receivables Purchase Agreement that affects the meaning of any defined term used in this Agreement unless consented to in writing by each party to this Agreement.
[Signatures Follow]
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IN WITNESS WHEREOF , the parties hereto have caused this Indenture Security Agreement to be duly executed by their respective officers duly authorized as of the day and year first above written.
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By: Deutsche Bank Trust Company Delaware, not in its individual capacity but solely as trustee |
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Vice President |
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DEUTSCHE BANK TRUST COMPANY AMERICAS, not in its individual capacity but solely as Indenture Trustee |
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S-1
SCHEDULE 1
Perfection Representations and Warranties
1. General . This Agreement creates a valid and continuing security interest (as defined in the applicable UCC) in the Transferred Receivables and the proceeds thereof in favor of the Indenture Trustee, which (a) in the case of existing Transferred Receivables and the proceeds thereof, is enforceable upon execution of this Agreement against creditors of and purchasers from the Grantor, and which will be enforceable with respect to Transferred Receivables hereafter and thereafter created and the proceeds thereof upon such creation, and (b) upon filing of the financing statements described in clause 4 below and, in the case of Transferred Receivables hereafter created, upon the creation thereof, will be prior to all other Liens (other than Liens permitted pursuant to clause 3 below).
2. General . The Transferred Receivables constitute accounts within the meaning of UCC Section 9-102.
3. Creation . Immediately prior to the grant of a security interest of the Transferred Receivables pursuant to this Agreement, the Grantor owns and has good and marketable title to the Transferred Receivables free and clear of any Lien, claim or encumbrance of any Person, other than Permitted Encumbrances.
4. Perfection . The Grantor has caused or will have caused, within ten days of the date of this Agreement, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest granted by the Grantor to the Indenture Trustee under this Agreement in the Transferred Receivables.
5. Priority . Other than the security interest granted to the Indenture Trustee pursuant to this Agreement and the security interest granted pursuant to the Funding Agreement, the Grantor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Transferred Receivables. The Grantor has not authorized the filing of and is not aware of any financing statements against the Grantor that include a description of collateral covering the Transferred Receivables other than any financing statement (i) relating to the security interest granted to the Indenture Trustee hereunder or the security interest granted under the Funding Agreement or (ii) that has been terminated. As a result of the terms of an intercreditor agreement between the Indenture Trustee and the secured party under the Funding Agreement, each of the security interest granted to the Indenture Trustee pursuant to this Agreement and the security interest granted pursuant to the Funding Agreement are first priority security interests, ranking equally with one another.
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EXHIBIT 4.7
INTERCREDITOR AGREEMENT
dated as of September 25, 2003
relating to
RFS FUNDING TRUST
This INTERCREDITOR AGREEMENT, dated as of September 25, 2003 (this Agreement ), is executed and delivered by Edison Asset Securitization, L.L.C., as lender (the Lender ) under the Funding Agreement referred to below, Deutsche Bank Trust Company Americas ( Deutsche Bank ), as indenture trustee under the Indenture referred to below (in such capacity, the Indenture Trustee ) and RFS Funding Trust, a Delaware statutory trust ( RFS Funding Trust ).
BACKGROUND
1. Pursuant to a Funding Agreement, dated as of June 27, 2003, between RFS Funding Trust and Lender (as amended or otherwise modified from time to time, the Funding Agreement ) , which amends and restates a Third Amended and Restated Receivables Funding and Servicing Agreement, the Lender has made, and has agreed to make, from time to time, advances to RFS Funding Trust upon the terms and subject to the conditions therein provided, secured by receivables included in the Indenture Collateral and the proceeds thereof, as well as RFS Funding Trusts rights under certain related documents.
2. Pursuant to a Master Indenture, dated on or about the date hereof, between Deutsche Bank, as indenture trustee, and GE Capital Credit Card Master Note Trust (the Issuer ; and such Master Indenture, as supplemented or otherwise modified from time to time, including in connection with the issuance of various series of notes thereunder, being the Indenture ), Deutsche Bank has agreed to act as Indenture Trustee for holders of notes (the Notes ) to be issued by the Issuer from time to time. The principal asset of the Issuer is a Note Trust Certificate issued by RFS Funding Trust, representing an undivided beneficial interest in a substantial majority of the receivables included in the Lender Collateral.
3. Pursuant to an Indenture Security Agreement, dated on or about the date hereof, between RFS Funding Trust and the Indenture Trustee (as amended or otherwise modified from time to time, the Indenture Security Agreement ), RFS Funding Trust has granted a security interest in the Indenture Collateral to the Indenture Trustee to secure the Issuers obligations under the Notes.
4. The parties hereto wish to, among other things, set forth certain agreements with respect to the Collateral and RFS Funding Trust.
NOW , THEREFORE , for good and valuable consideration, the receipt of which is hereby acknowledged, the parties hereto agree as follows:
SECTION 1 Definitions . Except as otherwise specified or as the context may otherwise require, the following capitalized terms have the meanings set forth below for all purposes of this Agreement.
Account means, at any time, each credit card account then included as an Account pursuant to (and as defined in) the Trust Receivables Purchase Agreement.
Agreement is defined in the preamble to this Agreement.
Collateral means all Receivables, proceeds thereof and other property that, in each case, are or is included in both the Indenture Collateral and the Lender Collateral.
Collateral Amount is defined, with respect to any Series, in the related Indenture Supplement.
Collections means all items included in Collections as defined in the Funding Agreement or the Indenture, and that, in each case, are or is included in both the Indenture Collateral and the Lender Collateral.
Deutsche Bank is defined in the preamble to this Agreement.
Finance Charge Receivables means Receivables created in respect of periodic finance charges, late fees, returned check fees and all other similar fees and charges billed or accrued and unpaid on an Account.
Funding Agreement is defined in the background statements to this Agreement.
Indenture is defined in the background statements to this Agreement.
Indenture Collateral means the Collateral under (and as defined in) the Indenture Security Agreement.
Indenture Security Agreement is defined in the background statements to this Agreement.
Indenture Supplement means, with respect to any Series, a supplement to the Indenture, executed and delivered in connection with the original issuance of the Notes of such.
Indenture Trustee is defined in the preamble to this Agreement.
Issuer is defined in the background statements to this Agreement.
Lender is defined in the preamble to this Agreement.
Lender Collateral means the Borrower Collateral under (and as defined in) the Funding Agreement.
Lender Collateral Interest Percentage is defined in the Trust Agreement.
Monogram means Monogram Credit Card Bank of Georgia, a bank organized under the laws of Georgia.
Notes is defined in the background statements to this Agreement.
Obligor means, with respect to any Receivable, any Person obligated to make payments in respect thereof.
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Person means any individual, sole proprietorship, partnership, joint venture, unincorporated organization, trust, association, corporation (including a business trust), limited liability company, institution, public benefit corporation, joint stock company, governmental authority or any other entity of whatever nature.
Principal Receivable means each Receivable, other than a Finance Charge Receivable.
Rating Agency means (a) as to each Series, the rating agency or agencies, if any, specified in the related Indenture Supplement and (b) as to the Lenders commercial paper notes, Moodys Investors Service, Inc. and Standard & Poors Ratings Service, a division of the McGraw Hill Companies, Inc.
Rating Agency Condition means, with respect to any action, that each Rating Agency, if any, shall have notified the Issuer or the Lender in writing that such action will not result in a reduction or withdrawal of the rating, if any, of (a) in the case of the Issuer, any outstanding Series or class of Notes with respect to which it is a Rating Agency and (b) in the case of the Lender, the Lenders commercial paper notes.
Receivable means any amount owing by an Obligor under an Account from time to time.
RFS Funding Trust is defined in the preamble to this Agreement.
Series means any series of Notes, which may include within any such Series a class or classes of Notes subordinate to another such class or classes of Notes.
Servicer means Monogram, in its capacity as the Servicer under the Servicing Agreement, or any other Person designated as a successor servicer pursuant to the Servicing Agreement.
Servicing Agreement means the Servicing Agreement dated as of June 27, 2003, among the Servicer, RFS Funding Trust and the Issuer.
Specified Retailer Receivables means Principal Receivables arising in Accounts relating to Monograms credit card programs for Home Depot U.S.A., Inc. or Montgomery Ward, Incorporated.
Trust Agreement means the Trust Agreement pursuant to which RFS Funding Trust was formed, as amended and restated as of June 27, 2003.
Trust Receivables Purchase Agreement means that certain Receivable Purchase and Contribution Agreement dated as of June 27, 2003 and as amended as of September 25, 2003, by the First Amendment to the Receivables Purchase and Contribution Agreement, between RFS Holding, L.L.C. and RFS Funding Trust.
UCC means, unless the context otherwise requires, the Uniform Commercial Code as in effect in the relevant jurisdiction.
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SECTION 2 Other Interpretive Matters . All terms defined directly or by reference in this Agreement shall have the defined meanings when used in any certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Agreement, each and all such certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined herein and accounting terms partly defined herein to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; (b) unless defined in this Agreement or the context otherwise requires, capitalized terms used in this Agreement which are defined in the UCC shall have the meaning given such term in the UCC; (c) any reference to each Rating Agency shall only apply to any specific rating agency if such rating agency is then rating any outstanding Series; (d) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (e) the words hereof, herein and hereunder and words of similar import refer to this Agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of this Agreement (or the certificate or other document in which reference is made); (f) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Agreement, and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (g) the term including means including without limitation; (h) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (i) subject to Section 7 , references to any agreement refer to that agreement as from time to time amended, restated or supplemented or as the terms of such agreement are waived or modified in accordance with its terms; and (j) references to any Person include that Persons successors and permitted assigns.
SECTION 3 Equal Priority . The UCC financing statement relating to the Lenders security interest in the Lender Collateral was filed prior to the financing statement relating to the Indenture Trustees security interest in the Indenture Collateral, which provides Lender a perfected security interest prior to the Indenture Trustees security interest in the Collateral under the terms of the UCC. Notwithstanding that fact, the Lender and the Indenture Trustee agree that their security interests in the Collateral shall be of equal rank and priority with each other; provided , that the foregoing agreement shall not apply at any time when (a) the security interest of either the Lender or the Indenture Trustee has ceased to be perfected or (b) because of any temporary cessation of perfection of the security interest of either the Lender or the Indenture Trustee, any other Person has a security interest or other claim on the Collateral that has priority over one but not both of the security interests of the Lender and the Indenture Trustee. Without prejudice to the foregoing proviso, neither Lender nor Indenture Trustee shall initiate any challenge to the perfection or validity of the security interest held by the other in the Collateral.
SECTION 4 Application and Release of Collections in the Ordinary Course . Pursuant to the Servicing Agreement, the Servicer has agreed to service the Receivables included in the Collateral and, among other things, to apply Collections of those Receivables as required by Section 6.3 of the Funding Agreement, Section 8.4 of the Indenture (as supplemented by each Indenture Supplement) and Section 5.1 of the Trust Agreement. Such Collections constitute proceeds of Collateral, in which proceeds each of Lender and Indenture Trustee have perfected security interests. Lender and Indenture Trustee each hereby consent to the application of Collections in accordance with the terms of the referenced documents. Upon any application of
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any portion of Collections for the benefit of holders of Notes or other transaction parties in accordance with the terms of the Indenture and the Trust Agreement, Lender hereby releases such Collections from its security interest. Upon any application of any portion of Collections for the benefit of Lender or other transaction parties in accordance with the terms of the Funding Agreement and the Trust Agreement, Indenture Trustee hereby releases such Collections from its security interest. No amendment or other modification to the Trust Agreement made after the date hereof that affects the allocation of Collections shall be given effect for purposes of this Agreement unless consented to by the Lender and the Indenture Trustee. Subject to the proviso in Section 3 of this Agreement, if, notwithstanding the intent of the parties that the security interests of the Lender and the Indenture Trustee be equal in rank and priority, for any reason the agreement of the parties is not enforced in any distribution of assets of RFS Funding Trust in any bankruptcy, liquidation or other proceeding, or if either the Lender or the Indenture Trustee receives proceeds of the Collateral or other distributions on account of the Collateral in excess of such partys pro rata share of such proceeds or distribution, then such party receiving such proceeds or distribution shall immediately turn over to the other an amount sufficient to cause each to have received a pro rata amount.
SECTION 5 Exercise of Remedies . Pursuant to (i) the Funding Agreement, in the case of the Lender, (ii) the Indenture and the Indenture Security Agreement, in the case the Indenture Trustee, and (iii) applicable law, in the case of either, the Lender or the Indenture Trustee may be entitled to sell or foreclose upon receivables included in the Collateral in certain circumstances. In the event of any such sale or foreclosure by the Lender, the Lender agrees that, at any time when any Notes or other secured obligations are outstanding under the Indenture, it shall not, without the consent of the Indenture Trustee, sell or foreclose upon any Collateral other than Receivables consisting of (a) Specified Retailer Receivables, (b) other randomly selected Principal Receivables with an aggregate Outstanding Balance not in excess of the Lenders Collateral Interest Percentage (at the time of sale) of Principal Receivables other than Specified Retailer Receivables and (c) Finance Charge Receivables relating to the Principal Receivables specified in clauses (a) and (b) . In the event of any such sale or foreclosure by the Indenture Trustee, the Indenture Trustee agrees that, at any time when any secured obligations are outstanding under the Funding Agreement, it shall not, without the consent of the Lender, sell or foreclose upon any Collateral other than receivables consisting of (x) randomly selected Principal Receivables (excluding Specified Retailer Receivables) with an aggregate Outstanding Balance not to exceed, for each Series of Notes with respect to which a sale or foreclosure is being made, the related Collateral Amount at the time of sale and (y) Finance Charge Receivables relating to the Principal Receivables specified in clause (x) . Upon any sale or foreclosure complying with the applicable foregoing limitation, the Indenture Trustee (in the case of a sale or foreclosure by the Lender) or the Lender (in the case of a sale or foreclosure by the Indenture Trustee) hereby releases the Receivables that are the subject of such sale or foreclosure and their proceeds from its security interest. Any other proceeds of Receivables obtained by either Lender or Indenture Trustee in the exercise of any remedies shall be subject to the allocation provisions in the Trust Agreement.
SECTION 6 Further Assurances . Each of the Indenture Trustee and the Lender agrees, upon the others request, to execute and deliver UCC partial release statements and other documents and instruments that may be reasonably requested in order to evidence the release provided for in Section 5 ; provided that failure to execute and deliver any partial release statements, documents or instruments shall not affect or impair the release
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provided for in this Section 5 .
SECTION 7 Funding Agreement, Indenture and Trust Receivables Purchase Agreement . Any provisions of the Funding Agreement may be waived, amended or otherwise modified without the consent of the Indenture Trustee. Any provision of the Indenture may be waived, amended or otherwise modified without the consent of the Lender. However, no amendment or other modification to the Funding Agreement or the Indenture that affects the meaning of any defined term used in this Agreement shall be given effect for purposes of this Agreement unless consented to in writing by each party to this Agreement. RFS Funding Trust will not consent to any amendment or other modification to the Trust Receivables Purchase Agreement that affects the meaning of any defined term used in this Agreement unless consented to in writing by each party to this Agreement.
SECTION 8 Bankruptcy Petition Against RFS Funding Trust . The Lender and the Indenture Trustee each hereby covenants and agrees that it will not at any time institute against RFS Funding Trust, or solicit or join or cooperate with or encourage any institution against RFS Funding Trust of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state bankruptcy or similar law in connection with any obligations relating to the Notes, the Indenture, the Funding Agreement or any related documents; provided , however , the Lender and the Indenture Trustee may jointly institute, join or cooperate with any such proceeding if the Lender and Noteholders representing not less than 66-2/3% of the Outstanding Principal Balance of each class of Notes of each Series outstanding at the time have consented thereto in writing. The foregoing shall not limit the rights of the Lender or the Indenture Trustee to file any claim in or otherwise take any action with respect to any insolvency proceeding that was instituted against RFS Funding Trust by any Person other than the Lender or the Indenture Trustee, respectively.
SECTION 9 Bankruptcy Petition Against Lender . Each of the Indenture Trustee and RFS Funding Trust further covenants and agrees that it will not at any time institute against Lender, or solicit or join or cooperate with or encourage any institution against Lender of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any United States federal or state bankruptcy or similar law. The foregoing shall not limit the rights of the Indenture Trustee or RFS Funding Trust to file any claim in or otherwise take any action with respect to any insolvency proceeding that was instituted against Lender by any Person other than the Indenture Trustee or RFS Funding Trust.
SECTION 10 Other Bankruptcy Provisions . (a) Notwithstanding anything contained herein to the contrary, each of the parties hereto agrees that this Agreement constitutes a subordination agreement for the purposes of Section 510(a) of the U.S. Bankruptcy Code.
(b) This Agreement shall be applicable both before and after the filing of any petition by or against RFS Funding Trust under the U.S. Bankruptcy Code and all converted or succeeding cases in respect thereof, and all references herein to RFS Funding Trust shall be deemed to apply to a bankruptcy trustee for RFS Funding Trust and RFS Funding Trust as debtor-in-possession. The relative rights of the Indenture Trustee and the Lender in or to any distributions from or in respect of any Collateral or proceeds of Collateral, shall continue after
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the filing thereof on the same basis as prior to the date of the petition, notwithstanding any court order approving the financing of or use of cash collateral by RFS Funding Trust as debtor-in-possession or by any bankruptcy trustee appointed in its case.
SECTION 11 Miscellaneous .
(a) Notices . All notices and other communications provided for hereunder shall, unless otherwise stated herein, be in writing (including telecommunications and communication by facsimile transmission) and mailed, transmitted or delivered, as to each party hereto, at its address set forth on Schedule 11(a) or at such other address as shall be designated by such party in a written notice to the other parties hereto. All such notices and communications shall be effective upon receipt, or (i) in the case of notice by mail, three Business Days after being deposited in the mails, postage prepaid, and (ii) in the case of notice by facsimile transmission, upon the earlier to occur of (A) completion of transmission and telephone confirmation of receipt or (B) the recipients close of business on the date of transmission, in each case addressed as aforesaid.
(b) Agreement Absolute . This Agreement shall be and remain absolute and unconditional under any and all circumstances, and no acts or omissions on the part of any other party to this Agreement shall affect or impair the agreement of any party to this Agreement, unless otherwise agreed to in writing by all of the parties hereto.
(c) Successors and Assigns . This Agreement shall be binding upon and inure to the benefit of each of the parties hereto and their respective successors and assigns. The successors and assigns for RFS Funding Trust shall include a debtor-in-possession or bankruptcy trustee of or for such party. The successors and assigns for the Indenture Trustee and the Lender shall include any successor to the Indenture Trustee or the Lender appointed under the terms of the Indenture or the Funding Agreement, as applicable. Each of the Indenture Trustee and the Lender agrees not to transfer any interest it may have in the Indenture or the Funding Agreement (other than the granting of participations) unless such transferee has been notified of the existence of this Agreement and has agreed to be bound hereby. If the Lender grants a participation in the Funding Agreement to any participant, the Lender shall disclose to such participant the existence and the terms of this Agreement.
(d) Third-Party Beneficiaries . The terms and provisions of this Agreement shall be for the sole benefit of the Indenture Trustee, the Lender and their respective successors and assigns and no other Person shall have any right, benefit, or priority by reason of this Agreement.
(e) GOVERNING LAW . THIS AGREEMENT, INCLUDING THE RIGHTS AND DUTIES OF THE PARTIES HERETO, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5.1401.1 OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICTS OF LAW PROVISIONS THEREOF).
(f) CONSENT TO JURISDICTION; WAIVER OF IMMUNITIES . EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL
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COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED , THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED , FURTHER , THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER OR THE INDENTURE TRUSTEE FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE COLLATERAL, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER OR THE INDENTURE TRUSTEE. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 11(a) AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTYS ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS INDENTURE OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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(g) Section Titles . The article and section headings contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.
(h) Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or thereof or affecting the validity or enforceability of such provision in any other jurisdiction.
(i) No Waiver; Amendments in Writing . No delay on the part of any party to this Agreement in the exercise of any right, power or remedy shall operate as a waiver thereof, nor shall any single or partial exercise by any such party of any right, power or remedy preclude other or further exercise thereof, or the exercise of any other right, power or remedy. No waiver, amendment or other modification of, or consent with respect to, any provision of this Agreement shall be effective unless the same shall be in writing and shall be signed by the party purported to have consented to such waiver, amendment or other modification. This Agreement may not be amended or otherwise modified without satisfying the Rating Agency Condition.
(j) Execution in Counterparts . This Agreement may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same agreement. Executed counterparts may be delivered electronically or by facsimile.
(k) Limitation of Liability of the Trustee . Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by Deutsche Bank Trust Company Delaware, not in its individual capacity but solely in its capacity as Trustee (as defined in the Trust Agreement) of RFS Funding Trust, and in no event shall Deutsche Bank Trust Company Delaware, in its individual capacity, or any beneficial owner of RFS Funding Trust have any liability for the representations, warranties, covenants, agreements or other obligations of the RFS Funding Trust hereunder, as to all of which recourse shall be had solely to the assets of RFS Funding Trust. For all purposes of this Agreement, in the performance of any duties or obligations of RFS Funding Trust thereunder, the Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Article VIII of the Trust Agreement.
[Signatures Follow on Next Page]
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IN WITNESS WHEREOF , the parties hereto have caused this Agreement to be executed and delivered as of the day first above written.
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Edison Asset Securitization, L.L.C., as the Lender |
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/s/ Steve A. Poulin |
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Steve A. Poulin |
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Authorized Signatory |
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deutsche bank trust company americas , as the Indenture Trustee |
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By: |
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/s/ Susan Barstock |
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Susan Barstock |
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Vice President |
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RFS Funding Trust |
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By: Deutsche Bank Trust Company Delaware, not in its individual capacity, but solely as trustee |
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By: |
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/s/ Susan Barstock |
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Susan Barstock |
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Title: |
Vice President |
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In its capacity as Collateral Agent under (and as defined in) the documents relating to the Lenders commercial paper program, General Electric Capital Corporation has been granted a security interest (the Program Security Interest ) in certain property of the Lender, including the Lenders security interest in the Collateral referred to above. To the extent that it ever becomes entitled to exercise any rights with respect to the Collateral pursuant to the security interest granted by the Lender, General Electric Capital Corporation agrees to be bound by the terms of the foregoing agreement as if it were the Lender. This consent is intended to bind General Electric Capital Corporation in each of its capacities under the Lenders commercial paper program. General Electric Capital Corporation further agrees that it will not assign any of its rights or obligations in any capacity under which it is entitled to any of the benefits of the Program Security Interest to any person unless (a) such person agrees in a writing addressed to the Indenture Trustee that to the extent that such person ever becomes entitled to exercise, or direct General Electric Capital Corporation in exercising, any rights with respect to the Collateral pursuant to the security interest granted by the Lender, such person agrees to be bound by the terms of the foregoing agreement as if it were the Lender, (b) such person delivers to the Rating Agencies customary legal opinions as to the enforceability of such letter agreement and (c) the Rating Agency Condition is satisfied as to the form and substance of that writing.
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General Electric Capital Corporation |
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/s/ Iain J. Mackay |
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Iain J. Mackay |
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Vice President |
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S-2
SCHEDULE 11(a)
NOTICE INFORMATION
If to the Lender:
Edison Asset Securitization, L.L.C.
c/o General Electric Capital Corporation, as Operating Agent
1600 Summer Street, 4
th
Floor
Stamford, Connecticut 06927
Attention:
Portfolio
Manager
Telephone:
(203) 357-4328
Facsimile:
(203) 961-2953
If to RFS Funding Trust:
RFS Funding Trust
c/o Deutsche Bank Trust Company Americas, as Trustee
Corporate Trust and Agency Services Structured Finance Services
60 Wall Street, 26th Floor
MS NYC60-2606
New York, New York 10005
Attention: Susan Barstock
Telephone: (212) 454-4298
Facsimile: (212) 796-8606
with a copy to:
General Electric Capital Corporation, as Administrator,
1600 Summer Street, 4th Floor
Stamford, Connecticut 06927
Attention: Portfolio Manager
Telephone: (203) 357-4328
Facsimile: (203) 961-2953
and
Monogram Credit Card Bank of Georgia, as Servicer
7840 Roswell Road, Bldg. 100, Suite 210
Atlanta, Georgia 30350
Attention: Chief Financial Officer
Telephone: (770) 353-5337
Facsimile: (770) 353-2464
Schedule 11(a)
If to the Indenture Trustee:
Deutsche Bank Trust Company Americas, as Trustee
60 Wall Street, 26th Floor
MS NYC60-2606
New York, New York 10005
Attention: Corporate Trust and Agency Services
Facsimile: (212) 796-8606
Schedule 11(a)
EXHIBIT 4.8
CUSTODY AND CONTROL AGREEMENT
CUSTODY AND CONTROL AGREEMENT (this Agreement) dated as of September 25, 2003 by and among DEUTSCHE BANK TRUST COMPANY AMERICAS (the Custodian), in its capacity as Custodian, GE CAPITAL CREDIT CARD MASTER NOTE TRUST, a Delaware statutory trust (the Issuer), and DEUTSCHE BANK TRUST COMPANY AMERICAS (the Indenture Trustee), in its capacity as Indenture Trustee.
WHEREAS, the Issuer is the owner of the Accounts;
WHEREAS, the Issuer has entered into an Indenture (as amended or modified, the Indenture), dated as of the date hereof, with the Indenture Trustee, whereby the Issuer has granted a security interest to the Indenture Trustee in among other things, the Property in the Accounts;
WHEREAS, the Issuer is entering into this Agreement to perfect the security interest of the Indenture Trustee in the Accounts and in the Issuers Security Entitlements in respect of the Property in the Accounts from time to time;
WHEREAS, the Issuer desires to appoint the Custodian as custodian on behalf of the Issuer, and the Custodian has agreed to so act as custodian, under the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein contained, the parties hereto agree as follows:
1. Certain Definitions . As used herein the following terms shall have the following meanings:
Accounts means the Trust Accounts.
Agreement means this Custody and Control Agreement.
Collections means has the meaning set forth in Section 2 .
Certificated Security has the meaning specified in Section 8-102(a)(4) of the UCC.
Class means any class of Notes of any Series.
Clearing Corporation has the meaning specified in Section 8-102(a)(5) of the UCC.
Clearstream means Clearstream, société anonyme, a corporation organized under the laws of the Grand Duchy of Luxembourg.
Clearstream Security means a security (as defined in Section 8-102(a)(15) of the UCC) that (i) is a debt or equity security and (ii) is capable of being transferred to the account of a custodian at Clearstream pursuant to Section 2(b ), whether or not such transfer has occurred.
Closing Date means September 25, 2003.
Collection Account means the account designated as such, established and owned by the Issuer and maintained in accordance with Section 8.2 of the Indenture.
Custodian has the meaning specified in the introduction hereto.
Default is defined in the Indenture.
Deposit Account has the meaning specified in Section 9-102(a)(29) of the UCC.
Entitlement Holder means a person identified in the records of the Custodian as the person having a Security Entitlement against the Custodian.
Entitlement Order means a notification communicated to the Custodian directing transfer or redemption of a Financial Asset to which the Entitlement Holder has a Security Entitlement, which prior to the receipt by the Custodian of a Notice of Exclusive Control (as defined in Section 4 ) from the Indenture Trustee shall be any Instruction with respect to the Accounts or the Property held pursuant to this Agreement, and in any event shall include an entitlement order as defined in Article 8 of the UCC.
Euroclear means Euroclear Bank S.A./N.V. Brussels office, as operator of the Euroclear system.
Euroclear Security means a security (as defined in Section 8-102(a)(15) of the UCC) that (i) is a debt or equity security and (ii) is capable of being transferred to the Custodians account at Euroclear pursuant to Section 2(b) , whether or not such transfer has occurred.
Event of Default is defined in the Indenture.
Excess Funding Account means the account designated as such, established and owned by the Issuer and maintained in accordance with Section 8.2 of the Indenture.
Financial Asset has the meaning specified in Section 8-102(a)(9) of the UCC.
FRB means a Federal Reserve Bank of the United States.
Government Security means a security issued or guaranteed by the United States of America or an agency or instrumentality thereof representing a full faith and credit obligation of the United States of America and, with respect to each of the foregoing, that is maintained in book-entry form on the records of an FRB.
Indenture means the Indenture dated as of September 25, 2003 between the Issuer and the Indenture Trustee.
Indenture Supplement has the meaning specified in the introduction hereto.
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Indenture Trustee means Deutsche Bank Trust Company Americas, not in its individual capacity but solely as Indenture Trustee under the Indenture, or any successor Indenture Trustee under the Indenture.
Instructions has the meaning specified in Section 11 .
Instruments has the meaning specified in Section 9-102(a)(47) of the UCC.
Issuer has the meaning specified in the introduction hereto.
Note Register has the meanings specified in Section 2.4 of the Indenture.
Noteholder means the Person in whose name a Note is registered on the Note Register or such other Person deemed to be a Noteholder in any related Indenture Supplement.
Notes means the Notes issued pursuant to the Indenture.
Notice of Exclusive Control has the meaning set forth in Section 4 .
Permitted Investments is defined in the Indenture.
Person means any individual, sole proprietorship, partnership, joint venture, unincorporated organization, trust, association, corporation (including a business trust), limited liability company, institution, public benefit corporation, joint stock company, governmental authority or any other entity of whatever nature.
Property means the property described in Section 2(a) .
Rating Agency is defined in the Indenture.
Rating Agency Condition is defined in the Indenture.
Securities has the meaning set forth in Section 2 .
Securities Account has the meaning specified in Section 8-501(a) of the UCC.
Securities Intermediary has the meaning specified in Section 8-102(a)(14) of the UCC.
Securities System has the meaning set forth in Section 5 .
Security Entitlement has the meaning specified in Section 8-102(a)(17) of the UCC.
Series means any series of Notes, which may include within any such Series a Class or Classes of Notes subordinate to another such Class or Classes of Notes.
Series Account means any deposit, trust, escrow or similar account maintained for the benefit of the Noteholders of any Series or Class, as specified in any Indenture Supplement.
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Servicer means Monogram Credit Card Bank of Georgia, in its capacity as the Servicer under the Servicing Agreement, or any other Person designated as a successor Servicer pursuant to the Servicing Agreement.
Servicing Agreement means the Servicing Agreement dated as of June 27, 2003, by and among the Servicer, RFS Funding Trust and the Issuer (upon its accession in accordance with the terms thereof).
Trust Accounts means any Series Account, the Collection Account or Excess Funding Account.
Trust Agreement means the Trust Agreement dated as of September 25, 2003, between RFS Holding, L.L.C. and the Issuer.
Trustee means The Bank of New York (Delaware), not in its individual capacity but solely in its capacity as trustee under the Trust Agreement.
UCC means the Uniform Commercial Code as in effect from time to time in the State of New York.
Uncertificated Security has the meaning specified in Section 8-102(a)(18) of the UCC.
2. Appointment of Custodian; Acknowledgement of Receipt of Property . (a) The Issuer hereby appoints the Custodian as custodian of the Permitted Investments and any other investments, promissory notes, bonds, securities agreements or other documents evidencing the Permitted Investments (collectively, the Securities), any Security Entitlement with respect to the Securities, all Permitted Investments and all cash and other property received by the Custodian with respect to any of the foregoing (collectively, Collections) pursuant to the terms and conditions set forth in this Agreement, and the Custodian hereby accepts such appointment. All of the foregoing property as to which the Custodian is appointed custodian pursuant to this Agreement is herein collectively called (the Property).
(b) The Custodian hereby acknowledges that in order to facilitate the perfection of the security interest granted by the Issuer to the Indenture Trustee under the Indenture, the Custodian shall hold all Property as specified in Section 2(c) and elsewhere herein and shall credit such Property as Financial Assets to the relevant Accounts.
(c) The Issuer shall cause all Property acquired by or on behalf of the Issuer to be transferred to the Custodian for credit to the applicable Account, and the Custodian shall credit such Property to the applicable Account, for the benefit of the Issuer as owner and the benefit of the Indenture Trustee as secured party or shall take or cause to be taken any and all other actions necessary to create in favor of the Indenture Trustee a valid and perfected, first-priority security interest granted to the Indenture Trustee under the Indenture in the Accounts and all Property credited to the Accounts, as follows:
(i) in the case of each Certificated Security or Instrument (other than a Government Security, Euroclear Security or Clearstream Security), by (A) causing the delivery of such Certificated Security or Instrument to the Custodian in bearer form or registered in the
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name of the Custodian or its nominee or indorsed to the Custodian or its nominee or in blank by an effective indorsement, (B) causing the Custodian to continuously identify on its books and records that such Certificated Security or Instrument is credited to the applicable Account and (C) causing the Custodian to maintain continuous possession of such Certificated Security or Instrument;
(ii) in the case of each Uncertificated Security (other than a Government Security, Euroclear Security or Clearstream Security), by (A) causing such Uncertificated Security to be continuously registered on the books of the issuer thereof to the Custodian and (B) causing the Custodian to continuously identify on its books and records that such Uncertificated Security is credited to the applicable Account;
(iii) in the case of each Euroclear Security and Clearstream Security, by (A) causing Euroclear or Clearstream, as the case may be, to credit such security to the Custodians Securities Account (or to the Securities Account of a Securities Intermediary acting in such capacity on behalf of the Custodian and which has credited such security to a Securities Account of the Custodian with such Securities Intermediary) at Euroclear or Clearstream, as the case may be, (B) causing the Custodian to continuously identify on its books and records that such Euroclear Security or Clearstream Security is credited to applicable Account as a Financial Asset, and (C) causing such Euroclear Security or Clearstream Security to be (1) continuously registered to Euroclear or Clearstream, as the case may be, and (2) continuously identified on the books and records of Euroclear or Clearstream, as the case may be, as credited to the Securities Account of the Custodian (or to the Securities Account of a Securities Intermediary acting in such capacity on behalf of the Custodian and which has credited such security to a Securities Account of the Custodian with such Securities Intermediary);
(iv) in the case of each Government Security, by (A) causing the crediting of such Government Security to a Securities Account of the Custodian at an FRB, (B) causing the Custodian to continuously identify on its books and records that such Government Security is credited to the applicable Account as a Financial Asset, and (C) causing the continuous crediting of such Government Security to a Securities Account of the Custodian at such FRB; and
(v) in the case of each Financial Asset not covered by the foregoing clauses (i) through (v), by causing the transfer of such Financial Asset to the Custodian in accordance with applicable law and regulation and causing the Custodian to credit such Financial Asset to the applicable Account;
(d) With respect to any Deposit Account as to which the Indenture Trustee is not the bank at which such Deposit Account is maintained, by causing such bank, the Issuer and the Indenture Trustee to enter into an agreement containing provisions substantially similar to the provisions of this Agreement relating to the Accounts; and
(e) With respect to any other Property that for any reason does not create a Security Entitlement at any time now or hereafter and which is held in or credited to the applicable Account, the Custodian hereby acknowledges that, for purposes of perfecting the security interest of the Indenture Trustee, it holds and will hold possession of such property as bailee for the Indenture Trustee in its capacity as secured party.
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3. The Accounts . (a) The Issuer agrees to establish and maintain the Trust Accounts at the Custodian according to Section 8.2 of the Indenture and the applicable Indenture Supplement. The Custodian further agrees that (i) each Trust Account is and shall at all times be maintained by the Custodian as a Securities Account in the Custodians trust department, (ii) the Custodian is acting and will act as a Securities Intermediary with respect to such Trust Account, and (iii) all of the Property accredited to such Trust Account shall be treated as Financial Assets.
(b) The Issuer acknowledges its responsibility as a principal for all of its obligations to the Custodian arising under or in connection with this Agreement, warrants its authority to deposit in the Accounts any Property received therefor by the Custodian and to give Instructions relative thereto. The Issuer further agrees that the Custodian shall not be subject to, nor shall its rights and obligations under this Agreement or with respect to the Accounts be affected by, any agreement between the Issuer and any other person, except as otherwise provided in this Agreement or unless otherwise agreed by Issuer and Custodian. If any Securities are held in a Securities System, as defined in Section 5 of this Agreement, the Custodian may deliver securities of the same class, issuer and amount in place of those deposited in the applicable Account.
(c) The Custodian shall hold and keep safe as custodian for the Accounts, on behalf of the Issuer, all Property in each Account. The crediting of Property to the Accounts shall result in Security Entitlements to such Property in favor of the Issuer, subject to the security interest of the Indenture Trustee as a secured party.
(d) All transactions involving the Property shall be executed or settled solely in accordance with Instructions, except that until the Custodian receives Instructions to the contrary, the Custodian will:
(i) collect all interest and dividends and all other income and payments, whether paid in cash or in kind, on the Property, as the same become payable and credit the same to the applicable Account;
(ii) present for payment all Securities held in an Account which are called, redeemed or retired or otherwise become payable and all coupons and other income items which call for payment upon presentation to the extent that the Custodian is actually aware based on notices received of such opportunities and hold the cash received in such Account pursuant to this Agreement;
(iii) (x) exchange Securities where the exchange is purely ministerial (including, without limitation, the exchange of temporary securities for those in definitive form and the exchange of warrants, or other documents of entitlement to securities, for the Securities themselves) and (y) when notification of a tender or exchange offer (other than ministerial exchanges described in (x) above) is received for such Account, use reasonable efforts to receive Instructions, provided that if such Instructions are not received in time for the Custodian to take timely action, no action shall be taken with respect thereto;
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(iv) execute on behalf of the Issuer for each Account, whenever the Custodian deems it appropriate, such ownership and other certificates as may be required to obtain the payment of income from the Property in the applicable Account; and
(v) appoint brokers and agents for any of the ministerial transactions involving the Securities described in (i) - (iv), including, without limitation, affiliates of the Custodian.
(e) The Custodian hereby acknowledges the security interest granted to the Indenture Trustee by the Issuer. The Custodian shall maintain all Property free of any lien, charge or claim of any kind in favor of the Custodian or any person claiming through the Custodian, and it will not assert any lien, encumbrance, claim or right of set-off against the Property, the Accounts or any Financial Assets carried in the Accounts or any credit balance in the Accounts, except as otherwise expressly permitted by this Agreement or the Indenture. The Custodian will not enter into any agreement other than this Agreement with any Person requiring the Custodians compliance with entitlement orders(as such term is defined in Article 8 of the UCC) concerning the Accounts originated by such Person without the prior written consent of the Issuer and the Indenture Trustee except as otherwise provided herein. The Custodian represents that no such agreement relating to the Property with any Person is now in effect.
4. Control . (a) In order to perfect the security interest of the Indenture Trustee in accordance with Sections 8-106 and 9-104 of the UCC, the Issuer expressly authorizes the Custodian to comply with Entitlement Orders issued by the Indenture Trustee or its authorized representatives with respect to any Securities Account, and to act upon the directions of the Indenture Trustee or its authorized representatives with respect to any Deposit Account or the disposition of any Property therein, in each case without the further consent of the Issuer or any other Person. Until such time as the Indenture Trustee delivers a written notice to the Custodian, substantially in the form of Exhibit A hereto, that the Indenture Trustee is thereby exercising exclusive control over such Account (a Notice of Exclusive Control), the Custodian shall make trades of Financial Assets held in the Accounts, or otherwise withdraw Property from the Accounts, at the direction of the Issuer or its authorized representatives, and comply with Entitlement Orders concerning the Accounts from the Issuer or its authorized representatives. The Indenture Trustee agrees with the Issuer that it will not deliver a Notice of Exclusive Control, or issue any directions with respect to any Deposit Account or the disposition of any Property therein, until a Default or Event of Default has occurred (including without limitation any Default or Event of Default resulting from the Issuers withdrawal of Property from an Account in violation of the terms of this Agreement or the Indenture). After the Custodian receives the Notice of Exclusive Control, the Custodian will promptly cease complying with Entitlement Orders or other directions concerning such Account (including any provision hereof regarding payments to the Issuer) originated by the Issuer or its representatives notwithstanding any contrary provision in this Agreement.
(b) Upon issuance by the Indenture Trustee of a Notice of Exclusive Control described in this Section 4 , the Indenture Trustee shall have exclusive control over the Accounts and without limitation the Indenture Trustee may (i) cause the name of the Accounts to be changed to reflect that the Indenture Trustee is the entitlement holder (as such term is defined in Article 8 of the UCC) of the Accounts as trustee on behalf of the Noteholders under the
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Indenture, or (ii) instruct that all Property be transferred to new accounts with the Custodian as to which the Indenture Trustee is the entitlement holder (as such term is defined in Article 8 of the UCC) of the Accounts as trustee on behalf of the Noteholders under the Indenture.
5. Use of Subcustodian . Custodian shall not maintain any Property in a custody account that has been established through another bank or trust company acting as subcustodian unless it is authorized to do so in writing by the Issuer and the Indenture Trustee and the Rating Agency Condition is satisfied.
6. Securities Systems . The Issuer authorizes and instructs the Custodian to maintain all Property directly in one of its branches or indirectly through custody accounts which have been established by the Custodian with the following other securities intermediaries a securities depository or clearing agency or system in which the Custodian participates (individually, a Securities System).
7. Use of Securities System . With respect to Property in an Account which is maintained by the Custodian through a Securities System in which it participates pursuant to Section 6 :
(a) The Custodian shall identify on its books such Property as being maintained for the account of the Custodian for its customers.
(b) The Custodians agreement with such Security System shall provide that Property deposited with a Securities System will be maintained in an account holding only assets for customers of the Custodian unless precluded by applicable law, rule or regulation.
(c) The Custodian shall provide to the Issuer, with a copy to the Servicer, any non-confidential report obtained by the Custodian on the Securities Systems accounting system, internal accounting control and procedures for safeguarding securities deposited in the Securities System.
It is understood and agreed that the Custodians agreement with a Securities System will be subject to the generally applicable rules and regulations of such Securities System, and that the Custodian shall not be liable for a breach of such agreement by such Securities System.
8. Records, Ownership of Property, Statements and Opinions of Independent Certified Public Accountants .
(a) The Property, whether maintained directly by the Custodian or indirectly through a Securities System as authorized in this Agreement, shall be clearly recorded on the Custodians books as (i) being owned by the Issuer and not the Custodian and (ii) subject to a security interest in favor of the Indenture Trustee. The Custodian shall keep accurate and detailed accounts of all investments, receipts, disbursements and other transactions for the Accounts. All accounts, books and records of the Custodian relating thereto shall be open to inspection and audit at all reasonable times during normal business hours upon reasonable prior written notice by any person designated by the Issuer. The Issuer shall reimburse the Custodian for its reasonable out-of-pocket expenses in connection with such inspection or audit in accordance with Section 15 .
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All such accounts shall be maintained and preserved in a form reasonably requested by the Issuer.
(b) At the request of the Issuer, the Custodian shall deliver to the Issuer, with a copy to the Servicer, the most recent non-confidential written report, if any, prepared by the Custodians independent certified public accountants with respect to the custodial services provided by the Custodian to its customers.
(c) The Issuer may elect to participate in any of the electronic on-line service and communications systems offered by the Custodian which can provide the Issuer, on a daily basis, with the ability to view on-line or to print a hard copy of various reports of any Accounts activity and of the Property. To the extent that such service shall include market values of any of the Securities, the Issuer hereby acknowledges that the Custodian now obtains and may in the future obtain information on such values from outside sources that the Custodian considers to be reliable and the Issuer agrees that the Custodian (i) does not verify nor represent or warrant either the reliability of such service nor the accuracy or completeness of any such information furnished or obtained by or through such service and (ii) shall be without liability in selecting and utilizing such service or furnishing any information derived therefrom.
(d) The Custodian shall issue a confirmation or safekeeping receipt to the Issuer for each Security received by the Custodian hereunder which identifies (as applicable) the issuer, the maturity date, the face amount and the coupon rate. The Custodian shall provide to the Issuer a custodial statement for each preceding month listing the Securities held in each Account. Such report shall include the principal amount of each Security or Financial Asset, as appropriate. The Issuer shall promptly review all such reports and shall promptly advise the Custodian of any error, omission or inaccuracy in same. In no event shall the Custodian be required to determine or report the market value of any Security.
9. Holding of Securities, Nominees, etc. In order to perfect the Indenture Trustees security interest in the Securities credited to the Accounts, the Securities shall at all times be held or maintained in the Custodians name or in the name of the Custodians nominee. Securities that are maintained through a Securities System will be maintained with the Securities System in an account holding only assets of the Custodians customers, unless prohibited by law, rule, or regulation. The Custodian may combine certificates representing Securities held in an Account with certificates of the same issue held by it as fiduciary or as a custodian. Securities maintained with a Securities System shall be maintained subject to the rules of that Securities System governing the rights and obligations among the Securities System and its participants.
10. Proxies, etc. If the Custodian shall receive any proxies, notices, reports or other communications relative to any of the Securities, the Custodian shall (within three Business Days after receipt by the Custodian) transmit to the Issuer, with a copy to the Servicer, or notify the Issuer of the receipt of, such proxies, notices, reports or other communications. Neither the Custodian nor its nominees or agents shall vote upon or in respect of any of the Securities in any Account, execute any form of proxy to vote thereon, or give any consent or take any action (except as provided in Sections 3 and 4 ) with respect thereto except upon the receipt of Instructions relative thereto.
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11. Instructions . (a) The term Instructions means instructions from the Issuer in respect of any of the Custodians duties hereunder which have been received by the Custodian at its address as shall have been furnished by the Custodian to the Issuer pursuant to the provisions hereof. All Instructions shall be communicated: (i) in writing (including, without limitation, facsimile transmission) signed or given by such one or more person or persons as the Issuer shall have from time to time authorized in writing to give the particular class of Instructions in question and whose name and (if applicable) signature and office address have been filed with the Custodian, or (ii) electronically through an electronic on-line service and communications system offered by the Custodian or other electronic instruction system acceptable to the Custodian, (iii) in such other form of instructions as the Issuer (with the consent of the Indenture Trustee) may from time to time authorize in writing and which the Custodian has agreed in writing to accept. The Custodian shall not act upon any oral Instructions from the Issuer or its authorized agents. The Custodian shall promptly provide notice to the Indenture Trustee of any Instructions received by it from the Issuer. The Custodian has the right to record any such oral Instructions, and the Issuer hereby consents to such recording.
(b) The Custodian shall have the right to assume in the absence of notice to the contrary from the Issuer or the Indenture Trustee, as the case may be, that any person whose name is on file with the Custodian pursuant to this Section 11 has been authorized by the Issuer or the Indenture Trustee, as the case may be, to give the Instructions in question and that such authorization has not been revoked. The Custodian may act upon and conclusively rely on, without any liability to the Issuer or any other person or entity for any losses resulting therefrom, any Instructions reasonably believed by it to be furnished by the proper person or persons as provided above.
(c) Instructions may relate to specific transactions or to types or classes of transactions, and may be in the form of standing instructions. Without limiting the foregoing:
(i) The Issuer may from time to time issue Instructions, in accordance with Section 11(a) , directing the Custodian to release any Security held in physical form to the Issuer or its designee. The Custodian is hereby authorized, upon written receipt of any such Instructions, to release any such Security to the Issuer or its designee. All Securities so released to any designee of the Issuer shall be held in trust for the benefit of the Issuer as owner and the Indenture Trustee as secured party. The Issuer or its designee shall return such Security to the Custodian when the Issuers need therefor no longer exists, unless the Security has been sold or liquidated by the Issuer. The Issuer shall notify the Custodian if such Security has been sold or liquidated, and the Custodian shall no longer have any duties, responsibilities or liability with respect to such Security.
(ii) Upon written notification from the Issuer and the Indenture Truste e , the Custodian shall return the Financial Assets and any other Property in the applicable Account to or at the direction of the Issuer. Any such delivery shall constitute a complete discharge of the Custodian from any and all further liability for such Financial Assets and Property hereunder.
(iii) Prior to the delivery of a Notice of Exclusive Control, the Issuer may give Instructions with respect to any vote to be taken upon or in respect of any of the Securities in any Account.
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12. Standard of Care . (a) The Custodian shall be responsible for the performance of only such duties as are set forth in this Agreement. The Custodian will act without negligence with respect to the safekeeping of Property in the Accounts and, except as otherwise expressly provided in this Agreement, in carrying out its obligations under this Agreement. The Custodian will give the Property in the Accounts equal care and safeguards as are afforded similar property owned by the Custodian.
(b) Absent negligence, the Custodian shall not be responsible for the title, validity or genuineness of any Property or other property or evidence of title thereto received by it or delivered by it pursuant to this Agreement and may rely and shall be protected in acting or refraining from acting on any written notice, request, waiver, consent or instrument believed by it to be genuine and to have been signed or presented by the proper party or parties. The Custodian shall have no duty to determine or inquire into the happening or occurrence of any event or contingency. The Custodian may consult with and obtain advice from legal counsel as to any provision hereof or its duties hereunder and shall be fully protected in acting on advice of such counsel. The Custodian may conclusively rely on, without liability for any loss resulting therefrom, any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed or furnished by the proper party or parties, including, without limitation, Instructions. The Issuer agrees to indemnify, defend and hold the Custodian, its officers, directors, employees and agents harmless from and against any and all losses, claims, damages, demands, expenses, costs, cause of action, judgments or liabilities that may be incurred by the Custodian, its officers, directors, employees and agents arising directly or indirectly out of or in connection with the Custodians acceptance or appointment as Custodian hereunder, including the legal costs and expenses as such expenses are incurred (including, without limitation, the expenses of any experts, counsel or agents) of investigating, preparing for or defending itself against any action, claim or liability in connection with its performance hereunder. In no event, however, shall issuer be obligated to indemnify the Custodian and save the Custodian harmless from any fees, expenses, charges and/or liabilities incurred by the Custodian as a result of its own willful misconduct, bad faith or negligence. Anything in this Agreement notwithstanding, in no event shall the Custodian be liable for special, indirect or consequential loss or damage of any kind whatsoever (including but not limited to lost of profits), even if the Custodian has been advised of such loss or damage and regardless of the form of action. The indemnification in favor of the Custodian in this Agreement shall survive any resignation or removal of the Custodian (to the extent of indemnified liabilities, costs, expenses and other indemnified amounts arising or incurred prior to, or arising as a result of actions or omissions occurring prior to, such resignation or removal).
(c) With respect to a Securities System, the Custodian shall only be responsible or liable for losses arising from employment of such Securities System caused by the Custodians own failure to act without negligence. In the event of any loss to the Issuer by reason of the failure of the Custodian to act without negligence, the Custodian shall be liable to the Issuer to the extent of the Issuers actual damages at the time such loss was discovered without reference to any special conditions or circumstances.
(d) In no event shall the Custodian be liable for any consequential or special damages. The Custodian shall have no liability for loss arising from any cause beyond its control, including but not limited to, the act, failure or neglect of any agent or correspondence
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selected by the Custodian for the remittance of funds; any delay, error, omission or default of any mail, telegraph, cable or wireless agency or operator; or the acts or edicts of any government or governmental agency or other group or entity exercising governmental powers.
(e) In the event the Issuer subscribes to an electronic on-line service and communications system offered by the Custodian, the Issuer shall be fully responsible for the security of the Issuers connecting terminal, access thereto and the proper and authorized use thereof and the initiation and application of continuing effective safeguards with respect thereto and agrees to defend and indemnify the Custodian and hold the Custodian harmless from and against any and all losses, damages, costs and expenses (including the fees and expenses of counsel) incurred by the Custodian as a result of any improper or unauthorized use of such terminal by the Issuer or by any others, unless the loss, damage, cost or expense is a result of the Custodians negligence or willful misconduct.
(f) All collections of funds or other property to be paid in respect of Property in an Account shall be made for the account of, and at the risk of, the Issuer, and the Custodian shall not be liable to the Issuer in the event that the obligor on any Property (other than Property issued by the Custodian) fails to make any payment due thereunder.
(g) Absent negligence, the Custodian shall have no liability for any loss occasioned by delay in the actual receipt of notice by the Custodian of any payment, redemption or other transaction regarding Property in an Account in respect of which the Custodian has agreed to take action as provided in Section 3 hereof. The Custodian shall not be liable for any loss resulting from, or caused by, acts of governmental authorities (whether de jure or de facto), including, without limitation, nationalization, expropriation and the imposition of currency restrictions; devaluations of or fluctuations in the value of currencies; changes in laws and regulations applicable to the banking or securities industry; market conditions that prevent the orderly execution of securities transactions or affect the value of Property; acts of war, terrorism, insurrection or revolution; strikes or work stoppages; the inability of a local clearing and settlement system to settle transactions for reasons beyond the control of the Custodian or hurricane, cyclone, earthquake, volcanic eruption, nuclear fusion, fission or radioactivity or other acts of God.
(h) The Custodian shall have no liability in respect of any loss, damage or expense suffered by the Issuer, insofar as such loss, damage or expense arises from the performance of the Custodians duties hereunder by reason of the Custodians reliance upon records that were maintained for the Issuer by entities other than the Custodian prior to the Custodians employment under this Agreement.
(i) The Custodian shall have no responsibility or liability to the Indenture Trustee for releasing any of the Property held in an Account at the direction of the Issuer or its authorized representatives in accordance with Section 11 hereof or, subject to Section 4 hereof, complying with Entitlement Orders concerning an Account from the Issuer or its authorized representatives, which are received by the Custodian before the Custodian receives a Notice of Exclusive Control from the Indenture Trustee or its authorized representatives. The Custodian shall have no responsibility or liability to the Issuer for complying with a Notice of Exclusive Control or complying thereafter with Entitlement Orders concerning an Account originated by the Indenture
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Trustee. The Custodian shall have no duty to investigate or make any determination as to whether a default or event of default exists under the Indenture, and shall comply with a Notice of Exclusive Control without investigation even if the Custodian receives a claim that no such default or event of default exists or believes that no such default or event of default exists. This Agreement does not create any obligation or duty on the part of the Custodian other than those expressly set forth herein. Upon receipt of a Notice of Exclusive Control with respect to an Account, the Custodian shall notify the Issuer, with a copy to the Servicer, of its receipt of such Notice of Exclusive Control. The Custodian may fully rely, and may take the actions herein set forth, notwithstanding any notice of dispute between the Indenture Trustee and the Issuer.
(j) The provisions of this Section shall survive termination of this Agreement.
13. No Additional Duties . The parties acknowledge and agree that the Custodian shall not have any additional duties other than those expressly provided herein . The Custodian has not reviewed the Indenture or the Servicing Agreement and shall have no responsibility or liability in respect thereof. Notwithstanding any other provisions of this agreement, the Custodian shall have no duty, obligation or liability to ensure compliance with any regulation or statute applicable to the Issuer.
14. Investment Limitations and Legal or Contractual Restrictions or Regulations . The Custodian shall not be liable to the Issuer and the Issuer agrees to indemnify the Custodian and its nominees, for any loss, damage or expense suffered or incurred by the Custodian or its nominees arising out of any violation of any investment restriction or other restriction or limitation applicable to the Issuer pursuant to any contract or any law or regulation, unless the loss, damage or expense is a result of the Custodians negligence or willful misconduct. The provisions of this Section 14 shall survive termination of this Agreement.
15. Fees and Expenses . The Custodian shall be entitled to receive such compensation for its services pursuant to this Agreement as may be mutually agreed upon by the Custodian and the Issuer in writing from time to time and the Custodians reasonable out-of-pocket or incidental expenses in connection with the performance of this Agreement, including (but without limitation) legal fees as described in this Agreement and/or deemed necessary in the judgment of the Custodian to keep safe or protect the Property in the Accounts. The Issuer hereby agrees to hold the Custodian harmless from any liability or loss resulting from any taxes or other governmental charges, and any expense related thereto, which may be imposed, or assessed with respect to any Property in the Accounts and also agrees to hold the Custodian, or its nominees harmless from any liability as a record holder of Property in the Accounts. The provisions of this Section shall survive the termination of this Agreement.
All fees and other amounts payable by the Issuer hereunder shall be paid by the Issuer to the Custodian by wire transfer or check on March 31 and September 30 of each year, beginning in March 2004, or if such day is not a business day, the following business day (each, a Remittance Date). With respect to each Remittance Date, the Custodian shall be paid the amounts shown on any invoice furnished by the Custodian to the Issuer, with a copy to the Servicer, no later than the 15 th day of the month prior to the month in which such Remittance Date occurs, which invoice shall be in reasonable detail, separately listing any expense, liability
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or loss (together with reasonable supporting documentation with respect to any expense, liability or loss).
16. Representations and Warranties .
(a) The Issuer hereby represents and warrants to the Custodian and the Indenture Trustee that:
(i) the employment of the Custodian and the allocation of fees, expenses and other charges to the Accounts as in this Agreement provided, is not prohibited by law or any governing documents or contracts to which it is subject;
(ii) the terms of this Agreement do not violate any obligation by which it is bound, whether arising by contract, operation of law or otherwise;
(iii) this Agreement has been duly authorized by appropriate action and when executed and delivered will be binding upon it in accordance with its terms; and
(iv) it will deliver to the Custodian such evidence of such authorization as the Custodian may reasonably require, whether by way of a certified resolution or otherwise.
(b) The Custodian hereby represents and warrants to the Issuer and the Indenture Trustee that:
(i) the terms of this Agreement do not violate any obligation by which it is bound, whether arising by contract, operation of law or otherwise;
(ii) this Agreement has been duly authorized by appropriate action and when executed and delivered will be binding upon it in accordance with its terms, except (i) as may be limited by bankruptcy, fraudulent conveyance, fraudulent transfer, insolvency, reorganization, liquidation, receivership, moratorium or other similar laws now or hereafter in effect relating to creditors rights generally, and by general equitable principles, regardless of whether considered in a proceeding in equity or at law and (ii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefore may be brought;
(iii) it will deliver to the Issuer such reasonable evidence of such authorization as the Issuer may reasonably require, whether by way of a certified resolution or otherwise;
(iv) (a) it is and will remain a securities intermediary within the meaning of such term in Section 8-102(a)(14) of Article 8 of the UCC, (b) it is and will remain a securities intermediary within the meaning of such term in 31 C.F.R. §357.2 (Regulations Governing Book-Entry Treasury Bonds, Notes and Bills) and (c) it has received a copy of this Agreement signed by the Issuer and the Indenture Trustee;
(v) each Account will be treated as a Securities Account;
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(vi) it is a bank or trust company located within the United States having a combined capital and surplus of at least $200,000,000 as set forth in its most recent published annual report of condition and its long-term unsecured debt obligations are rated at least BBB+ by S&P and Baa1 by Moodys;
(vii) it is not a clearing corporation (as such term is used in Section 8-102 of the UCC); and
(viii) it does not have notice (as such term is used in Section 8-105 of the UCC) of any right, title, interest or claim (including, without limitation, any adverse claim) by any Person other than the Indenture Trustee in or to any of the Property.
(c) The Indenture Trustee hereby represents and warrants to the Issuer and the Custodian that:
(i) the terms of this Agreement do not violate any obligation by which it is bound, whether arising by contract, operation of law or otherwise;
(ii) this Agreement has been duly authorized by appropriate action and when executed and delivered will be binding upon it in accordance with its terms except (i) as may be limited by bankruptcy, fraudulent conveyance, fraudulent transfer, insolvency, reorganization, liquidation, receivership, moratorium or other similar laws now or hereafter in effect relating to creditors rights generally, and by general equitable principles, regardless of whether considered in a proceeding in equity or at law and (ii) that the remedy of specific performance and injunctive and other forms of equitable relief may be subject to equitable defenses and to the discretion of the court before which any proceeding therefore may be brought;
(iii) it will deliver to the Issuer such reasonable evidence of such authorization as the Custodian may reasonably require, whether by way of a certified resolution or otherwise;
(iv) it is not a clearing corporation (as such term is defined in Section 8-105 of the UCC); and
(v) it does not have notice (as such term is used in Section 8-105 of the UCC) of any right, title, interest or claim (including, without limitation, any adverse claim) by any Person other than the Indenture Trustee in or to any of the Property.
17. No Petition . The Custodian, by entering into this Agreement, hereby covenants and agrees that it will not at any time institute against the Issuer or join in any institution against the Issuer of, any bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings, or other proceedings under any federal or state bankruptcy or similar law in connection with any obligations relating to this Agreement ; provided that nothing in this paragraph shall preclude, or be deemed to estop, the Custodian from taking any action prior to the expiration of the applicable preference period in any involuntary proceeding filed or commenced against the Issuer by a Person other than the Custodian or to otherwise limit any claims that the Custodian may have against the Issuer.
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18. Publicity . The Issuer shall furnish to the Custodian at its address for notice as set forth in Section 19 , prior to any distribution thereof, copies of any material prepared for distribution to any persons who are not parties hereto that refer in any way to the Custodian. The Issuer shall not distribute or permit the distribution of such materials if the Custodian reasonably objects in writing within ten (10) business days of receipt thereof (or such other time as may be mutually agreed) after receipt thereof. The provisions of this Section shall survive the termination of this Agreement.
19. Notices . Except as otherwise specifically provided for in this Agreement, all notices and other communications between the parties shall be (a) in writing and shall be either hand delivered or mailed by first class mail, postage prepaid, or sent by electronic facsimile or courier to the address below and (b) shall be deemed effective when received.
(a) If to the Issuer:
GE Capital Credit Card Master Note Trust
c/o General Electric Capital Corporation, as Administrator
1600 Summer Street, 4 th Floor
Stamford, CT 06927
Attention: Portfolio Manager
Telecopy: (203) 961-2593
Telephone: (203) 357-4328
(b) If to the Servicer:
Monogram Credit Card
Bank of Georgia
7840 Roswell Road
Bld. 100, Suite 210
Atlanta, Georgia 30350
Telecopy: (770) 353-2464
Telephone: (770) 353-5337
(c) If to the Custodian:
Deutsche Bank Trust Company Americas
60 Wall Street, 26 th Floor
MS NYC60-2606
New York, New York 10005
Attention: Corporate Trust & Agency Service
Telecopy: (212) 797-8606
Telephone: (212) 250-8522
(d) If to the Indenture Trustee:
Deutsche Bank Trust Company Americas
60 Wall Street, 26 th Floor
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MS NYC60-2606
New York, New York 10005
Attention: Corporate Trust & Agency Service
Telecopy: (212) 797-8606
Telephone: (212) 250-8522
Each party may change its address for purposes hereof by giving notice to the other parties in accordance with the provisions of this paragraph.
20. Amendment, Modifications, etc. No provision of this Agreement may be amended, modified or waived except in a writing signed by the parties hereto which satisfies the Rating Agency Condition. No waiver of any provision hereto shall be deemed a continuing waiver unless it is so designated. No failure or delay on the part of either party in exercising any power or right under this Agreement operates as a waiver, nor does any single or partial exercise of any power or right preclude any other or further exercise thereof or the exercise of any other power or right.
21. Term; Termination . (a) This Agreement may be terminated by the Issuer by an instrument in writing delivered or mailed, postage prepaid, to the Custodian and the Indenture Trustee (with a copy to the Rating Agencies), such termination to take effect on the date of such delivery or receipt by the Custodian; provided, however, that until a successor custodian shall have been appointed by the Issuer (which successor Custodian shall satisfy the Rating Agency Condition), and the Custodian shall have transferred the Financial Assets and other Property as provided below, this Agreement shall continue in full force and effect.
(b) This Agreement may be terminated by the Custodian by an instrument in writing delivered or mailed, postage prepaid, to the Issuer and the Indenture Trustee (with a copy to the Rating Agencies), such termination to take effect not sooner than (i) thirty (30) days after the date of such delivery or mailing if Deutsche Bank Trust Company Americas is being replaced as Indenture Trustee under the Indenture, or (ii) ninety (90) days after the date of such delivery or mailing; provided, however, that until a successor custodian shall have been appointed, which successor Custodian shall satisfy the Rating Agency Condition, and the Custodian shall have transferred the Property as provided below to such successor custodian, this Agreement shall continue in full force and effect. If such successor custodian is not appointed by the Issuer within ninety (90) days of the delivery by the Custodian of its notice of termination of this Agreement, the Indenture Trustee acting alone shall designate such successor custodian, in writing delivered to the Issuer and the Custodian, selected from among the ten largest commercial banks (in terms of deposit) in New York City or in accordance with the directions of a final order or judgment of a court of competent jurisdiction. If a successor custodian shall be appointed as herein provided upon termination of this Agreement, the Custodian shall transfer all Property to the designated account of the successor custodian physically or in the appropriate book-entry system, if feasible, and thereupon the Custodian shall be discharged from any and all further responsibility hereunder.
22. Assignments . The Custodian acknowledges that the Issuers rights under this Agreement have been pledged to the Indenture Trustee in its capacity as indenture trustee as security for the obligations of the Issuer described as secured obligations in the Indenture. From
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and after the date on which the Custodian receives a Notice of Exclusive Control, the Custodian agrees to perform its duties hereunder for the benefit of the Indenture Trustee and its successors and assigns and agrees that it will only accept instructions from the Indenture Trustee. Except as otherwise provided in the first sentence of this Section, this Agreement shall not be assignable by any party, except as otherwise provided in this Agreement, but shall bind the successors in interest of the Issuer and the Custodian.
23. Location of Custodian . Regardless of any provision in any such agreement, the state of New York shall be deemed to be Custodians location for the purposes of this Agreement and the perfection and priority of the Indenture Trustees security interest in the Accounts and the Financial Assets and other Property credited thereto.
24. Governing Law . THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED , THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 19 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTYS ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES
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WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
25. Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
26. Entire Agreement. This Agreement, together with all Schedules and Exhibits attached hereto, contain the entire agreement between the parties relating to the subject matter hereof and supersedes any oral statements and prior writings with respect thereto.
27. Headings . The headings of the paragraphs hereof are included for convenience of reference only and do not form a part of this Agreement.
28. Counterparts . This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but all such counterparts shall together constitute but one and the same instrument.
29. Agents . The Custodian hereby acknowledges that it has been advised that any agent of the Issuer may act on behalf of the Issuer hereunder for purposes of all consents, amendments, waivers and other actions permitted or required to be taken, delivered or performed by the Issuer, and the Indenture Trustee agrees that any such action taken by an agent on behalf of the Issuer shall satisfy the Issuers obligations hereunder.
30. Limitation of Liability . Notwithstanding any other provision herein or elsewhere, this Agreement has been executed and delivered by The Bank of New York (Delaware), not in its individual capacity, but solely in its capacity as Trustee of the Issuer, in no event shall The Bank of New York (Delaware) in its individual capacity have any liability in respect of the representations, warranties, or obligations of the Issuer hereunder or under any other document, as to all of which recourse shall be had solely to the assets of the Issuer, and for all purposes of this Agreement and each other document, the Trustee (as such or in its individual capacity) shall be subject to, and entitled to the benefits of, the terms and provisions of the Trust Agreement.
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IN WITNESS WHEREOF, each of the parties has caused its duly authorized signatories to execute this Agreement as of the date first written above.
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DEUTSCHE BANK TRUST COMPANY |
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AMERICAS, |
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as Custodian |
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By: |
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Susan Barstock |
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Custody and Control Agreement
S-1
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GE CAPITAL CREDIT CARD MASTER NOTE TRUST, |
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as Issuer |
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By: |
The Bank of New York (Delaware), not in its individual capacity, but solely as Trustee |
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/s/ William T. Lewis |
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William T. Lewis |
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Senior Vice President |
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DEUTSCHE BANK TRUST COMPANY |
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AMERICAS , |
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as Indenture Trustee |
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By: |
/s/ Susan Barstock |
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Name: |
Susan Barstock |
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Title: |
Vice President |
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EXHIBIT A
INDENTURE TRUSTEES NOTICE OF EXCLUSIVE CONTROL
, 200
TO:
Deutsche
Bank Trust Company Americas
[ ]
[ ]
Attention:
Re: Notice of Exclusive Control [ ] Account No. [ ]
Dear Sirs:
Pursuant to the provisions of the Custody and Control Agreement (the Agreement), dated as of September 25, 2003, among the undersigned as Indenture Trustee, GE Capital Credit Card Master Note Trust, as Issuer, and you as Custodian, the undersigned hereby gives notice of the exercise of exclusive control over the [ACCOUNT/ACCOUNT NO.]. Subject to the provisions of the Agreement, you are hereby instructed to transfer and credit on your books and records all Property in the [ACCOUNT/ACCOUNT NO.] [to an account in the name of the undersigned as the Entitlement Holder].
In accordance with the Agreement, you are hereby notified to cease complying with Entitlement Orders or other directions concerning the [ACCOUNT/ACCOUNT NO.] or the Financial Assets [and other Property] therein originated by the Issuer or its representatives.
All capitalized terms used herein without definition have the same meanings as are ascribed to such terms in the Agreement.
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Very truly yours, |
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DEUTSCHE
BANK TRUST COMPANY
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Indenture Trustee |
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EXHIBIT 4.9
RECEIVABLES SALE AGREEMENT
between
MONOGRAM CREDIT CARD BANK OF GEORGIA,
Seller,
and
RFS HOLDING, L.L.C.,
Buyer,
Dated as of June 27, 2003
TABLE OF CONTENTS
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Merger or Consolidation of, or Assumption of the Obligations of, Seller, etc. |
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GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL |
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SCHEDULES
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EXHIBITS
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Form of Assignment of Transferred Receivables in Additional Accounts |
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Form of Reassignment of Transferred Receivables in Removed Accounts |
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Form of Opinion of Counsel with Respect to Additional Accounts |
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ii
RECEIVABLES SALE AGREEMENT, dated as of June 27, 2003 (this Agreement ), between MONOGRAM CREDIT CARD BANK OF GEORGIA, a bank organized under the laws of the state of Georgia, as Seller ( Seller ) and RFS HOLDING, L.L.C., a Delaware limited liability company, as Buyer ( Buyer ).
In consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions
Account means each Initial Account and each Additional Account, but excludes any Account all of the Receivables in which are either reassigned or assigned to Seller or its designee in accordance with this Agreement, and any Accounts which in accordance with the Sellers customary practices have been removed from Sellers computer records due to lack of activity. The term Account includes each account into which an Account is transferred (a Transferred Account ) so long as (a) such transfer is made in accordance with the Credit and Collections Policies, and (b) such Transferred Account can be traced or identified, by reference to or by way of any Account Schedule delivered to Buyer pursuant to this Agreement, as an account into which an Account has been transferred. Notwithstanding the foregoing, no account in a Dual Card Program shall be deemed to be a Transferred Account with respect to any Account in a Private Label Program. Any Account in which the Principal Receivables have become Charged-Off Receivables shall cease to be an Account for all purposes other than the calculation of Recoveries, and no existing balance or future charges on such account shall be deemed to be Transferred Receivables notwithstanding any subsequent reaffirmation of such account by the Obligor and any resulting action by Originator. The term Account includes an Additional Account only from and after its Addition Date and includes any Removed Account only prior to its Removal Date. To avoid doubt, and without limiting the foregoing, each Flagged Account is an Account.
Accounting Changes means, with respect to any Person, (a) changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion of the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or any successor thereto or any agency with similar functions); (b) changes in accounting principles concurred by such Persons certified public accountants; (c) purchase accounting adjustments under A.P.B. 16 or 17 and EITF 88-16, and the application of the accounting principles set forth in FASB 109, including the establishment of reserves pursuant thereto and any subsequent reversal (in whole or in part) of such reserves; and (d) the reversal of any reserves established as a result of purchase accounting adjustments.
Account Schedule means a computer file or microfiche list containing a true and complete list of Accounts, identified by account number (or by an alpha-numeric identifier that uniquely and objectively identifies the applicable account number pursuant to a protocol that has been provided to the Buyer) and setting forth the receivables balance for each as of (i) the applicable Addition Cut-Off Date, in the case of an Account Schedule relating to Additional Accounts, (ii) the Removal Notice Date, in the case of an Account Schedule relating to Removed Accounts or (iii) the date specified therein, in the case of any Account Schedule relating to Transferred Accounts or any other Account Schedule. Notwithstanding the foregoing, the initial Account Schedule does not set forth receivables balances, and any failure to set forth receivables balances in such a file or list shall not impair the files or lists effectiveness as an Account Schedule.
Addition Cut-Off Date means the date as of which any credit card accounts are designated to be included as Additional Accounts, as specified in the related Assignment.
Addition Date means, as to any Additional Account, the date as of which Receivables outstanding in such Additional Account are first sold to Buyer, as specified in the related Assignment.
Additional Accounts is defined in Section 2.6(a) .
Additional Retailer means any retailer for which Seller maintains a Private Label Program, a Dual Card Program or both, which retailer is designated as an Additional Retailer in accordance with Section 2.6(d) .
Affiliate means, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, five percent (5%) or more of the securities having ordinary voting power in the election of directors of such Person, (b) each Person that controls, is controlled by or is under common control with such Person, or (c) each of such Persons officers, directors, joint venturers and partners. For the purposes of this definition, control of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
Aggregate Reassignment Amount means, for any reassignment of the Transferred Receivables pursuant to Section 6.1(f) , the aggregate outstanding amount of Transferred Receivables (including Principal Receivables and Finance Charge Receivables) as of the end of the last preceding Monthly Period; provided that in no event shall the Aggregate Reassignment Amount be less than the sum of the amounts specified pursuant to the Indenture and the Payoff Amount specified (and as defined in) the Funding Agreement.
Agreement is defined in the preamble.
Agreement Termination Date is defined in Section 7.4 .
Assignment is defined in Section 2.6(c) .
2
Authorized Officer means, with respect to any corporation or statutory trust, the Chairman or Vice-Chairman of the Board, the President, any Vice President, the Secretary, the Treasurer, any Assistant Secretary, any Assistant Treasurer and each other officer of such corporation or trustee of such trust specifically authorized in resolutions of the Board of Directors of such corporation or trustee of such trust to sign agreements, instruments or other documents on behalf of such corporation or statutory trust in connection with the transactions contemplated by the Related Documents.
Average Recovery Price Ratio means, as of any date, for any Retailer, the average for the twelve preceding fiscal months of the percentage equal to a fraction, the numerator of which is the total amount of recoveries on related receivables for the applicable fiscal month and the denominator of which is the aggregate amount of charged-off receivables for such fiscal month, in each case for all serviced receivables in that Retailers program. For purposes of the foregoing, recoveries and charged-off receivables shall have the same meaning as Recoveries and Charged-Off Receivables, respectively, but as applied to all serviced receivables in a particular Retailers program, rather than only Transferred Receivables. Seller and Buyer may from time to time modify the formula to calculate Average Recovery Price Ratio in order to more closely approximate the actual Recoveries on Transferred Receivables.
Banana Republic Program Agreement means that certain Amended and Restated Consumer Credit Card Program Agreement, dated as of August 29, 2000, by and among Gap, Inc. and Originator.
Banana Republic Retailers means Gap, Inc. d/b/a Banana Republic and its permitted assigns under the Banana Republic Program Agreement.
Bankruptcy Event means, as to any Person, any of the following events: (a) a case or proceeding shall have been commenced against such Person seeking a decree or order in respect of such Person (i) under any Debtor Relief Law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Persons assets, or (iii) ordering the winding-up or liquidation of the affairs of any such Person; or (b) such Person shall (i) file a petition seeking relief under any Debtor Relief Law, (ii) consent or fail to object in a timely and appropriate manner to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Person or for any substantial part of such Persons assets, (iii) make an assignment for the benefit of creditors, or (iv) take any corporate or statutory trust action in furtherance of any of the foregoing.
Business Day means any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in the State of New York, the State of Connecticut or the state of Servicers principal place of business (currently Georgia).
Buyer is defined in the preamble.
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Charged-Off Receivable means a Principal Receivable (or any portion thereof) arising in an Account which either (a) is 180 days past due or (b) has otherwise been written off as uncollectible in accordance with the Credit and Collection Policies. To avoid doubt, a Principal Receivable shall become a Charged-Off Receivable upon the earlier of the events described in clause (a) or clause (b) to occur with respect to the related Account.
Closing Date means June 27, 2003.
Collections means, for any Receivable for any period, (a) the sum of all amounts, whether in the form of cash, checks, drafts, or other instruments, received by Originator or Servicer in payment of, or applied to, any amount owed by an Obligor on account of such Receivable during such period, including all amounts received on account of such Receivable, all other fees and charges, (b) cash proceeds of Related Security with respect to such Receivable and (c) any in-store payments received by a Retailer, Servicer or Originator with respect to such Receivable.
Contract means the agreement and Federal Truth in Lending Statement for credit card accounts between any Obligor and Originator, as such agreements may be amended, modified, or otherwise changed from time to time.
Credit and Collection Policies means, with respect to each credit card program from which Accounts are drawn, Originators policies and procedures relating to the operation of such credit card program, including the policies and procedures for determining the creditworthiness of Obligors and the extension of credit to Obligors, and relating to the maintenance of credit card accounts and collection of credit card receivables, as such policies and procedures may be amended from time to time.
Credit Card Program Agreement means one or more agreements between Originator and a Retailer pursuant to which Originator provides a Private Label Program or Dual Card Program or both to the Retailer and its customers.
Daily Sale Commencement Date is defined in the Trust Receivables Purchase Agreement.
Date of Processing means, as to any transaction, the Business Day on which the transaction is first recorded on Servicers computer file of consumer revolving accounts (without regard to the effective date of such recordation).
Debtor Relief Laws means Title 11 of the United States Code, the Federal Deposit Insurance Act and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, readjustment of debt, marshalling of assets or similar debtor relief laws of the United States, any state or any foreign country from time to time in effect, affecting the rights of creditors generally.
Dual Card Program means any arrangement in which Originator agrees to extend general purpose credit card accounts to customers of a Retailer, which accounts
4
combine a private label credit line for use at the Retailers retail establishments or in its catalogue sales business and a general purpose credit line for use elsewhere.
Eligible Account means a credit card account that (x) in the case of any Initial Account, satisfied each of the requirements below as of the date that such account was first designated as a Designated Account under (and as defined in) the Prior Transfer Agreement and (y) in the case of any Additional Account, satisfies each of the requirements below as of the applicable Addition Cut-Off Date:
(a) the account (i) is established or acquired by Originator pursuant to a Retailers Credit Card Program Agreement or is otherwise established or acquired by Originator and (ii) is in existence and is serviced by Servicer or any Sub-Servicer;
(b) the account has not been cancelled;
(c) the account is payable in United States dollars;
(d) the account is not a closed-end account;
(e) except as provided below, the account has not been identified as an account (i) the credit cards for which have been reported to Originator as lost or stolen or (ii) the Obligor of which is the subject of a bankruptcy proceeding;
(f) none of the Receivables in the account have been, sold, pledged, assigned or otherwise conveyed to any Person, unless any such pledge or assignment is released on or before the Closing Date or the Addition Date, as applicable;
(g) except as provided below, none of the Receivables in the account are Charged-Off Receivables or have been identified by Originator, or by the relevant Obligor to Originator, as having been incurred as a result of fraudulent use of a credit card;
(h) the account has an Obligor who has provided as his or her most recent billing address, an address located in the United States or a United States military address;
(i) none of the Receivables in the account is an obligation of the United States, any state or agency or instrumentality or political subdivision thereof; and
(j) the account satisfies any additional requirements agreed upon between Seller and Buyer from time to time.
Notwithstanding the foregoing, Eligible Accounts may include accounts, the receivables in which have been written off as uncollectible, or as to which Originator believes the related Obligor is bankrupt and certain receivables that have been identified by the Obligor as having been incurred as a result of fraudulent use of credit cards or any credit
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cards have been reported to Originator as lost or stolen, so long as (1) the balance of all receivables included in such accounts is reflected on the books and records of Originator (and is treated for purposes of the Related Documents) as zero and (2) charging privileges with respect to all such accounts have been canceled and are not reinstated.
Eligible Receivable means a Receivable:
(a) that has arisen under an Eligible Account;
(b) that was created in compliance with the Credit and Collection Policies and all Requirements of Law applicable to Originator the failure to comply with which would have a material adverse effect on Buyer or any of its creditors, and pursuant to a Credit Card Program Agreement that complies with all Requirements of Law applicable to Originator, the failure to comply with which would have a material adverse effect on Buyer or its assigns;
(c) with respect to which all consents, licenses, approvals or authorizations of, or registrations with, any Governmental Authority required to be obtained or made by Originator in connection with the creation of such Receivable or the execution, delivery and performance by Originator of the related Credit Card Program Agreement, have been duly obtained or made and are in full force and effect as of the date of creation of such Receivable, but failure to comply with this clause (c) shall not cause a Receivable not to be an Eligible Receivable if, and to the extent that, the failure to so obtain or make any such consent, license, approval, authorization or registration would not have a material adverse effect on Buyer or its assigns;
(d) as to which, at the time of its transfer to Buyer, Seller or Buyer will have good and marketable title free and clear of all Liens (other than Permitted Encumbrances);
(e) that is the subject of a valid transfer and assignment (or the grant of a security interest) from Seller to Buyer of all Sellers right, title and interest therein;
(f) that at and after the time of transfer to Buyer is the legal, valid and binding payment obligation of the Obligor thereof, legally enforceable against such Obligor in accordance with its terms, except as enforceability may be limited by applicable Debtor Relief Laws, and by general principles of equity (whether considered in a suit at law or in equity);
(g) that constitutes an account within the meaning of UCC Section 9-102;
(h) as to which, at the time of its transfer to Buyer, Seller has not taken any action which, or failed to take any action the omission of which, would, at the time of transfer to Buyer, impair Buyers rights therein;
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(i) that, at the time of its transfer to Buyer, has not been waived or modified except as permitted by this Agreement;
(j) that, at the time of its transfer to Buyer, is not subject to any right of rescission, setoff, counterclaim or any other defense of the Obligor (including the defense of usury), other than defenses arising out of Debtor Relief Laws 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 Seller makes an adjustment pursuant to Section 2.5 ;
(k) as to which, at the time of its transfer to Buyer, Seller has satisfied all obligations to be fulfilled at the time it is transferred to Buyer; and
(l) that qualifies as a permitted asset within the meaning of Section 860L(c) of the Internal Revenue Code of 1986; provided , that this clause (l) shall cease to apply if at any time the Transferred Receivables are no longer part of a financial asset securitization investment trust, within the meaning of Section 860L.
Finance Charge Receivables means Receivables created in respect of periodic finance charges, late fees, returned check fees and all other similar fees and charges billed or accrued and unpaid on an Account.
Flagged Account is defined in Section 2.1(b) .
GAAP means generally accepted accounting principles in the United States of America in effect from time to time.
Gap Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. and Seller.
Gap Retailers means Gap, Inc. and its permitted assigns under the Gap Program Agreement.
GE Capital means General Electric Capital Corporation, a Delaware corporation.
GECAF Retailer means each retailer who is from time to time a party to a dealer agreement with Seller relating to Sellers GECAF private label credit card program.
Governmental Authority means any nation or government, any state or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Inactive Account is defined in Section 2.7(c) .
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Indenture means the master indenture to be entered into between the Issuer and an indenture trustee.
Ineligible Receivable is defined in Section 6.1(d) .
Initial Account means each open end credit card account identified in the Account Schedule delivered in connection with the execution and delivery of this Agreement.
Insurance Proceeds means any amounts payable to Seller pursuant to any credit insurance policies covering any Obligor with respect to Receivables under such Obligors Account.
Involuntary Removal is defined in Section 2.7(b) .
Issuer means GE Capital Credit Card Master Note Trust, a Delaware statutory trust.
JCPenney Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of December 6, 1999, by and between J.C. Penney Company, Inc. and Seller.
JCPenney Retailers means J.C. Penney Company, Inc. and other Authorized Entities as such term is defined in the J.C. Penney Program Agreement.
Lien means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction).
Litigation means, with respect to any Person, any action, claim, lawsuit, demand, investigation or proceeding pending or threatened against such Person before any court, board, commission, agency or instrumentality of any federal, state, local or foreign government or of any agency or subdivision thereof or before any arbitrator or panel of arbitrators.
Lowes Retailers means each of Lowes Companies, Inc., Lowes Home Centers, Inc., The Contractor Yard, Inc., Lowes HIW, Inc. and certain of their affiliates.
Material Adverse Effect means a material adverse effect on (a) the ability of Seller to perform any of its obligations under the Related Documents in accordance with the terms thereof, (b) the validity or enforceability of any Related Document or the rights and remedies of Seller or Buyer under any Related Document or (c) the Transferred Receivables, the Contracts therefor or the ownership interests or Liens of Seller or Buyer thereon or the priority of such interests or Liens.
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Montgomery Ward means Montgomery Ward & Co., Incorporated.
Monthly Period means each period beginning on the 22 nd day of one calendar month and ending on the 21 st day of the next calendar month; except that the Monthly Period that ends in July 2003 shall begin on June 19, 2003 and shall end on July 21, 2003.
Obligor means, with respect to any Receivable, any Person obligated to make payments in respect thereof.
Officers Certificate means, with respect to any Person, a certificate signed by an Authorized Officer of such Person.
Old Navy Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. d/b/a Old Navy and Seller.
Old Navy Retailers means Gap, Inc. d/b/a Old Navy and its permitted assigns under the Old Navy Program Agreement.
Opinion of Counsel means a written opinion of counsel, who may be counsel for, or an employee of, the Person providing the opinion.
Originator means Seller or any other originator so designated pursuant to Section 2.9 .
Outstanding Balance means, with respect to any Principal Receivable: (a) as of the Transfer Date for that Principal Receivable, the outstanding amount of such Principal Receivable as reflected on Servicers books and records; and (b) thereafter, the amount referred to in clause (a) minus Collections with respect to that Principal Receivable that are allocable to a reduction of the Outstanding Balance thereof minus any subsequent discounts to or any other modifications that reduce such Outstanding Balance; provided , that the Outstanding Balance of a Charged-Off Receivable shall equal zero.
Participation Interest is defined in Section 2.6(b) .
Payment Date means, except as otherwise specified in any supplement to the Indenture, the 15 th day of each calendar month, or if the 15 th day is not a Business Day, the next Business Day.
Permitted Encumbrances means the following encumbrances: (a) Liens for taxes or assessments or other governmental charges not yet due and payable; (b) inchoate and unperfected workers, mechanics, suppliers or similar Liens arising in the ordinary course of business; and (c) presently existing or hereinafter created Liens in favor of, or created by, Buyer.
Person means any individual, sole proprietorship, partnership, joint venture, unincorporated organization, trust, association, corporation (including a business trust),
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limited liability company, institution, public benefit corporation, joint stock company, Governmental Authority or any other entity of whatever nature.
Principal Collections means that portion of Collections attributable to Principal Receivables. Amounts paid by Seller pursuant to Section 2.5 shall be deemed to be Principal Collections.
Principal Receivable means each Receivable, other than a Finance Charge Receivable.
Prior Transfer Agreement means that certain Third Amended and Restated Receivables Transfer Agreement dated as of September 25, 1997, amended and restated as of July 22, 1998, as of March 22, 2001 and as of December 30, 2002, between Originator and RFS Funding Trust.
Private Label Program means a business arrangement in which Originator agrees to extend open end credit card accounts to customers of a Retailer and such Retailer agrees to allow purchases to be made at its retail establishments, or in its catalogue sales business, under such accounts.
Purchase Date means the Closing Date and (a) prior to the Daily Sale Commencement Date, the last day of each Monthly Period and (b) thereafter, each Business Day.
Purchase Price is defined in Section 2.4(a) .
Rating Agency is defined in the Trust Receivables Purchase Agreement or the Transfer Agreement, as applicable.
Reassignment is defined in Section 2.7(a) .
Receivable means any amount owing by an Obligor under an Account from time to time.
Records means all Contracts and other documents, books, records and other information (including computer programs, tapes, disks, data processing software and related property and rights) prepared and maintained by Originator, Servicer, or any Sub-Servicer with respect to the Transferred Receivables and the Obligors thereunder.
Recoveries means, with respect to any Transferred Receivable: (a) Collections of such Transferred Receivable received after such Transferred Receivable was charged off as uncollectible but before any sale or other disposition of such Transferred Receivable after charge off; and (b) any proceeds from such a sale or other disposition of such a charged-off Transferred Receivable, in each of clauses (a) and (b) net of expenses of recovery.
Related Documents means this Agreement, the Trust Receivables Purchase Agreement, the Transfer Agreement, the Trust Agreement, the Servicing Agreement, the
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Indenture and all other pledges, powers of attorney, consents, assignments, contracts, notices, and all other written matter whether heretofore, now or hereafter executed by or on behalf of any Person, or any employee of any Person, and delivered in connection with any of the foregoing or the transactions contemplated thereby.
Related Security means with respect to any Receivable: (a) all of Originators interest, if any, in the goods, merchandise (including returned merchandise) or equipment, if any, the sale of which gave rise to such Receivable; (b) all guarantees, insurance or other agreements or arrangements of any kind from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise; and (c) all Records relating to such Receivable.
Removed Accounts is defined in Section 2.7(a) .
Removal Date is defined in Section 2.7(a) .
Removal Notice Date is defined in Section 2.7(a) .
Requirements of Law means, as to any Person, the certificate of incorporation or articles of association 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.
Retailer means the Banana Republic Retailers, the Gap Retailers, the GECAF Retailers, Home Depot U.S.A., Inc., JCPenney Retailers, the Lowes Retailers, Montgomery Ward, the Old Navy Retailers, the Sams Club Retailers, the Wal-Mart Retailers and from time to time, any Additional Retailer designated pursuant to (and as defined in) the Trust Receivables Purchase Agreement. It is understood and agreed that (a) additional retailers who from time to time become GECAF Retailers shall automatically be treated as Retailers with respect to Sellers GECAF program without the necessity of complying with the terms of Section 2.6(d) and (b) any Person designated as a Retailer shall cease to be included as a Retailer if the Accounts related to that Person are designated as Removed Accounts pursuant to Section 2.7(b) , effective at the time that the repurchase of the related Transferred Receivables is completed.
RFS Funding Trust means RFS Funding Trust, a Delaware statutory trust.
RFS Funding Trust Termination Date means the date on which the RFS Funding Trust is terminated pursuant to the Trust Agreement.
Sams Club Program Agreement means that certain Third Amended and Restated Consumer Credit Card Program Agreement, dated as of February 1, 1999, by and among Wal-Mart Stores, Inc., Sams West, Inc., Sams East, Inc. and Seller.
Sams Club Retailers means Sams West, Inc., a Delaware corporation, Sams East, Inc., a Delaware corporation, and their respective successors and permitted assigns under the Sams Club Program Agreement.
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Seller means Monogram Credit Card Bank of Georgia or any additional Person designated as a Seller in accordance with Section 2.8 .
Servicer means Originator, in its capacity as Servicer under the Servicing Agreement, or any other Person designated as a successor servicer pursuant to the Servicing Agreement.
Servicing Agreement means the Servicing Agreement dated as of June 27, 2003, among Servicer, RFS Funding Trust and, upon its accession as provided therein, the Issuer.
Sub-Servicer means any Person with whom Servicer enters into a Sub-Servicing Agreement.
Sub-Servicing Agreement means any written contract entered into between Servicer and any Sub-Servicer relating to the servicing, administration or collection of the Transferred Receivables.
Subsidiary means, with respect to any Person, any corporation or other entity (a) of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned by such Person or (b) that is directly or indirectly controlled by such Person within the meaning of control under Section 15 of the Securities Act.
Transfer Agreement means the Transfer Agreement to be entered into between Buyer and the Issuer.
Transfer Date means a date on which Buyer acquires Transferred Receivables from Seller pursuant to Section 2.1 or any Assignment.
Transferred Account is defined within the definition of Account.
Transferred Assets is defined in Section 2.1 .
Transferred Receivable means any Receivable purchased by Buyer from Seller pursuant to this Agreement or any Assignment, including Principal Receivables and Finance Charge Receivables that exist at the time of purchase of any Principal Receivables in the same Account or that arise in an Account after the date of purchase of Principal Receivables in the Account. However, Receivables that are repurchased by Seller pursuant to this Agreement or purchased by Servicer pursuant to the Servicing Agreement shall cease to be considered Transferred Receivables from the date of such purchase.
Trust Agreement means the Amended and Restated Trust Agreement dated as of December 19, 2002 among Buyer, General Electric Capital Services, Inc., and Deutsche Bank Trust Company Delaware, as trustee, as amended and restated on June 27,
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2003, among Buyer, RFS Holding, Inc. (as assignee of General Electric Capital Services, Inc.) and Deutsche Bank Trust Company Delaware, as trustee.
Trust Receivables Purchase Agreement means the Receivables Purchase and Contribution Agreement dated as of June 27, 2003, between Buyer and RFS Funding Trust.
UCC means, with respect to any jurisdiction, the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in such jurisdiction.
United States means the United States of America, together with its territories and possessions.
Wal-Mart Program Agreement means that certain Consumer Credit Card Program Agreement dated as of August 26, 1999, by and between Wal-Mart Stores, Inc. and Seller.
Wal-Mart Retailers means Retailer as such term is defined in the Wal-Mart Program Agreement.
Section 1.2 Other Interpretive Matters . All terms defined directly or by incorporation in this Agreement shall have the defined meanings when used in any certificate or other document delivered pursuant thereto unless otherwise defined therein. For purposes of this Agreement and all related certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; and unless otherwise provided, references to any month, quarter or year refer to a fiscal month, quarter or year as determined in accordance with the GE Capital fiscal calendar; (b) terms defined in Article 9 of the UCC as in effect in the applicable jurisdiction and not otherwise defined in this Agreement are used as defined in that Article; (c) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (d) the words hereof, herein and hereunder and words of similar import refer to this Agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of this Agreement (or such certificate or document); (e) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Agreement (or the certificate or other document in which the reference is made), and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (f) the term including means including without limitation; (g) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (h) references to any agreement refer to that agreement as from time to time amended, restated or supplemented or as the terms of such agreement are waived or modified in accordance with its terms; and (i) references to any Person include that Persons successors and permitted assigns.
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ARTICLE II
SALES
Section 2.1 Sales . (a) By execution of this Agreement, Seller does hereby transfer, assign, set over and otherwise convey to Buyer, without recourse except as provided herein, all its right, title and interest in, to and under, (i) the Receivables existing at the opening of business on the Closing Date, and thereafter created from time to time until the Agreement Termination Date (excluding, however, any Receivables existing on the Closing Date or thereafter arising in any Account relating to Montgomery Ward or to Sellers currently existing program for Home Depot U.S.A., Inc.), together with the Related Security and Collections with respect thereto and related Recoveries, in each case together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto, (ii) without limiting the generality of the foregoing or the following, all of Sellers rights to receive payments from any Retailer on account of in-store payments and any other amounts received by such Retailer in payment of Receivables and (iii) all proceeds of all of the foregoing (collectively, the Transferred Assets ). The foregoing does not constitute and is not intended to result in the creation or assumption by Buyer of any obligation of Originator, Seller or any other Person in connection with the Accounts or the Transferred Receivables or under any agreement or instrument relating thereto, including any obligation to Obligors, merchant banks, Retailers, clearance systems or insurers. The foregoing conveyance shall be effective (x) on the Closing Date, as to all Transferred Assets then existing, (y) thereafter until the Daily Sale Commencement Date, on each Purchase Date, as to all Transferred Assets arising since the prior Purchase Date and (z) from and after the Daily Sale Commencement Date, instantaneously upon the creation of each Transferred Asset.
(b) Seller agrees, at its own expense, (i) on or prior to (x) the Closing Date, in the case of the Initial Accounts, (y) the applicable Addition Date, in the case of Additional Accounts, and (z) the applicable Removal Date, in the case of Removed Accounts, to indicate, or cause to be indicated, in the appropriate computer files that Receivables created (or reassigned, in the case of Removed Accounts) in connection with the Accounts have been conveyed to Buyer pursuant to this Agreement (or conveyed to Seller or its designee in accordance with Section 2.7 , in the case of Removed Accounts) by including, or causing to be included, in such computer files a code so identifying each such Account (or, in the case of Removed Accounts, deleting, or causing to be deleted, such code thereafter) and (ii) on or prior to the date referred to in clauses (i)(x) , (y) or (z) , as applicable, to deliver to Buyer an Account Schedule. The initial such Account Schedule, as supplemented from time to time to reflect Additional Accounts and Removed Accounts, shall be marked as Schedule 1 to this Agreement and is hereby incorporated into and made a part of this Agreement. Once the code referenced in clause (i) of this paragraph has been included with respect to any Account, Seller further agrees not to permit such code to be altered during the remaining term of this Agreement unless and until (x) such Account becomes a Removed Account, or (y) Seller shall have delivered to Buyer at least 30 days prior written notice of its intention to do so and has taken such action as is necessary or advisable to cause the interest of Buyer in the
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Transferred Receivables to continue to be perfected with the priority required by this Agreement. At any time that the code referenced in clause (i) is included with respect to any account, such account shall be a Flagged Account .
(c) As long as Seller continues to act as Servicer, Seller agrees to service, as servicer for the Buyer, Charged-Off Receivables (and Finance Charge Receivables arising in the same Accounts as such Charged-Off Receivables) that Buyer repurchases pursuant to the Trust Receivables Purchase Agreement or the Transfer Agreement. Such servicing shall be carried out in accordance with the standards of care specified in the Servicing Agreement, and the compensation received by Seller as Servicer under the Servicing Agreement shall also be deemed to compensate Seller for its activities as servicer described in this paragraph. For administrative convenience, and as long as the servicing arrangement described above remains in effect, Buyer shall be allocated Recoveries for each Monthly Period as follows: separately for each Retailer, the Average Recovery Price Ratio for such Retailer multiplied by the aggregate Outstanding Balance (immediately prior to charge-off) of Principal Receivables in that Retailers program that became Charged-Off Receivables during such Monthly Period. At or before the first time that any accounts relating to a Dual Card Program are designated as Additional Accounts, Buyer and Seller shall agree whether the foregoing calculation will be performed separately for the Accounts in that Dual Card Program and for Accounts in the related Private Label Program.
(d) If any accounts arising in one or more Dual Card Programs are designated as Additional Accounts, Buyer and Seller may enter an agreement supplemental to this Agreement specifying the portion (if any) of interchange revenue relating to such accounts that is to be transferred from Buyer to Seller.
Section 2.2 Acceptance by Buyer .
(a) Buyer hereby acknowledges its acceptance of all right, title and interest to the property, now existing and hereafter created, conveyed to Buyer pursuant to Section 2.1 . Buyer shall maintain a copy of Schedule 1 , as delivered to it from time to time.
(b) Buyer hereby agrees not to disclose to any Person any account numbers or other information contained in the Account Schedule marked as Schedule 1 and delivered to Buyer, from time to time, except (i) to Servicer, any Sub-Servicer or as required by a Requirement of Law applicable to Buyer, (ii) in connection with the performance of Buyers duties hereunder, (iii) to the indenture trustee under the Indenture in connection with its duties or (iv) to bona fide creditors or potential creditors of Servicer or Seller for the limited purpose of enabling any such creditor to identify Transferred Receivables or Accounts subject to this Agreement. Buyer agrees to take such measures as shall be reasonably requested by Seller to protect and maintain the security and confidentiality of such information and, in connection therewith, shall allow Seller or its duly authorized representatives to inspect Buyers security and confidentiality arrangements from time to time during normal business hours upon prior written notice. Buyer shall promptly notify Seller of any request received by Buyer to disclose information of the type described in this Section 2.2(b) , which notice shall in any event be provided no later than five (5)
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Business Days prior to disclosure of any such information unless Buyer is compelled pursuant to a Requirement of Law to disclose such information prior to the date that is five (5) Business Days after the giving of such notice.
Section 2.3 Grant of Security Interest . The parties hereto intend that each transfer of the Transferred Assets shall constitute a sale by Seller to Buyer and not a loan by Buyer to Seller secured by the Transferred Assets. Notwithstanding anything to the contrary set forth in this Section 2.3 , if a court of competent jurisdiction determines that any transaction provided for herein constitutes a loan and not a sale, then the parties hereto intend that this Agreement shall constitute a security agreement under applicable law and that Seller shall be deemed to have granted, and Seller hereby grants, to Buyer a first priority lien and security interest in and to all of Sellers right, title and interest in, to and under the Transferred Assets, subject only to Permitted Encumbrances.
Section 2.4 Purchase Price . (a) The purchase price for the Transferred Receivables and the other Transferred Assets related thereto shall equal the fair market value of such Transferred Receivables as agreed upon by Buyer and Seller prior to such sale (such amount for any Transferred Assets, the Purchase Price ).
(b) The Purchase Price for any Transferred Assets sold by Seller shall be payable in full in cash on each Purchase Date or less frequently if so agreed between Buyer and Seller; provided , however , that Buyer may, with respect to any sale, offset against such Purchase Price any amounts owed by Seller to Buyer hereunder and which remain unpaid. On each such Purchase Date or other date set by the parties for payment, Buyer shall, upon satisfaction of the applicable conditions set forth in Article III , make available to Seller the Purchase Price for the applicable Transferred Assets in same day funds. During the period beginning on the Daily Sale Commencement Date and ending when mutually agreed between Buyer and Seller, the Purchase Price payable on each Purchase Date shall be based on good faith estimates of the amount of new Receivables since the prior Purchase Date, and the Buyer and Seller shall make compensating payments on each Payment Date as necessary to correct for any errors in estimation.
Section 2.5 Adjustments . If on any day the outstanding amount of any Principal Receivable is reduced because of a rebate, refund, unauthorized charge or billing error to an accountholder, or because such Principal Receivable was created in respect of merchandise which was refused or returned by an accountholder, or if the outstanding amount of any Principal Receivable is otherwise reduced other than on account of Collections thereof or such amount being charged-off as uncollectible, then, Seller shall compensate Buyer for such reduction in the outstanding amount of such Principal Receivable as provided below. Any adjustment required pursuant to the preceding sentence shall be made not later than the second Business Day after the Date of Processing for the event giving rise to such adjustment or less frequently if so agreed between Buyer and Seller. The amount of each such reduction shall be deducted from the amount of the Purchase Price payable by Buyer to Seller on the Purchase Date that coincides with or next follows the date of the adjustment, and Seller shall pay Buyer on that Purchase Date any excess of the aggregate amount of such reductions over the aggregate Purchase Price otherwise payable on that Purchase Date. Notwithstanding the
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foregoing, on any Purchase Date the aggregate amount of such reductions shall be paid gross by Seller to Buyer, without netting against the Purchase Price, to the extent that Buyer informs Seller that Buyer requires funds to make payments on account of such reductions under any of the Related Documents.
Section 2.6 Addition of Accounts .
(a) Additional Accounts . From time to time, Seller may (and, if requested by Buyer, shall) designate additional Eligible Accounts ( Additional Accounts ) to be included as Accounts. No Additional Accounts shall at the time of designation be part of Sellers program for Montgomery Ward or part of Sellers program for Home Depot, U.S.A., Inc. existing on the Closing Date. In addition, any Additional Accounts that are not created pursuant to any Retailers Credit Card Program Agreement may only be designated with Buyers consent. Sellers failure to designate Additional Accounts on Buyers request will not be deemed a breach of this Agreement if Seller does not have Eligible Accounts reasonably available for this purpose.
(b) Participation Interests . In lieu of, or in addition to, designating Additional Accounts as required by subsection (a) above, Seller may convey to Buyer participations or trust certificates representing undivided or beneficial interests in a pool of assets primarily consisting of receivables arising under revolving credit card accounts or other revolving credit accounts owned by Seller or any of its Affiliates and collections thereon ( Participation Interests ). Seller and Buyer will enter into a supplement to this Agreement relating to the conveyance of any Participation Interest. Any conveyance of a Participation Interest under this subsection (b) shall only occur upon satisfaction of the conditions for conveyances of Participation Interests under Section 2.6(c) of the Trust Receivables Purchase Agreement.
(c) Conditions for Additions of Additional Accounts. Any sale of Receivables from Additional Accounts under subsection 2.6(a) shall occur only upon satisfaction of the following conditions (to the extent provided below):
(i) on or before the Addition Date, Seller shall have delivered to Buyer, a written assignment in substantially the form of Exhibit A (the Assignment ), and Seller shall indicate in its computer files that the Receivables created in connection with the Additional Accounts have been transferred to Buyer;
(ii) Seller shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Buyer (in such numbers and with such additional addressees as Buyer may reasonably request) substantially in the form of Exhibit D (with appropriate modifications);
(iii) Seller shall not make more than one such designation per Retailer in any one Monthly Period; and
(iv) Buyer shall have determined that all requirements relating to the designation of such Additional Accounts imposed by Buyer under the Trust
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Receivables Purchase Agreement or the Transfer Agreement, as applicable, have been satisfied.
(d) Additional Retailers . Seller may from time to time designate retailers as Additional Retailers if Buyer is permitted to make the same designation under the Trust Receivables Purchase Agreement or the Transfer Agreement, as applicable.
Section 2.7 Removal of Accounts .
(a) From time to time, but not more frequently than once during each Monthly Period for any Retailer, Seller may request (which request Buyer may deny, except in the case of Involuntary Removals effected pursuant to Section 2.7(b) ) the reassignment to it or its designee of all Buyers right, title and interest in, to and under the Transferred Receivables then existing and thereafter created in one or more Accounts (the Removed Accounts ), together with the Related Security and Collections with respect thereto and Recoveries allocated to Buyer as provided herein, in each case together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto. Any such reassignment shall be subject to the satisfaction of the following conditions:
(i) on or before the tenth Business Day immediately preceding the Removal Date (the Removal Notice Date ) Seller shall have given Buyer written notice of such request and specifying the date for removal of the Removed Accounts (the Removal Date );
(ii) except in the case of any Involuntary Removal, Buyer shall have delivered its written consent for such removal to Seller;
(iii) on or prior to the Removal Date, Seller shall have delivered to Buyer an Account Schedule listing the Removed Accounts; and
(iv) except in the case of any Involuntary Removal, Seller shall have delivered to Buyer an Officers Certificate, dated as of the Removal Date, to the effect that (i) no selection procedure believed by Seller to be materially adverse to the interest of Buyer or any of its creditors has been used in removing Removed Accounts from among any pool of Accounts of a similar type; and (ii) Accounts (or administratively convenient groups of Accounts or Participation Interests, such as billing cycles) were chosen for removal on a random basis or another basis that Seller believes is consistent with achieving derecognition of the Transferred Receivables under GAAP.
Upon satisfaction of the above conditions (and subject to Buyers agreement, except in the case of Involuntary Removals, and receipt by Buyer of the reassignment price agreed upon between Buyer and Seller), Buyer shall execute and deliver to Seller or its designee a written reassignment in substantially the form of Exhibit B (the Reassignment ) and shall, without further action, be deemed to transfer, assign, set over and otherwise convey to Seller or its designee, effective as of the Removal Date, without recourse, representation or warranty, all the right, title and interest of Buyer in and to the
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Transferred Receivables arising in the Removed Accounts, the Related Security and Collections with respect thereto and Recoveries allocated to Buyer as provided herein, together with all monies due or to become due and all amounts received or receivables with respect thereto and Insurance Proceeds relating thereto and all proceeds of the foregoing. In addition, Buyer shall execute such other documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by Seller to effect the conveyance of Transferred Receivables pursuant to this Section.
(b) Seller shall from time to time designate as Removed Accounts any Accounts designated for purchase by a Retailer pursuant to the terms of the related Credit Card Program Agreement (each, an Involuntary Removal ). Any repurchase of the Transferred Receivables in Removed Accounts designated pursuant to this Section 2.7(b) shall be effected in the manner and at a price determined in accordance with Section 6.1(e) , as if the Transferred Receivables being repurchased were Ineligible Receivables. Seller and Buyer acknowledge and agree that all Receivables then outstanding in Accounts related to Home Depot U.S.A., Inc. (excluding Charged-Off Receivables) shall be purchased by Seller pursuant to this Section 2.7(b) on a date designated by Home Depot U.S.A., Inc. in July 2003.
(c) Seller may from time to time, at its option, by notice to Buyer, designate as a Removed Account any Account (each, an Inactive Account ) that either (i) has had a zero balance and on which no charges have been made, in each case for at least the preceding 12 months or (ii) has a zero balance and the Obligor of which has agreed to open a credit card account in a related Dual Card Program in substitution for such Account. On or prior to the Removal Date for any Inactive Accounts, Seller shall have delivered to Buyer an Account Schedule listing the Inactive Accounts that are to become Removed Accounts.
Section 2.8 Additional Sellers . Seller may designate additional or substitute Persons to be included as Sellers under this Agreement by an amendment to this Agreement if Buyer is permitted to consent to such designation under the Trust Receivables Purchase Agreement or Transfer Agreement, as applicable.
Section 2.9 Additional Originators . Seller may designate additional Persons as Originators under this Agreement by an amendment to this Agreement and if Buyer is permitted to consent to such designation under the Trust Receivables Purchase Agreement or Transfer Agreement, as applicable.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Initial Transfer . The initial sale or conveyance hereunder shall be subject to satisfaction of each of the following conditions precedent (any one or more of which may be waived in writing by Buyer) as of the Closing Date:
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(a) Documents . This Agreement or counterparts hereof shall have been duly executed by, and delivered to, Seller and Buyer, and Buyer shall have received such documents, instruments, agreements and legal opinions as Buyer shall reasonably request in connection with the transactions contemplated by this Agreement, each in form and substance reasonably satisfactory to Buyer.
(b) Governmental Approvals . Buyer shall have received satisfactory evidence that Seller has obtained all required consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby.
(c) Compliance with Laws . Seller shall be in compliance with all applicable foreign, federal, state and local laws and regulations, except to the extent that the failure to so comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 3.2 Conditions to all Transfers . Each sale hereunder (including the initial sale) shall be subject to satisfaction of the following further conditions precedent (any one or more of which, except clause (b) below, may be waived in writing by Buyer) as of the Transfer Date therefor:
(a) The representations and warranties of Seller contained herein or in any other Related Document required to be made on such Transfer Date shall be true and correct in all material respects as of such Transfer Date, both before and after giving effect to such sale; and
(b) Seller shall be in compliance in all material respects with each of its covenants and other agreements set forth herein.
The consummation by Seller of the sale, as applicable, of Transferred Assets on any Transfer Date shall be deemed to constitute, as of any such Transfer Date, a representation and warranty by Seller that the conditions in clauses (a) and (b) of this Section 3.2 have been satisfied.
ARTICLE IV
OTHER MATTERS RELATING TO SELLER
Section 4.1 Merger or Consolidation of, or Assumption of the Obligations of, Seller, etc .
(a) Seller 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 Person formed by such consolidation or into which Seller is merged or the Person which acquires by conveyance or transfer the properties and assets of Seller substantially as an entirety shall be, if Seller is not the surviving
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entity, an entity organized and existing under the laws of the United States of America or any State or the District of Columbia, and, if Seller is not the surviving entity, such entity shall expressly assume, by an agreement supplemental hereto, executed and delivered to Buyer, in form reasonably satisfactory to Buyer, the performance of every covenant and obligation of Seller hereunder;
(ii) Seller has delivered to Buyer (A) an Officers Certificate stating that such consolidation, merger, conveyance or transfer and such supplemental agreement comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with, and (B) an Opinion of Counsel to the effect that such supplemental agreement is a valid and binding obligation of such surviving entity enforceable against such surviving entity in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally from time to time in effect and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity);
(iii) if Seller is not the surviving entity, the surviving entity shall file new UCC-1 financing statements with respect to the interest of Buyer in the Transferred Assets, if any; and
(iv) prior written notice shall have been delivered to the Rating Agencies with respect to such merger, conveyance or transfer.
(b) This Section 4.1 shall not be construed to prohibit or in any way limit Sellers ability to effectuate any consolidation or merger pursuant to which Seller would be the surviving entity.
(c) The obligations of Seller hereunder shall not be assignable nor shall any Person succeed to the obligations of Seller hereunder except in each case in accordance with (i) the provisions of the foregoing paragraphs, (ii) Section 2.8 of this Agreement or (iii) conveyances, mergers, consolidations, assumptions, sales or transfers to other entities (1) for which Seller delivers an Officers Certificate to Buyer indicating that Seller reasonably believes that such action will not result in a Material Adverse Effect, (2) which meet the requirements of clause (ii) of paragraph (a) and (3) for which such purchaser, transferee, pledgee or entity shall expressly assume, in an agreement supplemental hereto, executed and delivered to Buyer in writing in form satisfactory to Buyer, the performance of every covenant and obligation of Seller thereby conveyed.
ARTICLE V
BANKRUPTCY EVENTS
Section 5.1 Rights upon the Occurrence of a Bankruptcy Event . If a Bankruptcy Event occurs with respect to Seller, Seller shall on the day any such event
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occurs, immediately cease to transfer Principal Receivables to Buyer and shall promptly give notice of such event to the indenture trustee under the Indenture, Buyer and the Rating Agencies. Notwithstanding any cessation of the transfer to Buyer of additional Principal Receivables, Principal Receivables transferred to Buyer prior to the occurrence of such Bankruptcy Event and Collections in respect of such Principal Receivables, and Finance Charge Receivables whenever created accrued in respect of such Principal Receivables, shall continue to be property of Buyer.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Representations and Warranties of Seller . (a) To induce Buyer to accept the Transferred Assets, Seller makes the representations and warranties in subsections (i) through (viii) to Buyer, as of the Closing Date and each subsequent Transfer Date.
(i) Valid Existence; Power and Authority . Seller (A) is a bank duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (B) is duly qualified to conduct business and is in good standing in each other jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification and where the failure to be so qualified or in good standing would have a Material Adverse Effect; and (C) has all requisite power and authority to execute, deliver and perform its obligations under this Agreement.
(ii) UCC Information . The true legal name of Seller as registered in the jurisdiction of its organization, and the current location of Sellers jurisdiction of organization and the address of its chief executive office are set forth in Schedule 6.1(a) and such location and address have not changed within the past 12 months. In addition, Schedule 6.1(a) lists Sellers (A) federal employer identification number and (B) organizational identification number as designated by the jurisdiction of its organization.
(iii) Authorization of Transaction; No Violation . The execution, delivery and performance by Seller of this Agreement and the other Related Documents to which Seller is a party and the creation and perfection of all Liens and ownership interests provided for herein: (A) have been duly authorized by all necessary action on the part of Seller, and (B) do not violate any provision of any law or regulation of any Governmental Authority, or contractual or restrictions binding on Seller, except where such violations, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(iv) Enforceability . On or prior to the Closing Date, each of the Related Documents to which Seller is a party shall have been duly executed and delivered by Seller and each such Related Document shall then constitute a legal, valid and binding obligation of Seller enforceable against it in accordance with its
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terms, subject to bankruptcy, receivership, conservatorship, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors rights and to general principles of equity.
(v) Accuracy of Certain Information . All written factual information heretofore furnished by Seller to Buyer with respect to the Transferred Receivables for the purposes of, or in connection with, this Agreement was true and correct in all material respects on the date as of which such information was stated or certified.
(vi) Use of Proceeds . No proceeds received by Seller under this Agreement will be used by it for any purpose that violates Regulation U of the Federal Reserve Board.
(vii) Judgment or Tax Lien . Seller is not aware of any judgment or tax lien filing against Seller.
(viii) Transferred Receivables . With respect to Transferred Receivables and Additional Accounts, Seller represents and warrants that:
(A) each Transferred Receivable satisfies the criteria for an Eligible Receivable as of the applicable Transfer Date;
(B) this Agreement creates a valid and continuing security interest in the Transferred Receivables in favor of Buyer, which (x) with respect to Transferred Receivables existing as of the Closing Date and thereafter created in the Initial Accounts and the Related Security and Collections and Recoveries with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and the proceeds thereof, will be enforceable upon execution of this Agreement against Seller and with respect to Transferred Receivables in Additional Accounts as of the applicable Addition Date and thereafter created, and the Related Security and Collections and Recoveries with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and the proceeds thereof, will be enforceable against Seller as of the Addition Date, in each case as such enforceability may be limited by applicable Debtor Relief Laws, now or hereafter in effect, and by general principles of equity (whether considered in a suit at law or in equity) and (y) upon filing of the financing statements described in Section 2.1 and, in the case of Transferred Receivables thereafter created, upon the creation thereof, will be prior to all other Liens (other than Permitted Encumbrances);
(C) the Transferred Receivables constitute accounts within the meaning of UCC Section 9-102;
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(D) immediately prior to the conveyance of the Transferred Receivables pursuant to this Agreement, Seller owns and has good and marketable title to the Transferred Receivables free and clear of any Lien, claim or encumbrance of any Person, (other than Permitted Encumbrances);
(E) all authorizations, consents, orders or approvals of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by Seller in connection with the conveyance by Seller of the Transferred Receivables to Buyer have been duly obtained, effected or given and are in full force and effect;
(F) Seller has caused or will have caused, within ten (10) days of the Closing Date or the applicable Addition Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest granted to Buyer under this Agreement in the Transferred Receivables arising in the Initial Accounts and Additional Accounts, respectively; and
(G) subject to Permitted Encumbrances, other than the transfer and assignment and the security interest granted to Buyer pursuant to this Agreement, Seller has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Transferred Receivables and Seller has not authorized the filing of and is not aware of any financing statements against Seller that included a description of collateral covering the Transferred Receivables.
The representations and warranties described in this Section 6.1(a) shall survive the sale of the Transferred Assets to Buyer, any subsequent assignment or sale of the Transferred Assets by Buyer, and the termination of this Agreement and the other Related Documents and shall continue until the payment in full of all Transferred Assets.
(b) Seller agrees that each Receivable in any Account sold by Seller to RFS Funding Trust pursuant to the Prior Transfer Agreement shall be deemed for all purposes (including the reassignment obligations under Section 2.7 and this Section 6.1 ) to have been sold by Seller to Buyer pursuant to this Agreement as of the day of such actual sale, as if this Agreement had been in effect on that day.
(c) Upon discovery by Seller or Buyer of a breach of any of the representations and warranties by Seller set forth in this Section 6.1 , the party discovering such breach shall give prompt written notice to the other. Seller agrees to cooperate with Buyer in attempting to cure any such breach.
(d) If any representation or warranty of Seller contained in Section 6.1(a)(viii) , is not true and correct in any material respect as of the date specified therein with respect to any Transferred Receivable or any Account and as a result of such breach
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any Transferred Receivables in the related Account become Charged-Off Receivables or Buyers rights in, to or under such Transferred Receivables or the proceeds of such Transferred Receivables are impaired or such proceeds are not available for any reason to Buyer free and clear of any Lien other than Permitted Encumbrances, unless cured within 60 days (or such longer period, not in excess of 120 days, as may be agreed to by Buyer) after the earlier to occur of the discovery thereof by Seller or receipt by Seller or a designee of Seller of notice thereof given by Buyer, then such Transferred Receivable shall be designated an Ineligible Receivable ; provided that such Transferred Receivables will not be deemed to be Ineligible Receivables but will be deemed Eligible Receivables if, on any day prior to the end of such 60-day or longer period, (i) the relevant representation and warranty shall be true and correct in all material respects as if made on such day and (ii) Seller shall have delivered an Officers Certificate describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct.
(e) On the first Purchase Date that coincides with or falls after the date on which any Transferred Receivable is designated as an Ineligible Receivable, Seller shall repurchase such Ineligible Receivable from Buyer as provided below. The purchase price for the Ineligible Receivables in any Account shall equal the Purchase Price paid for such Ineligible Receivables, less any Principal Collections received on that Receivable in the interim. On any Purchase Date the aggregate amount of such repurchase prices then payable may be netted against the Purchase Price then payable, unless, Buyer informs Seller that Buyer requires funds to make payments on account of the related Ineligible Receivables under any of the Related Documents, in which case such amounts shall be paid gross.
(f) If any representation or warranty of Seller contained in Section 6.1(a)(i) , 6.1(a)(ii) , 6.1(a)(iii) or 6.1 (a)(iv) of this Agreement is not true and correct in any material respect and such breach has a material adverse effect on the Transferred Receivables transferred to Buyer by Seller or the availability of the proceeds thereof to Buyer, Seller shall be obligated to accept a reassignment of the Transferred Receivables if such breach and any material adverse effect caused by such breach is not cured within 60 days of such notice (or within such longer period, not in excess of 150 days, as may be specified in such notice), on the terms set forth below; provided that such Transferred Receivables will not be reassigned to Seller if, on any day prior to the end of such 60-day or longer period (i) the relevant representation and warranty shall be true and correct in all material respects as if made on such day and (ii) Seller shall have delivered an Officers Certificate describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct.
Seller shall pay to Buyer in immediately available funds not later than 12:00 noon, New York City time, on the first Payment Date following the Monthly Period in which such reassignment obligation arises, in payment for such reassignment, an amount equal to the Aggregate Reassignment Amount. The payment of such deposit amount in immediately available funds shall otherwise be considered payment in full of all of the Transferred Receivables.
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(g) Upon the payment, if any, required to be made to Buyer as provided in Section 6.1(e) or 6.1(f) , Buyer shall automatically and without further action be deemed to transfer, assign, set over and otherwise convey to Seller or its designee, without recourse, representation or warranty, all the right, title and interest of Buyer in and to the applicable Transferred Receivables, all moneys due or to become due and all amounts received with respect thereto and all proceeds thereof. Buyer shall execute such documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by Seller to effect the conveyance of such Transferred Receivables pursuant to this Section.
Section 6.2 Affirmative Covenants of Seller . Seller covenants and agrees that, unless otherwise consented to by Buyer, from and after the Closing Date and until the date after the Agreement Termination Date when the Outstanding Balance of all Transferred Receivables have been reduced to zero:
(a) Account Allocations . If Seller is unable for any reason to transfer Transferred Receivables to Buyer in accordance with the provisions of this Agreement (including by reason of the application of the provisions of Section 5.1 or an order by any Governmental Authority that Seller not transfer any additional Principal Receivables to Buyer) then, in any such event: (i) Seller agrees to allocate and pay to Buyer, after the date of such inability, all Collections with respect to Principal Receivables and all amounts which would have constituted Collections with respect to Principal Receivables but for Sellers inability to transfer such Transferred Receivables (up to an aggregate amount equal to the amount of Principal Receivables held by Buyer on such date of inability); (ii) Seller agrees that such amounts shall be deemed Collections of Transferred Receivables; and (iii) for only so long as all Collections and all amounts which would have constituted Collections are allocated and applied in accordance with clauses (i) and (ii) , Principal Receivables (and all amounts which would have constituted Principal Receivables, but for Sellers inability to transfer Transferred Receivables to Buyer) that are charged off as uncollectible in accordance with this Agreement shall continue to be allocated in accordance with the Servicing Agreement, and all amounts that would have constituted Principal Receivables, but for Sellers inability to transfer Transferred Receivables to Buyer shall be deemed to be Principal Receivables for the purpose of all calculations under the Related Documents. If Seller is unable pursuant to any Requirement of Law to allocate Collections as described above, Seller agrees that it shall allocate collections, charge-offs and other incidents of the receivables in the Accounts between Transferred Receivables and other receivables outstanding in the Accounts on a basis reasonably intended to approximate the actual portions allocable to Transferred Receivables and other receivables, respectively. The parties hereto agree that Finance Charge Receivables, whenever created, accrued in respect of Principal Receivables that have been conveyed to Buyer, or that would have been conveyed to Buyer but for the above described inability to transfer such Receivables, shall continue to be held by Buyer notwithstanding any cessation of the transfer of additional Principal Receivables to Buyer. With respect to the Montgomery Ward program and Originators program for Home Depot U.S.A., Inc. existing on the Closing Date, Seller shall allocate collections, charge-offs and other incidents of the receivables in each such program between Transferred Receivables outstanding in that program and other receivables outstanding in
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that program on a basis reasonably intended to approximate the actual portions allocable to Transferred Receivables and other receivables, respectively.
(b) Notice of Material Event . Seller shall promptly inform Buyer in writing of the occurrence of any of the following, in each case setting forth the details thereof and what action, if any, Seller proposes to take with respect thereto:
(i) any Litigation commenced or threatened against Seller or with respect to or in connection with all or any substantial portion of the Transferred Assets or developments in such Litigation, in each case, that Seller believes has a reasonable risk of being determined adversely and having a Material Adverse Effect;
(ii) the commencement of a proceeding against Seller seeking a decree or order in respect of Seller (A) under the Federal Deposit Insurance Act or any other applicable federal, state or foreign bankruptcy or other similar law, (B) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for Seller or for any substantial part of Sellers assets, or (C) ordering the winding-up or liquidation of the affairs of Seller; or
(iii) Sellers failure to comply with any of its obligations under this Agreement.
(c) Notice of Liens . Seller shall notify Buyer promptly after becoming aware of any Lien on any Transferred Asset other than Permitted Encumbrances.
(d) Information for Reports . Seller shall promptly deliver any material written information, documents, records or reports with respect to the Transferred Receivables that Buyer shall reasonably request.
(e) Deposit of Collections . Seller shall transfer to Buyer or Servicer on its behalf, promptly, and in any event no later than the Business Day after receipt thereof, all Collections it may receive in respect of Transferred Assets, including amounts received from Retailers on account of in-store payments through netting under the applicable Credit Card Program Agreement.
(f) Credit Card Program Agreement and Policies . Seller shall comply with and perform its obligations under the Credit Card Program Agreements and the Contracts relating to the Accounts and the Credit and Collection Policies except insofar as any failure to comply or perform would not materially or adversely affect the rights of Buyer. Seller may change the terms and provisions of the Credit Card Program Agreements, the Contracts or the Credit and Collection Policies (including the reduction of the required minimum monthly payment, the calculation of the amount, or the timing, of charge offs and periodic finance charges and other fees assessed thereon), but subject to Section 6.3(b) and only if such change is made applicable to any comparable segment of the revolving credit card accounts owned and serviced by the Transferor which have characteristics the same as, or substantially similar to, the Accounts that are the subject of such change, except as otherwise restricted by an endorsement, sponsorship or other
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agreement between the Transferor and an unrelated third party or by the terms of the Credit Card Program Agreements.
Section 6.3 Negative Covenants of Seller . Seller covenants and agrees that, without the prior written consent of Buyer, from and after the Closing Date and until the date after the Agreement Termination Date when the Outstanding Balances of all Transferred Receivables transferred hereunder prior to such Agreement Termination Date have been reduced to zero:
(a) Liens . Seller shall not create, incur, assume or permit to exist any Lien, other than Permitted Encumbrances, on or with respect to the Transferred Assets.
(b) Periodic Finance Charges and Other Fees . Seller shall consult with Buyer prior to making any reduction in the periodic finance charges assessed on any Transferred Receivable or other fees on any Account. Except as otherwise required by any Requirement of Law, or as is deemed by Seller to be necessary in order for it to maintain its credit card business, based upon Sellers good faith assessment, in its sole discretion, of the nature of the competition in the credit card business, Seller shall not at any time make such a reduction if Buyer informs Seller that, as a result of such reduction, Buyers reasonable expectation of the portfolio yield for any series of notes secured, directly or indirectly, by the Transferred Receivables as of the date of such reduction would be less than the then base rate for that series, all as determined in accordance with the terms of that series. In any event, Seller shall not reduce the periodic finance charges assessed on any Transferred Receivable or other fees on any Account without the consent of Buyer, which consent Buyer shall provide unless the giving of such consent is prohibited by any agreement to which Buyer is a party.
(c) UCC Matters . Seller shall not change its state of organization or incorporation or its name such that any financing statement filed to perfect Buyers interests under this Agreement would become seriously misleading, unless Seller shall have given Buyer not less than 30 days prior written notice of such change.
(d) No Proceedings . From and after the Closing Date and until the date one year plus one day following the date on which all amounts due with respect to securities rated by a Rating Agency that were issued by any entity holding Transferred Assets or an interest therein have been paid in full in cash, Seller shall not, directly or indirectly, institute or cause to be instituted against Buyer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceeding under any federal or state bankruptcy or similar law; provided that the foregoing shall not in any way limit Sellers right to pursue any other creditor rights or remedies that Seller may have under any applicable law. Without prejudice to the survival of any other agreement of the Seller hereunder, the agreements and obligations of the Seller under this Section 6.3(d) shall survive the termination of this Agreement.
(e) Sale Characterization . For accounting purposes, Seller shall not account for the transactions contemplated by this Agreement in any manner other than, with respect to the sale of each Transferred Receivable, as a true sale and/or absolute
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assignment of its full right, title and ownership interest in the related Transferred Assets to Buyer. Seller shall also maintain its records and books of account in a manner which clearly reflects each such sale of the Transferred Receivables to Buyer.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices . Except as otherwise provided herein, whenever it is provided herein that any notice, demand, request, consent, approval, declaration or other communication shall or may be given to or served upon any of the parties by any other parties, or whenever any of the parties desires to give or serve upon any other parties any communication with respect to this Agreement, each such notice, demand, request, consent, approval, declaration or other communication shall be in writing and shall be deemed to have been validly served, given or delivered (a) upon the earlier of actual receipt and three Business Days after deposit in the United States mail, registered or certified mail, return receipt requested, with proper postage prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile transmission (with such telecopy or facsimile promptly confirmed by delivery of a copy by personal delivery or United States mail as otherwise provided in this Section 7.1 ), (c) one Business Day after deposit with a reputable overnight courier with all charges prepaid or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address or facsimile number set forth below or to such other address (or facsimile number) as may be substituted by notice given as herein provided. The giving of any notice required hereunder may be waived in writing by the party entitled to receive such notice. Failure or delay in delivering copies of any notice, demand, request, consent, approval, declaration or other communication to any Person (other than Buyer) designated in any written communication provided hereunder to receive copies shall in no way adversely affect the effectiveness of such notice, demand, request, consent, approval, declaration or other communication. Notwithstanding the foregoing, whenever it is provided herein that a notice is to be given to any other party hereto by a specific time, such notice shall be effective only if actually received by such party prior to such time, and if such notice is received after such time or on a day other than a Business Day, such notice shall be effective only on the immediately succeeding Business Day.
If to Seller:
Monogram Credit Card Bank of Georgia
7840 Roswell Road, Bldg. 100, Suite 210
Atlanta, Georgia 30350
Attention: Chief Financial
Officer
Telephone: (770) 353-5337
Facsimile: (770) 353-2464
If to Buyer:
RFS Holding, L.L.C.
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1600 Summer Street, 6
th
Floor
Stamford, CT 06927
Telephone: (203) 357-4756
Facsimile: (203) 357-6796
With a copy to:
1600 Summer Street, 4th Floor
Stamford, CT 06927
Attention: Portfolio Manager
Telephone: (203) 357-4328
Facsimile: (203) 961-2953
Section 7.2 No Waiver; Remedies . (a) Either partys failure, at any time or times, to require strict performance by the other party hereto of any provision of this Agreement shall not waive, affect or diminish any right of such party thereafter to demand strict compliance and performance herewith or therewith. Any suspension or waiver of any breach or default hereunder shall not suspend, waive or affect any other breach or default whether the same is prior or subsequent thereto and whether of the same or a different type. None of the undertakings, agreements, warranties, covenants and representations of either party contained in this Agreement, and no breach or default by either party hereunder or thereunder, shall be deemed to have been suspended or waived by the other party unless such waiver or suspension is by an instrument in writing signed by an officer of or other duly authorized signatory of such party and directed to the defaulting party specifying such suspension or waiver.
(b) Each partys rights and remedies under this Agreement shall be cumulative and nonexclusive of any other rights and remedies that such party may have under any other agreement, including the other Related Documents, by operation of law or otherwise.
Section 7.3 Successors and Assigns . This Agreement shall be binding upon and shall inure to the benefit of Seller and Buyer and their respective successors and permitted assigns, except as otherwise provided herein. Except as provided below and in Sections 2.8 or 4.1 of this Agreement, Seller may not assign, transfer, hypothecate or otherwise convey its rights, benefits, obligations or duties hereunder, or consent to any assignment by the Issuer under the Trust Receivables Purchase Agreement or the Transfer Agreement, without having provided prior written notice to the Rating Agencies and having obtained the prior express written consent of Buyer. Any such purported assignment, transfer, hypothecation or other conveyance by Seller without the prior express written consent of Buyer shall be void. Seller acknowledges that under the Trust Receivables Purchase Agreement and the Transfer Agreement, respectively, Buyer will assign its rights granted hereunder to RFS Funding Trust prior to the RFS Funding Trust Termination Date and to the Issuer thereafter, and upon such assignment, RFS Funding Trust or the Issuer, as applicable, shall have, to the extent of such assignment, all rights of
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Buyer hereunder and each such transferee may in turn transfer such rights. The terms and provisions of this Agreement are for the purpose of defining the relative rights and obligations of Seller and Buyer with respect to the transactions contemplated hereby and no Person shall be a third-party beneficiary of any of the terms and provisions of this Agreement.
Section 7.4 Termination . This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until the earlier of (a) the termination of the Issuer and (b) the date selected by Seller upon prior notice thereof to Buyer (such date the Agreement Termination Date ).
Section 7.5 Survival . Except as otherwise expressly provided herein or in any other Related Document, no termination or cancellation (regardless of cause or procedure) of any commitment made by Seller under this Agreement shall in any way affect or impair the obligations, duties and liabilities of Seller or the rights of Seller relating to any unpaid portion of any and all obligations of Seller to Buyer, due or not due, liquidated, contingent or unliquidated or any transaction or event occurring prior to such termination, or any transaction or event, the performance of which is required after the Agreement Termination Date. Except as otherwise expressly provided herein or in any other Related Document, all undertakings, agreements, covenants, warranties and representations of or binding upon Seller, and all rights of Seller hereunder shall not terminate or expire, but rather shall survive any such termination or cancellation and shall continue in full force and effect until the date after the Agreement Termination Date when the Outstanding Balances of all Transferred Receivables transferred hereunder prior to such Agreement Termination Date have been reduced to zero; provided , that the rights and remedies pursuant to the provisions of Sections 2.5 , 6.3(d) , 7.3 , 7.11 and 7.13 shall be continuing and shall survive any termination of this Agreement.
Section 7.6 Complete Agreement; Modification of Agreement . This Agreement constitutes the complete agreement between the parties with respect to the subject matter hereof, supersedes all prior agreements and understandings relating to the subject matter hereof and thereof, and may not be modified, altered or amended except by written agreement of the parties hereto. The parties shall give prior written notice of any material amendment of this Agreement to the Rating Agencies.
Section 7.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL . (a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF
31
MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED , THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED FURTHER , THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE BUYER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE RECEIVABLES OR ANY SECURITY FOR THE OBLIGATIONS OF SELLER ARISING HEREUNDER OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF BUYER. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 7.1 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTYS ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
32
CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.8 Counterparts . This Agreement may be executed in any number of separate counterparts, each of which shall collectively and separately constitute one agreement.
Section 7.9 Severability . Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Section 7.10 Section Titles . The section titles and table of contents contained in this Agreement are provided for ease of reference only and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.
Section 7.11 No Setoff . Sellers obligations under this Agreement shall not be affected by any right of setoff, counterclaim, recoupment, defense or other right Seller might have against Buyer, all of which rights are hereby expressly waived by Seller.
Section 7.12 Confidentiality . NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, THE OBLIGATIONS OF CONFIDENTIALITY CONTAINED HEREIN, SHALL NOT APPLY TO THE FEDERAL TAX STRUCTURE OR FEDERAL TAX TREATMENT OF THIS TRANSACTION, AND EACH PARTY (AND ANY EMPLOYEE, REPRESENTATIVE, OR AGENT OF ANY PARTY) MAY DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY KIND, THE FEDERAL TAX STRUCTURE AND FEDERAL TAX TREATMENT OF THIS TRANSACTION. THE PRECEDING SENTENCE IS INTENDED TO CAUSE THIS TRANSACTION TO BE TREATED AS NOT HAVING BEEN OFFERED UNDER CONDITIONS OF CONFIDENTIALITY FOR PURPOSES OF SECTION 1.6011-4(B)(3) (OR ANY SUCCESSOR PROVISION) OF THE TREASURY REGULATIONS PROMULGATED UNDER SECTION 6011 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND SHALL BE CONSTRUED IN A MANNER CONSISTENT WITH SUCH PURPOSE. IN ADDITION, EACH PARTY ACKNOWLEDGES THAT IT HAS NO PROPRIETARY OR EXCLUSIVE RIGHTS TO THE FEDERAL TAX STRUCTURE OF THIS TRANSACTION OR ANY FEDERAL TAX MATTER OR FEDERAL TAX IDEA RELATED TO THIS TRANSACTION.
Section 7.13 Further Assurances . (a) Seller shall, at its sole cost and expense, upon request of Buyer, promptly and duly authorize, execute and/or deliver, as applicable, any and all further instruments and documents and take such further actions that may be necessary or desirable or that Buyer may request to carry out more effectively the provisions and purposes of this Agreement or to obtain the full benefits of
33
this Agreement and of the rights and powers herein granted, including authorizing and filing any financing or continuation statements under the UCC with respect to the ownership interests or Liens granted hereunder. Seller hereby authorizes Buyer to file any such financing or continuation statements without the signature of Seller to the extent permitted by applicable law. A carbon, photographic or other reproduction of this Agreement or of any notice or financing statement covering the Transferred Assets or any part thereof shall be sufficient as a notice or financing statement where permitted by law. If any amount payable under or in connection with any of the Transferred Assets is or shall become evidenced by any instrument, such instrument, other than checks and notes received in the ordinary course of business, shall be duly endorsed in a manner satisfactory to Buyer immediately upon Sellers receipt thereof and promptly delivered to or at the direction of Buyer.
(b) If Seller fails to perform any agreement or obligation under this Section 7.13 , Buyer may (but shall not be required to) itself perform, or cause performance of, such agreement or obligation, and the reasonable expenses of Buyer incurred in connection therewith shall be payable by Seller upon demand of Buyer.
(c) Seller shall deliver to Buyer (i) upon the execution and delivery of each amendment of this Agreement, an Opinion of Counsel to the effect specified in Exhibit C ; (ii) on each Addition Cut-Off Date on which any Additional Accounts are to be designated as Accounts pursuant to Section 2.6 , an Opinion of Counsel substantially in the form of Exhibit D ; and (iii) on or before March 31 of each year following the year in which the Closing Date occurs, an Opinion of Counsel substantially in the form of Exhibit E .
Section 7.14 Accounting Changes . If any Accounting Changes occur and such changes result in a change in the standards or terms used herein, then the parties hereto agree to enter into negotiations in order to amend such provisions so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the financial condition of such Persons and their Subsidiaries shall be the same after such Accounting Changes as if such Accounting Changes had not been made. If the parties hereto agree upon the required amendments to this Agreement, then after appropriate amendments have been executed and the underlying Accounting Change with respect thereto has been implemented, any reference to GAAP contained herein shall, only to the extent of such Accounting Change, refer to GAAP consistently applied after giving effect to the implementation of such Accounting Change. If such parties cannot agree upon the required amendments within 30 days following the date of implementation of any Accounting Change, then all financial statements delivered and all standards and terms used herein shall be prepared, delivered and used without regard to the underlying Accounting Change.
Section 7.15 No Indirect or Consequential Damages . NO PARTY TO THIS AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR
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INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER.
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IN WITNESS WHEREOF, Seller and Buyer have caused this Receivables Sale Agreement to be duly executed by their respective officers as of the day and year first above written.
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MONOGRAM
CREDIT CARD BANK OF
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Donald R. Ramon |
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RFS HOLDING, L.L.C., Buyer |
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Iain J. Mackay |
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Chief Financial Officer and Manager |
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S-1
SCHEDULE 1
LIST OF ACCOUNTS
The initial Account Schedule consists of the following compact disks delivered to Deutsche Bank Trust Company Delaware, as trustee, in connection with the Prior Transfer Agreement: (a) two disks listing the Designated Accounts under the Prior Transfer Agreement as of December 30, 2002 and (b) one disk listing additional Designated Accounts that were designated under the Prior Transfer Agreement in March, 2003. The initial Account Schedule does not identify the aggregate amount of receivables in the Accounts described therein.
1-1
SCHEDULE 6.1
(a)
SELLERS UCC INFORMATION
Legal Name
Monogram Credit Card Bank of Georgia
Jurisdiction of Organization
Georgia
Address of Chief Executive Officer
7480 Roswell Road
Building 100, Suite 210
Atlanta, Georgia 30350
6.1(a)-1
EXHIBIT A
FORM OF ASSIGNMENT OF RECEIVABLES
IN ADDITIONAL ACCOUNTS
(As required by Section 2.6 of the Agreement)
ASSIGNMENT No. OF RECEIVABLES IN ADDITIONAL ACCOUNTS (this Assignment) dated as of , by and among MONOGRAM CREDIT CARD BANK OF GEORGIA, a bank organized under the laws of the State of Georgia, as Seller ( Seller ) and RFS HOLDING, L.L.C. ( Buyer ), pursuant to the Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Seller and Buyer are parties to the Receivables Sale Agreement, dated as of June 27, 2003 (as it may be amended and supplemented from time to time the Agreement ); and
WHEREAS, pursuant to the Agreement, Seller wishes to designate Additional Accounts to be included as Accounts and to convey the Transferred Receivables in such Additional Accounts that have been designated Additional Accounts pursuant to the Agreement, whether now existing or hereafter created, to Buyer (as each such term is defined in the Agreement); and
WHEREAS, Buyer is willing to accept such designation and conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
1. Defined Terms . All terms defined in the Agreement and used herein shall have such defined meanings when used herein, unless otherwise defined herein.
Addition Date means, with respect to the Additional Accounts designated hereby, [ ], 20[ ].
Addition Cut-Off Date means, with respect to Additional Accounts designated hereby, [ ], 20[ ].
Notice Date means, with respect to the Additional Accounts designated hereby, [ ], 20[ ].
2. Designation of Additional Accounts . The Accounts listed on Schedule 1 to this Assignment have been designated Additional Accounts pursuant to the Agreement. Schedule 1 to this Assignment, as of the Addition Date, shall supplement Schedule 1 to the Agreement as required by Section 2.1(b) of the Agreement.
A-1
3. Conveyance of Receivables . (a) Seller does hereby transfer, assign, set over and otherwise convey, without recourse except as set forth in this Agreement, to Buyer, all its right, title and interest in, to and under the Receivables in such Additional Accounts existing at the close of business on the Addition Date and thereafter created from time to time until the Agreement Termination Date, the Related Security and Collections with respect thereto and related Recoveries, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and all proceeds of the foregoing. The foregoing does not constitute and is not intended to result in the creation or assumption by Buyer of any obligation of any Originator, Seller or any other Person in connection with the Accounts or the Transferred Receivables or under any agreement or instrument relating thereto, including any obligation to Obligors, merchant banks, Retailers, clearance systems or insurers.
(b) Seller agrees to record and file, at its own expense, financing statements (and continuation statements when applicable) with respect to the Receivables in Additional Accounts existing on the Addition Date and thereafter created meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect, and maintain perfection of, the sale and assignment of its interest in such Receivables to Buyer, and to deliver a file-stamped copy of each such financing statement or other evidence of such filing to Buyer within ten (10) days of the Addition Date. Buyer shall be under no obligation whatsoever to file such financing or continuation statements or to make any other filing under the UCC in connection with such sale and assignment.
(c) In connection with such assignment, Seller further agrees, at its own expense, on or prior to the date of this Assignment, to indicate and cause Servicer to indicate in the appropriate computer files that Receivables created in connection with the Additional Accounts and designated hereby have been conveyed to Buyer pursuant to the Agreement and this Assignment.
(d) Seller does hereby grant to Buyer a security interest in all of its right, title and interest, whether now owned or hereafter acquired, in and to the Receivables in the Additional Accounts existing on the Addition Date and thereafter created, the Related Security and Collections with respect thereto and Recoveries allocated to Buyer as provided in the Agreement, together with all monies due or to become due and all amounts received or receivable with respect thereto and all Insurance Proceeds relating thereto and all proceeds of the foregoing. This Assignment constitutes a security agreement under the UCC.
4. Acceptance by Buyer . Buyer hereby acknowledges its acceptance of all right, title and interest to the property, existing on the Addition Date and thereafter created, conveyed to Buyer pursuant to Section 3(a) of this Assignment. Buyer further acknowledges that, prior to or simultaneously with the execution and delivery of this Assignment, Seller delivered to it the Account Schedule described in Section 2 of this Assignment.
A-2
5. Representations and Warranties of Seller . Seller hereby represents and warrants to Buyer as of the Addition Date:
(a) This Assignment constitutes a legal, valid and binding obligation of Seller enforceable against Seller 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);
(b) each of the Transferred Receivables satisfies the criteria for an Eligible Receivable as of the Addition Cut-Off Date;
(c) each Additional Account is, as of the Addition Cut-Off Date, an Eligible Account,
(d) no selection procedures believed by Seller to be materially adverse to the interests of Buyer or any of its creditors were utilized in selection the Additional Accounts from the available Eligible Accounts;
(e) as of the Addition Date, Seller is solvent;
(f) the Account Schedule delivered pursuant to this Assignment is an accurate and complete listing in all material respects of all the Accounts as of the related Addition Cut-Off Date, and the information contained therein with respect to the identity of such Accounts and the Transferred Receivables existing in such Accounts, is true and correct in all material respects as of the Addition Cut-Off Date;
(g) the Agreement and this Assignment creates a valid and continuing security interest in the Receivables in the Additional Accounts and the Related Security and in Collections and Recoveries with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and the proceeds thereof in favor of Buyer, which security interest (x) is enforceable against Seller, as such enforceability may be limited by applicable Debtor Relief Laws, now or hereafter in effect, and by general principles of equity (whether considered in a suit at law or in equity) and (y) upon filing of the financing statements described herein and, in the case of Transferred Receivables thereafter created, upon the creation thereof, will be prior to all other Liens (other than Permitted Encumbrances);
(h) the Transferred Receivables constitute accounts within the meaning of UCC Section 9-102;
(i) immediately prior to the conveyance of the Receivables pursuant to this Agreement, Seller owns and has good and marketable title to, or has a valid
A-3
security interest in, the Receivables free and clear of any Lien, claim or encumbrance of any Person, (other than Permitted Encumbrances); and
(j) subject to Permitted Encumbrances, other than the transfer and assignment and the security interest granted to Buyer pursuant to this Agreement, Seller had not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Transferred Receivables. Seller has not authorized the filing of and is not aware of any financing statements against Seller that included a description of collateral covering the Transferred Receivables.
6. Amendment of the Agreement . The Agreement is hereby amended to provide that all references therein to this Agreement and herein shall be deemed from and after the Addition Date to be a dual reference to this Agreement as supplemented by this Assignment. Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Agreement shall remain unamended and shall continue to be, and shall remain, in full force and effect in accordance with its terms.
7. Counterparts . This Assignment 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.
8. GOVERNING LAW . THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
A-4
IN WITNESS WHEREOF, the undersigned have caused this Assignment of Transferred Receivables in Additional Accounts to be duly executed and delivered by their respective duly authorized officers on the day and year first above written.
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CREDIT CARD BANK
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A-5
Schedule
I
to Assignment of Transferred Receivables
in Additional Accounts
ADDITIONAL ACCOUNTS
A-6
FORM OF
REASSIGNMENT OF RECEIVABLES
IN REMOVED ACCOUNTS
(As required by Section 2.7 of the Agreement)
REASSIGNMENT No. OF RECEIVABLES IN REMOVED ACCOUNTS dated as of , by and among MONOGRAM CREDIT CARD BANK OF GEORGIA, a bank organized under the laws of the State of Georgia, as Seller (the Seller ), and RFS HOLDING, L.L.C. (the Buyer ), pursuant to the Agreement referred to below.
WITNESSETH:
WHEREAS Seller and Buyer are parties to the Receivables Sale Agreement, dated as of June 27, 2003 (as it may be amended and supplemented from time to time the Agreement );
WHEREAS pursuant to the Agreement, Seller wishes to remove from Buyer all Transferred Receivables owned by Buyer in certain designated Accounts and to cause Buyer to reconvey the Transferred Receivables of such Removed Accounts, whether now existing or hereafter created, from Buyer to Seller; and
WHEREAS Buyer is willing to accept such designation and to reconvey the Transferred Receivables in the Removed Accounts subject to the terms and conditions hereof;
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
1. Defined Terms . All terms defined in the Agreement and used herein shall have such defined meanings when used herein, unless otherwise defined herein.
Removal Date means, with respect to the Removed Accounts designated hereby, ,
Removal Notice Date means, with respect to the Removed Accounts , .
2. Designation of Removed Accounts . Schedule 1 to this Reassignment, as of the Removal Date, shall supplement Schedule 1 to the Agreement as required by Section 2.1(b) of the Agreement.
3. Conveyance of Transferred Receivables . (a) Buyer does hereby transfer, assign, set over and otherwise convey to Seller, without representation, warranty or recourse, on and after the Removal Date, all right, title and interest of Buyer in, to and under the Transferred Receivables existing at the close of business on the Removal Date
B-1
and thereafter created from time to time in the Removed Accounts designated hereby, the Related Security and Collections with respect thereto and Recoveries allocated to Buyer as provided in the Agreement, together with all monies due or to become due and all amounts received or receivable with respect thereto and all Insurance Proceeds related thereto and all proceeds of the foregoing.
(b) In connection with such transfer, Buyer agrees to execute and deliver to Seller on or prior to the date this Reassignment is delivered, applicable termination statements prepared by Seller with respect to the Transferred Receivables existing at the close of business on the Removal Date and thereafter created from time to time in the Removed Accounts reassigned hereby and the proceeds thereof evidencing the release by Buyer of its interest in the Transferred Receivables in the Removed Accounts, and meeting the requirements of applicable state law, in such manner and such jurisdictions as are necessary to terminate such interest.
4. Representations and Warranties of Seller . Seller hereby represents and warrants to Buyer as of the Removal Date:
(a) Legal Valid and Binding Obligation . This Reassignment Agreement constitutes a legal, valid and binding obligation of Seller enforceable against Seller 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) List of Removed Accounts . The list of Removed Accounts attached hereto, is an accurate and complete listing in all material respects of all the Accounts as of the Removal Date.
5. Amendment of the Agreement . The Agreement is hereby amended to provide that all references therein to this Agreement and herein shall be deemed from and after the Removal Date to be a dual reference to the Agreement as supplemented by this Reassignment. Except as expressly amended hereby, all of the representations, warranties, terms and covenants and conditions of the Agreement shall remain unamended and shall continue to be and shall remain in full force and effect in accordance with its terms.
6. 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 shall constitute one and the same instrument.
7. GOVERNING LAW . THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-2
IN WITNESS WHEREOF, the undersigned have caused this Reassignment of Receivables in Removed Accounts to be duly executed and delivered by their respective duly authorized officers on the day and year first above written.
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CREDIT CARD BANK OF
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B-3
Schedule 1
to Reassignment Agreement
REMOVED ACCOUNTS
B-4
FORM OF OPINION OF COUNSEL WITH RESPECT
TO AMENDMENTS
(Provisions to be included in
Opinion of Counsel to be delivered pursuant
to
Section 7.13(c)(i)
The opinions set forth below may be subject to all the qualifications, assumptions, limitations and exceptions taken or made in the Opinions Of Counsel delivered on the Closing Date.
(i) The amendment to this Agreement attached hereto as Schedule 1 (the Amendment ), has been duly authorized, executed and delivered by Seller and constitutes the legal, valid and binding agreement of Seller, enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws from time to time in effect affecting creditors rights generally or the rights of creditors of national banking associations. The enforceability of the obligations of Seller is also subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)
(ii) The Amendment has been entered into in accordance with the terms and provisions of Section 7.2 of this Agreement.
FORM OF OPINION OF COUNSEL WITH RESPECT
TO ADDITION OF ADDITIONAL ACCOUNTS
(Provisions to be included in
Opinion of Counsel to be
delivered pursuant to
Section 7.13(c)(ii)
)
The opinions set forth below may be subject to appropriate qualifications, assumptions, limitations and exceptions.
1. The provisions of the Receivables Sale Agreement are effective under the UCC to create in favor of Buyer a valid security interest in Sellers rights in the Transferred Receivables in such Additional Accounts and the identifiable proceeds thereof (the Specified Assets ).
2. The security interest in the Specified Assets created by the Receivables Sale Agreement will be perfected by the filing of the Financing Statements as described and defined in such opinion. Based solely upon our review of the UCC Searches as described and defined in such opinion, such perfected security interest in the Specified Assets is prior to any other security interest granted by Originator that is perfected solely by filing of Financing Statements in the Search Offices as described and defined in such opinion that covers the Specified Assets.
PROVISIONS TO BE INCLUDED IN
ANNUAL OPINION OF COUNSEL
(To be delivered
pursuant to
Section 7.13(c)(iii)
)
The opinion set forth below may be subject to certain qualification, assumptions, limitations and exceptions taken or made in the opinion of counsel to otherwise indicated, all capitalized terms used herein shall have the meanings ascribed to them in the Receivables Sale Agreement.
Assuming that all relevant conditions specified in the Prior Opinion as described and defined in such opinion addressing the security interest of Seller remain with respect to the Transferred Receivables in the Accounts and the proceeds thereof (the Specified Assets ) and the manner in which it is held still exists and that no circumstance has occurred that would render the facts upon which the Prior Opinion relied incorrect, we are of the opinion that no further actions are necessary on the date hereof to perfect or continue the perfection status of the security interest of Seller in the Specified Assets.
EXHIBIT 4.10
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RECEIVABLES PURCHASE AND CONTRIBUTION AGREEMENT
between
RFS HOLDING, L.L.C.,
Seller,
and
RFS FUNDING TRUST,
Buyer,
Dated as of June 27, 2003
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GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL |
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SCHEDULES
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EXHIBITS
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Form of Assignment of Transferred Receivables in Additional Accounts |
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Form of Reassignment of Transferred Receivables in Removed Accounts |
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Form of Opinion of Counsel with Respect to Additional Accounts |
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ii
RECEIVABLES PURCHASE AND CONTRIBUTION AGREEMENT, dated as of June 27, 2003 (this Agreement ), between RFS HOLDING, L.L.C., a Delaware limited liability company, as Seller ( Seller ) and RFS FUNDING TRUST, a Delaware statutory trust, as Buyer ( Buyer ).
In consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions
Account means each Initial Account and each Additional Account, but excludes any Account all of the Receivables in which are either reassigned or assigned to Seller or its designee in accordance with this Agreement, and any Accounts which in accordance with Sellers customary practices have been removed from Sellers computer records due to lack of activity. The term Account includes each account into which an Account is transferred (a Transferred Account ) so long as (a) such transfer is made in accordance with the Credit and Collections Policies and (b) such Transferred Account can be traced or identified, by reference to or by way of any Account Schedule delivered to Buyer pursuant to this Agreement, as an account into which an Account has been transferred. Notwithstanding the foregoing, no account in a Dual Card Program shall be deemed to be a Transferred Account with respect to any Account in a Private Label Program. Any Account in which the Principal Receivables have become Charged-Off Receivables shall cease to be an Account for all purposes other than the calculation of Recoveries, and no existing balance or future charges on such account shall be deemed to be Transferred Receivables notwithstanding any subsequent reaffirmation of such account by the Obligor and any resulting action by Originator. The term Account includes an Additional Account only from and after its Addition Date and includes any Removed Account only prior to its Removal Date. To avoid doubt, and without limiting the foregoing, each Flagged Account is an Account.
Accounting Changes means, with respect to any Person: (a) changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion of the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or any successor thereto or any agency with similar functions); (b) changes in accounting principles concurred by such Persons certified public accountants; (c) purchase accounting adjustments under A.P.B. 16 or 17 and EITF 88-16, and the application of the accounting principles set forth in FASB 109, including the establishment of reserves pursuant thereto and any subsequent reversal (in whole or in part) of such reserves; and (d) the reversal of any reserves established as a result of purchase accounting adjustments.
Account Schedule means a computer file or microfiche list containing a true and complete list of Accounts, identified by account number (or by an alpha-numeric identifier that uniquely and objectively identifies the applicable account number pursuant to a protocol that has been provided to the Buyer) and setting forth the receivables balance for each as of (i) the applicable Addition Cut-Off Date, in the case of an Account Schedule relating to Additional Accounts, (ii) the Removal Notice Date, in the case of an Account Schedule relating to Removed Accounts or (iii) the date specified therein, in the case of any Account Schedule relating to Transferred Accounts or any other Account Schedule. Notwithstanding the foregoing, the initial Account Schedule does not set forth receivables balances, and any failure to set forth receivables balances in such a file or list shall not impair the files or lists effectiveness as an Account Schedule.
Addition Cut-Off Date means the date as of which any credit card accounts are designated to be included as Additional Accounts, as specified in the related Assignment.
Addition Date means, as to any Additional Accounts, the date as of which receivables outstanding in such Additional Account are first sold to Buyer, as specified in the related Assignment.
Additional Accounts is defined in Section 2.6(a) .
Additional Retailer means any retailer for which Originator maintains a Private Label Program, a Dual Card Program or both, which retailer is designated as an Additional Retailer in accordance with Section 2.6(e) .
Administration Agreement means that certain Amended and Restated Administration Agreement dated as of December 30, 2002 and amended and restated as of June 27, 2003, among the Administrator, the Borrower and the Trustee.
Administrator means GE Capital, in its capacity as Administrator under the Administration Agreement, or any other Person designated as a successor Administrator.
Affiliate means, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, five percent (5%) or more of the securities having ordinary voting power in the election of directors of such Person, (b) each Person that controls, is controlled by or is under common control with such Person, or (c) each of such Persons officers, directors, joint venturers and partners. For the purposes of this definition, control of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
Aggregate Principal Receivables means, as of any date of determination, the aggregate Outstanding Balance of Principal Receivables as of such date (excluding Principal Receivables that are Specified Retailer Receivables), plus the principal amount of any Participation Interests.
2
Aggregate Reassignment Amount means, for any reassignment of the Transferred Receivables pursuant to Section 6.1(f) , the aggregate outstanding amount of Transferred Receivables (including Principal Receivables and Finance Charge Receivables) as of the end of the last preceding Monthly Period; provided that in no event shall the Aggregate Reassignment Amount be less than the sum of the amounts specified pursuant to the Indenture and the Payoff Amount specified (and as defined in) the Funding Agreement.
Agreement is defined in the preamble.
Agreement Termination Date is defined in Section 7.4 .
Assignment is defined in Section 2.6(d) .
Authorized Officer means, with respect to any corporation or statutory trust, the Chairman or Vice-Chairman of the Board, the President, any Vice President, the Secretary, the Treasurer, any Assistant Secretary, any Assistant Treasurer and each other officer of such corporation or trustee of such trust specifically authorized in resolutions of the Board of Directors of such corporation or trustee of such trust to sign agreements, instruments or other documents on behalf of such corporation or statutory trust in connection with the transactions contemplated by the Related Documents.
Banana Republic Program Agreement means that certain Amended and Restated Consumer Credit Card Program Agreement, dated as of August 29, 2000, by and among Gap, Inc. and Monogram.
Banana Republic Retailers means Gap, Inc. d/b/a Banana Republic and its permitted assigns under the Banana Republic Program Agreement.
Bank Receivables Sale Agreement means the Receivables Sale Agreement dated as of June 27, 2003, between Monogram and Seller.
Bankruptcy Event means, as to any Person, any of the following events: (a) a case or proceeding shall have been commenced against such Person seeking a decree or order in respect of such Person (i) under any Debtor Relief Law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Persons assets, or (iii) ordering the winding-up or liquidation of the affairs of any such Person; or (b) such Person shall (i) file a petition seeking relief under any Debtor Relief Law, (ii) consent or fail to object in a timely and appropriate manner to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Person or for any substantial part of such Persons assets, (iii) make an assignment for the benefit of creditors, or (iv) take any corporate or statutory trust action in furtherance of any of the foregoing.
3
Business Day means any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in the State of New York, the State of Connecticut or the state of Servicers principal place of business (currently Georgia).
Buyer is defined in the preamble.
Charged-Off Receivable means a Principal Receivable (or any portion thereof) arising in an Account which either (a) is 180 days past due or (b) has otherwise been written off as uncollectible in accordance with the Credit and Collection Policies. To avoid doubt, a Principal Receivable shall become a Charged-Off Receivable upon the earlier of the events described in clause (a) or clause (b) to occur with respect to the related Account.
Closing Date means June 27, 2003.
Collection Account means the deposit account from time to time designated as the Collection Account pursuant to the Indenture.
Collections means, for any Receivable for any period, (a) the sum of all amounts, whether in the form of cash, checks, drafts, or other instruments, received by Originator or Servicer in payment of, or applied to, any amount owed by an Obligor on account of such Receivable during such period, including all amounts received on account of such Receivable, all other fees and charges, (b) cash proceeds of Related Security with respect to such Receivable and (c) any in-store payments received by a Retailer, Servicer or Originator with respect to such Receivable.
Contract means the agreement and Federal Truth in Lending Statement for revolving credit card accounts between any Obligor and Originator, as such agreements may be amended, modified, or otherwise changed from time to time.
Credit and Collection Policies means, with respect to each credit card program from which Accounts are drawn, Originators policies and procedures relating to the operation of such credit card program, including the policies and procedures for determining the creditworthiness of Obligors and the extension of credit to Obligors, and relating to the maintenance of credit card accounts and collection of credit card receivables, as such policies and procedures may be amended from time to time.
Credit Card Program Agreement means one or more agreements between Originator and a Retailer pursuant to which Originator provides a Private Label Program, a Dual Card Program or both to the Retailer and its customers.
Daily Sale Commencement Date means the date that the first series of Notes is issued or such earlier date as may be agreed upon between Buyer and Seller.
Date of Processing means, as to any transaction, the Business Day on which the transaction is first recorded on Servicers computer file of consumer revolving accounts (without regard to the effective date of such recordation).
4
Debtor Relief Laws means Title 11 of the United States Code, the Federal Deposit Insurance Act and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, readjustment of debt, marshalling of assets or similar debtor relief laws of the United States, any state or any foreign country from time to time in effect, affecting the rights of creditors generally.
Discount Option Receivables is defined in Section 2.8(b) .
Discount Option Receivables Collections is defined in Section 2.8(c) .
Discount Percentage is defined in Section 2.8(a) .
Dual Card Program means any arrangement in which Originator agrees to extend general purpose credit card accounts to customers of a Retailer, which accounts combine a private label credit line for use at the Retailers retail establishments or in its catalogue sales business and a general purpose credit line for use elsewhere.
Early Amortization Event means an Early Amortization Event for any series of Notes, as defined in the Indenture and the applicable supplement to the Indenture relating to that series of Notes.
Eligible Account means a credit card account that satisfies the definition of Eligible Account in the Bank Receivables Sale Agreement as of the applicable date specified therein.
Eligible Receivable means a Receivable that satisfies the definition of Eligible Receivable in the Bank Receivables Sale Agreement; it being understood that references to Buyer and Seller in such definition shall be deemed to refer to Buyer and Seller as defined in this Agreement.
Excess Funding Account means the deposit account from time to time designated as the Excess Funding Account pursuant to the Indenture.
Finance Charge Receivables means Receivables created in respect of periodic finance charges, late fees, returned check fees and all other similar fees and charges billed or accrued and unpaid on an Account.
Flagged Account is defined in Section 2.1(b) .
Free Equity Amount means, at any time, the excess, if any, of the Note Trust Principal Balance over the sum of the portions of the Note Trust Principal Balance allocated as collateral (referred to in the Indenture as the Collateral Amount) for each then outstanding series of Notes.
Funding Agreement means that certain Receivables Funding Agreement dated as of June 27, 2003, between the Buyer and the Lender, which amends and restates that certain Third Amended and Restated Receivables Funding and Servicing Agreement
5
dated as of September 25, 1997 and amended and restated as of July 22, 1998, as of March 22, 2001, and as of December 30, 2002, among the Buyer, the Lender, the Servicer and GE Capital.
GAAP means generally accepted accounting principles in the United States of America in effect from time to time.
Gap Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. and Monogram.
Gap Retailers means Gap, Inc. and its permitted assigns under the Gap Program Agreement.
GE Capital means General Electric Capital Corporation, a Delaware corporation.
GECAF Retailer means each retailer who is from time to time a party to a dealer agreement with Monogram relating to Monograms GECAF private label credit card program.
Governmental Authority means any nation or government, any state or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Gross Principal Balance is defined in Section 2.8(b) .
Inactive Account is defined in Section 2.7(d) .
Indenture means the master indenture to be entered into between Issuer and an indenture trustee.
Indenture Security Agreement means the Security Agreement to be entered into between Buyer and the Indenture Trustee.
Indenture Trustee means, at any time, the Person acting as indenture trustee under the Indenture.
Ineligible Receivable is defined in Section 6.1(d) .
Initial Account means each open end credit card account identified in the Account Schedule delivered in connection with the execution and delivery of this Agreement.
Insurance Proceeds means any amounts payable to Originator pursuant to any credit insurance policies covering any Obligor with respect to Receivables under such Obligors Account.
6
Involuntary Removal is defined in Section 2.7(b) .
Issuer means GE Capital Credit Card Master Note Trust, a Delaware statutory trust.
JCPenney Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of December 6, 1999, by and between J.C. Penney Company, Inc. and Monogram.
JCPenney Retailers means J.C. Penney Company, Inc. and other Authorized Entities as such term is defined in the J.C. Penney Program Agreement.
Lender means the Person who makes advances under the Funding Agreement.
Lien means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction).
Litigation means, with respect to any Person, any action, claim, lawsuit, demand, investigation or proceeding pending or threatened against such Person before any court, board, commission, agency or instrumentality of any federal, state, local or foreign government or of any agency or subdivision thereof or before any arbitrator or panel of arbitrators.
Lowes Retailers means each of Lowes Companies, Inc., Lowes Home Centers, Inc., The Contractor Yard, Inc., Lowes HIW, Inc. and certain of their affiliates.
Material Adverse Effect means a material adverse effect on (a) the ability of Seller to perform any of its obligations under the Related Documents in accordance with the terms thereof, (b) the validity or enforceability of any Related Document or the rights and remedies of Seller or Buyer under any Related Document or (c) the Transferred Receivables, the Contracts therefor or the ownership interests or Liens of Seller or Buyer thereon or the priority of such interests or Liens.
Maximum Addition Amount means, with respect to any Addition Date:
(a) an aggregate principal balance as of such Addition Date of Additional Accounts not in excess of lesser of:
(i) the result of (A) 15% of the Aggregate Principal Receivables determined as of the first day of the third preceding Monthly Period minus (B) the Aggregate Principal Receivables in all of the Accounts that have been designated as Additional Accounts since the first day of the third
7
preceding Monthly Period (measured for each such Additional Account as of the applicable Addition Cut-Off Date); and
(ii) the result of (A) 20% of the Aggregate Principal Receivables determined as of the first day of the calendar year in which such Addition Date occurs minus (B) the Aggregate Principal Receivables in all of the Accounts that have been designated as Additional Accounts since the first day of such calendar year (measured, for each such Additional Account, as of the applicable Addition Cut-Off Date); and
(b) a total number of Additional Accounts not in excess of the lesser of:
(i) the result of (A) 15% of the total number of Accounts determined as of the first day of the third preceding Monthly Period minus (B) the total number of Accounts that have been designated as Additional Accounts since the first day of the third preceding Monthly Period; and
(ii) the result of (A) 20% of the total number of Accounts determined as of the first day of the calendar year in which such Addition Date occurs minus (B) the total number of Accounts that have been designated as Additional Accounts since the first day of such calendar year.
Minimum Free Equity Amount means the minimum Free Equity Amount that the Issuer is required to maintain pursuant to the Indenture.
Monogram means Monogram Credit Card Bank of Georgia, a bank organized under the laws of the State of Georgia.
Montgomery Ward means Montgomery Ward & Co. Incorporated.
Monthly Period means each period beginning on the 22 nd day of one calendar month and ending on the 21 st day of the next calendar month; except that the Monthly Period that ends in July 2003 shall begin on June 19, 2003 and shall end on July 21, 2003.
Note means any note issued by the Issuer, and authenticated by the Indenture Trustee pursuant to the Indenture.
Note Trust Principal Balance means, as of any time of determination falling within or relating to a Monthly Period, the result of (a) the Aggregate Principal Receivables at that time, plus (b) the amount on deposit in the Excess Funding Account at that time (exclusive of any investment earnings on such amount), minus (c) the Borrowing Base (as defined in the Trust Agreement) for that Monthly Period.
Obligor means, with respect to any Receivable, any Person obligated to make payments in respect thereof.
8
Officers Certificate means, with respect to any Person, a certificate signed by an Authorized Officer of such Person.
Old Navy Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. and Monogram.
Old Navy Retailers means Gap, Inc. d/b/a Old Navy and its permitted assigns under the Old Navy Program Agreement.
Opinion of Counsel means a written opinion of counsel, who may be counsel for, or an employee of, the Person providing the opinion.
Originator means Monogram or any other originator so designated pursuant to Section 2.10 .
Outstanding Balance means, with respect to any Principal Receivable: (a) as of the Transfer Date for that Principal Receivable, the outstanding amount of such Principal Receivable as reflected on Servicers books and records (after giving effect to any recharacterization of any portion of such Principal Receivable as a Finance Charge Receivable pursuant to Section 2.8 ); and (b) thereafter, the amount referred to in clause (a) minus Collections with respect to that Principal Receivable that are allocable to a reduction of the Outstanding Balance thereof minus any subsequent discounts to or any other modifications that reduce such Outstanding Balance; provided , that the Outstanding Balance of a Charged-Off Receivable shall equal zero.
Participation Interest is defined in the Bank Receivables Sale Agreement.
Payment Date means, except as otherwise specified in any supplement to the Indenture, the 15 th day of each calendar month, or if the 15 th day is not on a Business Day, the next Business Day.
Permitted Encumbrances means the following encumbrances: (a) Liens for taxes or assessments or other governmental charges not yet due and payable; (b) inchoate and unperfected workers, mechanics, suppliers or similar Liens arising in the ordinary course of business; and (c) presently existing or hereinafter created Liens in favor of, or created by, Buyer.
Person means any individual, sole proprietorship, partnership, joint venture, unincorporated organization, trust, association, corporation (including a business trust), limited liability company, institution, public benefit corporation, joint stock company, Governmental Authority or any other entity of whatever nature.
Principal Receivable means each Receivable, other than a Finance Charge Receivable.
Prior Transfer Agreement means that certain Third Amended and Restated Receivables Transfer Agreement dated as of September 25, 1997, amended and restated
9
as of July 22, 1998, as of March 22, 2001 and as of December 30, 2002 between Originator and Buyer.
Private Label Program means a business arrangement in which Originator agrees to extend open end credit card accounts to customers of such Retailer and such Retailer agrees to allow purchases to be made at its retail establishments, or in its catalogue sales business, under such accounts.
Purchase Date means the Closing Date and (a) prior to the Daily Sale Commencement Date, the last day of each Monthly Period and (b) thereafter, each Business Day.
Purchase Price is defined in Section 2.4(a) .
Rating Agency means, as to any class of Notes, the rating agency or agencies, if any, specified in the related supplement to the Indenture.
Rating Agency Condition means, with respect to any action, that each Rating Agency, if any, shall have notified Issuer that such action will not result in a reduction or withdrawal of the rating, if any, of any outstanding class with respect to which it is a Rating Agency.
Reassignment is defined in Section 2.7(a) .
Receivable means any amount owing by an Obligor under an Account from time to time.
Records means all Contracts and other documents, books, records and other information (including computer programs, tapes, disks, data processing software and related property and rights) prepared and maintained by Originator, Servicer, or any Sub-Servicer with respect to the Transferred Receivables and the Obligors thereunder.
Recoveries means (a) so long as the servicing arrangement described in Section 2.1(c) of the Bank Receivables Sale Agreement remains in effect, amounts allocated to the Transferred Receivables pursuant to that Section and (b) if at any time that servicing arrangement no longer remains in effect, with respect to any Transferred Receivable, (i) Collections of such Transferred Receivable received after such Transferred Receivable was charged off as uncollectible but before any sale or other disposition of such Transferred Receivable after charge off; and (ii) any proceeds from such a sale or other disposition by Seller of such a charged-off Transferred Receivable, in each of clauses (i) and (ii) net of expenses of recovery.
Related Documents means this Agreement, the Bank Receivables Sale Agreement, the Trust Agreement, the Transfer Agreement, the Indenture, the Servicing Agreement, the Indenture Security Agreement, the Administration Agreement and all other pledges, powers of attorney, consents, assignments, contracts, notices, and all other written matter whether heretofore, now or hereafter executed by or on behalf of any
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Person, or any employee of any Person, and delivered in connection with any of the foregoing or the transactions contemplated thereby.
Related Security means with respect to any Receivable: (a) all of Originators interest, if any, in the goods, merchandise (including returned merchandise) or equipment, if any, the sale of which gave rise to such Receivable; (b) all guarantees, insurance or other agreements or arrangements of any kind from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise; and (c) all Records relating to such Receivable.
Removed Accounts is defined in Section 2.7(a) .
Removal Date is defined in Section 2.7(a) .
Removal Notice Date is defined in Section 2.7(a) .
Required Principal Balance means the minimum Note Trust Principal Balance that the Issuer is required to maintain pursuant to the Indenture.
Requirements of Law means, as to any Person, the certificate of incorporation or articles of association 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.
Retailer means the Banana Republic Retailers; the Gap Retailers; the GECAF Retailers; Home Depot U.S.A.; the JCPenney Retailers, Inc.; the Lowes Retailers; Montgomery Ward; the Old Navy Retailers; the Sams Club Retailers, the Wal-Mart Retailers and from time to time, any Additional Retailer designated pursuant to (and as defined in) this Agreement. It is understood and agreed that (a) additional retailers who from time to time become GECAF Retailers shall automatically be treated as Retailers with respect to Monograms GECAF program without the necessity of complying with the terms of Section 2.6(e) and (b) any Person designated as a Retailer shall cease to be included as a Retailer if the Accounts related to that Person are designated as Removed Accounts pursuant to Section 2.7(b) , effective at the time that the repurchase of the related Transferred Receivables is completed.
RFS Funding Termination Date means the date on which Buyer is terminated and all of the Transferred Receivables held by Buyer are transferred to the Issuer.
Sams Club Program Agreement means that certain Third Amended and Restated Consumer Credit Card Program Agreement, dated as of February 1, 1999, by and among Wal-Mart Stores, Inc., Sams West, Inc., Sams East, Inc. and Monogram.
Sams Club Retailers means Sams West, Inc., a Delaware corporation, Sams East, Inc., a Delaware corporation, and their respective successors and permitted assigns under the Sams Club Program Agreement.
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Seller means RFS Holding, L.L.C. or any additional Person designated as a Seller in accordance with Section 2.9 .
Servicer means Monogram, in its capacity as Servicer under the Servicing Agreement, or any other Person designated as a successor servicer pursuant to the Servicing Agreement.
Servicing Agreement means the Servicing Agreement dated as of June 27, 2003, among Servicer, Buyer and, upon its accession as provided therein, Issuer.
Specified Retailer Receivables means the Transferred Receivables arising in the Originators programs for Home Depot U.S.A., Inc. and Montgomery Ward. Transferred Receivables arising in the Originators program for Montgomery Ward that have been transferred to the Originators program for Wal-Mart Retailers shall not be considered Specified Retailer Receivables.
Sub-Servicer means any Person with whom Servicer enters into a Sub-Servicing Agreement.
Sub-Servicing Agreement means any written contract entered into between Servicer and any Sub-Servicer relating to the servicing, administration or collection of the Transferred Receivables.
Subsidiary means, with respect to any Person, any corporation or other entity (a) of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned by such Person or (b) that is directly or indirectly controlled by such Person within the meaning of control under Section 15 of the Securities Act.
Transfer Agreement means the Transfer Agreement to be entered into between Seller and the Issuer.
Transfer Date means a date on which Buyer acquires Transferred Receivables from Seller pursuant to Section 2.1 or any Assignment.
Transferred Account is defined within the definition of Account.
Transferred Assets is defined in Section 2.1 .
Transferred Receivable means any Receivable purchased by Buyer from Seller pursuant to this Agreement or any Assignment, including Principal Receivables and Finance Charge Receivables that exist at the time of purchase of any Principal Receivables in the same Account or that arise in an Account after the date of purchase of Principal Receivables in the Account. However, Receivables that are repurchased by Seller pursuant to this Agreement or purchased by Servicer pursuant to the Servicing Agreement shall cease to be considered Transferred Receivables from the date of such purchase.
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Trust Agreement means the Amended and Restated Trust Agreement dated as of December 19, 2002 among Seller, General Electric Capital Services, Inc., and Deutsche Bank Trust Company Delaware, as trustee, as amended and restated on June 27, 2003 among Seller, RFS Holding, Inc. (as assignee of General Electric Capital Services, Inc.) and Deutsche Bank Trust Company Delaware, as trustee.
Trustee means Deutsche Bank Trust Company Delaware, not in its individual capacity but solely in its capacity as trustee under the Trust Agreement.
UCC means, with respect to any jurisdiction, the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in such jurisdiction.
United States means the United States of America, together with its territories and possessions.
Wal-Mart Program Agreement means that certain Consumer Credit Card Program Agreement dated as of August 26, 1999, by and between Wal-Mart Stores, Inc. and Monogram.
Wal-Mart Retailers means Retailer as such term is defined in the Wal-Mart Program Agreement.
Section 1.2 Other Interpretive Matters . All terms defined directly or by incorporation in this Agreement shall have the defined meanings when used in any certificate or other document delivered pursuant thereto unless otherwise defined therein. For purposes of this Agreement and all related certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined in this Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under GAAP; and unless otherwise provided, references to any month, quarter or year refer to a fiscal month, quarter or year as determined in accordance with the GE Capital fiscal calendar; (b) terms defined in Article 9 of the UCC as in effect in the applicable jurisdiction and not otherwise defined in this Agreement are used as defined in that Article; (c) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (d) the words hereof, herein and hereunder and words of similar import refer to this Agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of this Agreement (or such certificate or document); (e) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Agreement (or the certificate or other document in which the reference is made), and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (f) the term including means including without limitation; (g) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (h) references to any agreement refer to that agreement as from time to time amended, restated or supplemented or as the terms of such agreement
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are waived or modified in accordance with its terms; and (i) references to any Person include that Persons successors and permitted assigns.
ARTICLE II
SALES AND CONTRIBUTIONS
Section 2.1 Sales and Contributions . (a) By execution of this Agreement, Seller does hereby transfer, assign, set over and otherwise convey to Buyer, without recourse except as provided herein, all its right, title and interest in, to and under, (i) the Receivables existing at the opening of business on the Closing Date, and thereafter created from time to time until the Agreement Termination Date (excluding, however, any Receivables existing on the Closing Date or thereafter arising in any Account relating to Montgomery Ward or Sellers currently existing program for Home Depot U.S.A., Inc.), together with the Related Security and Collections with respect thereto, in each case together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto, (ii) without limiting the generality of the foregoing or the following, all of Sellers rights pursuant to the Bank Receivables Sale Agreement to receive payments from any Retailer on account of in-store payments and any other amounts received by such Retailer in payment of Receivables, (iii) all of Sellers other rights under the Bank Receivables Sale Agreement and (iv) all proceeds of all of the foregoing (collectively, the Transferred Assets ). The foregoing does not constitute and is not intended to result in the creation or assumption by Buyer of any obligation of Originator, Seller or any other Person in connection with the Accounts or the Transferred Receivables or under any agreement or instrument relating thereto, including any obligation to Obligors, merchant banks, Retailers, clearance systems or insurers. The foregoing conveyance shall be effective (x) on the Closing Date, as to all Transferred Assets then existing, (y) thereafter until the Daily Sale Commencement Date, on each Purchase Date, as to all Transferred Assets arising since the prior Purchase Date and (z) from and after the Daily Sale Commencement Date, instantaneously upon the creation of each Transferred Asset.
(b) Seller agrees, at its own expense, (i) on or prior to (x) the Closing Date, in the case of the Initial Accounts, (y) the applicable Addition Date, in the case of Additional Accounts, and (z) the applicable Removal Date, in the case of Removed Accounts, to indicate, or cause to be indicated, in the appropriate computer files that Receivables created (or reassigned, in the case of Removed Accounts) in connection with the Accounts have been conveyed to Buyer pursuant to this Agreement (or conveyed to Seller or its designee in accordance with Section 2.7 , in the case of Removed Accounts) by including, or causing to be included, in such computer files a code so identifying each such Account (or, in the case of Removed Accounts, deleting, or causing to be deleted, such code thereafter) and (ii) on or prior to the date referred to in clauses (i)(x) , (y) or (z) , as applicable, to deliver to Buyer an Account Schedule. The initial such Account Schedule, as supplemented from time to time to reflect Additional Accounts and Removed Accounts, shall be marked as Schedule 1 to this Agreement and is hereby incorporated into and made a part of this Agreement. Once the code referenced in clause (i) of this paragraph has been included with respect to any Account, Seller further agrees
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not to permit such code to be altered during the remaining term of this Agreement unless and until (x) such Account becomes a Removed Account, or (y) Seller shall have delivered to Buyer at least 30 days prior written notice of its intention to do so and has taken such action as is necessary or advisable to cause the interest of Buyer in the Transferred Receivables to continue to be perfected with the priority required by this Agreement. At any time that the code referenced in clause (i) is included with respect to any account, such account shall be a Flagged Account .
Section 2.2 Acceptance by Trustee .
(a) Buyer hereby acknowledges its acceptance of all right, title and interest to the property, now existing and hereafter created, conveyed to Buyer pursuant to Section 2.1 . Trustee shall maintain a copy of Schedule 1 , as delivered to it from time to time.
(b) Trustee hereby agrees not to disclose to any Person any of the account numbers or other information contained in the Account Schedule marked as Schedule 1 and delivered to Trustee, from time to time, except (i) to Servicer, any Sub-Servicer or as required by a Requirement of Law applicable to Trustee, (ii) in connection with the performance of Trustees duties hereunder, (iii) to Indenture Trustee in connection with Indenture Trustees duties or (iv) to bona fide creditors or potential creditors of Servicer or Seller for the limited purpose of enabling any such creditor to identify Transferred Receivables or Accounts subject to this Agreement. Trustee agrees to take such measures as shall be reasonably requested by Seller to protect and maintain the security and confidentiality of such information and, in connection therewith, shall allow Seller or its duly authorized representatives to inspect Trustees security and confidentiality arrangements from time to time during normal business hours upon prior written notice. Trustee shall promptly notify Seller of any request received by Trustee to disclose information of the type described in this Section 2.2(b) , which notice shall in any event be provided no later than five (5) Business Days prior to disclosure of any such information unless Trustee is compelled pursuant to a Requirement of Law to disclose such information prior to the date that is five (5) Business Days after the giving of such notice.
Section 2.3 Grant of Security Interest . The parties hereto intend that each transfer of the Transferred Assets shall constitute a sale by Seller to Buyer and not a loan by Buyer to Seller secured by the Transferred Assets. Notwithstanding anything to the contrary set forth in this Section 2.3 , if a court of competent jurisdiction determines that any transaction provided for herein constitutes a loan and not a sale, then the parties hereto intend that this Agreement shall constitute a security agreement under applicable law and that Seller shall be deemed to have granted, and Seller hereby grants, to Buyer a first priority lien and security interest in and to all of Sellers right, title and interest in, to and under the Transferred Assets, subject only to Permitted Encumbrances.
Section 2.4 Purchase Price . (a) The purchase price for the Transferred Receivables and the other Transferred Assets related thereto shall equal the Outstanding Balance of the Principal Receivables included therein, adjusted consistent with any
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applicable Discount Percentage (such amount for any Transferred Assets, the Purchase Price ).
(b) The Purchase Price for any Transferred Assets sold by Seller under this Agreement shall be payable in full in cash on each Purchase Date or less frequently if so agreed between Buyer and Seller; provided , however , that Buyer may, with respect to any sale or contribution, offset against such Purchase Price any amounts owed by Seller to Buyer hereunder and which remain unpaid. On each such Purchase Date or other date set by the parties for payment, Buyer shall, upon satisfaction of the applicable conditions set forth in Article III , make available to Seller the Purchase Price for the applicable Transferred Assets in same day funds. If Buyer does not have sufficient cash on any Purchase Date or other date set by the parties for payment to pay the full Purchase Price, the remaining balance shall be deemed to be contributed to Buyer in exchange for a corresponding increase in the Free Equity Amount. During the period beginning on the Daily Sale Commencement Date and ending when mutually agreed between Buyer and Seller, the Purchase Price payable on each Purchase Date shall be based on good faith estimates of the amount of new Receivables since the prior Purchase Date, and the Buyer and Seller shall make compensating payments on each Payment Date as necessary to correct for any errors in estimation.
Section 2.5 Adjustments . If on any day the outstanding amount of any Principal Receivable is reduced because of a rebate, refund, unauthorized charge or billing error to an accountholder, or because such Principal Receivable was created in respect of merchandise which was refused or returned by an accountholder, or if the outstanding amount of any Principal Receivable is otherwise reduced other than on account of Collections thereof or such amount being charged-off as uncollectible, then, Seller shall compensate Buyer for such reduction as provided below. The compensation payable by Seller for any such reduction shall equal the amount of the reduction in the Outstanding Balance of the Principal Receivable. Seller shall pay such compensation to Buyer not later than the second Business Day after adjustment or less frequently if so agreed between Buyer and Seller.
Section 2.6 Addition of Accounts .
(a) If, at the end of any Monthly Period, the Free Equity Amount is less than the Minimum Free Equity Amount, Seller shall require Originator to designate additional Eligible Accounts to be included as Accounts under (and as defined in) the Bank Receivables Sale Agreement, and Seller shall in turn designate such accounts ( Additional Accounts ) as Accounts for purposes of this Agreement in a sufficient amount such that the Free Equity Amount at the end of such Monthly Period, computed on a pro forma basis as if the Additional Accounts had been designated prior to the end of such Monthly Period, is at least equal to the Minimum Free Equity Amount (if any). In addition, if, at the end of any Monthly Period, the Note Trust Principal Balance is less than the Required Principal Balance, Seller shall require Originator to designate additional Eligible Accounts to be included as Accounts under the Bank Receivables Sale Agreement, and Seller shall in turn designate such accounts as Additional Accounts for purposes of this Agreement in a sufficient amount such that the Note Trust Principal
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Balance will be equal to or greater than the Required Principal Balance. Receivables from such Additional Accounts shall be transferred to Buyer on or before the tenth Business Day following such Monthly Period. To the extent Seller designates Additional Accounts with Principal Receivables substantially in excess of the amount of Principal Receivables required under this subsection 2.6(a) , such excess shall be deemed to be optional Additional Accounts under subsection 2.6(b) below and will be permitted to be so designated solely to the extent permitted by subsection 2.6(b) .
(b) Voluntary Additions of Accounts . In addition to its obligation under subsection 2.6(a) , Seller may also designate additional Eligible Accounts as Additional Accounts if Originator wishes to designate additional Accounts under the Bank Receivables Sale Agreement at a time when Additional Accounts are not required pursuant to subsection 2.6(a) .
(c) Participation Interests . In lieu of, or in addition to, designating Additional Accounts as required by subsection (a) above or designating additional Accounts as permitted by subsection (b) above, Seller may convey Participation Interests to Buyer. The Rating Agency Condition must be satisfied in connection with any such conveyance and Seller and Buyer will enter into a supplement to this Agreement specifying the terms of any such conveyance.
(d) Conditions for Additions of Additional Accounts . Any sale of Receivables from Additional Accounts under subsection 2.6(a) or (b) shall occur only upon satisfaction of the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(a) and on or before the tenth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(b ) , Seller shall give Buyer written notice that such Additional Accounts will be designated, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) on or before the Addition Date, (A) Seller shall have delivered to Buyer, a written assignment in substantially the form of Exhibit A (the Assignment ) (which may be executed by the Administrator on behalf of the Buyer), (B) the representations and warranties of Seller set out in Exhibit A shall be true with respect to the Additional Accounts and (C) Seller shall indicate in its computer files that the Receivables created in connection with the Additional Accounts have been transferred to Buyer;
(iii) Seller shall not make more than one such designation per Retailer in any one Monthly Period;
(iv) Seller shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Buyer (in such numbers and with such additional addressees as Buyer may reasonably request) substantially in the form of Exhibit D (with appropriate modifications);
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(v) in the case of any designation pursuant to subsection (b) , if the designation will cause the number or principal amount of Additional Accounts to exceed the Maximum Addition Amount, five Business Days prior written notice shall have been given to the Rating Agencies and the Rating Agency Condition shall have been satisfied with respect to the designation;
(vi) such Additional Accounts shall not relate to Montgomery Ward, the Originators program for Home Depot U.S.A., Inc. existing on the Closing Date or, unless the Rating Agency Condition has been satisfied, the GECAF Retailers; and
(vii) such Additional Accounts shall have arisen pursuant to a Retailers Credit Card Program Agreement, unless the Rating Agency Condition has been satisfied and Buyer has consented to such addition.
(e) Additional Retailers . Seller may from time to time designate retailers as Additional Retailers if (i) Originator wishes to make such a designation under the Bank Receivables Sale Agreement, (ii) Buyer consents to such designation and (iii) the Rating Agency Condition has been satisfied with respect to the designation.
Section 2.7 Removal of Accounts .
(a) From time to time, but not more frequently than once during each Monthly Period for any Retailer, Seller shall have the right to require the reassignment to it or its designee of all Buyers right, title and interest in, to and under the Transferred Receivables then existing and thereafter created in a specified set of Accounts (the Removed Accounts ), together with the Related Security and Collections with respect thereto, in each case together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto, upon satisfaction of the following conditions:
(i) on or before the tenth Business Day immediately preceding the Removal Date (the Removal Notice Date ) Seller shall have given Buyer, Servicer and each Rating Agency written notice of such removal and specifying the date for removal of the Removed Accounts (the Removal Date ); Seller shall provide each Rating Agency with such additional information relating to such removal as the Rating Agency shall reasonably request;
(ii) on or prior to the Removal Date, Seller shall have delivered to Buyer an Account Schedule listing the Removed Accounts;
(iii) with respect to any Involuntary Removal pursuant to Section 2.7(b) , Seller shall use reasonable efforts to satisfy the Rating Agency Condition; and as to any other removal, the Rating Agency Condition shall have been satisfied;
(iv) Seller shall have delivered to Buyer an Officers Certificate, dated as of the Removal Date, to the effect that Seller reasonably believes that (A) in the
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case of any removal other than an Involuntary Removal, such removal will not, based on the facts known to such officer at the time of such certification, then or thereafter cause an Early Amortization Event to occur with respect to any series of Notes, (B) in the case of any Involuntary Removal, Seller has used reasonable efforts to avoid having such removal result in an Early Amortization Event, (C) in either case, no selection procedure believed by Seller to be materially adverse to the interest of Buyer or any of its creditors has been used in removing Removed Accounts from among any pool of Accounts of a similar type (it being understood that Seller will not be deemed to have used such an adverse selection procedure in connection with any Involuntary Removal) and (D) in the case of any removal other than an Involuntary Removal, Accounts (or administratively convenient groups of Accounts or Participation Interests, such as billing cycles) were chosen for removal on a random basis;
(v) in the case of any removal pursuant to Section 2.7(a) , the Note Trust Principal Balance in the Removed Accounts shall not exceed the lesser of (A) the excess of the Free Equity Amount over the Minimum Free Equity Amount or (B) the excess of the Note Trust Principal Balance over the Required Principal Balance, all measured as of the end of the most recently ended Monthly Period; and
(vi) in the case of any removal pursuant to Section 2.7(b) , the removal shall not cause the Free Equity Amount to be less than the Minimum Free Equity Amount or cause the Note Trust Principal Balance to be less than the Required Principal Balance.
Upon satisfaction of the above conditions, Buyer shall execute and deliver to Seller or its designee a written reassignment in substantially the form of Exhibit B (the Reassignment ) (which may be executed by the Administrator on behalf of the Buyer) and shall, without further action, be deemed to transfer, assign, set over and otherwise convey to Seller or its designee, effective as of the Removal Date, without recourse, representation or warranty, all the right, title and interest of Buyer in and to the Transferred Receivables arising in the Removed Accounts, the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivables with respect thereto and Insurance Proceeds relating thereto and all proceeds of the foregoing. In addition, Buyer shall execute such other documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by Seller to effect the conveyance of Transferred Receivables pursuant to this Section.
(b) Seller shall from time to time designate as Removed Accounts any Accounts designated for purchase by a Retailer pursuant to the terms of the related Credit Card Program Agreement (each, an Involuntary Removal ). Any repurchase of the Transferred Receivables in Removed Accounts designated pursuant to this Section 2.7(b) shall be effected in the manner and at a price determined in accordance with Section 6.1(e) , as if the Transferred Receivables being repurchased were Ineligible Receivables. Seller and Buyer acknowledge and agree that all Receivables then
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outstanding in Accounts related to Home Depot U.S.A., Inc. (including Charged-Off Receivables) shall be purchased by Seller pursuant to this Section 2.7(b) on a date designated by Home Depot U.S.A., Inc. in July 2003.
(c) On the last day of the Monthly Period in which a Receivable becomes a Charged-Off Receivable, Buyer shall automatically and without further action or consideration be deemed to sell, transfer, and otherwise convey to Seller, without recourse, representation or warranty (except for the warranty that since the date of the transfer of such Charged-Off Receivable by Seller to Buyer under this Agreement, Buyer has not sold, transferred or encumbered any such Receivable or interest therein), all the right, title and interest of Buyer in and to such Receivable, all monies due or to become due with respect thereto and all proceeds thereof. The purchase price for the Charged-Off Receivables purchased pursuant to this Section 2.7(c) shall equal the aggregate amount of Recoveries for that Monthly Period. Such purchase price shall be payable in full in cash by Seller on the Business Day preceding the related Payment Date.
(d) Seller may from time to time, at its option, by notice to Buyer, designate as a Removed Account any Account (each, an Inactive Account ) that either (i) has had a zero balance and on which no charges have been made, in each case for at least the preceding 12 months or (ii) has a zero balance and the Obligor of which has agreed to open a credit card account in a related Dual Card Program in substitution for such Account. On or prior to the Removal Date for any Inactive Accounts, Seller shall have delivered to Buyer an Account Schedule listing the Inactive Accounts that are to become Removed Accounts.
Section 2.8 Discount Option . (a) For each Retailer, Seller shall have the option (subject to the limitations described below) to designate at any time a fixed or floating percentage (the Discount Percentage ) of the amount of all Transferred Receivables arising in all Accounts related to such Retailer on or after the date such designation becomes effective that would otherwise constitute Principal Receivables to be treated as Finance Charge Receivables. Seller may from time to time increase, reduce or eliminate (subject to the limitations described below), the Discount Percentage related to such Retailer for Discount Option Receivables arising in an Account on and after the date of such change. Seller shall provide 30 days prior written notice to Servicer, Buyer, and each Rating Agency of any initial designation, increase, reduction or elimination, and such initial designation, increase, reduction or elimination shall become effective on the date specified therein only if (i) Seller has delivered to Buyer an Officers Certificate to the effect that, based on the facts known to such officer at the time, Seller reasonably believes that such initial designation, increase, reduction or elimination will not at the time of its occurrence cause an Early Amortization Event, or an event which with notice or the lapse of time would constitute an Early Amortization Event, to occur with respect to any series of Notes, (ii) in the case of any initial designation or increase, the Discount Percentage for such Retailer shall not exceed 5% after giving effect to that initial designation or increase, unless the Rating Agency Condition has been satisfied with respect to the increase and (iii) Buyer consents to such designation, increase, reduction or elimination.
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(b) The portion of the Principal Receivables arising in Accounts relating to any Retailer as to which a Discount Percentage is in effect that shall be recharacterized as Finance Charge Receivables shall equal the product of (x) an amount (as to any Retailers program, the Gross Principal Balance ) equal to the aggregate Outstanding Balance of such Principal Receivables (before giving effect to the recharacterization) and (y) a fraction the numerator of which is the Discount Option Receivables relating to the Retailer and the denominator of which is the Gross Principal Balance for such Retailer. The fraction referred to in the preceding clause (y) shall be determined not later than the 10 th day of each calendar month (or, if such 10 th day is not a Business Day, on the next Business Day) using the numerator and denominator as of the end of the most recent Monthly Period, and that fraction shall be used until recalculated in the next month. For this purpose, Discount Option Receivables means, as to any Retailer, on any Date of Processing on and after the date on which Sellers exercise of its discount option for such Retailer takes effect, the sum of (i) the aggregate amount of Discount Option Receivables relating to such Retailer at the end of the prior day (which amount, prior to the date on which Sellers exercise of its discount option for such Retailer takes effect and with respect to Principal Receivables generated in such Retailers program prior to such date, shall be zero), plus (ii) the product of (A) the Discount Percentage for such Retailer and (B) the amount of Principal Receivables (before giving effect to the recharacterization referred to above) created on such day in such Retailers program, minus (iii) any Discount Option Receivables Collections (as defined below) received on such Date of Processing.
(c) Notwithstanding clause (b) , the portion of Collections of Principal Receivables arising in Accounts relating to any Retailer as to which a Discount Percentage is in effect that shall be recharacterized as Collections of Finance Charge Receivables ( Discount Option Receivables Collections ) shall equal, on any Date of Processing on and after the date on which Sellers exercise of its discount option for such Retailer takes effect, the product of (a) a fraction the numerator of which is the amount of the Discount Option Receivables relating to such Retailer and the denominator of which is Gross Principal Balance for such Retailer, in each case (for both numerator and denominator) as most recently determined pursuant to clause (b) and (b) Collections of Principal Receivables relating to such Retailer (before giving effect to the recharacterization) received on such Date of Processing.
Section 2.9 Additional Sellers . Seller may permit Originator to designate additional or substitute Persons to be included as Sellers under (and as defined in) the Bank Receivables Sale Agreement if the Rating Agency Condition is satisfied with respect to such designation.
Section 2.10 Additional Originators . Seller may permit Monogram to designate additional or substitute Persons to be included as Originators under (and as defined in) the Bank Receivables Sale Agreement and this Agreement if the Rating Agency Condition is satisfied with respect to such designation.
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ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Initial Transfer . The initial sale or conveyance hereunder shall be subject to satisfaction of each of the following conditions precedent (any one or more of which may be waived in writing by Buyer) as of the Closing Date:
(a) Documents . This Agreement or counterparts hereof shall have been duly executed by, and delivered to, Seller and Buyer, and Buyer shall have received such documents, instruments, agreements and legal opinions as Buyer shall reasonably request in connection with the transactions contemplated by this Agreement, each in form and substance reasonably satisfactory to Buyer.
(b) Governmental Approvals . Buyer shall have received satisfactory evidence that Seller has obtained all required consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby.
(c) Compliance with Laws . Seller shall be in compliance with all applicable foreign, federal, state and local laws and regulations, except to the extent that the failure to so comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 3.2 Conditions to all Transfers . Each sale hereunder (including the initial sale) shall be subject to satisfaction of the following further conditions precedent (any one or more of which, except clause (b) below, may be waived in writing by Buyer) as of the Transfer Date therefor:
(a) The representations and warranties of Seller contained herein or in any other Related Document required to be made on such Transfer Date shall be true and correct in all material respects as of such Transfer Date, both before and after giving effect to such sale; and
(b) Seller shall be in compliance in all material respects with each of its covenants and other agreements set forth herein.
The consummation by Seller of the sale, as applicable, of Transferred Assets on any Transfer Date shall be deemed to constitute, as of any such Transfer Date, a representation and warranty by Seller that the conditions in clauses (a) and (b) of this Section 3.2 have been satisfied.
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ARTICLE IV
OTHER MATTERS RELATING TO SELLER
Section 4.1 Merger or Consolidation of, or Assumption of the Obligations of, Seller, etc .
(a) Seller 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 Person formed by such consolidation or into which Seller is merged or the Person which acquires by conveyance or transfer the properties and assets of Seller substantially as an entirety shall be, if Seller is not the surviving entity, an entity organized and existing under the laws of the United States of America or any State or the District of Columbia, and, if Seller is not the surviving entity, such entity shall expressly assume, by an agreement supplemental hereto, executed and delivered to Buyer, in form reasonably satisfactory to Buyer, the performance of every covenant and obligation of Seller hereunder;
(ii) Seller has delivered to Buyer (A) an Officers Certificate stating that such consolidation, merger, conveyance or transfer and such supplemental agreement comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with, and (B) an Opinion of Counsel to the effect that such supplemental agreement is a valid and binding obligation of such surviving entity enforceable against such surviving entity in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally from time to time in effect and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity);
(iii) the business entity into which Seller shall merge or consolidate, or to which such conveyance or transfer is made, shall be (x) a business entity that may not become a debtor in any case, action or other proceeding under Title 11 of the United States Code or (y) a special-purpose corporation, the powers and activities of which shall be limited to the performance of Sellers obligations under this Agreement and the other Related Documents;
(iv) if Seller is not the surviving entity, the surviving entity shall file new UCC-1 financing statements with respect to the interest of Buyer in the Transferred Assets, if any; and
(v) prior written notice shall have been delivered to the Rating Agencies with respect to such merger, conveyance or transfer, and the Rating Agency Condition shall have been satisfied.
(b) This Section 4.1 shall not be construed to prohibit or in any way limit Sellers ability to effectuate any consolidation or merger pursuant to which Seller would be the surviving entity.
(c) The obligations of Seller hereunder shall not be assignable nor shall any Person succeed to the obligations of Seller hereunder except in each case in accordance
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with (i) the provisions of the foregoing paragraphs, (ii) Section 2.9 of this Agreement or (iii) conveyances, mergers, consolidations, assumptions, sales or transfers to other entities (1) for which Seller delivers an Officers Certificate to Buyer indicating that Seller reasonably believes that such action will not result in a Material Adverse Effect, (2) which meet the requirements of clause (ii) of paragraph (a) and (3) for which such purchaser, transferee, pledgee or entity shall expressly assume, in an agreement supplemental hereto, executed and delivered to Buyer in writing in form satisfactory to Buyer, the performance of every covenant and obligation of Seller thereby conveyed.
ARTICLE V
BANKRUPTCY EVENTS
Section 5.1 Rights upon the Occurrence of a Bankruptcy Event . If a Bankruptcy Event occurs with respect to Seller, Seller shall on the day any such event occurs, immediately cease to transfer Principal Receivables to Buyer and shall promptly give notice of such event to Indenture Trustee, Buyer and the Rating Agencies. Notwithstanding any cessation of the transfer to Buyer of additional Principal Receivables, Principal Receivables transferred to Buyer prior to the occurrence of such Bankruptcy Event and Collections in respect of such Principal Receivables, and Finance Charge Receivables whenever created accrued in respect of such Principal Receivables, shall continue to be property of Buyer.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Representations and Warranties of Seller . (a) To induce Buyer to accept the Transferred Assets, Seller makes the representations and warranties in subsections (i) through (viii) to Buyer, as of the Closing Date and each subsequent Transfer Date.
(i) Valid Existence; Power and Authority . Seller (A) is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (B) is duly qualified to conduct business and is in good standing in each other jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification and where the failure to be so qualified or in good standing would have a Material Adverse Effect; and (C) has all requisite power and authority to execute, deliver and perform its obligations under this Agreement.
(ii) UCC Information . The true legal name of Seller as registered in the jurisdiction of its organization, and the current location of Sellers jurisdiction of organization and the address of its chief executive office are set forth in Schedule 6.1(a) and such location and address have not changed within the past 12 months. In addition, Schedule 6.1(a) lists Sellers (A) federal employer
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identification number and (B) organizational identification number as designated by the jurisdiction of its organization.
(iii) Authorization of Transaction; No Violation . The execution, delivery and performance by Seller of this Agreement and the other Related Documents to which Seller is a party and the creation and perfection of all Liens and ownership interests provided for herein: (A) have been duly authorized by all necessary action on the part of Seller, and (B) do not violate any provision of any law or regulation of any Governmental Authority, or contractual restrictions binding on Seller, except where such violations, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(iv) Enforceability . On or prior to the Closing Date, each of the Related Documents to which Seller is a party shall have been duly executed and delivered by Seller and each such Related Document shall then constitute a legal, valid and binding obligation of Seller enforceable against it in accordance with its terms, subject to bankruptcy, receivership, conservatorship, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors rights and to general principles of equity.
(v) Accuracy of Certain Information . All written factual information heretofore furnished by Seller to Buyer with respect to the Transferred Receivables for the purposes of, or in connection with, this Agreement was true and correct in all material respects on the date as of which such information was stated or certified.
(vi) Use of Proceeds . No proceeds received by Seller under this Agreement will be used by it for any purpose that violates Regulation U of the Federal Reserve Board.
(vii) Judgment or Tax Lien . Seller is not aware of any judgment or tax lien filing against Seller.
(viii) Transferred Receivables . With respect to Transferred Receivables and Additional Accounts, Seller represents and warrants that:
(A) each Transferred Receivable satisfies the criteria for an Eligible Receivable as of the applicable Transfer Date;
(B) this Agreement creates a valid and continuing security interest in the Transferred Receivables in favor of Buyer, which (x) with respect to Transferred Receivables existing as of the Closing Date and thereafter created in the Initial Accounts and the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and the proceeds thereof, will be enforceable upon execution of this Agreement against Seller and with respect to Transferred Receivables in Additional Accounts as of the
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applicable Addition Date and thereafter created, and the Related Security and Collection with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and the proceeds thereof, will be enforceable against Seller and as of the Addition Date, in each case as such enforceability may be limited by applicable Debtor Relief Laws, now or hereafter in effect, and by general principles of equity (whether considered in a suit at law or in equity) and (y) upon filing of the financing statements described in Section 2.1 and, in the case of Transferred Receivables thereafter created, upon the creation thereof, will be prior to all other Liens (other than Permitted Encumbrances);
(C) the Transferred Receivables constitute accounts within the meaning of UCC Section 9-102;
(D) immediately prior to the conveyance of the Transferred Receivables pursuant to this Agreement, Seller owns and has good and marketable title to, or has a valid security interest in, the Transferred Receivables free and clear of any Lien, claim or encumbrance of any Person, (other than Permitted Encumbrances);
(E) all authorizations, consents, orders or approvals of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by Seller in connection with the conveyance by Seller of the Transferred Receivables to Buyer have been duly obtained, effected or given and are in full force and effect;
(F) Seller has caused or will have caused, within ten (10) days of the Closing Date or the applicable Addition Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest granted to Buyer under this Agreement in the Transferred Receivables arising in the Initial Accounts and Additional Accounts, respectively; and
(G) subject to Permitted Encumbrances, other than the transfer and assignment and the security interest granted to Buyer pursuant to this Agreement, Seller has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Transferred Receivables and Seller has not authorized the filing of and is not aware of any financing statements against Seller that included a description of collateral covering the Transferred Receivables.
The representations and warranties described in this Section 6.1(a) shall survive the sale of the Transferred Assets to Buyer, any subsequent assignment or sale of the Transferred Assets by Buyer, and the termination of this Agreement and the other Related Documents and shall continue until the payment in full of all Transferred Assets.
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(b) Seller agrees that each Receivable in any Account sold by Monogram to Buyer pursuant to the Prior Transfer Agreement shall be deemed for all purposes (including the reassignment obligations under Section 2.7 and this Section 6.1 ) to have been sold by Seller to Buyer pursuant to this Agreement as of the day of such actual sale, as if this Agreement had been in effect on that day.
(c) Upon discovery by Seller or Buyer of a breach of any of the representations and warranties by Seller set forth in this Section 6.1 , the party discovering such breach shall give prompt written notice to the other. Seller agrees to cooperate with Buyer in attempting to cure any such breach.
(d) If any representation or warranty of Seller contained in Section 6.1(a)(viii) , is not true and correct in any material respect as of the date specified therein with respect to any Transferred Receivable or any Account and as a result of such breach any Transferred Receivables in the related Account become Charged-Off Receivables or Buyers rights in, to or under such Transferred Receivables or the proceeds of such Transferred Receivables are impaired or such proceeds are not available for any reason to Buyer free and clear of any Lien other than Permitted Encumbrances, unless cured within 60 days (or such longer period, not in excess of 150 days, as may be agreed to by Buyer) after the earlier to occur of the discovery thereof by Seller or receipt by Seller or a designee of Seller of notice thereof given by Buyer, then such Transferred Receivable shall be designated an Ineligible Receivable provided that such Transferred Receivables will not be deemed to be Ineligible Receivables but will be deemed Eligible Receivables if, on any day prior to the end of such 60-day or longer period, (i) the relevant representation and warranty shall be true and correct in all material respects as if made on such day and (ii) Seller shall have delivered an Officers Certificate describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct.
(e) On the first Payment Date after any Transferred Receivable is designated as an Ineligible Receivable, Seller shall repurchase such Ineligible Receivable from Buyer by paying Buyer a cash purchase price. The purchase price for the Ineligible Receivables in any Account shall equal the Outstanding Balance of the Principal Receivables in such Account, plus the accrued Finance Charge Receivables in such Account as of the end of the Monthly Period prior to the repurchase date.
(f) If any representation or warranty of Seller contained in Section 6.1(a)(i) , 6.1(a)(ii) , 6.1(a)(iii) or 6.1 (a)(iv) of this Agreement is not true and correct in any material respect and such breach has a material adverse effect on the Transferred Receivables transferred to Buyer by Seller or the availability of the proceeds thereof to Buyer, Seller shall be obligated to accept a reassignment of the Transferred Receivables if such breach and any material adverse effect caused by such breach is not cured within 60 days of such notice (or within such longer period, not in excess of 150 days, as may be specified in such notice), on the terms set forth below; provided that such Transferred Receivables will not be reassigned to Seller if, on any day prior to the end of such 60-day or longer period (i) the relevant representation and warranty shall be true and correct in all material respects as if made on such day and (ii) Seller shall have delivered an Officers
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Certificate describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct.
Seller shall pay to Buyer in immediately available funds not later than 12:00 noon, New York City time, on such Business Day as Buyer shall designate following the Monthly Period in which such reassignment obligation arises, in payment for such reassignment, an amount equal to the Aggregate Reassignment Amount. The payment of such deposit amount in immediately available funds shall otherwise be considered payment in full of all of the Transferred Receivables.
(g) Upon the payment, if any, required to be made to Buyer as provided in Section 6.1(e) or 6.1(f) , Buyer shall automatically and without further action be deemed to transfer, assign, set over and otherwise convey to Seller or its designee, without recourse, representation or warranty, all the right, title and interest of Buyer in and to the applicable Transferred Receivables, all moneys due or to become due and all amounts received with respect thereto and all proceeds thereof. Buyer shall execute such documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by Seller to effect the conveyance of such Transferred Receivables pursuant to this Section.
Section 6.2 Affirmative Covenants of Seller . Seller covenants and agrees that, unless otherwise consented to by Buyer, from and after the Closing Date and until the date after the Agreement Termination Date when the Outstanding Balance of all Transferred Receivables have been reduced to zero:
(a) Account Allocations . If Seller is unable for any reason to transfer Transferred Receivables to Buyer in accordance with the provisions of this Agreement (including by reason of the application of the provisions of Section 5.1 or an order by any Governmental Authority that Seller not transfer any additional Principal Receivables to Buyer) then, in any such event: (i) Seller agrees to allocate and pay to Buyer, after the date of such inability, all Collections with respect to Principal Receivables and all amounts which would have constituted Collections with respect to Principal Receivables but for Sellers inability to transfer such Transferred Receivables (up to an aggregate amount equal to the amount of Principal Receivables held by Buyer on such date of inability); (ii) Seller agrees that such amounts shall be deemed Collections of Transferred Receivables; and (iii) for only so long as all Collections and all amounts which would have constituted Collections are allocated and applied in accordance with clauses (i) and (ii) , Principal Receivables (and all amounts which would have constituted Principal Receivables, but for Sellers inability to transfer Transferred Receivables to Buyer) that are charged off as uncollectible in accordance with this Agreement shall continue to be allocated in accordance with the Servicing Agreement, and all amounts that would have constituted Principal Receivables, but for Sellers inability to transfer Transferred Receivables to Buyer shall be deemed to be Principal Receivables for the purpose of all calculations under the Related Documents. If Seller is unable pursuant to any Requirement of Law to allocate Collections as described above, Seller agrees that it shall allocate collections, charge-offs and other incidents of the receivables in the Accounts between Transferred Receivables and other receivables outstanding in the Accounts on a
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basis reasonably intended to approximate the actual portions allocable to Transferred Receivables and other receivables, respectively. The parties hereto agree that Finance Charge Receivables, whenever created, accrued in respect of Principal Receivables that have been conveyed to Buyer, or that would have been conveyed to Buyer but for the above described inability to transfer such Receivables, shall continue to be held by Buyer notwithstanding any cessation of the transfer of additional Principal Receivables to Buyer. With respect to the Montgomery Ward program and Originators program for Home Depot U.S.A., Inc. existing on the Closing Date, Seller shall allocate collections, charge-offs and other incidents of the receivables in each such program between Transferred Receivables outstanding in that program and other receivables outstanding in that program on a basis reasonably intended to approximate the actual portions allocable to Transferred Receivables and other receivables, respectively.
(b) Notice of Material Event . Seller shall promptly inform Buyer in writing of the occurrence of any of the following, in each case setting forth the details thereof and what action, if any, Seller proposes to take with respect thereto:
(i) any Litigation commenced or threatened against Seller or with respect to or in connection with all or any substantial portion of the Transferred Assets or developments in such Litigation, in each case, that Seller believes has a reasonable risk of being determined adversely and having a Material Adverse Effect;
(ii) the commencement of a proceeding against Seller seeking a decree or order in respect of Seller (A) under the Federal Deposit Insurance Act or any other applicable federal, state or foreign bankruptcy or other similar law, (B) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for Seller or for any substantial part of Sellers assets, or (C) ordering the winding-up or liquidation of the affairs of Seller; or
(iii) any default by Seller in performance of any of its obligations under this Agreement, any notice received by Seller from Originator relating to any default by Originator in performance of its obligations under the Bank Receivables Sale Agreement or any actual knowledge on the part of Seller of such Originator default.
(c) Notice of Liens . Seller shall notify Buyer promptly after becoming aware of any Lien on any Transferred Asset other than Permitted Encumbrances.
(d) Information for Reports . Seller shall promptly deliver any material written information, documents, records or reports with respect to the Transferred Receivables that Buyer shall reasonably request.
(e) Deposit of Collections . Seller shall transfer to Buyer or Servicer on its behalf, promptly, and in any event no later than the Business Day after receipt thereof, all Collections it may receive in respect of Transferred Assets.
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(f) Credit Card Program Agreement and Policies . Seller shall enforce Originators obligation under the Bank Receivables Sale Agreement to comply with and perform its obligations under the Credit Card Program Agreements and the Contracts relating to the Accounts and the Credit and Collection Policies except insofar as any failure to comply or perform would not materially or adversely affect the rights of Buyer. Seller may permit Originator to change the terms and provisions of the Credit Card Program Agreements, the Contracts or the Credit and Collection Policies (including the reduction of the required minimum monthly payment, the calculation of the amount, or the timing, of charge offs and periodic finance charges and other fees assessed thereon), but subject to Section 6.3(b) and only if such change is made applicable to any comparable segment of the revolving credit card accounts owned and serviced by Originator which have characteristics the same as, or substantially similar to, the Accounts that are the subject of such change, except as otherwise restricted by an endorsement, sponsorship or other agreement between Originator and an unrelated third party or by the terms of the Credit Card Program Agreements.
Section 6.3 Negative Covenants of Seller . Seller covenants and agrees that, without the prior written consent of Buyer, from and after the Closing Date and until the date after the Agreement Termination Date when the Outstanding Balances of all Transferred Receivables transferred hereunder prior to such Agreement Termination Date have been reduced to zero:
(a) Liens . Seller shall not create, incur, assume or permit to exist any Lien, other than Permitted Encumbrances, on or with respect to the Transferred Assets.
(b) Periodic Finance Charges and Other Fees . Except as otherwise required by any Requirement of Law, or as is deemed by Originator to be necessary in order for it to maintain its credit card business, based upon Originators good faith assessment, in its sole discretion, of the nature of the competition in the credit card business, Seller shall not at any time permit Originator to reduce the periodic finance charges assessed on any Transferred Receivable or other fees on any Account if, as a result of such reduction, Sellers reasonable expectation of the portfolio yield for any series of notes secured, directly or indirectly, by the Transferred Receivables, as of the date of such reduction would be less than the then base rate for that series, as determined in accordance with the terms of that series. In any event, Seller shall not permit Originator to reduce the periodic finance charges assessed on any Transferred Receivable or other fees on any Account without the consent of Buyer, which consent Buyer shall provide unless the giving of such consent is prohibited by any agreement to which Buyer is a party.
(c) UCC Matters . Seller shall not change its state of organization or incorporation or its name such that any financing statement filed to perfect Buyers interests under this Agreement would become seriously misleading, unless Seller shall have given Buyer not less than 30 days prior written notice of such change.
(d) No Proceedings . From and after the Closing Date and until the date one year plus one day following the date on which all amounts due with respect to securities rated by a Rating Agency that were issued by any entity holding Transferred Assets have
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been paid in full in cash, Seller shall not, directly or indirectly, institute or cause to be instituted against Buyer any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceeding under any federal or state bankruptcy or similar law; provided that the foregoing shall not in any way limit Sellers right to pursue any other creditor rights or remedies that Seller may have under any applicable law. Without prejudice to the survival of any other agreement of the Seller hereunder, the agreements and obligations of the Seller under this Section 6.3(d) shall survive the termination to this Agreement.
(e) Sale Characterization . For accounting purposes, Seller shall not account for the transactions contemplated by this Agreement in any manner other than, with respect to the sale of each Transferred Receivable, as a true sale and/or absolute assignment of its full right, title and ownership interest in the related Transferred Assets to Buyer. Seller shall also maintain its records and books of account in a manner which clearly reflects each such sale of the Transferred Receivables to Buyer.
Section 6.4 No-Petition Covenant of Buyer . Buyer covenants and agrees that, from and after the Closing Date and until the date one year plus one day following the date on which all amounts due with respect to securities rated by a Rating Agency that were issued by any entity holding Transferred Assets have been paid in full in cash, Buyer shall not, directly or indirectly, institute or cause to be instituted against Seller any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceeding under any federal or state bankruptcy or similar law; provided that the foregoing shall not in any way limit Buyers right to pursue any other creditor rights or remedies that Seller may have under any applicable law. Without prejudice to the survival of any other agreement of the Buyer hereunder, the agreements and obligations of the Buyer under this Section 6.4 shall survive the termination of this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices . Except as otherwise provided herein, whenever it is provided herein that any notice, demand, request, consent, approval, declaration or other communication shall or may be given to or served upon any of the parties by any other parties, or whenever any of the parties desires to give or serve upon any other parties any communication with respect to this Agreement, each such notice, demand, request, consent, approval, declaration or other communication shall be in writing and shall be deemed to have been validly served, given or delivered (a) upon the earlier of actual receipt and three Business Days after deposit in the United States mail, registered or certified mail, return receipt requested, with proper postage prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile transmission (with such telecopy or facsimile promptly confirmed by delivery of a copy by personal delivery or United States mail as otherwise provided in this Section 7.1 ), (c) one Business Day after deposit with a reputable overnight courier with all charges prepaid or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address or facsimile number set forth below or to such other address (or
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facsimile number) as may be substituted by notice given as herein provided. The giving of any notice required hereunder may be waived in writing by the party entitled to receive such notice. Failure or delay in delivering copies of any notice, demand, request, consent, approval, declaration or other communication to any Person (other than Buyer) designated in any written communication provided hereunder to receive copies shall in no way adversely affect the effectiveness of such notice, demand, request, consent, approval, declaration or other communication. Notwithstanding the foregoing, whenever it is provided herein that a notice is to be given to any other party hereto by a specific time, such notice shall be effective only if actually received by such party prior to such time, and if such notice is received after such time or on a day other than a Business Day, such notice shall be effective only on the immediately succeeding Business Day.
If to Seller:
RFS HOLDING, L.L.C.
1600 Summer Street, 6
th
Floor
Stamford, CT 06927
Attention:
Manager
- Securitization
Telephone: (203) 357-4756
Facsimile: (203) 357-6796
with a copy to:
General Electric Capital Corporation
1600 Summer Street, 4th Floor
Stamford, CT 06927
Attention: Portfolio Manager
Telephone: (203) 357-4328
Facsimile: (203) 961-2953
If to Buyer:
RFS FUNDING TRUST
c/o Deutsche Bank Trust Company Americas
Corporate Trust and Agency Services Structured Finance Services
60 Wall Street, 26
th
Floor
MS NYC60-2606
New York, New York 10005
Attention: Susan Barstock
Telephone: (212) 454-4298
Facsimile: (212) 797-8606
with a copy to:
General Electric Capital Corporation, as
Administrator, and
Monogram Credit Card Bank of Georgia, as Servicer
7840 Roswell Road, Bldg. 100, Suite 210
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Atlanta, Georgia 30350
Telephone: (770) 353-5337
Facsimile: (770) 353-2464
Section 7.2 No Waiver; Remedies . (a) Either partys failure, at any time or times, to require strict performance by the other party hereto of any provision of this Agreement shall not waive, affect or diminish any right of such party thereafter to demand strict compliance and performance herewith or therewith. Any suspension or waiver of any breach or default hereunder shall not suspend, waive or affect any other breach or default whether the same is prior or subsequent thereto and whether of the same or a different type. None of the undertakings, agreements, warranties, covenants and representations of either party contained in this Agreement, and no breach or default by either party hereunder or thereunder, shall be deemed to have been suspended or waived by the other party unless such waiver or suspension is by an instrument in writing signed by an officer of or other duly authorized signatory of such party and directed to the defaulting party specifying such suspension or waiver.
(b) Each partys rights and remedies under this Agreement shall be cumulative and nonexclusive of any other rights and remedies that such party may have under any other agreement, including the other Related Documents, by operation of law or otherwise.
Section 7.3 Successors and Assigns . This Agreement shall be binding upon and shall inure to the benefit of Seller and Buyer and their respective successors and permitted assigns, except as otherwise provided herein. Except as provided below and in Sections 2.9 or 4.1 of this Agreement, neither Buyer nor Seller may assign, transfer, hypothecate or otherwise convey its rights, benefits, obligations or duties hereunder, without (i) satisfying the Rating Agency Condition and (ii) obtaining the prior express written consent of the other party. Any such purported assignment, transfer, hypothecation or other conveyance by Seller without the prior express written consent of Buyer and the satisfaction of the Rating Agency Condition (if applicable) shall be void. Seller acknowledges that under the Funding Agreement and the Indenture Security Agreement, Buyer will grant security interests in its rights granted hereunder to the Lender and the Indenture Trustee, and upon any exercise of remedies with respect to such security interests, the Lender and the Indenture Trustee shall have, to the extent of such assignment, all rights of Buyer hereunder and such transferee may in turn transfer such rights. The terms and provisions of this Agreement are for the purpose of defining the relative rights and obligations of Seller and Buyer with respect to the transactions contemplated hereby, and no Person shall be a third-party beneficiary of any of the terms and provisions of this Agreement.
Section 7.4 Termination . This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until the earlier of (a) the termination of the Buyer as provided in the Trust Agreement and (b) the date selected by Seller upon prior notice thereof to Buyer (such date the Agreement Termination Date ).
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Section 7.5 Survival . Except as otherwise expressly provided herein or in any other Related Document, no termination or cancellation (regardless of cause or procedure) of any commitment made by Seller under this Agreement shall in any way affect or impair the obligations, duties and liabilities of Seller or the rights of Seller relating to any unpaid portion of any and all obligations of Seller to Buyer, due or not due, liquidated, contingent or unliquidated or any transaction or event occurring prior to such termination, or any transaction or event, the performance of which is required after the Agreement Termination Date. Except as otherwise expressly provided herein or in any other Related Document, all undertakings, agreements, covenants, warranties and representations of or binding upon Seller, and all rights of Seller hereunder shall not terminate or expire, but rather shall survive any such termination or cancellation and shall continue in full force and effect until the date after the Agreement Termination Date when the Outstanding Balances of all Transferred Receivables transferred hereunder prior to such Agreement Termination Date have been reduced to zero; provided , that the rights and remedies pursuant to the provisions of Sections 2.5 , 6.3(d) , 7.3 , 7.11 and 7.13 shall be continuing and shall survive any termination of this Agreement.
Section 7.6 Complete Agreement; Modification of Agreement . This Agreement constitutes the complete agreement between the parties with respect to the subject matter hereof, supersedes all prior agreements and understandings relating to the subject matter hereof and thereof, and may not be modified, altered or amended except by written agreement of the parties hereto. The parties shall give prior written notice of any material amendment of this Agreement to the Rating Agencies.
Section 7.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL . (a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED , THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED FURTHER , THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE BUYER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE RECEIVABLES OR ANY SECURITY FOR THE OBLIGATIONS OF SELLER ARISING HEREUNDER OR TO
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ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF BUYER. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 7.1 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTYS ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.8 Counterparts . This Agreement may be executed in any number of separate counterparts, each of which shall collectively and separately constitute one agreement.
Section 7.9 Severability . Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.
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Section 7.10 Section Titles . The section titles and table of contents contained in this Agreement are provided for ease of reference only and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.
Section 7.11 No Setoff . Sellers obligations under this Agreement shall not be affected by any right of setoff, counterclaim, recoupment, defense or other right Seller might have against Buyer, all of which rights are hereby expressly waived by Seller.
Section 7.12 Confidentiality . NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, THE OBLIGATIONS OF CONFIDENTIALITY CONTAINED HEREIN, SHALL NOT APPLY TO THE FEDERAL TAX STRUCTURE OR FEDERAL TAX TREATMENT OF THIS TRANSACTION, AND EACH PARTY (AND ANY EMPLOYEE, REPRESENTATIVE, OR AGENT OF ANY PARTY) MAY DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY KIND, THE FEDERAL TAX STRUCTURE AND FEDERAL TAX TREATMENT OF THIS TRANSACTION. THE PRECEDING SENTENCE IS INTENDED TO CAUSE THIS TRANSACTION TO BE TREATED AS NOT HAVING BEEN OFFERED UNDER CONDITIONS OF CONFIDENTIALITY FOR PURPOSES OF SECTION 1.6011-4(B)(3) (OR ANY SUCCESSOR PROVISION) OF THE TREASURY REGULATIONS PROMULGATED UNDER SECTION 6011 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND SHALL BE CONSTRUED IN A MANNER CONSISTENT WITH SUCH PURPOSE. IN ADDITION, EACH PARTY ACKNOWLEDGES THAT IT HAS NO PROPRIETARY OR EXCLUSIVE RIGHTS TO THE FEDERAL TAX STRUCTURE OF THIS TRANSACTION OR ANY FEDERAL TAX MATTER OR FEDERAL TAX IDEA RELATED TO THIS TRANSACTION.
Section 7.13 Further Assurances . (a) Seller shall, at its sole cost and expense, upon request of Buyer, promptly and duly authorize, execute and/or deliver, as applicable, any and all further instruments and documents and take such further actions that may be necessary or desirable or that Buyer may request to carry out more effectively the provisions and purposes of this Agreement or to obtain the full benefits of this Agreement and of the rights and powers herein granted, including authorizing and filing any financing or continuation statements under the UCC with respect to the ownership interests or Liens granted hereunder. Seller hereby authorizes Buyer to file any such financing or continuation statements without the signature of Seller to the extent permitted by applicable law. A carbon, photographic or other reproduction of this Agreement or of any notice or financing statement covering the Transferred Assets or any part thereof shall be sufficient as a notice or financing statement where permitted by law. If any amount payable under or in connection with any of the Transferred Assets is or shall become evidenced by any instrument, such instrument, other than checks and notes received in the ordinary course of business, shall be duly endorsed in a manner satisfactory to Buyer immediately upon Sellers receipt thereof and promptly delivered to or at the direction of Buyer.
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(b) If Seller fails to perform any agreement or obligation under this Section 7.13 , Buyer may (but shall not be required to) itself perform, or cause performance of, such agreement or obligation, and the reasonable expenses of Buyer incurred in connection therewith shall be payable by Seller upon demand of Buyer.
(c) Seller shall deliver to Buyer (i) upon the execution and delivery of each amendment of this Agreement, an Opinion of Counsel to the effect specified in Exhibit C ; (ii) on each Addition Cut-Off Date on which any Additional Accounts are to be designated as Accounts pursuant to Section 2.6 , an Opinion of Counsel substantially in the form of Exhibit D ; and (iii) on or before March 31 of each year following the year in which the Closing Date occurs, an Opinion of Counsel substantially in the form of Exhibit E .
Section 7.14 Accounting Changes . If any Accounting Changes occur and such changes result in a change in the standards or terms used herein, then the parties hereto agree to enter into negotiations in order to amend such provisions so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the financial condition of such Persons and their Subsidiaries shall be the same after such Accounting Changes as if such Accounting Changes had not been made. If the parties hereto agree upon the required amendments to this Agreement, then after appropriate amendments have been executed and the underlying Accounting Change with respect thereto has been implemented, any reference to GAAP contained herein shall, only to the extent of such Accounting Change, refer to GAAP consistently applied after giving effect to the implementation of such Accounting Change. If such parties cannot agree upon the required amendments within 30 days following the date of implementation of any Accounting Change, then all financial statements delivered and all standards and terms used herein shall be prepared, delivered and used without regard to the underlying Accounting Change.
Section 7.15 No Indirect or Consequential Damages . NO PARTY TO THIS AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER.
Section 7.16 Limitation of Liability of the Trustee . Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by Deutsche Bank Trust Company Delaware, not in its individual capacity but solely in its capacity as Trustee of Buyer, and in no event shall Deutsche Bank Trust Company Delaware, in its individual capacity, or any beneficial owner of Buyer have any liability for the representations, warranties, covenants, agreements or other obligations of Buyer hereunder, as to all of which recourse shall be had solely to the assets of Buyer. For all purposes of this Agreement, in the performance of any duties or obligations of Buyer
37
thereunder, the Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Article VIII of the Trust Agreement.
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IN WITNESS WHEREOF, Seller and Buyer have caused this Receivables Purchase and Contribution Agreement to be duly executed by their respective officers as of the day and year first above written.
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LIST OF ACCOUNTS
The initial Account Schedule consists of the following compact disks delivered to Deutsche Bank Trust Company Delaware, as trustee, in connection with the Prior Transfer Agreement: (a) two disks listing the Designated Accounts under the Prior Transfer Agreement as of December 30, 2002 and (b) one disk listing additional Designated Accounts that were designated under the Prior Transfer Agreement in March, 2003. The initial Account Schedule does not identify the aggregate amount of receivables in the Accounts described therein.
SELLERS UCC INFORMATION
Legal Name
RFS Holding, L.L.C.
Jurisdiction of Organization
Delaware
Address of Chief Executive Officer
1600 Summer Street, 6
th
Floor
Stamford, CT 06927
EXHIBIT A
FORM OF ASSIGNMENT OF TRANSFERRED RECEIVABLES
IN ADDITIONAL ACCOUNTS
(As required by Section 2.6 of the Agreement)
ASSIGNMENT No. OF TRANSFERRED RECEIVABLES IN ADDITIONAL ACCOUNTS (this Assignment) dated as of , by and among RFS HOLDING, L.L.C., a limited liability company organized under the laws of the State of Delaware, as Seller ( Seller ) and RFS FUNDING TRUST ( Buyer ), pursuant to the Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Seller and Buyer are parties to the Receivables Purchase and Contribution Agreement, dated as of June 27, 2003 (as it may be amended and supplemented from time to time the Agreement ); and
WHEREAS, pursuant to the Agreement, Seller wishes to designate Additional Accounts to be included as Accounts and to convey the Transferred Receivables in such Additional Accounts that have been designated Additional Accounts pursuant to the Agreement, whether now existing or hereafter created, to Buyer (as each such term is defined in the Agreement); and
WHEREAS, Buyer is willing to accept such designation and conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
1. Defined Terms . All terms defined in the Agreement and used herein shall have such defined meanings when used herein, unless otherwise defined herein.
Addition Date means, with respect to the Additional Accounts designated hereby, [ ], 20[ ].
Addition Cut-Off Date means, with respect to Additional Accounts designated hereby, [ ], 20[ ].
Notice Date means, with respect to the Additional Accounts designated hereby, [ ], 20[ ].
2. Designation of Additional Accounts . The Accounts listed on Schedule 1 to this Assignment have been designated Additional Accounts pursuant to the Agreement. Schedule 1 to this Assignment, as of the Addition Date, shall supplement Schedule 1 to the Agreement as required by Section 2.1(b) of the Agreement.
A-1
3. Conveyance of Receivables . (a) Seller does hereby transfer, assign, set over and otherwise convey, without recourse except as set forth in this Agreement, to Buyer, all its right, title and interest in, to and under the Receivables in such Additional Accounts existing at the close of business on the Addition Date and thereafter created from time to time until the Agreement Termination Date, the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and all proceeds of the foregoing. The foregoing does not constitute and is not intended to result in the creation or assumption by Buyer of any obligation of any Originator, Seller or any other Person in connection with the Accounts or the Transferred Receivables or under any agreement or instrument relating thereto, including any obligation to Obligors, merchant banks, Retailers, clearance systems or insurers.
(b) Seller agrees to record and file, at its own expense, financing statements (and continuation statements when applicable) with respect to the Receivables in Additional Accounts existing on the Addition Date and thereafter created meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect, and maintain perfection of, the sale and assignment of its interest in such Receivables to Buyer, and to deliver a file-stamped copy of each such financing statement or other evidence of such filing to Buyer within ten (10) days of the Addition Date. Buyer shall be under no obligation whatsoever to file such financing or continuation statements or to make any other filing under the UCC in connection with such sale and assignment.
(c) In connection with such assignment, Seller further agrees, at its own expense, on or prior to the date of this Assignment, to indicate and cause Servicer to indicate in the appropriate computer files that Receivables created in connection with the Additional Accounts and designated hereby have been conveyed to Buyer pursuant to the Agreement and this Assignment.
(d) Seller does hereby grant to Buyer a security interest in all of its right, title and interest, whether now owned or hereafter acquired, in and to the Receivables in the Additional Accounts existing on the Addition Date and thereafter created, the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and all Insurance Proceeds relating thereto and all proceeds of the foregoing. This Assignment constitutes a security agreement under the UCC.
4. Acceptance by Trustee . Trustee hereby acknowledges its acceptance in trust of all right, title and interest to the property, existing on the Addition Date and thereafter created, conveyed to Buyer pursuant to Section 3(a) of this Assignment. Trustee further acknowledges that, prior to or simultaneously with the execution and delivery of this Assignment, Seller delivered to it the Account Schedule described in Section 2 of this Assignment.
5. Representations and Warranties of Seller . Seller hereby represents and warrants to Buyer as of the Addition Date:
A-2
(a) This Assignment constitutes a legal, valid and binding obligation of Seller enforceable against Seller 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);
(b) each of the Transferred Receivables satisfies the criteria for an Eligible Receivable as of the Addition Cut-Off Date;
(c) each Additional Account is, as of the Addition Cut-Off Date, an Eligible Account,
(d) no selection procedures believed by Seller to be materially adverse to the interests of Buyer or any of its creditors were utilized in selection the Additional Accounts from the available Eligible Accounts;
(e) as of the Addition Date, Seller is solvent;
(f) the Account Schedule delivered pursuant to this Assignment, is an accurate and complete listing in all material respects of all the Accounts as of the related Addition Cut-Off Date, and the information contained therein with respect to the identify of such Accounts and the Transferred Receivables existing in such Accounts, is true and correct in all material respects as of the Addition Cut-Off Date;
(g) the Agreement and this Assignment creates a valid and continuing security interest in the Receivables in the Additional Accounts in and the Related Security and in Collection with respect thereto and, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and the proceeds thereof in favor of Buyer and is enforceable against creditors of and purchasers of Seller with respect to the Receivables and the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and all Insurance Proceeds related thereto and the proceeds thereof, as such enforceability may be limited by applicable Debtor Relief Laws, now or hereafter in effect, and by general principles of equity (whether considered in a suit at law or in equity) and (y) upon filing of the financing statements described herein and, in the case of Transferred Receivables thereafter created, upon the creation thereof, will be prior to all other Liens (other than Permitted Encumbrances);
(h) the Transferred Receivables constitute accounts within the meaning of UCC Section 9-102;
(i) immediately prior to the conveyance of the Receivables pursuant to this Agreement, Seller owns and has good and marketable title to, or has a valid security interest in, the Receivables free and clear of any Lien, claim or encumbrance of any Person, (other than Permitted Encumbrances); and
A-3
(j) subject to Permitted Encumbrances, other than the transfer and assignment and the security interest granted to Buyer pursuant to this Agreement, Seller had not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Transferred Receivables. Seller has not authorized the filing of and is not aware of any financing statements against Seller that included a description of collateral covering the Transferred Receivables.
6. Amendment of the Agreement . The Agreement is hereby amended to provide that all references therein, to this Agreement and herein shall be deemed from and after the Addition Date to be a dual reference to the Agreement as supplemented by this Assignment. Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Agreement shall remain unamended and shall continue to be, and shall remain, in full force and effect in accordance with its terms.
7. Counterparts . This Assignment 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.
8. GOVERNING LAW . THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
9. Limitation of Liability of the Trustee . Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by Deutsche Bank Trust Company Delaware, not in its individual capacity but solely in its capacity as Trustee of Buyer, and in no event shall Deutsche Bank Trust Company Delaware, in its individual capacity, or any beneficial owner of Buyer have any liability for the representations, warranties, covenants, agreements or other obligations of Buyer hereunder, as to all of which recourse shall be had solely to the assets of Buyer. For all purposes of this Agreement, in the performance of any duties or obligations of Buyer thereunder, the Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Article VIII of the Trust Agreement.
A-4
IN WITNESS WHEREOF, the undersigned have caused this Assignment of Transferred Receivables in Additional Accounts to be duly executed and delivered by their respective duly authorized officers on the day and year first above written.
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A-5
Schedule
I
to Assignment of Transferred Receivables
in Additional Accounts
ADDITIONAL ACCOUNTS
A-6
EXHIBIT B
to
TRANSFER AGREEMENT
FORM OF
REASSIGNMENT OF RECEIVABLES
IN REMOVED ACCOUNTS
(As required by Section 2.7 of the Agreement)
REASSIGNMENT No. OF RECEIVABLES IN REMOVED ACCOUNTS dated as of , by and among RFS HOLDING, L.L.C., a limited liability company organized under the laws of the State of Delaware, as Seller (the Seller ), and RFS FUNDING TRUST (the Buyer ), pursuant to the Agreement referred to below.
WITNESSETH:
WHEREAS Seller and Buyer are parties to the Receivables Purchase and Contribution Agreement, dated as of June 27, 2003 (as it may be amended and supplemented from time to time the Agreement );
WHEREAS pursuant to the Agreement, Seller wishes to remove from Buyer all Transferred Receivables owned by Buyer in certain designated Accounts and to cause Buyer to reconvey the Transferred Receivables of such Removed Accounts, whether now existing or hereafter created, from Buyer to Seller; and
WHEREAS Buyer is willing to accept such designation and to reconvey the Transferred Receivables in the Removed Accounts subject to the terms and conditions hereof;
NOW, THEREFORE, Seller and Buyer hereby agree as follows:
1. Defined Terms . All terms defined in the Agreement and used herein shall have such defined meanings when used herein, unless otherwise defined herein.
Removal Date means, with respect to the Removed Accounts designated hereby, , .
Removal Notice Date means, with respect to the Removed Accounts , .
2. Designation of Removed Accounts . Schedule 1 to this Reassignment, as of the Removal Date, shall supplement Schedule 1 to the Agreement as required by Section 2.1(b) of the Agreement.
3. Conveyance of Transferred Receivables . (a) Buyer does hereby transfer, assign, set over and otherwise convey to Seller, without representation, warranty or recourse, on and after the Removal Date, all right, title and interest of Buyer in, to and
B-1
under the Transferred Receivables existing at the close of business on the Removal Date and thereafter created from time to time in the Removed Accounts designated hereby, the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and all Insurance Proceeds related thereto and all proceeds of the foregoing.
(b) In connection with such transfer, Buyer agrees to execute and deliver to Seller on or prior to the date this Reassignment is delivered, applicable termination statements prepared by Seller with respect to the Transferred Receivables existing at the close of business on the Removal Date and thereafter created from time to time in the Removed Accounts reassigned hereby and the proceeds thereof evidencing the release by Buyer of its interest in the Transferred Receivables in the Removed Accounts, and meeting the requirements of applicable state law, in such manner and such jurisdictions as are necessary to terminate such interest.
4. Representations and Warranties of Seller . Seller hereby represents and warrants to Buyer as of the Removal Date:
(a) Legal Valid and Binding Obligation . This Reassignment Agreement constitutes a legal, valid and binding obligation of Seller enforceable against Seller 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);
(b) Early Amortization Event . Seller reasonably believes that (i) the removal of the Transferred Receivables existing in the Removed Accounts will not, based on the facts known to the Seller, then or thereafter cause an Early Amortization Event to occur with respect to any series, (ii) no selection procedure believed by Seller to be materially adverse to the interests of Buyer or any of its creditors has a been used in removing Removed Accounts from among any pool of Accounts of a similar type (it being understood that Seller will not be deemed to have used such an adverse selection procedure in connection with any Involuntary Removal) as of the Removal Date and (iii) Accounts (or administratively convenient groups of Accounts, such as billing cycles) were chosen for removal on a random basis or another basis that Seller believes is consistent with achieving derecognition of the Transferred Receivables under GAAP;
(c) List of Removed Accounts . The list of Removed Accounts attached hereto, is an accurate and complete listing in all material respects of all the Accounts as of the Removal Date; and
(d) Receivables Tests . The Aggregate Outstanding Balance of Principal Receivables in the Removed Accounts did not exceed the lesser of (i) the Free Equity Amount over the Minimum Free Equity Amount or (ii) the excess of the Note Trust Principal Balance over the Required Principal Balance, all measured as of the end of the most recently ended Monthly Period.
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5. Amendment of the Agreement . The Agreement is hereby amended to provide that all references therein to this Agreement and herein shall be deemed from and after the Removal Date to be a dual reference to the Agreement as supplemented by this Reassignment. Except as expressly amended hereby, all of the representations, warranties, terms and covenants and conditions of the Agreement shall remain unamended and shall continue to be and shall remain in full force and effect in accordance with its terms.
6. 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 shall constitute one and the same instrument.
7. GOVERNING LAW . THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
B-3
IN WITNESS WHEREOF, the undersigned have caused this Reassignment Of Receivables in Removed Accounts to be duly executed and delivered by their respective duly authorized officers on the day and year first above written.
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Schedule 1
to Reassignment Agreement
REMOVED ACCOUNTS
B-5
FORM OF OPINION OF COUNSEL WITH RESPECT
TO AMENDMENTS
(Provisions to be included in
Opinion of Counsel to be delivered pursuant
to
Section 7.13(c)(i)
The opinions set forth below may be subject to all the qualifications, assumptions, limitations and exceptions taken or made in the Opinions Of Counsel delivered on the Closing Date.
(i) The amendment to this Agreement attached hereto as Schedule 1 (the Amendment ), has been duly authorized, executed and delivered by Seller and constitutes the legal, valid and binding agreement of Seller enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws from time to time in effect affecting creditors rights generally or the rights of creditors of national banking associations. The enforceability of the obligations of Seller is also subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)
(ii) The Amendment has been entered into in accordance with the terms and provisions of Section 7.2 of this Agreement.
FORM OF OPINION OF COUNSEL WITH RESPECT
TO ADDITION OF ADDITIONAL ACCOUNTS
(Provisions to be included in
Opinion of Counsel to be
delivered pursuant to
Section 7.13(c)(ii)
)
The opinions set forth below may be subject to appropriate qualifications, assumptions, limitations and exceptions.
1. The provisions of the Receivables Purchase and Contribution Agreement are effective under the UCC to create in favor of Buyer a valid security interest in Sellers rights in the Transferred Receivables in such Additional Accounts and the identifiable proceeds thereof (the Specified Assets ).
2. The security interest in the Specified Assets created by the Receivables Purchase and Contribution Agreement will be perfected by the filing of the Financing Statements as described and defined in such opinion. Based solely upon our review of the UCC Searches as described and defined in such opinion, such perfected security interest in the Specified Assets is prior to any other security interest granted by Seller that is perfected solely by filing of Financing Statements in the Search Offices as described and defined in such opinion that covers the Specified Assets.
PROVISIONS TO BE INCLUDED IN
ANNUAL OPINION OF COUNSEL
(To be delivered pursuant to Section 7.13(c)(iii) )
The opinion set forth below may be subject to certain qualification, assumptions, limitations and exceptions taken or made in the opinion of counsel to otherwise indicated, all capitalized terms used herein shall have the meanings ascribed to them in the Receivables Purchase and Contribution Agreement.
Assuming that all relevant conditions specified in the Prior Opinion as described and defined in such opinion addressing the security interest of Seller remain with respect to the Transferred Receivables in the Accounts and the proceeds thereof (the Specified Assets ) and the manner in which it is held still exists and that no circumstance has occurred that would render the facts upon which the Prior Opinion relied incorrect, we are of the opinion that no further actions are necessary on the date hereof to perfect or continue the perfection status of the security interest of Seller in the Specified Assets.
EXHIBIT 4.11
FIRST
AMENDMENT TO THE RECEIVABLES PURCHASE AND
CONTRIBUTION AGREEMENT
This FIRST AMENDMENT, dated as of September 25, 2003 (this Amendment ) is between RFS HOLDING, L.L.C., a Delaware limited liability company ( Seller ) and RFS FUNDING TRUST, a Delaware statutory trust ( Buyer ) to the Receivables Purchase and Contribution Agreement, dated as of June 27, 2003 (as may be further amended or modified from time to time, the Receivables Purchase Agreement ), between Seller and Buyer.
PRELIMINARY STATEMENTS
1. Seller and Buyer desire to amend certain provisions of the Receivables Purchase Agreement.
2. In consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, such parties hereby agree as follows:
AMENDMENTS
SECTION 1. Amendments to the Receivables Purchase Agreement . The Receivables Purchase Agreement is hereby amended as follows:
(a) Section 1.1 is hereby amended as follows:
(i) The definition of Daily Sale Commencement Date is hereby amended and restated as follows:
Daily Sale Commencement Date means the date on which the first series of publically offered Notes is issued or such earlier date as may be agreed upon between Buyer and Seller.
(ii) The definition of Gross Principal Balance is hereby deleted in its entirety.
(b) The first sentence of Section 2.8(b) is hereby amended and restated as follows:
The portion of the Principal Receivables arising in Accounts relating to any Retailer as to which a Discount Percentage is in effect that shall be recharacterized as Finance Charge Receivables shall equal the product of (x) an amount equal to the aggregate Outstanding Balance of such Principal Receivables (before giving effect to the recharacterization) and (y) a fraction the numerator of which is the Discount Option Receivables relating to such Retailer and the denominator of which is the aggregate Outstanding Balance of all Principal Receivables for such Retailer (before giving effect to the recharacterization for such Retailer.
(c) Section 2.8(c) is hereby amended and restated as follows:
Notwithstanding clause (b) , the portion of Collections of Principal Receivables arising in Accounts relating to any Retailer as to which a Discount Percentage is in effect that shall be recharacterized as Collections of Finance Charge Receivables ( Discount Option Receivables Collections ) shall equal, on any Date of Processing on and after the date on which Sellers exercise of its discount option for such Retailer takes effect, the product of (a) a fraction the numerator of which is the amount of the Discount Option Receivables relating to such Retailer and the denominator of which is the aggregate Outstanding Balance of all Principal Receivables for such Retailer (before giving effect to the recharacterization), in each case (for both numerator and denominator) as most recently determined pursuant to clause (b) and (b) Collections of Principal Receivables relating to such Retailer (before giving effect to the recharacterization) received on such Date of Processing.
SECTION 2. Representations and Warranties . In order to induce the parties hereto to enter into this Amendment, each party hereto represents and warrants unto the other party hereto as set forth in this Section 3 :
(a) The execution, delivery and performance by such party of this Amendment are within its powers, have been duly authorized by all necessary action, and do not: (i) contravene its organizational documents or (ii) contravene any contractual restriction, law or governmental regulation or court decree or order being on or affecting it.
(b) This amendment constitution the legal, valid and binding obligation of such party enforceable against such party in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors rights and general equitable principles.
SECTION 3. Binding Effect; Ratification .
(a) This amendment shall become effective, as of the date first set forth above, when counterparts hereof shall have been executed and delivered by the parties hereto.
(b) When the condition set forth in Section 3(a) above has been satisfied, (i) this Amendment shall become part of the Receivables Purchase Agreement and (ii) each reference in the Receivables Purchase Agreement to this Agreement or hereof, hereunder or words of like import, and each reference in any other Related Document (as defined in the Receivables Purchase Agreement) to the Receivables Purchase Agreement shall mean and be a reference to the Receivables Purchase Agreement as amended hereby.
2
SECTION 4. Miscellaneous .
(a) THIS AMENDMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY, AND PERFORMANCE, BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARDING TO THE CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) Headings used herein are for convenience of reference only and shall not affect the meanings of this Amendment.
(c) This Amendment may be executed in any number of counterparts, and by parties hereto on separate counterparts, each of which shall be an original and all of which take together shall constitute one and the same agreement.
(d) Executed counterparts may be delivered electronically
(e) Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by Deutsche Bank Trust Company Delaware, not in its individual capacity but solely in its capacity as owner trustee of Buyer, and in no event shall Deutsche Bank Trust Company Delaware, in its individual capacity, or any beneficial owner of Buyer have any liability for the representations, warranties, covenants, agreements or other obligations of Buyer hereunder, as to all of which recourse shall be had solely to the assets of Buyer. For all purposes of this Amendment, in the performance of any duties or obligations of Buyer hereunder, Deutsche Bank Trust Company Delaware shall be subject to, and entitled to the benefits of, the terms and provisions of Article VII of the Trust Agreement (as defined in the Receivables Purchase Agreement).
[Signature Pages Follow]
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IN WITNESS WHEREOF, Seller and Buyer have caused this Amendment to be duly executed by their respective officers as of the day and year first above written.
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DEUTSCHE BANK TRUST COMPANY DELAWARE , not in its individual capacity but solely as Trustee on behalf of the Borrower |
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S-2
EXHIBIT 4.12
TRANSFER AGREEMENT
between
RFS HOLDING, L.L.C.,
Transferor,
and
GE CAPITAL CREDIT CARD MASTER NOTE TRUST,
Buyer,
Dated as of September 25, 2003
TABLE OF CONTENTS
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i
ii
TRANSFER AGREEMENT, dated as of September 25, 2003 (this Agreement ), between RFS HOLDING, L.L.C., a Delaware limited liability company, as Transferor ( Transferor ) and GE CAPITAL CREDIT CARD MASTER NOTE TRUST, a Delaware statutory trust, as Buyer ( Buyer ).
In consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
Section 1.1 Definitions .
Account means each Initial Account and each Additional Account, but excludes any credit card accounts all of the Receivables in which are either reassigned or assigned to Transferor or its designee in accordance with this Agreement or the Trust Receivables Purchase Agreement, and any Accounts which in accordance with Transferors customary practices have been removed from Transferors computer records due to lack of activity. The term Account includes each account into which an Account is transferred (a Transferred Account ) so long as (a) such transfer is made in accordance with the Credit and Collections Policies and (b) such Transferred Account can be traced or identified, by reference to or by way of any Account Schedule delivered to Buyer pursuant to this Agreement, as an account into which an Account has been transferred. Notwithstanding the foregoing, no account in a Dual Card Program shall be deemed to be a Transferred Account with respect to any Account in a Private Label Program. Any Account in which the Principal Receivables have become Charged-Off Receivables shall cease to be an Account for all purposes other than the calculation of Recoveries, and no existing balance or future charges on such account shall be deemed to be Transferred Receivables notwithstanding any subsequent reaffirmation of such account by the Obligor and any resulting action by Originator. The term Account includes an Additional Account only from and after its Addition Date and includes any Removed Account only prior to its Removal Date. To avoid doubt, and without limiting the foregoing, each Flagged Account is an Account.
Accounting Changes means, with respect to any Person: (a) changes in accounting principles required by the promulgation of any rule, regulation, pronouncement or opinion of the Financial Accounting Standards Board of the American Institute of Certified Public Accountants (or any successor thereto or any agency with similar functions); (b) changes in accounting principles concurred by such Persons certified public accountants; (c) purchase accounting adjustments under Financial Accounting Statement 140 and EITF 88-16, and the application of the accounting principles set forth in Financial Accounting Statement 109, including the establishment of reserves pursuant thereto and any subsequent reversal (in whole or in part) of such reserves; and (d) the reversal of any reserves established as a result of purchase accounting adjustments.
Account Schedule means a computer file or microfiche list containing a true and complete list of Accounts, identified by account number (or by an alpha-numeric identifier that uniquely and objectively identifies the applicable account number pursuant to a protocol that has been provided to the Buyer) and setting forth the receivables balance for each as of (i) the applicable Addition Cut-Off Date, in the case of an Account Schedule relating to Additional Accounts, (ii) the Removal Notice Date, in the case of an Account Schedule relating to Removed Accounts or (iii) the date specified therein, in the case of any Account Schedule relating to Transferred Accounts or any other Account Schedule. Notwithstanding the foregoing, the initial Account Schedule does not set forth receivables balances, and any failure to set forth receivables balances in such a file or list shall not impair the files or lists effectiveness as an Account Schedule.
Addition Cut-Off Date means the date as of which any credit card accounts are designated to be included as Additional Accounts, as specified in the related Assignment.
Addition Date means, as to any Additional Accounts, the date as of which receivables outstanding in such Additional Account are first sold or contributed to Buyer, as specified in the related Assignment.
Additional Accounts is defined in Section 2.6(a) .
Additional Retailer means any retailer for which Originator maintains a Private Label Program, a Dual Card Program or both, which is designated as an Additional Retailer (a) prior to the RFS Funding Trust Termination Date in accordance with the Trust Receivables Purchase Agreement or (b) thereafter in accordance with Section 2.6(e) .
Administration Agreement means that certain Administration Agreement dated as of September 25, 2003, among the Administrator, the Buyer and the Trustee.
Administrator means GE Capital, in its capacity as Administrator under the Administration Agreement, or any other Person designated as a successor Administrator.
Affiliate means, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, five percent (5%) or more of the securities having ordinary voting power in the election of directors of such Person, (b) each Person that controls, is controlled by or is under common control with such Person, or (c) each of such Persons officers, directors, joint venturers and partners. For the purposes of this definition, control of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
Aggregate Principal Receivables means, as of any date of determination, the aggregate Outstanding Balance of Principal Receivables as of such date (excluding Principal Receivables that are Specified Retailer Receivables with respect to any date of determination prior to the RFS Funding Trust Termination Date), plus the principal amount of any Participation Interests, minus the Borrowing Base (as defined in the RFS
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Funding Trust Agreement) for that Monthly Period; provided that for purposes of calculating the Note Trust Principal Balance, the Borrowing Base (as defined in the RFS Funding Trust Agreement) shall not be subtracted from the Aggregate Principal Receivables.
Aggregate Reassignment Amount means, for any reassignment of the Transferred Receivables pursuant to Section 6.1(f) , the aggregate outstanding amount of Transferred Receivables (including Principal Receivables and Finance Charge Receivables) as of the end of the last preceding Monthly Period; provided that in no event shall the Aggregate Reassignment Amount be less than the amount specified pursuant to the Indenture.
Agreement is defined in the preamble.
Agreement Termination Date is defined in Section 7.4 .
Assignment is defined in Section 2.6(d) .
Authorized Officer means, with respect to any corporation or statutory trust, the Chairman or Vice-Chairman of the Board, the President, any Vice President, the Secretary, the Treasurer, any Assistant Secretary, any Assistant Treasurer and each other officer of such corporation or trustee or of such trust specifically authorized in resolutions of the Board of Directors of such corporation or by the governing documents or agreements of such trust to sign agreements, instruments or other documents on behalf of such corporation or statutory trust in connection with the transactions contemplated by the Related Documents.
Banana Republic Program Agreement means that certain Amended and Restated Consumer Credit Card Program Agreement, dated as of August 29, 2000, by and among Gap, Inc. and Monogram.
Banana Republic Retailers means Gap, Inc. d/b/a Banana Republic and its permitted assigns under the Banana Republic Program Agreement.
Bank Receivables Sale Agreement means the Receivables Sale Agreement dated as of June 27, 2003, between Monogram and Transferor.
Bankruptcy Event means, as to any Person, any of the following events: (a) a case or proceeding shall have been commenced against such Person seeking a decree or order in respect of such Person (i) under any Debtor Relief Law, (ii) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for any such Person or for any substantial part of such Persons assets, or (iii) ordering the winding-up or liquidation of the affairs of any such Person; and in the cases of GE Capital or any of its Affiliates, any of the foregoing shall continue for 60 days or the applicable order or relief shall have been granted or (b) such Person shall (i) file a petition seeking relief under any Debtor Relief Law, (ii) consent or fail to object in a timely and appropriate manner to the institution of proceedings thereunder or to the filing of any such petition or to the appointment of or taking possession by a custodian,
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receiver, liquidator, assignee, trustee or sequestrator (or similar official) for such Person or for any substantial part of such Persons assets, (iii) make an assignment for the benefit of creditors, or (iv) take any corporate or statutory trust action in furtherance of any of the foregoing.
Business Day means any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in the State of New York, the State of Connecticut or the State of Georgia.
Buyer is defined in the preamble.
Charged-Off Receivable means a Principal Receivable (or any portion thereof) arising in an Account which either (a) is 180 days past due or (b) has otherwise been written off as uncollectible in accordance with the Credit and Collection Policies. To avoid doubt, a Principal Receivable shall become a Charged-Off Receivable upon the earlier of the events described in clause (a) or clause (b) to occur with respect to the related Account.
Closing Date means September 25, 2003.
Collateral Amount is defined, with respect to any Series, in the Indenture Supplement for such Series.
Collection Account means the deposit account from time to time designated as the Collection Account pursuant to the Indenture.
Collections means, for any Receivable for any period, (a) the sum of all amounts, whether in the form of cash, checks, drafts, or other instruments, received by Originator or Servicer in payment of, or applied to, any amount owed by an Obligor on account of such Receivable during such period, including all amounts received on account of such Receivable, all other fees and charges, (b) Recoveries and cash proceeds of Related Security with respect to such Receivable and (c) any in-store payments received by a Retailer, Servicer or Originator with respect to such Receivable.
Contract means the agreement and Federal Truth in Lending Statement for revolving credit card accounts between any Obligor and Originator, as such agreements may be amended, modified, or otherwise changed from time to time.
Credit and Collection Policies means, with respect to each credit card program from which Accounts are drawn, Originators policies and procedures relating to the operation of such credit card program, including the policies and procedures for determining the creditworthiness of Obligors and the extension of credit to Obligors, and relating to the maintenance of credit card accounts and collection of credit card receivables, as such policies and procedures may be amended from time to time.
Credit Card Program Agreement means one or more agreements between Originator and a Retailer pursuant to which Originator provides a Private Label Program, a Dual Card Program or both to the Retailer and its customers.
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Custody and Control Agreement means the Custody and Control Agreement, dated as of September 25, 2003, between the Buyer and the Indenture Trustee.
Date of Processing means, as to any transaction, the day on which the transaction is first recorded on Servicers computer file of consumer revolving accounts (without regard to the effective date of such recordation).
Debtor Relief Laws means Title 11 of the United States Code, the Federal Deposit Insurance Act and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, readjustment of debt, marshalling of assets or similar debtor relief laws of the United States, any state or any foreign country from time to time in effect, affecting the rights of creditors generally.
Discount Option Receivables is defined in Section 2.8(b) .
Discount Option Receivables Collections is defined in Section 2.8(c) .
Discount Percentage is defined in Section 2.8(a) .
Dual Card Program means any arrangement in which Originator agrees to extend general purpose credit card accounts to customers of a Retailer, which accounts combine a private label credit line for use at the Retailers retail establishments or in its catalogue sales business and a general purpose credit line for use elsewhere.
Early Amortization Event means an Early Amortization Event for any series of Notes, as defined in the Indenture and the applicable supplement to the Indenture relating to that series of Notes.
Eligible Account means a credit card account that satisfies the definition of Eligible Account in the Bank Receivables Sale Agreement as of the applicable date specified therein.
Eligible Receivable means a Receivable that satisfies the definition of Eligible Receivable in the Bank Receivables Sale Agreement; it being understood that references to Buyer and Seller in such definition shall be deemed to refer to Buyer and Transferor as defined in this Agreement.
Excess Funding Account means the deposit account from time to time designated as the Excess Funding Account pursuant to the Indenture.
Finance Charge Receivables means Receivables created in respect of periodic finance charges, late fees, returned check fees and all other similar fees and charges billed or accrued and unpaid on an Account.
Flagged Account is defined in Section 2.1(c).
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Free Equity Amount means, at any time, the excess, if any, of the Note Trust Principal Balance over the sum of the Collateral Amounts for all outstanding series of Notes.
GAAP means generally accepted accounting principles in the United States of America in effect from time to time.
Gap Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. and Monogram.
Gap Retailers means Gap, Inc. and its permitted assigns under the Gap Program Agreement.
GE Capital means General Electric Capital Corporation, a Delaware corporation.
GECAF Retailer means each retailer who is from time to time a party to a dealer agreement with Monogram relating to Monograms GECAF private label credit card program.
Governmental Authority means any nation or government, any state or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Inactive Account is defined in Section 2.7(d) .
Indenture means the Master Indenture, dated as of September 25, 2003, between Buyer and the Indenture Trustee.
Indenture Security Agreement means the Indenture Security Agreement, dated as of September 25, 2003, between RFS Funding Trust and the Indenture Trustee.
Indenture Supplement means, with respect to any Series, a supplement to the Indenture, executed and delivered in connection with the original issuance of the Notes of such Series pursuant to Section 2.8 of the Indenture, and an amendment to the Indenture executed pursuant to Sections 9.1 or 9.2 of the Indenture, and, in either case, including all amendments thereof and supplements thereto.
Indenture Trustee means Deutsche Bank Trust Company Americas and its successors and assigns under the Indenture.
Ineligible Receivable is defined in Section 6.1(d) .
Initial Account means each open end credit card account included in the Accounts, as that term is defined in the Trust Receivables Purchase Agreement, immediately prior to the RFS Funding Trust Termination Date. The Initial Accounts will
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be identified in the Account Schedule delivered in connection with the RFS Funding Trust Termination Date.
Insurance Proceeds means any amounts payable to Originator pursuant to any credit insurance policies covering any Obligor with respect to Receivables under such Obligors Account.
Involuntary Removal is defined in Section 2.7(b) .
JCPenney Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of December 6, 1999, by and between J.C. Penney Company, Inc. and Monogram.
JCPenney Retailers means J.C. Penney Company, Inc. and other Authorized Entities as such term is defined in the J.C. Penney Program Agreement.
Lien means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction).
Litigation means, with respect to any Person, any action, claim, lawsuit, demand, investigation or proceeding pending or threatened against such Person before any court, board, commission, agency or instrumentality of any federal, state, local or foreign government or of any agency or subdivision thereof or before any arbitrator or panel of arbitrators.
Lowes Retailers means each of Lowes Companies, Inc., Lowes Home Centers, Inc., The Contractor Yard, Inc., Lowes HIW, Inc. and certain of their affiliates.
Material Adverse Effect means a material adverse effect on (a) the ability of Transferor to perform any of its obligations under the Related Documents in accordance with the terms thereof, (b) the validity or enforceability of any Related Document or the rights and remedies of Transferor or Buyer under any Related Document or (c) the Transferred Receivables, the Contracts therefor, the Note Trust Certificate or the ownership interests or Liens of Transferor or Buyer thereon or the priority of such interests or Liens.
Maximum Addition Amount means, with respect to any Addition Date:
(a) an aggregate principal balance as of such Addition Date of Additional Accounts not in excess of lesser of:
(i) the result of (A) 15% of the Aggregate Principal Receivables determined as of the first day of the third preceding Monthly
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Period minus (B) the Aggregate Principal Receivables in all of the Accounts that have been designated as Additional Accounts since the first day of the third preceding Monthly Period (measured for each such Additional Account as of the applicable Addition Cut-Off Date); and
(ii) the result of (A) 20% of the Aggregate Principal Receivables determined as of the first day of the calendar year in which such Addition Date occurs minus (B) the Aggregate Principal Receivables in all of the Accounts that have been designated as Additional Accounts since the first day of such calendar year (measured, for each such Additional Account, as of the applicable Addition Cut-Off Date); and
(b) a total number of Additional Accounts not in excess of the lesser of:
(i) the result of (A) 15% of the total number of Accounts determined as of the first day of the third preceding Monthly Period minus (B) the total number of Accounts that have been designated as Additional Accounts since the first day of the third preceding Monthly Period; and
(ii) the result of (A) 20% of the total number of Accounts determined as of the first day of the calendar year in which such Addition Date occurs minus (B) the total number of Accounts that have been designated as Additional Accounts since the first day of such calendar year.
Minimum Free Equity Amount means the minimum Free Equity Amount that Buyer is required to maintain pursuant to the Indenture.
Monogram means Monogram Credit Card Bank of Georgia, a bank organized under the laws of the State of Georgia.
Montgomery Ward means Montgomery Ward & Co. Incorporated.
Monthly Period means, as to each Payment Date, the period beginning on the 22 nd day of the second preceding calendar month and ending on the 21 st day of the immediately preceding calendar month; provided that the Monthly Period related to the November 2003 Payment Date shall mean the period from and including the Closing Date to and including October 21, 2003.
Note means any note issued by Buyer, and authenticated by the Indenture Trustee pursuant to the Indenture.
Note Trust Certificate means the certificate captioned Note Trust Certificate and dated June 27, 2003, representing a beneficial interest in a portion of the assets held by the RFS Funding Trust, issued pursuant to the RFS Funding Trust Agreement.
Note Trust Principal Balance means, as of any time of determination falling within or relating to a Monthly Period, the result of (a) the Aggregate Principal
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Receivables at that time, plus (b) the amount on deposit in the Excess Funding Account at that time (exclusive of any investment earnings on such amount), minus (c) before the RFS Funding Trust Termination Date, the Borrowing Base (as defined in the RFS Funding Trust Agreement) for that Monthly Period.
Obligor means, with respect to any Receivable, any Person obligated to make payments in respect thereof.
Officers Certificate means, with respect to any Person, a certificate signed by an Authorized Officer of such Person.
Old Navy Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. and Monogram.
Old Navy Retailers means Gap, Inc. d/b/a Old Navy and its permitted assigns under the Old Navy Program Agreement.
Opinion of Counsel means a written opinion of counsel, who may be counsel for, or an employee of, the Person providing the opinion.
Originator means Monogram or any other originator so designated pursuant to Section 2.10 of the Trust Receivables Purchase Agreement or this Agreement.
Outstanding Balance means, with respect to any Principal Receivable: (a) as of the Transfer Date for that Principal Receivable, the outstanding amount of such Principal Receivable as reflected on Servicers books and records (after giving effect to any recharacterization of any portion of such Principal Receivable as a Finance Charge Receivable pursuant to Section 2.8 ); and (b) thereafter, the amount referred to in clause (a) minus Collections with respect to that Principal Receivable that are allocable to a reduction of the Outstanding Balance thereof minus any subsequent discounts to or any other modifications that reduce such Outstanding Balance; provided , that the Outstanding Balance of a Charged-Off Receivable shall equal zero.
Participation Interest is defined in the Bank Receivables Sale Agreement.
Payment Date means, except as otherwise specified in any supplement to the Indenture, the 15 th day of each calendar month, or if the 15 th day is not on a Business Day, the next Business Day.
Permitted Encumbrances means the following encumbrances: (a) Liens for taxes or assessments or other governmental charges not yet due and payable; (b) inchoate and unperfected workers, mechanics, suppliers or similar Liens arising in the ordinary course of business; and (c) presently existing or hereinafter created Liens in favor of, or created by, Buyer.
Person means any individual, sole proprietorship, partnership, joint venture, unincorporated organization, trust, association, corporation (including a business or
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statutory trust), limited liability company, institution, public benefit corporation, joint stock company, Governmental Authority or any other entity of whatever nature.
Principal Receivable means each Receivable, other than a Finance Charge Receivable.
Prior Transfer Agreement means that certain Third Amended and Restated Receivables Transfer Agreement dated as of September 25, 1997, amended and restated as of July 22, 1998, as of March 22, 2001 and as of December 30, 2002 between Originator and RFS Funding Trust.
Private Label Program means a business arrangement in which Originator agrees to extend open end credit card accounts to customers of such Retailer and such Retailer agrees to allow purchases to be made at its retail establishments, or in its catalogue sales business, under such accounts.
Purchase Date means each Business Day.
Purchase Price is defined in Section 2.4(a) .
Rating Agency means, as to any class of Notes, the rating agency or agencies, if any, specified in the related supplement to the Indenture.
Rating Agency Condition means, with respect to any action, that each Rating Agency, if any, shall have notified Buyer in writing that such action will not result in a reduction or withdrawal of the rating, if any, of any outstanding class of Notes with respect to which it is a Rating Agency.
Reassignment is defined in Section 2.7(a) .
Receivable means any amount owing by an Obligor under an Account from time to time.
Receivables Trust means (a) prior to the RFS Funding Trust Termination Date, the RFS Funding Trust and (b) on and after the RFS Funding Trust Termination Date, Buyer.
Records means all Contracts and other documents, books, records and other information (including computer programs, tapes, disks, data processing software and related property and rights) prepared and maintained by Originator, Servicer, or any Sub-Servicer with respect to the Transferred Receivables and the Obligors thereunder.
Recoveries means (a) so long as the servicing arrangement described in Section 2.1(b) of the Bank Receivables Sale Agreement remains in effect, amounts allocated to the Transferred Receivables pursuant to that Section and (b) if at any time that servicing arrangement no longer remains in effect, with respect to any Transferred Receivable, (i) Collections of such Transferred Receivable received after such Transferred Receivable was charged off as uncollectible but before any sale or other disposition of such
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Transferred Receivable after charge off; and (ii) any proceeds from such a sale or other disposition by Transferor of such a charged off Transferred Receivable, in each of clauses (i) and (ii) net of expenses of recovery.
Related Documents means this Agreement, the Bank Receivables Sale Agreement, the Trust Receivables Purchase Agreement, the RFS Funding Trust Agreement, the Trust Agreement, the Custody and Control Agreement, the Indenture, any Indenture Supplement, the Servicing Agreement, the Indenture Security Agreement, the Administration Agreement and all other pledges, powers of attorney, consents, assignments, contracts, notices, and all other written matter whether heretofore, now or hereafter executed by or on behalf of any Person, or any employee of any Person, and delivered in connection with any of the foregoing or the transactions contemplated thereby.
Related Security means with respect to any Receivable: (a) all of Originators interest, if any, in the goods, merchandise (including returned merchandise) or equipment, if any, the sale of which gave rise to such Receivable; (b) all guarantees, insurance or other agreements or arrangements of any kind from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise; and (c) all Records relating to such Receivable.
Removed Accounts is defined in Section 2.7(a) .
Removal Date is defined in Section 2.7(a) .
Removal Notice Date is defined in Section 2.7(a) .
Required Principal Balance means the minimum Note Trust Principal Balance that Buyer is required to maintain pursuant to the Indenture.
Requirements of Law means, as to any Person, the certificate of incorporation or articles of association 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.
Retailer means the Banana Republic Retailers; the Gap Retailers; the GECAF Retailers; the JCPenney Retailers, Inc.; the Lowes Retailers; Montgomery Ward; the Old Navy Retailers; the Sams Club Retailers; the Wal-Mart Retailers and from time to time, any Additional Retailer designated pursuant to (and as defined in) this Agreement. It is understood and agreed that (a) additional retailers who from time to time become GECAF Retailers shall automatically be treated as Retailers with respect to Monograms GECAF program without the necessity of complying with the terms of Section 2.6(e) and (b) any Person designated as a Retailer shall cease to be included as a Retailer if the Accounts related to that Person are designated as Removed Accounts pursuant to Section 2.7(b) , effective at the time that the repurchase of the related Transferred Receivables is completed.
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RFS Funding Trust means RFS Funding Trust, a Delaware statutory trust.
RFS Funding Trust Termination Date means the date on which the RFS Funding Trust is terminated and all of the Transferred Receivables held by the RFS Funding Trust are transferred to Buyer.
RFS Funding Trust Agreement means the Amended and Restated Trust Agreement, dated as of December 19, 2002 among Transferor, General Electric Capital Services, Inc. and Deutsche Bank Trust Company Delaware, as trustee, as amended and restated on June 27, 2003 among the Transferor, RFS Holding, Inc. (as assignee of General Electric Capital Services, Inc.) and Deutsche Bank Trust Company Delaware, as trustee.
Sams Club Program Agreement means that certain Third Amended and Restated Consumer Credit Card Program Agreement, dated as of February 1, 1999, by and among Wal-Mart Stores, Inc., Sams West, Inc., Sams East, Inc. and Monogram.
Sams Club Retailers means Sams West, Inc., a Delaware corporation, Sams East, Inc., a Delaware corporation, and their respective successors and permitted assigns under the Sams Club Program Agreement.
Servicer means Monogram, in its capacity as Servicer under the Servicing Agreement, or any other Person designated as a successor servicer pursuant to the Servicing Agreement.
Servicing Agreement means the Servicing Agreement dated as of June 27, 2003, among Servicer, RFS Funding Trust and Buyer (upon its accession in accordance with the terms thereof).
Specified Retailer Receivables means the Transferred Receivables arising in the Originators programs for Montgomery Ward. Transferred Receivables arising in the Originators program for Montgomery Ward that have been transferred to the Originators program for Wal-Mart Retailers shall not be considered Specified Retailer Receivables.
Sub-Servicer means any Person with whom Servicer enters into a Sub-Servicing Agreement.
Sub-Servicing Agreement means any written contract entered into between Servicer and any Sub-Servicer relating to the servicing, administration or collection of the Transferred Receivables.
Subsidiary means, with respect to any Person, any corporation or other entity (a) of which securities or other ownership interests having ordinary voting power to elect a majority of the board of directors or other Persons performing similar functions are at the time directly or indirectly owned by such Person or (b) that is directly or indirectly controlled by such Person within the meaning of control under Section 15 of the Securities Act.
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Transferred Account is defined within the definition of Account.
Transfer Date means a date on which Buyer acquires Transferred Receivables from Transferor pursuant to Section 2.1 or any Assignment.
Transferor means RFS Holding, L.L.C. or any additional transferor designated as a Transferor pursuant to Section 2.9 .
Transferred Assets is defined in Section 2.1 .
Transferred Receivable means any Receivable purchased by Buyer from Transferor pursuant to this Agreement or any Assignment, including Principal Receivables and Finance Charge Receivables that exist at the time of purchase of any Principal Receivables in the same Account or that arise in an Account after the date of purchase of Principal Receivables in the Account. However, Receivables that are repurchased by Transferor pursuant to this Agreement or purchased by Servicer pursuant to the Servicing Agreement shall cease to be considered Transferred Receivables from the date of such purchase.
Trust Agreement means the Trust Agreement, dated as of September 25, 2003, between Transferor and the Trustee, as the same may be amended, supplemented or otherwise modified from time to time.
Trust Receivables Purchase Agreement means the Receivables Purchase and Contribution Agreement dated as of June 27, 2003, between Transferor and RFS Funding Trust.
Trustee means The Bank of New York (Delaware), not in its individual capacity but solely in its capacity as trustee under the Trust Agreement.
UCC means, with respect to any jurisdiction, the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in such jurisdiction.
United States means the United States of America, together with its territories and possessions.
Wal-Mart Program Agreement means that certain Consumer Credit Card Program Agreement dated as of August 26, 1999, by and between Wal-Mart Stores, Inc. and Monogram.
Wal-Mart Retailers means Retailer as such term is defined in the Wal-Mart Program Agreement.
Section 1.2 Other Interpretive Matters . All terms defined directly or by incorporation in this Agreement shall have the defined meanings when used in any certificate or other document delivered pursuant thereto unless otherwise defined therein. For purposes of this Agreement and all related certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined in this
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Agreement, and accounting terms partly defined in this Agreement to the extent not defined, shall have the respective meanings given to them under GAAP; and unless otherwise provided, references to any month, quarter or year refer to a fiscal month, quarter or year as determined in accordance with the GE Capital fiscal calendar; (b) terms defined in Article 9 of the UCC as in effect in the applicable jurisdiction and not otherwise defined in this Agreement are used as defined in that Article; (c) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (d) the words hereof, herein and hereunder and words of similar import refer to this Agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of this Agreement (or such certificate or document); (e) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Agreement (or the certificate or other document in which the reference is made), and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (f) the term including means including without limitation; (g) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (h) references to any agreement refer to that agreement as from time to time amended, restated or supplemented or as the terms of such agreement are waived or modified in accordance with its terms and (i) references to any Person include that Persons successors and permitted assigns.
ARTICLE II
SALES AND CONTRIBUTIONS
Section 2.1 Sales and Contributions . (a) By execution of this Agreement, Transferor does hereby transfer, assign, set over and otherwise convey to Buyer, without recourse except as provided herein, all its right, title and interest in, to and under (i) the Note Trust Certificate, (ii) effective on the RFS Funding Trust Termination Date, (A) the Receivables existing at the opening of business on the RFS Funding Trust Termination Date, and thereafter created from time to time until the Agreement Termination Date, together with the Related Security and Collections with respect thereto, in each case together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto, (B) without limiting the generality of the foregoing or the following, all of Transferors rights pursuant to the Bank Receivables Sale Agreement to receive payments from any Retailer on account of in-store payments and any other amounts received by such Retailer in payment of Receivables and (C) all of Transferors other rights under the Bank Receivables Sale Agreement and (iii) all proceeds of all of the foregoing (collectively, the Transferred Assets ). The foregoing does not constitute and is not intended to result in the creation or assumption by Buyer of any obligation of Originator, Transferor or any other Person in connection with the Accounts or the Transferred Receivables or under any agreement or instrument relating thereto, including any obligation to Obligors, merchant banks, Retailers, clearance systems or insurers.
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(b) On the Closing Date, Transferor shall deliver to Buyer a registered certificate representing the Note Trust Certificate. Within ten (10) days of the RFS Funding Trust Termination Date, Transferor agrees to record and file, at its own expense, financing statements (and continuation statements when applicable) with respect to the Transferred Receivables conveyed by Transferor existing on the RFS Funding Trust Termination Date and thereafter created meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect, and maintain the perfection of, the transfer and assignment of its interest in such Transferred Receivables to Buyer, and to deliver a file stamped copy of each such financing statement or other evidence of such filing (which may, for purposes of this Section 2.1 consist of telephone confirmation of such filing promptly followed by delivery to Buyer of a file-stamped copy) as soon as practicable after the RFS Funding Trust Termination Date, and (if any additional filing is so necessary) as soon as practicable after the applicable Addition Date, in the case of Transferred Receivables arising in Additional Accounts. Buyer shall be under no obligation whatsoever to file such financing or continuation statements or to make any other filing under the UCC in connection with such transfer and assignment.
(c) Transferor agrees, at its own expense, (i) on or prior to (x) the RFS Funding Trust Termination Date, in the case of the Initial Accounts, (y) the applicable Addition Date, in the case of Additional Accounts, and (z) the applicable Removal Date, in the case of Removed Accounts, to indicate, or cause to be indicated, in the appropriate computer files that Receivables created (or reassigned, in the case of Removed Accounts) in connection with the Accounts have been conveyed to Buyer pursuant to this Agreement (or conveyed to Transferor or its designee in accordance with Section 2.7 , in the case of Removed Accounts) by including, or causing to be included, in such computer files a code so identifying each such Account (or, in the case of Removed Accounts, deleting, or causing to be deleted, such code thereafter) and (ii) on or prior to the date referred to in clauses (i)(x) , (y) or (z) , as applicable, to deliver to Buyer an Account Schedule. The initial such Account Schedule, as supplemented from time to time to reflect Additional Accounts and Removed Accounts, shall be marked as Schedule 1 to this Agreement and is hereby incorporated into and made a part of this Agreement. Once the code referenced in clause (i) of this paragraph has been included with respect to any Account, Transferor further agrees not to permit such code to be altered during the remaining term of this Agreement unless and until (x) such Account becomes a Removed Account, or (y) Transferor shall have delivered to Buyer at least 30 days prior written notice of its intention to do so and has taken such action as is necessary or advisable to cause the interest of Buyer in the Transferred Receivables to continue to be perfected with the priority required by this Agreement. At any time that the code referenced in clause (i) is included with respect to any account, such account shall be a Flagged Account.
Section 2.2 Acceptance by Buyer .
(a) Buyer hereby acknowledges its acceptance of all right, title and interest to the property, now existing and hereafter created, conveyed to Buyer pursuant to Section 2.1 . Trustee shall maintain a copy of Schedule 1 , as delivered to it from time to time.
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(b) Buyer hereby agrees not to disclose to any Person any of the account numbers or other information contained in the Account Schedule marked as Schedule 1 and delivered to Buyer, from time to time, except (i) to Servicer, any Sub-Servicer or as required by a Requirement of Law applicable to Buyer, (ii) in connection with the performance of Buyers duties hereunder, (iii) to Indenture Buyer in connection with Indenture Buyers duties or (iv) to bona fide creditors or potential creditors of Servicer or Transferor for the limited purpose of enabling any such creditor to identify Transferred Receivables or Accounts subject to this Agreement. Buyer agrees to take such measures as shall be reasonably requested by Transferor to protect and maintain the security and confidentiality of such information and, in connection therewith, shall allow Transferor or its duly authorized representatives to inspect Buyers security and confidentiality arrangements from time to time during normal business hours upon prior written notice. Buyer shall promptly notify Transferor of any request received by Buyer to disclose information of the type described in this Section 2.2(b) , which notice shall in any event be provided no later than five (5) Business Days prior to disclosure of any such information unless Buyer is compelled pursuant to a Requirement of Law to disclose such information prior to the date that is five (5) Business Days after the giving of such notice.
Section 2.3 Grant of Security Interest . The parties hereto intend that each transfer of the Transferred Assets shall constitute a sale or capital contribution, as applicable, by Transferor to Buyer and not a loan by Buyer to Transferor secured by the Transferred Assets. Notwithstanding anything to the contrary set forth in this Section 2.3 , if a court of competent jurisdiction determines that any transaction provided for herein constitutes a loan and not a sale, or capital contribution, as applicable, then the parties hereto intend that this Agreement shall constitute a security agreement under applicable law and that Transferor shall be deemed to have granted, and Transferor hereby grants, to Buyer a first priority lien and security interest in and to all of Transferors right, title and interest in, to and under the Transferred Assets, subject only to Permitted Encumbrances.
Section 2.4 Purchase Price; Issuance of Notes . (a) The purchase price for the Transferred Receivables and the other Transferred Assets related thereto shall equal the Outstanding Balance of the Principal Receivables included therein, adjusted consistent with any applicable Discount Percentage (such amount for any Transferred Assets, the Purchase Price ).
(b) The Purchase Price for any Transferred Assets sold by Transferor under this Agreement shall be payable in full in cash on each Purchase Date or less frequently if so agreed between Buyer and Transferor; provided , however , that Buyer may, with respect to any sale or contribution, offset against such Purchase Price any amounts owed by Transferor to Buyer hereunder and which remain unpaid. On each such Purchase Date or other date set by the parties for payment, Buyer shall, upon satisfaction of the applicable conditions set forth in Article III , make available to Transferor the Purchase Price for the applicable Transferred Assets in same day funds. If Buyer does not have sufficient cash on any Purchase Date or other date set by the parties for payment to pay the full Purchase Price, the remaining balance shall be deemed to be contributed to Buyer
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in exchange for a corresponding increase in the Free Equity Amount; provided that Transferor may require Buyer to issue Notes in exchange for a decrease in the Free Equity Amount as provided in clause (c) .
(c) Upon Transferors request, Buyer shall from time to time issue a series of Notes to Transferor or its designee with such terms as specified in the related Indenture Supplement, so long as (i) such issuance is permitted under the terms of the Indenture and (ii) without limiting the generality of the foregoing, after giving effect to each such issuance (A) the Free Equity Amount is not less than the Minimum Free Equity Amount and (B) the Note Trust Principal Balance is not less than the Required Principal Balance. This clause (c) is effective both before and after the RFS Funding Trust Termination Date.
Section 2.5 Adjustments . If on any day falling on or after the RFS Funding Trust Termination Date the outstanding amount of any Principal Receivable is reduced because of a rebate, refund, unauthorized charge or billing error to an accountholder, or because such Principal Receivable was created in respect of merchandise which was refused or returned by an accountholder, or if the outstanding amount of any Principal Receivable is otherwise reduced other than on account of Collections thereof or such amount being charged-off as uncollectible, then, Transferor shall compensate Buyer for such reductions as provided below. The compensation payable by Transferor for any such reduction shall equal the amount of the reduction in the Outstanding Balance of the Principal Receivable. Transferor shall pay such compensation to Buyer not later than the second Business Day after adjustment ; provided that during any period when the Issuer is permitted by Section 8.4 of the Indenture to make a single deposit to the Collection Account, such compensation need not be paid until the first Transfer Date following the end of the Monthly Period in which the adjustment arises; and provided , further , that no such payment need be made if the Free Equity Amount exceeds zero.
Section 2.6 Addition of Accounts .
(a) Additional Accounts . If, at the end of any Monthly Period falling after the RFS Funding Trust Termination Date, the Free Equity Amount is less than the Minimum Free Equity Amount, Transferor shall require Originator to designate additional Eligible Accounts to be included as Accounts under (and as defined in) the Bank Receivables Sale Agreement, and Transferor shall in turn designate such accounts ( Additional Accounts ) as Accounts for purposes of this Agreement in a sufficient amount such that the Free Equity Amount at the end of such Monthly Period, computed on a pro forma basis as if the Additional Accounts had been designated prior to the end of such Monthly Period, is at least equal to the Minimum Free Equity Amount (if any). In addition, if, at the end of any Monthly Period, the Note Trust Principal Balance is less than the Required Principal Balance, Transferor shall require Originator to designate additional Eligible Accounts to be included as Accounts under the Bank Receivables Sale Agreement, and Transferor shall in turn designate such accounts as Additional Accounts for purposes of this Agreement in a sufficient amount such that the Note Trust Principal Balance will be equal to or greater than the Required Principal Balance. Receivables from such Additional Accounts shall be transferred to Buyer on or before the tenth Business Day
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following such Monthly Period. To the extent Transferor designates Additional Accounts with Principal Receivables substantially in excess of the amount of Principal Receivables required under this subsection 2.6(a) , such excess shall be deemed to be optional Additional Accounts under subsection 2.6(b) below and will be permitted to be so designated solely to the extent permitted by subsection 2.6(b) .
(b) Voluntary Additions of Accounts . In addition to its obligation under subsection 2.6(a) , Transferor may also designate additional Eligible Accounts as Additional Accounts if Originator wishes to designate additional Accounts under the Bank Receivables Sale Agreement at a time when Additional Accounts are not required pursuant to subsection 2.6(a) .
(c) Participation Interests . In lieu of, or in addition to, designating Additional Accounts as required by subsection (a) above or designating additional Accounts as permitted by subsection (b) above, Transferor may convey Participation Interests to Buyer. The Rating Agency Condition must be satisfied in connection with any such conveyance and Transferor and Buyer will enter into a supplement to this Agreement specifying the terms of any such conveyance.
(d) Conditions for Additions of Additional Accounts . Any sale of Receivables from Additional Accounts under subsection 2.6(a) or (b) shall occur only upon satisfaction of the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(a) and on or before the tenth Business Day prior to the Addition Date with respect to additions pursuant to subsection 2.6(b) , Transferor shall give Buyer written notice that such Additional Accounts will be designated, which notice shall specify the approximate aggregate amount of the Receivables to be transferred;
(ii) on or before the Addition Date, (A) Transferor shall have delivered to Buyer, a written assignment in substantially the form of Exhibit A (the Assignment ) (which may be executed by the Administrator on behalf of the Buyer), (B) the representations and warranties of Transferor set out in Exhibit A shall be true with respect to the Additional Accounts and (C) Transferor shall indicate in its computer files that the Receivables created in connection with the Additional Accounts have been transferred to Buyer;
(iii) Transferor shall not make more than one such designation per Retailer in any one Monthly Period;
(iv) Transferor shall deliver an Opinion of Counsel with respect to the Receivables in the Additional Accounts to Buyer (in such numbers and with such additional addressees as Buyer may reasonably request) substantially in the form of Exhibit D (with appropriate modifications);
(v) in the case of any designation pursuant to subsection 2.6(b) , if the designation will cause the number or principal amount of Additional Accounts to
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exceed the Maximum Addition Amount, five Business Days prior written notice shall have been given to the Rating Agencies and the Rating Agency Condition shall have been satisfied with respect to the designation. For this purpose, Additional Accounts designated pursuant to the Trust Receivables Purchase Agreement prior to the RFS Funding Trust Termination Date shall be deemed to have been designated as Additional Accounts under this Agreement on the date they were so designated under the Trust Receivables Purchase Agreement;
(vi) such Additional Accounts shall not relate to Montgomery Ward or, unless the Rating Agency Condition has been satisfied, the GECAF Retailers; and
(vii) such Additional Accounts shall have arisen pursuant to a Retailers Credit Card Program Agreement, unless the Rating Agency Condition has been satisfied and Buyer has consented to such addition.
(e) Additional Retailers . Transferor may from time to time designate retailers as Additional Retailers if (i) Originator wishes to make such a designation under the Bank Receivables Sale Agreement, (ii) Buyer consents to such designation and (iii) the Rating Agency Condition has been satisfied with respect to the designation. In addition, prior to the first date on which credit card accounts arising in any Dual Card Program are designated as Accounts, the Rating Agency Condition must be satisfied with respect to such Dual Card Program, regardless of whether the Originator also maintains a Private Label Program for the related Retailer, the credit card accounts in which have been designated as Accounts.
Section 2.7 Removal of Accounts .
(a) From time to time, after the RFS Funding Trust Termination Date, but not more frequently than once during each Monthly Period for any Retailer, Transferor shall have the right to require the reassignment to it or its designee of all Buyers right, title and interest in, to and under the Transferred Receivables then existing and thereafter created in a specified set of Accounts (the Removed Accounts ), together with the Related Security and Collections with respect thereto, in each case together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto, upon satisfaction of the following conditions:
(i) on or before the tenth Business Day immediately preceding the Removal Date (the Removal Notice Date ) Transferor shall have given Buyer, Servicer and each Rating Agency written notice of such removal and specifying the date for removal of the Removed Accounts (the Removal Date ); Transferor shall provide each Rating Agency with such additional information relating to such removal as the Rating Agency shall reasonably request;
(ii) on or prior to the Removal Date, Transferor shall have delivered to Buyer an Account Schedule listing the Removed Accounts;
(iii) with respect to any Involuntary Removal pursuant to Section 2.7(b) , Transferor shall use reasonable efforts to satisfy the Rating Agency
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Condition; and as to any other removal, the Rating Agency Condition shall have been satisfied;
(iv) Transferor shall have delivered to Buyer an Officers Certificate, dated as of the Removal Date, to the effect that Transferor reasonably believes that (A) in the case of any removal other than an Involuntary Removal, such removal will not, based on the facts known to such officer at the time of such certification, then or thereafter cause an Early Amortization Event to occur with respect to any series of Notes, (B) in the case of any Involuntary Removal, Transferor has used reasonable efforts to avoid having such removal result in an Early Amortization Event, (C) in either case, no selection procedure believed by Transferor to be materially adverse to the interest of Buyer or any of its creditors has been used in removing Removed Accounts from among any pool of Accounts of a similar type (it being understood that Transferor will not be deemed to have used such an adverse selection procedure in connection with any Involuntary Removal) and (D) in the case of any removal other than an Involuntary Removal, Accounts (or administratively convenient groups of Accounts or Participation Interests, such as billing cycles) were chosen for removal on a random basis;
(v) in the case of any removal pursuant to Section 2.7(a) , the Note Trust Principal Balance in the Removed Accounts shall not exceed the lesser of (A) the excess of the Free Equity Amount over the Minimum Free Equity Amount or (B) the excess of the Note Trust Principal Balance over the Required Principal Balance, all measured as of the end of the most recently ended Monthly Period; and
(vi) in the case of any removal pursuant to Section 2.7(b) , the removal shall not cause the Free Equity Amount to be less than the Minimum Free Equity Amount or cause the Note Trust Principal Balance to be less than the Required Principal Balance.
Upon satisfaction of the above conditions, Buyer shall execute and deliver to Transferor or its designee a written reassignment in substantially the form of Exhibit B (the Reassignment ) (which may be executed by the Administrator on behalf of the Buyer) and shall, without further action, be deemed to transfer, assign, set over and otherwise convey to Transferor or its designee, effective as of the Removal Date, without recourse, representation or warranty, all the right, title and interest of Buyer in and to the Transferred Receivables arising in the Removed Accounts, the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivables with respect thereto and Insurance Proceeds relating thereto and all proceeds of the foregoing. In addition, Buyer shall execute such other documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by Transferor to effect the conveyance of Transferred Receivables pursuant to this Section.
(b) After the RFS Funding Trust Termination Date, Transferor shall from time to time designate as Removed Accounts any Accounts designated for purchase by a
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Retailer pursuant to the terms of the related Credit Card Program Agreement (each, an Involuntary Removal ). Any repurchase of the Transferred Receivables in Removed Accounts designated pursuant to this Section 2.7(b) shall be effected in the manner and at a price determined in accordance with Section 6.1(e) , as if the Transferred Receivables being repurchased were Ineligible Receivables.
(c) After the RFS Funding Trust Termination Date, on the last day of the Monthly Period in which a Receivable becomes a Charged-Off Receivable, Buyer shall automatically and without further action or consideration be deemed to sell, transfer, and otherwise convey to Transferor, without recourse, representation or warranty (except for the warranty that since the date of the transfer of such Charged-Off Receivable by Transferor to Buyer under this Agreement, Buyer has not sold, transferred or encumbered any such Receivable or interest therein), all the right, title and interest of Buyer in and to such Receivable, all monies due or to become due with respect thereto and all proceeds thereof. The purchase price for the Charged-Off Receivables purchased pursuant to this Section 2.7(c) shall equal the aggregate amount of Recoveries for that Monthly Period. Such purchase price shall be payable in full in cash by Transferor on the Business Day preceding the related Payment Date.
(d) Transferor may from time to time, at its option, by notice to Buyer, designate as a Removed Account any Account (each, an Inactive Account ) that either (i) has had a zero balance and on which no charges have been made, in each case for at least the preceding 12 months or (ii) has a zero balance and the Obligor of which has agreed to open a credit card account in a related Dual Card Program in substitution for such Account. On or prior to the Removal Date for any Inactive Accounts, Transferor shall have delivered to Buyer an Account Schedule listing the Inactive Accounts that are to become Removed Accounts.
Section 2.8 Discount Option . (a) Any Discount Percentages designated and in effect under the Trust Receivables Purchase Agreement prior to the RFS Funding Trust Termination Date shall be deemed to have been designated and in effect pursuant to this Agreement. After the RFS Funding Trust Termination Date, for each Retailer, Transferor shall have the option (subject to the limitations described below) to designate at any time a fixed or floating percentage (the Discount Percentage ) of the amount of all Transferred Receivables arising in all Accounts related to such Retailer on or after the date such designation becomes effective that would otherwise constitute Principal Receivables to be treated as Finance Charge Receivables. Transferor may from time to time increase, reduce or eliminate (subject to the limitations described below) the Discount Percentage related to such Retailer for Discount Option Receivables arising in an Account on and after the date of such change. Transferor shall provide 30 days prior written notice to Servicer, Buyer, and each Rating Agency of any initial designation, increase, reduction or elimination, and such initial designation, increase, reduction or elimination shall become effective on the date specified therein only if (i) Transferor has delivered to Buyer an Officers Certificate to the effect that, based on the facts known to such officer at the time, Transferor reasonably believes that such initial designation, increase, reduction or elimination will not at the time of its occurrence cause an Early Amortization Event, or an event which with notice or the lapse of time would constitute
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an Early Amortization Event, to occur with respect to any series of Notes, (ii) in the case of any initial designation or increase, the Discount Percentage for such Retailer shall not exceed 5% after giving effect to that initial designation or increase, unless the Rating Agency Condition has been satisfied with respect to the increase , (iii) in the case of any reduction, the Rating Agency Condition has been satisfied and (iv) Buyer consents to such designation, increase, reduction or elimination.
(b) The portion of the Principal Receivables arising in Accounts relating to any Retailer as to which a Discount Percentage is in effect that shall be recharacterized as Finance Charge Receivables shall equal the product of (x) an amount equal to the aggregate Outstanding Balance of such Principal Receivables (before giving effect to the recharacterization) and (y) a fraction the numerator of which is the Discount Option Receivables relating to the Retailer and the denominator of which is the aggregate Outstanding Balance of all Principal Receivables for such Retailer (before giving effect to the recharacterization). The fraction referred to in the preceding clause (y) shall be determined not later than the 10 th day of each calendar month (or, if such 10 th day is not a Business Day, on the next Business Day) using the numerator and denominator as of the end of the most recent Monthly Period, and that fraction shall be used until recalculated in the next month. For this purpose, Discount Option Receivables means, as to any Retailer, on any Date of Processing on and after the date on which Transferors exercise of its discount option for such Retailer takes effect, the sum of (i) the aggregate amount of Discount Option Receivables relating to such Retailer at the end of the prior day (which amount, prior to the date on which Transferors exercise of its discount option for such Retailer takes effect and with respect to Principal Receivables generated in such Retailers program prior to such date, shall be zero), plus (ii) the product of (A) the Discount Percentage for such Retailer and (B) the amount of Principal Receivables (before giving effect to the recharacterization referred to above) created on such day in such Retailers program, minus (iii) any Discount Option Receivables Collections (as defined below) received on such Date of Processing.
(c) Notwithstanding clause (b) , the portion of Collections of Principal Receivables arising in Accounts relating to any Retailer as to which a Discount Percentage is in effect that shall be recharacterized as Collections of Finance Charge Receivables ( Discount Option Receivables Collections ) shall equal, on any Date of Processing on and after the date on which Transferors exercise of its discount option for such Retailer takes effect, the product of (a) a fraction the numerator of which is the amount of the Discount Option Receivables relating to such Retailer and the denominator of which is the aggregate Outstanding Balance of all Principal Receivables for such Retailer (before giving effect to the recharacterization), in each case (for both numerator and denominator) as most recently determined pursuant to clause (b) and (b) Collections of Principal Receivables relating to such Retailer (before giving effect to the recharacterization) received on such Date of Processing.
Section 2.9 Additional Transferors . Transferor may permit Originator to designate additional or substitute Persons to be included as Transferors under (and as defined in) the Bank Receivables Sale Agreement if the Rating Agency Condition is satisfied with respect to such designation.
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Section 2.10 Additional Originators . Transferor may permit Monogram to designate additional or substitute Persons to be included as Originators under (and as defined in) the Bank Receivables Sale Agreement and this Agreement if the Rating Agency Condition is satisfied with respect to such designation.
ARTICLE III
CONDITIONS PRECEDENT
Section 3.1 Conditions to Initial Transfer . The initial sale or conveyance hereunder shall be subject to satisfaction of each of the following conditions precedent (any one or more of which may be waived in writing by Buyer upon written notice to the Rating Agencies) as of the Closing Date:
(a) Documents . This Agreement or counterparts hereof shall have been duly executed by, and delivered to, Transferor and Buyer, and Buyer shall have received such documents, instruments, agreements and legal opinions as Buyer shall reasonably request in connection with the transactions contemplated by this Agreement, each in form and substance reasonably satisfactory to Buyer.
(b) Governmental Approvals . Buyer shall have received satisfactory evidence that Transferor has obtained all required consents and approvals of all Persons, including all requisite Governmental Authorities, to the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby.
(c) Compliance with Laws . Transferor shall be in compliance with all applicable foreign, federal, state and local laws and regulations, except to the extent that the failure to so comply, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
Section 3.2 Conditions to all Transfers . Each sale or contribution hereunder (including the initial sale or contribution) shall be subject to satisfaction of the following further conditions precedent (any one or more of which, except clause (b) below, may be waived in writing by Buyer upon written notice to the Rating Agencies) as of the Transfer Date therefor:
(a) The representations and warranties of Transferor contained herein or in any other Related Document required to be made on such Transfer Date shall be true and correct in all material respects as of such Transfer Date, both before and after giving effect to such sale or contribution; and
(b) Transferor shall be in compliance in all material respects with each of its covenants and other agreements set forth herein.
The consummation by Transferor of the sale or contribution, as applicable, of Transferred Assets on any Transfer Date shall be deemed to constitute, as of any such Transfer Date, a representation and warranty by Transferor that the conditions in clauses (a) and (b) of this Section 3.2 have been satisfied.
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ARTICLE IV
OTHER MATTERS RELATING TO TRANSFEROR
Section 4.1 Merger or Consolidation of, or Assumption of the Obligations of, Transferor etc.
(a) 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 Person formed by such consolidation or into which Transferor is merged or the Person which acquires by conveyance or transfer the properties and assets of Transferor substantially as an entirety shall be, if Transferor is not the surviving entity, an entity organized and existing under the laws of the United States of America or any State or the District of Columbia, and, if Transferor is not the surviving entity, such entity shall expressly assume, by an agreement supplemental hereto, executed and delivered to Buyer, in form reasonably satisfactory to Buyer, the performance of every covenant and obligation of Transferor hereunder;
(ii) Transferor has delivered to Buyer (A) an Officers Certificate stating that such consolidation, merger, conveyance or transfer and such supplemental agreement comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with, and (B) an Opinion of Counsel to the effect that such supplemental agreement is a valid and binding obligation of such surviving entity enforceable against such surviving entity in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally from time to time in effect and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity);
(iii) the business entity into which Transferor shall merge or consolidate, or to which such conveyance or transfer is made, shall be (x) a business entity that may not become a debtor in any case, action or other proceeding under Title 11 of the United States Code or (y) a special-purpose corporation, the powers and activities of which shall be limited to the performance of Transferors obligations under this Agreement and the other Related Documents;
(iv) if Transferor is not the surviving entity, the surviving entity shall file new UCC-1 financing statements with respect to the interest of Buyer in the Transferred Assets, if any; and
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(v) prior written notice shall have been delivered to the Rating Agencies with respect to such merger conveyance or transfer and the Rating Agency Condition shall have been satisfied.
(b) This Section 4.1 shall not be construed to prohibit or in any way limit Transferors ability to effectuate any consolidation or merger pursuant to which Transferor would be the surviving entity.
(c) The obligations of Transferor hereunder shall not be assignable nor shall any Person succeed to the obligations of Transferor hereunder except in each case in accordance with (i) the provisions of the foregoing paragraphs, (ii) Section 2.9 of this Agreement or (iii) conveyances, mergers, consolidations, assumptions, sales or transfers to other entities (1) for which Transferor delivers an Officers Certificate to Buyer indicating that Transferor reasonably believes that such action will not result in a Material Adverse Effect, (2) which meet the requirements of clause (ii) of paragraph (a) and (3) for which such purchaser, transferee, pledgee or entity shall expressly assume, in an agreement supplemental hereto, executed and delivered to Buyer in writing in form satisfactory to Buyer, the performance of every covenant and obligation of Transferor thereby conveyed.
ARTICLE V
BANKRUPTCY EVENTS
Section 5.1 Rights upon the Occurrence of a Bankruptcy Event . If a Bankruptcy Event occurs with respect to Transferor, Transferor shall on the day any such event occurs, immediately cease to transfer Principal Receivables to Buyer and shall promptly give notice of such event to Indenture Trustee, Buyer and the Rating Agencies. Notwithstanding any cessation of the transfer to Buyer of additional Principal Receivables, Principal Receivables transferred to Buyer prior to the occurrence of such Bankruptcy Event and Collections in respect of such Principal Receivables, and Finance Charge Receivables whenever created accrued in respect of such Principal Receivables, shall continue to be property of Buyer.
ARTICLE VI
REPRESENTATIONS, WARRANTIES AND COVENANTS
Section 6.1 Representations and Warranties of Transferor . (a) To induce Buyer to accept the Transferred Assets, Transferor makes the representations and warranties in subsections (i) through (viii) to Buyer, as of the Closing Date and each subsequent Transfer Date and Transferor shall make the representations and warranties in subsection (ix) hereof to Buyer on each Transfer Date on or after the RFS Funding Trust Termination Date, each and all of which shall survive the execution and delivery of this Agreement.
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(i) Valid Existence; Power and Authority . Transferor (A) is a limited liability company duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; (B) is duly qualified to conduct business and is in good standing in each other jurisdiction where its ownership or lease of property or the conduct of its business requires such qualification and where the failure to be so qualified or in good standing would have a Material Adverse Effect and (C) has all requisite power and authority to execute, deliver and perform its obligations under this Agreement.
(ii) UCC Information . The true legal name of Transferor as registered in the jurisdiction of its organization, and the current location of Transferors jurisdiction of organization and the address of its chief executive office are set forth in Schedule 6.1(a) and such location and address have not changed within the past 12 months. In addition, Schedule 6.1(a) lists Transferors (A) federal employer identification number and (B) organizational identification number as designated by the jurisdiction of its organization.
(iii) Authorization of Transaction; No Violation . The execution, delivery and performance by Transferor of this Agreement and the other Related Documents to which Transferor is a party and the creation and perfection of all Liens and ownership interests provided for herein: (A) have been duly authorized by all necessary action on the part of the Transferor, and (B) do not violate any provision of any law or regulation of any Governmental Authority, or contractual restrictions binding on Transferor, except where such violations, individually or in the aggregate, could not reasonably be expected to have a Material Adverse Effect.
(iv) Enforceability . On or prior to the Closing Date, each of the Related Documents to which Transferor is a party shall have been duly executed and delivered by Transferor and each such Related Document shall then constitute a legal, valid and binding obligation of Transferor enforceable against it in accordance with its terms, subject to bankruptcy, receivership, conservatorship, insolvency, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors rights and to general principles of equity.
(v) Accuracy of Certain Information . All written factual information heretofore furnished by Transferor to Buyer with respect to the Transferred Receivables for the purposes of, or in connection with, this Agreement was true and correct in all material respects on the date as of which such information was stated or certified.
(vi) Use of Proceeds . No proceeds received by Transferor under this Agreement will be used by it for any purpose that violates Regulation U of the Federal Reserve Board.
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(vii) Judgment or Tax Lien . Transferor is not aware of any judgment or tax lien filing against Transferor.
(viii) Note Trust Certificate . With respect to the Note Trust Certificate, Transferor represents and warrants that:
(A) this Agreement creates a valid and continuing security interest in the Note Trust Certificate and the proceeds thereof in favor of Buyer, which, (x) is enforceable upon execution of this Agreement against Transferor, as such enforceability may be limited by applicable Debtor Relief Laws, now or hereafter in effect, and by general principles of equity (whether considered in a suit at law or in equity) and (y) upon Buyer obtaining and maintaining possession of the Note Trust Certificate, will be prior to all other Liens (other than Permitted Encumbrances);
(B) the Note Trust Certificate constitutes an instrument, a general intangible or a certificated security within the meaning of the applicable UCC;
(C) immediately prior to the conveyance of the Note Trust Certificate pursuant to this Agreement, Transferor owns and has good and marketable title to the Note Trust Certificate free and clear of any Lien, claim or encumbrance of any Person (other than the Permitted Encumbrances);
(D) all authorizations, consents, orders or approvals of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by Transferor in connection with the conveyance by Transferor of the Note Trust Certificate to Buyer have been duly obtained, effected or given and are in full force and effect;
(E) Transferor has caused or will have caused, within ten (10) days of the Closing Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest granted to Buyer under this Agreement in the Note Trust Certificate;
(F) subject to Permitted Encumbrances, other than the transfer and assignment and the security interest granted to Buyer pursuant to this Agreement, Transferor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed the Note Trust Certificate and Transferor has not authorized the filing of and is not aware of any financing statements against Transferor that include a description of collateral covering the Note Trust
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Certificates other than any financing statement (x) relating to the security interest granted to Buyer under this Agreement, (y) that has been terminated, or (z) that has been granted pursuant to the terms of the Related Documents;
(G) the Note Trust Certificate does not have any marks or notations indicating that it has been pledged, assigned or otherwise conveyed to any Person other than Buyer; and
(H) notwithstanding any other provision of this Agreement, the representations and warranties set forth in this subsection 6.1(a)(viii) shall be continuing, and remain in full force and effect, until such time as the Note Trust Certificate is retired.
(ix) Transferred Receivables . From and after the RFS Funding Trust Termination Date, with respect to Transferred Receivables and Additional Accounts, Transferor represents and warrants that:
(A) each Transferred Receivable satisfies the criteria for an Eligible Receivable as of the applicable Transfer Date;
(B) this Agreement creates a valid and continuing security interest in the Transferred Receivables in favor of Buyer, which (x) with respect to Transferred Receivables existing as of the RFS Funding Trust Termination Date and thereafter created in the Initial Accounts and the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and the proceeds thereof, will be enforceable upon execution of this Agreement and the occurrence of the RFS Trust Termination Date against Transferor and with respect to Transferred Receivables in Additional Accounts as of the applicable Addition Date and thereafter created, and the Related Security and Collection with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and the proceeds thereof, will be enforceable against Transferor and as of the Addition Date, in each case as such enforceability may be limited by applicable Debtor Relief Laws, now or hereafter in effect, and by general principles of equity (whether considered in a suit at law or in equity) and (y) upon filing of the financing statements described in Section 2.1 and, in the case of Transferred Receivables thereafter created, upon the creation thereof, will be prior to all other Liens (other than Permitted Encumbrances);
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(C) the Transferred Receivables constitute accounts within the meaning of UCC Section 9-102;
(D) immediately prior to the conveyance of the Transferred Receivables pursuant to this Agreement, Transferor owns and has good and marketable title to, or has a valid security interest in, the Transferred Receivables free and clear of any Lien, claim or encumbrance of any Person, (other than Permitted Encumbrances);
(E) all authorizations, consents, orders or approvals of or registrations or declarations with any Governmental Authority required to be obtained, effected or given by Transferor in connection with the conveyance by Transferor of the Transferred Receivables to Buyer have been duly obtained, effected or given and are in full force and effect;
(F) Transferor has caused or will have caused, within ten (10) days of the RFS Funding Trust Termination Date or the applicable Addition Date, the filing of all appropriate financing statements in the proper filing office in the appropriate jurisdictions under applicable law in order to perfect the security interest granted to Buyer under this Agreement in the Transferred Receivables arising in the Initial Accounts and Additional Accounts, respectively; and
(G) subject to Permitted Encumbrances, other than the transfer and assignment and the security interest granted to Buyer pursuant to this Agreement, Transferor has not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Transferred Receivables and Transferor has not authorized the filing of and is not aware of any financing statements against Transferor that included a description of collateral covering the Transferred Receivables.
The representations and warranties described in this Section 6.1(a) shall survive the sale or contribution of the Transferred Assets to Buyer, any subsequent assignment, contribution or sale of the Transferred Assets by Buyer, and the termination of this Agreement and the other Related Documents and shall continue until the payment in full of all Transferred Assets.
(b) Transferor agrees that each Receivable in any Account sold by Monogram to RFS Funding Trust pursuant to the Prior Transfer Agreement or by Transferor to RFS Funding Trust pursuant to the Trust Receivable Purchase Agreement shall be deemed for all purposes (including the reassignment obligations under Section 2.7 and this Section 6.1 ) to have been sold by Transferor to Buyer pursuant to this Agreement as of the day of such actual sale, as if this Agreement had been in effect on that day.
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(c) Upon discovery by Transferor or Buyer of a breach of any of the representations and warranties by Transferor set forth in this Section 6.1 , the party discovering such breach shall give prompt written notice to the other. Transferor agrees to cooperate with Buyer in attempting to cure any such breach.
(d) If any representation or warranty of Transferor contained in Section 6.1(a)(ix) , is not true and correct in any material respect as of the date specified therein with respect to any Transferred Receivable or any Account and as a result of such breach any Transferred Receivables in the related Account become Charged-Off Receivables or Buyers rights in, to or under such Transferred Receivables or the proceeds of such Transferred Receivables are impaired or such proceeds are not available for any reason to Buyer free and clear of any Lien other than Permitted Encumbrances, unless cured within 60 days (or such longer period, not in excess of 120 days, as may be agreed to by Buyer) after the earlier to occur of the discovery thereof by Transferor or receipt by Transferor or a designee of Transferor of notice thereof given by Buyer, then such Transferred Receivable shall be designated an Ineligible Receivable provided that such Transferred Receivables will not be deemed to be Ineligible Receivables but will be deemed Eligible Receivables if, on any day prior to the end of such 60-day or longer period, (i) the relevant representation and warranty shall be true and correct in all material respects as if made on such day and (ii) Transferor shall have delivered an Officers Certificate describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct.
(e) On and after the date of its designation as an Ineligible Receivable, each Ineligible Receivable shall not be given credit in determining the Aggregate Principal Receivables used to calculate the Note Trust Principal Balance and the Free Equity Amount. On the first Transfer Date following the end of the Monthly Period in which any Transferred Receivable is designated as an Ineligible Receivable, Transferor shall repurchase such Ineligible Receivable from Buyer by paying Buyer a cash purchase price; provided that no such payment need be made if the Free Equity Amount exceeds the Minimum Free Equity Amount (after giving effect to the exclusion of such Ineligible Receivables from the Aggregate Principal Receivables) on the date such payment would otherwise be due. The purchase price for the Ineligible Receivables in any Account shall equal the Outstanding Balance of the Principal Receivables in such Account, plus the accrued Finance Charge Receivables in such Account as of the end of the Monthly Period prior to the repurchase date.
(f) If any representation or warranty of Transferor contained in Section 6.1(a)(i) , 6.1(a)(ii) , 6.1(a)(iii) or 6.1(a)(iv) of this Agreement is not true and correct in any material respect and such breach has a material adverse effect on the Transferred Receivables transferred to Buyer by Transferor or the availability of the proceeds thereof to Buyer, Transferor shall be obligated to accept a reassignment of the Transferred Receivables if such breach and any material adverse effect caused by such breach is not cured within 60 days of such notice (or within such longer period, not in excess of 120 days, as may be specified in such notice), on the terms set forth below; provided that such Transferred Receivables will not be reassigned to Transferor if, on any day prior to the end of such 60-day or longer period (i) the relevant representation and warranty shall be
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true and correct in all material respects as if made on such day and (ii) Transferor shall have delivered an Officers Certificate describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct.
Transferor shall pay to Buyer in immediately available funds not later than 12:00 noon, New York City time, on such Business Day as Buyer shall designate following the Monthly Period in which such reassignment obligation arises, in payment for such reassignment, an amount equal to the Aggregate Reassignment Amount. The payment of such deposit amount in immediately available funds shall otherwise be considered payment in full of all of the Transferred Receivables.
(g) Upon the payment, if any, required to be made to Buyer as provided in Section 6.1(e) or 6.1(f) , Buyer shall automatically and without further action be deemed to transfer, assign, set over and otherwise convey to Transferor or its designee, without recourse, representation or warranty, all the right, title and interest of Buyer in and to the applicable Transferred Receivables, all moneys due or to become due and all amounts received with respect thereto and all proceeds thereof. Buyer shall execute such documents and instruments of transfer or assignment and take such other actions as shall reasonably be requested by Transferor to effect the conveyance of such Transferred Receivables pursuant to this Section.
Section 6.2 Affirmative Covenants of Transferor . Transferor covenants and agrees that, unless otherwise consented to by Buyer, from and after the Closing Date and until the date after the Agreement Termination Date when the Outstanding Balance of all Transferred Receivables have been reduced to zero:
(a) Account Allocations . If Transferor is unable for any reason to transfer Transferred Receivables to Buyer in accordance with the provisions of this Agreement (including by reason of the application of the provisions of Section 5.1 or an order by any Governmental Authority that Transferor not transfer any additional Principal Receivables to Buyer) then, in any such event: (i) Transferor agrees to allocate and pay to Buyer, after the date of such inability, all Collections with respect to Principal Receivables, and all amounts which would have constituted Collections with respect to Principal Receivables but for Transferors inability to transfer such Transferred Receivables (up to an aggregate amount equal to the amount of Principal Receivables held by Buyer on such date of inability); (ii) Transferor agrees that such amounts shall be deemed Collections of Transferred Receivables; and (iii) for only so long as all Collections and all amounts which would have constituted Collections are allocated and applied in accordance with clauses (i) and (ii) , Principal Receivables (and all amounts which would have constituted Principal Receivables, but for Transferors inability to transfer Transferred Receivables to Buyer) that are charged off as uncollectible in accordance with this Agreement shall continue to be allocated in accordance with the Servicing Agreement, and all amounts that would have constituted Principal Receivables, but for Transferors inability to transfer Transferred Receivables to Buyer shall be deemed to be Principal Receivables for the purpose of all calculations under the Related Documents. If Transferor is unable pursuant to any Requirement of Law to allocate Collections as described above, Transferor agrees that it shall allocate collections, charge-offs and other incidents of the
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receivables in the Accounts between Transferred Receivables and other receivables outstanding in the Accounts on a basis reasonably intended to approximate the actual portions allocable to Transferred Receivables and other receivables respectively. The parties hereto agree that Finance Charge Receivables, whenever created, accrued in respect of Principal Receivables that have been conveyed to Buyer, or that would have been conveyed to Buyer but for the above described inability to transfer such Receivables, shall continue to be held by Buyer notwithstanding any cessation of the transfer of additional Principal Receivables to Buyer.
(b) Notice of Material Event . Transferor shall promptly inform Buyer in writing of the occurrence of any of the following, in each case setting forth the details thereof and what action, if any, Transferor proposes to take with respect thereto:
(i) any Litigation commenced or threatened against Transferor or with respect to or in connection with all or any substantial portion of the Transferred Assets or developments in such Litigation, in each case, that Transferor believes has a reasonable risk of being determined adversely and having a Material Adverse Effect;
(ii) the commencement of a proceeding against Transferor seeking a decree or order in respect of Transferor (A) under the Federal Deposit Insurance Act or any other applicable federal, state or foreign bankruptcy or other similar law, (B) appointing a custodian, receiver, liquidator, assignee, trustee or sequestrator (or similar official) for Transferor or for any substantial part of Transferors assets, or (C) ordering the winding-up or liquidation of the affairs of Transferor; or
(iii) any default by Transferor in performance of any of its obligations under this Agreement, any notice received by Transferor from Originator relating to any default by Originator in performance of its obligations under the Bank Receivables Sale Agreement or any actual knowledge on the part of Transferor of such Originator default.
(c) Notice of Liens . Transferor shall notify Buyer promptly after becoming aware of any Lien on any Transferred Asset other than Permitted Encumbrances.
(d) Information for Reports . Transferor shall promptly deliver any material written information, documents, records or reports with respect to the Transferred Receivables that Buyer shall reasonably request.
(e) Deposit of Collections . Transferor shall transfer to Buyer or Servicer on its behalf, promptly, and in any event no later than the Business Day after receipt thereof, all Collections it may receive in respect of Transferred Assets.
(f) Credit Card Program Agreement and Policies . Transferor shall enforce Originators obligation under the Bank Receivables Sale Agreement to comply with and perform its obligations under the Credit Card Program Agreements and the Contracts relating to the Accounts and the Credit and Collection Policies except insofar as any
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failure to comply or perform would not materially or adversely affect the rights of Buyer. Transferor may permit Originator to change the terms and provisions of the Credit Card Program Agreements, the Contracts or the Credit and Collection Policies (including the reduction of the required minimum monthly payment, the calculation of the amount, or the timing, of charge offs and periodic finance charges and other fees assessed thereon), but subject to Section 6.3(b) and only if such change is made applicable to any comparable segment of the revolving credit card accounts owned and serviced by Originator which have characteristics the same as, or substantially similar to, the Accounts that are the subject of such change, except as otherwise restricted by an endorsement, sponsorship or other agreement between Originator and an unrelated third party or by the terms of the Credit Card Program Agreements.
Section 6.3 Negative Covenants of Transferor . Transferor covenants and agrees that, without the prior written consent of Buyer, from and after the Closing Date and until the date after the Agreement Termination Date when the Outstanding Balances of all Transferred Receivables transferred hereunder prior to such Agreement Termination Date have been reduced to zero:
(a) Liens . Transferor shall not create, incur, assume or permit to exist any Lien, other than Permitted Encumbrances, on or with respect to the Transferred Assets.
(b) Periodic Finance Charges and Other Fees . Except as otherwise required by any Requirement of Law, or as is deemed by Originator to be necessary in order for it to maintain its credit card business, based upon Originators good faith assessment, in its sole discretion, of the nature of the competition in the credit card business, Transferor shall not at any time permit Originator to reduce the periodic finance charges assessed on any Transferred Receivable or other fees on any Account if, as a result of such reduction, Transferors reasonable expectation of the portfolio yield for any series of notes secured, directly or indirectly, by the Transferred Receivables, as of the date of such reduction would be less than the then base rate for that series, as determined in accordance with the terms of that series. In any event, Transferor shall not permit Originator to reduce the periodic finance charges assessed on any Transferred Receivable or other fees on any Account without the consent of Buyer, which consent Buyer shall provide unless the giving of such consent is prohibited by any agreement to which Buyer is a party or if the reduction would cause the Buyer to fail to make required payments under any such agreement.
(c) UCC Matters . Transferor shall not change its state of organization or incorporation or its name such that any financing statement filed to perfect Buyers interests under this Agreement would become seriously misleading, unless Transferor shall have given Buyer not less than 30 days prior written notice of such change.
(d) No Proceedings . From and after the Closing Date and until the date one year plus one day following the date on which all amounts due with respect to securities rated by a Rating Agency that were issued by any entity holding Transferred Assets have been paid in full in cash, Transferor shall not, directly or indirectly, institute or cause to be instituted against Buyer any bankruptcy, reorganization, arrangement, insolvency or
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liquidation proceeding or other proceeding under any federal or state bankruptcy or similar law; provided that the foregoing shall not in any way limit Transferors right to pursue any other creditor rights or remedies that Transferor may have under any applicable law. Without prejudice to the survival of any other agreement of the Transferor hereunder, the agreements and obligations of the Transferor under this Section 6.3(d) shall survive the termination to this Agreement.
(e) Sale Characterization . For accounting purposes, Transferor shall not account for the transactions contemplated by this Agreement in any manner other than, with respect to the sale or contribution of each Transferred Receivable, as a true sale and/or absolute assignment of its full right, title and ownership interest in the related Transferred Assets to Buyer. Transferor shall also maintain its records and books of account in a manner which clearly reflects each such sale or contribution of the Transferred Receivables to Buyer.
(f) Amendment to Bank Receivables Sale Agreement . Transferor shall not amend the Bank Receivables Sale Agreement if such amendment would materially adversely affect the interests of the Buyer or any of the Buyers creditors.
Section 6.4 No-Petition Covenant of Buyer . Buyer covenants and agrees that, from and after the Closing Date and until the date one year plus one day following the date on which all amounts due with respect to securities rated by a Rating Agency that were issued by any entity holding Transferred Assets have been paid in full in cash, Buyer shall not, directly or indirectly, institute or cause to be instituted against Transferor any bankruptcy, reorganization, arrangement, insolvency or liquidation proceeding or other proceeding under any federal or state bankruptcy or similar law; provided that the foregoing shall not in any way limit Buyers right to pursue any other creditor rights or remedies that Transferor may have under any applicable law. Without prejudice to the survival of any other agreement of the Buyer hereunder, the agreements and obligations of the Buyer under this Section 6.4 shall survive the termination of this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Notices . Except as otherwise provided herein, whenever it is provided herein that any notice, demand, request, consent, approval, declaration or other communication shall or may be given to or served upon any of the parties by any other parties, or whenever any of the parties desires to give or serve upon any other parties any communication with respect to this Agreement, each such notice, demand, request, consent, approval, declaration or other communication shall be in writing and shall be deemed to have been validly served, given or delivered (a) upon the earlier of actual receipt and three Business Days after deposit in the United States mail, registered or certified mail, return receipt requested, with proper postage prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile transmission (with such telecopy or facsimile promptly confirmed by delivery of a copy by personal delivery or United States mail as otherwise provided in this Section 7.1 ), (c) one Business Day after
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deposit with a reputable overnight courier with all charges prepaid or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address or facsimile number set forth below or to such other address (or facsimile number) as may be substituted by notice given as herein provided. The giving of any notice required hereunder may be waived in writing by the party entitled to receive such notice. Failure or delay in delivering copies of any notice, demand, request, consent, approval, declaration or other communication to any Person (other than Buyer) designated in any written communication provided hereunder to receive copies shall in no way adversely affect the effectiveness of such notice, demand, request, consent, approval, declaration or other communication. Notwithstanding the foregoing, whenever it is provided herein that a notice is to be given to any other party hereto by a specific time, such notice shall be effective only if actually received by such party prior to such time, and if such notice is received after such time or on a day other than a Business Day, such notice shall be effective only on the immediately succeeding Business Day.
If to Transferor:
RFS HOLDING, L.L.C.
1600 Summer Street, 6th Floor
Stamford, CT 06927
Attention:
Manager
Securitization
Telephone:
(203) 357-4756
Facsimile:
(203) 357-6796
with a copy
to:
1600 Summer Street, 4th Floor
Stamford, CT 06927
Attention:
Telephone:
(203) 357-4328
Facsimile:
(203) 961-2953
If to Buyer:
GE CAPITAL CREDIT CARD MASTER NOTE TRUST
c/o The Bank of New York
101 Barclay Street
Floor 8 West (ABS Unit)
Attention: Antonio Vayas
Telephone: (212) 815-8322
Facsimile: (212) 815-2493, or 3883
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with a copy to:
1600 Summer Street, 4th Floor
Stamford, CT 06927
Attention:
Telephone:
(203) 357-4328
Facsimile:
(203) 961-2953
Section 7.2 No Waiver; Remedies . (a) Either partys failure, at any time or times, to require strict performance by the other party hereto of any provision of this Agreement shall not waive, affect or diminish any right of such party thereafter to demand strict compliance and performance herewith or therewith. Any suspension or waiver of any breach or default hereunder shall not suspend, waive or affect any other breach or default whether the same is prior or subsequent thereto and whether of the same or a different type. None of the undertakings, agreements, warranties, covenants and representations of either party contained in this Agreement, and no breach or default by either party hereunder or thereunder, shall be deemed to have been suspended or waived by the other party unless such waiver or suspension is by an instrument in writing signed by an officer of or other duly authorized signatory of such party and directed to the defaulting party specifying such suspension or waiver.
(b) Each partys rights and remedies under this Agreement shall be cumulative and nonexclusive of any other rights and remedies that such party may have under any other agreement, including the other Related Documents, by operation of law or otherwise.
Section 7.3 Successors and Assigns . This Agreement shall be binding upon and shall inure to the benefit of Transferor and Buyer and their respective successors and permitted assigns, except as otherwise provided herein. Except as provided below and in Sections 2.9 or 4.1 of this Agreement, neither Buyer nor Transferor may assign, transfer, hypothecate or otherwise convey its rights, benefits, obligations or duties hereunder, without (i) satisfying the Rating Agency Condition and (ii) obtaining the prior express written consent of the other party. Any such purported assignment, transfer, hypothecation or other conveyance by Transferor without the prior express written consent of Buyer and the satisfaction of the Rating Agency Condition (if applicable) shall be void. Transferor acknowledges that under the Indenture Security Agreement, Buyer will grant security interests in its rights granted hereunder to the Indenture Trustee, and upon any exercise of remedies with respect to such security interests, the Indenture Trustee shall have, to the extent of such assignment, all rights of Buyer hereunder and such transferee may in turn transfer such rights. The terms and provisions of this Agreement are for the purpose of defining the relative rights and obligations of Transferor and Buyer with respect to the transactions contemplated hereby and no Person shall be a third-party beneficiary of any of the terms and provisions of this Agreement.
Section 7.4 Termination . This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain
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in full force and effect until the earlier of (a) the termination of the Buyer as provided in the Trust Agreement and (b) the date selected by Transferor upon prior notice thereof to Buyer (such date the Agreement Termination Date ).
Section 7.5 Survival . Except as otherwise expressly provided herein or in any other Related Document, no termination or cancellation (regardless of cause or procedure) of any commitment made by Transferor under this Agreement shall in any way affect or impair the obligations, duties and liabilities of Transferor or the rights of Transferor relating to any unpaid portion of any and all obligations of Transferor to Buyer, due or not due, liquidated, contingent or unliquidated or any transaction or event occurring prior to such termination, or any transaction or event, the performance of which is required after the Agreement Termination Date. Except as otherwise expressly provided herein or in any other Related Document, all undertakings, agreements, covenants, warranties and representations of or binding upon Transferor, and all rights of Transferor hereunder shall not terminate or expire, but rather shall survive any such termination or cancellation and shall continue in full force and effect until the date after the Agreement Termination Date when the Outstanding Balances of all Transferred Receivables transferred hereunder prior to such Agreement Termination Date have been reduced to zero; provided , that the rights and remedies pursuant to the provisions of Sections 2.5 , 6.3(c) , 7.3 , 7.11 and 7.13 shall be continuing and shall survive any termination of this Agreement.
Section 7.6 Complete Agreement; Modification of Agreement . This Agreement constitutes the complete agreement between the parties with respect to the subject matter hereof, supersedes all prior agreements and understandings relating to the subject matter hereof and thereof, and may not be modified, altered or amended except by written agreement of the parties hereto. The parties shall give prior written notice of any material amendment of this Agreement to the Rating Agencies.
Section 7.7 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL . (a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED , THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK
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CITY; PROVIDED FURTHER , THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE BUYER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE RECEIVABLES OR ANY SECURITY FOR THE OBLIGATIONS OF TRANSFEROR ARISING HEREUNDER OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF BUYER. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 7.1 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTYS ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 7.8 Counterparts . This Agreement may be executed in any number of separate counterparts, each of which shall collectively and separately constitute one agreement.
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Section 7.9 Severability . Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.
Section 7.10 Section Titles . The section titles and table of contents contained in this Agreement are provided for ease of reference only and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.
Section 7.11 No Setoff . Transferors obligations under this Agreement shall not be affected by any right of setoff, counterclaim, recoupment, defense or other right Transferor might have against Buyer, all of which rights are hereby expressly waived by Transferor.
Section 7.12 Confidentiality . NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, THE OBLIGATIONS OF CONFIDENTIALITY CONTAINED HEREIN, SHALL NOT APPLY TO THE FEDERAL TAX STRUCTURE OR FEDERAL TAX TREATMENT OF THIS TRANSACTION, AND EACH PARTY (AND ANY EMPLOYEE, REPRESENTATIVE, OR AGENT OF ANY PARTY) MAY DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY KIND, THE FEDERAL TAX STRUCTURE AND FEDERAL TAX TREATMENT OF THIS TRANSACTION. THE PRECEDING SENTENCE IS INTENDED TO CAUSE THIS TRANSACTION TO BE TREATED AS NOT HAVING BEEN OFFERED UNDER CONDITIONS OF CONFIDENTIALITY FOR PURPOSES OF SECTION 1.6011-4(B)(3) (OR ANY SUCCESSOR PROVISION) OF THE TREASURY REGULATIONS PROMULGATED UNDER SECTION 6011 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND SHALL BE CONSTRUED IN A MANNER CONSISTENT WITH SUCH PURPOSE. IN ADDITION, EACH PARTY ACKNOWLEDGES THAT IT HAS NO PROPRIETARY OR EXCLUSIVE RIGHTS TO THE FEDERAL TAX STRUCTURE OF THIS TRANSACTION OR ANY FEDERAL TAX MATTER OR FEDERAL TAX IDEA RELATED TO THIS TRANSACTION.
Section 7.13 Further Assurances . (a) Transferor shall, at its sole cost and expense, upon request of Buyer, promptly and duly authorize, execute and/or deliver, as applicable, any and all further instruments and documents and take such further actions that may be necessary or desirable or that Buyer may request to carry out more effectively the provisions and purposes of this Agreement or to obtain the full benefits of this Agreement and of the rights and powers herein granted, including authorizing and filing any financing or continuation statements under the UCC with respect to the ownership interests or Liens granted hereunder. Transferor hereby authorizes Buyer to file any such financing or continuation statements without the signature of Transferor to the extent permitted by applicable law. A carbon, photographic or other reproduction of this Agreement or of any notice or financing statement covering the Transferred Assets or
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any part thereof shall be sufficient as a notice or financing statement where permitted by law. If any amount payable under or in connection with any of the Transferred Assets is or shall become evidenced by any instrument, such instrument, other than checks and notes received in the ordinary course of business, shall be duly endorsed in a manner satisfactory to Buyer immediately upon Transferors receipt thereof and promptly delivered to or at the direction of Buyer.
(b) If Transferor fails to perform any agreement or obligation under this Section 7.13 , Buyer may (but shall not be required to) itself perform, or cause performance of, such agreement or obligation, and the reasonable expenses of Buyer incurred in connection therewith shall be payable by Transferor upon demand of Buyer.
(c) Transferor shall deliver to Buyer (i) upon the execution and delivery of each amendment of this Agreement, an Opinion of Counsel to the effect specified in Exhibit C ; (ii) on each Addition Cut-Off Date on which any Additional Accounts are to be designated as Accounts pursuant to Section 2.6 , an Opinion of Counsel substantially in the form of Exhibit D ; and (iii) on or before March 31 of each year following the year in which the RFS Funding Trust Termination Date occurs, an Opinion of Counsel substantially in the form of Exhibit E .
Section 7.14 Accounting Changes . If any Accounting Changes occur and such changes result in a change in the standards or terms used herein, then the parties hereto agree to enter into negotiations in order to amend such provisions so as to equitably reflect such Accounting Changes with the desired result that the criteria for evaluating the financial condition of such Persons and their Subsidiaries shall be the same after such Accounting Changes as if such Accounting Changes had not been made. If the parties hereto agree upon the required amendments to this Agreement, then after appropriate amendments have been executed and the underlying Accounting Change with respect thereto has been implemented, any reference to GAAP contained herein shall, only to the extent of such Accounting Change, refer to GAAP consistently applied after giving effect to the implementation of such Accounting Change. If such parties cannot agree upon the required amendments within 30 days following the date of implementation of any Accounting Change, then all financial statements delivered and all standards and terms used herein shall be prepared, delivered and used without regard to the underlying Accounting Change.
Section 7.15 No Indirect or Consequential Damages . NO PARTY TO THIS AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER.
Section 7.16 Limitation of Liability of the Trustee . Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by The Bank of
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New York (Delaware), not in its individual capacity but solely in its capacity as Trustee of Buyer, and in no event shall The Bank of New York (Delaware), in its individual capacity, or any beneficial owner of Buyer have any liability for the representations, warranties, covenants, agreements or other obligations of Buyer hereunder, as to all of which recourse shall be had solely to the assets of Buyer. For all purposes of this Agreement, in the performance of any duties or obligations of Buyer thereunder, the Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Article VIII of the Trust Agreement.
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IN WITNESS WHEREOF, Transferor and Buyer have caused this Transfer Agreement to be duly executed by their respective officers as of the day and year first above written.
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RFS HOLDING, L.L.C., as Transferor |
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GE CAPITAL CREDIT CARD MASTER NOTE TRUST , Buyer |
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THE BANK OF NEW YORK (DELAWARE), not in its individual capacity but solely as Trustee on behalf of the Buyer |
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Michael Santino |
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S-1
LIST OF ACCOUNTS
[Delivered Separately] **
* The initial Account Schedule does not identify the aggregate amount of receivables in the Accounts described therein
TRANSFERORS UCC INFORMATION
Legal Name
RFS Holding, L.L.C.
Jurisdiction of Organization
Delaware
Address of Chief Executive Officer
1600 Summer Street, 6 th Floor
Stamford, CT 06927
S-1
FORM OF ASSIGNMENT OF TRANSFERRED RECEIVABLES
IN ADDITIONAL ACCOUNTS
(As required by Section 2.6 of the Transfer Agreement)
ASSIGNMENT No. OF TRANSFERRED RECEIVABLES IN ADDITIONAL ACCOUNTS (this Assignment ) dated as of , 20[__], by and among RFS HOLDING, LLC, a limited liability company organized under the laws of the State of Delaware, as Transferor ( Transferor ) and GE CAPITAL CREDIT CARD MASTER NOTE TRUST ( Buyer ), pursuant to the Transfer Agreement referred to below.
W I T N E S S E T H :
WHEREAS, Transferor and Buyer are parties to the Transfer Agreement, dated as of September 25, 2003 (as it may be amended and supplemented from time to time the Agreement); and
WHEREAS, pursuant to the Agreement, Transferor wishes to designate Additional Accounts to be included as Accounts and to convey the Transferred Receivables in such Additional Accounts that have been designated Additional Accounts pursuant to the Agreement, whether now existing or hereafter created, to Buyer (as each such term is defined in the Agreement); and
WHEREAS, Buyer is willing to accept such designation and conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, Transferor and Buyer hereby agree as follows:
1. Defined Terms . All terms defined in the Agreement and used herein shall have such defined meanings when used herein, unless otherwise defined herein.
Addition Date means, with respect to the Additional Accounts designated hereby, [ ], 20[ ].
Addition Cut-Off Date means, with respect to Additional Accounts designated hereby, [ ], 20[ ].
Notice Date means, with respect to the Additional Accounts designated hereby, [ ], 20[ ].
2. Designation of Additional Accounts . The Accounts listed on Schedule 1 to this Assignment have been designated Additional Accounts pursuant to the Agreement. Schedule 1 to this Assignment, as of the Addition Date, shall supplement Schedule 1 to the Agreement as required by Section 2.1(c) of the Agreement.
A-1
3. Conveyance of Transferred Receivables . (a) Transferor does hereby transfer, assign, set over and otherwise convey, without recourse except as set forth in this Agreement, to Buyer, all its right, title and interest in, to and under the Receivables in such Additional Accounts existing at the close of business on the Addition Date and thereafter created from time to time until the Agreement Termination Date, the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and all proceeds of the foregoing. The foregoing does not constitute and is not intended to result in the creation or assumption by Buyer of any obligation of any Originator, Transferor or any other Person in connection with the Accounts or the Transferred Receivables or under any agreement or instrument relating thereto, including any obligation to Obligors, merchant banks, Retailers, clearance systems or insurers.
(b) Transferor agrees to record and file, at its own expense, financing statements (and continuation statements when applicable) with respect to the Transferred Receivables in Additional Accounts existing on the Addition Date and thereafter created meeting the requirements of applicable state law in such manner and in such jurisdictions as are necessary to perfect, and maintain perfection of, the sale and assignment of its interest in such Receivables to Buyer, and to deliver a file-stamped copy of each such financing statement or other evidence of such filing to Buyer within ten (10) days of the Addition Date. Buyer shall be under no obligation whatsoever to file such financing or continuation statements or to make any other filing under the UCC in connection with such sale and assignment.
(c) In connection with such assignment, Transferor further agrees, at its own expense, on or prior to the date of this Assignment, to indicate and cause Servicer to indicate in the appropriate computer files that Receivables created in connection with the Additional Accounts and designated hereby have been conveyed to Buyer pursuant to the Agreement and this Assignment.
(d) Transferor does hereby grant to Buyer a security interest in all of its right, title and interest, whether now owned or hereafter acquired, in and to the Receivables in the Additional Accounts existing on the Addition Date and thereafter created, the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and all Insurance Proceeds relating thereto and all proceeds of the foregoing. This Assignment constitutes a security agreement under the UCC.
4. Acceptance by Buyer . Buyer hereby acknowledges its acceptance in trust of all right, title and interest to the property, existing on the Addition Date and thereafter created, conveyed to Buyer pursuant to Section 3(a) of this Assignment. Buyer further acknowledges that, prior to or simultaneously with the execution and delivery of this Assignment, Transferor delivered to it the Account Schedule described in Section 2 of this Assignment.
5. Representations and Warranties of Transferor . Transferor hereby represents and warrants to Buyer as of the Addition Date:
A-2
(a) This Assignment constitutes a legal, valid and binding obligation of Transferor enforceable against 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 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);
(b) each of the Transferred Receivables satisfies the criteria for an Eligible Receivable as of the Addition Cut-Off Date;
(c) each Additional Account is, as of the Addition Cut-Off Date, an Eligible Account,
(d) no selection procedures believed by Transferor to be materially adverse to the interests of Buyer or any of its creditors were utilized in selection the Additional Accounts from the available Eligible Accounts;
(e) as of the Addition Date, Transferor is solvent;
(f) the Account Schedule delivered pursuant to this Assignment, is an accurate and complete listing in all material respects of all the Accounts as of the related Addition Cut-Off Date, and the information contained therein with respect to the identify of such Accounts and the Transferred Receivables existing in such Accounts, is true and correct in all material respects as of the Addition Cut-Off Date;
(g) the Agreement and this Assignment creates a valid and continuing security interest in the Receivables in the Additional Accounts in and the Related Security and Collection with respect thereto and, together with all monies due or to become due and all amounts received or receivable with respect thereto and Insurance Proceeds relating thereto and the proceeds thereof in favor of Buyer and is enforceable against creditors of and purchasers of Transferor with respect to the Receivables and the Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and all Insurance Proceeds related thereto and the proceeds thereof, as such enforceability may be limited by applicable Debtor Relief Laws, now or hereafter in effect, and by general principles of equity (whether considered in a suit at law or in equity) and (y) upon filing of the financing statements described herein and, in the case of Transferred Receivables thereafter created, upon the creation thereof, will be prior to all other Liens (other than Permitted Encumbrances);
(h) the Transferred Receivables constitute accounts within the meaning of UCC Section 9-102;
(i) immediately prior to the conveyance of the Receivables pursuant to this Agreement, Transferor owns and has good and marketable title to, or has a valid security interest in, the Receivables free and clear of any Lien, claim or encumbrance of any Person, (other than Permitted Encumbrances); and
A-3
(j) subject to Permitted Encumbrances, other than the transfer and assignment and the security interest granted to Buyer pursuant to this Agreement, Transferor had not pledged, assigned, sold, granted a security interest in, or otherwise conveyed any of the Transferred Receivables. Transferor has not authorized the filing of and is not aware of any financing statements against Transferor that included a description of collateral covering the Transferred Receivables.
6. Amendment of the Agreement . The Agreement is hereby amended to provide that all references therein, to this Agreement and herein shall be deemed from and after the Addition Date to be a dual reference to the Agreement as supplemented by this Assignment. Except as expressly amended hereby, all of the representations, warranties, terms, covenants and conditions of the Agreement shall remain unamended and shall continue to be, and shall remain, in full force and effect in accordance with its terms.
7. Counterparts . This Assignment 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.
8. GOVERNING LAW . THIS ASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
9. Limitation of Liability of the Administrator . Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by General Electric Capital Corporation, not in its individual capacity but solely in its capacity as Administrator of Buyer, and in no event shall General Electric Capital Corporation, in its individual capacity, or any beneficial owner of Buyer have any liability for the representations, warranties, covenants, agreements or other obligations of Buyer hereunder, as to all of which recourse shall be had solely to the assets of Buyer. For all purposes of this Agreement, in the performance of any duties or obligations of Buyer thereunder, the Administrator shall be subject to, and entitled to the benefits of, the terms and provisions of Article [ ] of the Administration Agreement.
A-4
IN WITNESS WHEREOF, the undersigned have caused this Assignment of Transferred Receivables in Additional Accounts to be duly executed and delivered by their respective duly authorized officers on the day and year first above written.
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A-5
Schedule I
to Assignment of Transferred Receivables
in Additional Accounts
ADDITIONAL ACCOUNTS
A-6
FORM OF REASSIGNMENT OF RECEIVABLES
IN REMOVED ACCOUNTS
(As required by Section 2.7 of the Transfer Agreement)
REASSIGNMENT No. OF RECEIVABLES IN REMOVED ACCOUNTS dated as of , 20[ ], by and among RFS HOLDING, LLC, a limited liability company organized under the laws of the State of Delaware, as Transferor (the Transferor ), and GE CAPITAL CREDIT CARD MASTER NOTE TRUST (the Buyer ), pursuant to the Transfer Agreement referred to below.
WITNESSETH:
WHEREAS Transferor and Buyer are parties to the Transfer Agreement, dated as of September 25, 2003 (as it may be amended and supplemented from time to time the Agreement );
WHEREAS pursuant to the Agreement, Transferor wishes to remove from Buyer all Transferred Receivables owned by Buyer in certain designated Accounts and to cause Buyer to reconvey the Transferred Receivables of such Removed Accounts, whether now existing or hereafter created, from Buyer to Transferor; and
WHEREAS Buyer is willing to accept such designation and to reconvey the Transferred Receivables in the Removed Accounts subject to the terms and conditions hereof;
NOW, THEREFORE, Transferor and Buyer hereby agree as follows:
1. Defined Terms . All terms defined in the Agreement and used herein shall have such defined meanings when used herein, unless otherwise defined herein.
Removal Date means, with respect to the Removed Accounts designated hereby, , .
Removal Notice Date means, with respect to the Removed Accounts , .
2. Designation of Removed Accounts . Schedule 1 to this Reassignment, as of the Removal Date, shall supplement Schedule 1 to the Agreement as required by Section 2.1(c) of the Agreement.
3. Conveyance of Transferred Receivables . (a) Buyer does hereby transfer, assign, set over and otherwise convey to Transferor, without representation, warranty or recourse, on and after the Removal Date, all right, title and interest of Buyer in, to and under the Transferred Receivables existing at the close of business on the Removal Date and thereafter created from time to time in the Removed Accounts designated hereby, the
B-1
Related Security and Collections with respect thereto, together with all monies due or to become due and all amounts received or receivable with respect thereto and all Insurance Proceeds related thereto and all proceeds of the foregoing.
(b) In connection with such transfer, Buyer agrees to execute and deliver to Transferor on or prior to the date this Reassignment is delivered, applicable termination statements prepared by Transferor with respect to the Transferred Receivables existing at the close of business on the Removal Date and thereafter created from time to time in the Removed Accounts reassigned hereby and the proceeds thereof evidencing the release by Buyer of its interest in the Transferred Receivables in the Removed Accounts, and meeting the requirements of applicable state law, in such manner and such jurisdictions as are necessary to terminate such interest.
4. Representations and Warranties of Transferor . Transferor hereby represents and warrants to Buyer as of the Removal Date:
(a) Legal Valid and Binding Obligation . This Reassignment Agreement constitutes a legal, valid and binding obligation of Transferor enforceable against 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);
(b) Early Amortization Event . Transferor reasonably believes that (i) the removal of the Transferred Receivables existing in the Removed Accounts will not, based on the facts known to Transferor, then or thereafter cause an Early Amortization Event to occur with respect to any series, (ii) no selection procedure believed by Transferor to be materially adverse to the interests of Buyer or any of its creditors has been used in removing Removed Accounts from among any pool of Accounts of a similar type (it being understood that Transferor will not be deemed to have used such an adverse selection procedure in connection with any Involuntary Removal) as of the Removal Date and (iii) Accounts (or administratively convenient groups of Accounts, such as billing cycles) were chosen for removal on a random basis or another basis that Transferor believes is consistent with achieving derecognition of the Transferred Receivables under GAAP;
(c) List of Removed Accounts . The list of Removed Accounts attached hereto, is an accurate and complete listing in all material respects of all the Accounts as of the Removal Date; and
(d) Receivables Tests . The Aggregate Outstanding Balance of Principal Receivables in the Removed Accounts did not exceed the lesser of (i) the Free Equity Amount over the Minimum Free Equity Amount or (ii) the excess of the Note Trust Principal Balance over the Required Principal Balance, all measured as of the end of the most recently ended Monthly Period.
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5. Amendment of the Agreement . The Agreement is hereby amended to provide that all references therein to this Agreement and herein shall be deemed from and after the Removal Date to be a dual reference to the Agreement as supplemented by this Reassignment. Except as expressly amended hereby, all of the representations, warranties, terms and covenants and conditions of the Agreement shall remain unamended and shall continue to be and shall remain in full force and effect in accordance with its terms.
6. 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 shall constitute one and the same instrument.
7. GOVERNING LAW . THIS REASSIGNMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
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IN WITNESS WHEREOF, the undersigned have caused this Reassignment Agreement to be duly executed and delivered by their respective duly authorized officers on the day and year first above written.
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B-4
Schedule 1
to Reassignment Agreement
REMOVED ACCOUNTS
B-5
FORM OF OPINION OF COUNSEL WITH RESPECT
TO AMENDMENTS
(Provisions to be included in
Opinion of Counsel to be delivered pursuant
to
Section 7.13(c)(i)
)
The opinions set forth below may be subject to all the qualifications, assumptions, limitations and exceptions taken or made in the Opinions Of Counsel delivered on the RFS Funding Trust Termination Date.
(i) The amendment to this Agreement attached hereto as Schedule 1 (the Amendment ), has been duly authorized, executed and delivered by Transferor and constitutes the legal, valid and binding agreement of Transferor enforceable in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws from time to time in effect affecting creditors rights generally or the rights of creditors of national banking associations. The enforceability of the obligations of Transferor is also subject to general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law)
(ii) The Amendment has been entered into in accordance with the terms and provisions of Section 7.2 of this Agreement.
FORM OF OPINION OF COUNSEL WITH RESPECT
TO ADDITION OF ADDITIONAL ACCOUNTS
(Provisions to be included in
Opinion of Counsel to be
delivered pursuant to
Section 7.13(c)(ii)
)
The opinions set forth below may be subject to appropriate qualifications, assumptions, limitations and exceptions.
1. The provisions of the Transfer Agreement are effective under the UCC to create in favor of Buyer a valid security interest in Transferors rights in the Transferred Receivables in such Additional Accounts and the identifiable proceeds thereof (the Specified Assets ).
2. The security interest in the Specified Assets created by the Transfer Agreement will be perfected by the filing of the Financing Statements as described and defined in such opinion. Based solely upon our review of the UCC Searches as described and defined in such opinion, such perfected security interest in the Specified Assets is prior to any other security interest granted by Originator that is perfected solely by filing of Financing Statements in the Search Offices as described and defined in such opinion that covers the Specified Assets.
PROVISIONS TO BE INCLUDED IN
ANNUAL OPINION OF COUNSEL
(To be delivered pursuant to
Section 7.13(c)(iii))
The opinion set forth below may be subject to certain qualification, assumptions, limitations and exceptions taken or made in the opinion of counsel to otherwise indicated, all capitalized terms used herein shall have the meanings ascribed to them in the Transfer Agreement.
Assuming that all relevant conditions specified in the Prior Opinion as described and defined in such opinion addressing the security interest of Transferor remain with respect to the Transferred Receivables in the Accounts and the proceeds thereof (the Specified Assets ) and the manner in which it is held still exists and that no circumstance has occurred that would render the facts upon which the Prior Opinion relied incorrect, we are of the opinion that no further actions are necessary on the date hereof to perfect or continue the perfection status of the security interest of Transferor in the Specified Assets.
EXHIBIT 4.13
SERVICING AGREEMENT
Dated as of June 27, 2003
by and among
RFS FUNDING TRUST,
GE
CAPITAL CREDIT CARD MASTER NOTE TRUST
(upon its accession in accordance with
the terms hereof)
and
MONOGRAM CREDIT CARD BANK OF GEORGIA,
as Servicer
TABLE OF CONTENTS
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GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL |
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2
This SERVICING AGREEMENT , dated as of June 27, 2003 (this Agreement ), is initially entered into by and among RFS FUNDING TRUST, a Delaware statutory trust (the Initial Owner ) and MONOGRAM CREDIT CARD BANK OF GEORGIA , a Georgia state bank ( Monogram ) in its capacity as the initial Servicer (as defined below). By executing the accession agreement set forth on the signature pages of this Agreement GE CAPITAL CREDIT CARD MASTER NOTE TRUST , a Delaware statutory trust (the Successor Owner ) shall also become a party to this Agreement.
In consideration of the premises and the mutual covenants hereinafter contained, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 Definitions .
Account means each credit card account under which any Transferred Receivable arises.
Additional Retailers means any retailer for which Originator maintains a Private Label Program, a Dual Card Program or both, which retailer is designated as an Additional Retailer in accordance with Section 2.2(b) .
Affiliate means, with respect to any Person, (a) each Person that, directly or indirectly, owns or controls, whether beneficially, or as a trustee, guardian or other fiduciary, five percent (5%) or more of the securities having ordinary voting power in the election of directors of such Person, (b) each Person that controls, is controlled by or is under common control with such Person, or (c) each of such Persons officers, directors, joint venturers and partners. For the purposes of this definition, control of a Person means the possession, directly or indirectly, of the power to direct or cause the direction of its management or policies, whether through the ownership of voting securities, by contract or otherwise.
Agreement is defined in the preamble .
Authorized Officer means, with respect to any bank, corporation or statutory trust, the Chairman or Vice-Chairman of the Board, the President, any Vice President, the Secretary, the Treasurer, any Assistant Secretary, any Assistant Treasurer and each other officer of such corporation or trustee of such trust specifically authorized in resolutions of the Board of Directors of such corporation or trustee of such trust to sign agreements, instruments or other documents on behalf of such corporation or statutory trust in connection with the transactions contemplated by the Servicing Agreement and the other Related Documents.
Banana Republic Program Agreement means that certain Amended and Restated Consumer Credit Card Program Agreement, dated as of August 29, 2000, by and among Gap, Inc. and Monogram.
Banana Republic Retailers means Gap, Inc. d/b/a Banana Republic and its permitted assigns under the Banana Republic Program Agreement.
Business Day means any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in the State of New York, the State of Connecticut or the state of Servicers principal office (currently Georgia).
Closing Date means June 27, 2003.
Collection Account means either of the deposit accounts designated as such in the Funding Agreement or the Indenture.
Collections means, for any Receivable for any period, (a) the sum of all amounts, whether in the form of cash, checks, drafts, or other instruments, received by the Originator or Servicer in payment of, or applied to, any amount owed by an Obligor on account of such Receivable during such period, including all amounts received on account of such Receivable, all other fees and charges, (b) Recoveries and cash proceeds of Related Security with respect to such Receivable whether or not treated as recoveries and (c) any in-store payments received by a Retailer, Servicer or Originator with respect to such Receivable. Collections shall also include any payments made by RFS Holding, L.L.C. on account of non-cash, non-charge-off reductions to Receivables pursuant to Section 2.5 , Section 2.7 and Section 6.1(e) of the Trust Receivables Purchase Agreement or the corresponding provisions of the Transfer Agreement.
Commission means the Securities and Exchange Commission.
Contract means the agreement and Federal Truth in Lending Statement for revolving credit card accounts between any Obligor and Originator, as such agreements may be amended, modified, or otherwise changed from time to time.
Credit and Collection Policies means, with respect to each credit card program from which Accounts are drawn, Owners policies and procedures relating to the collection of credit card receivables, as such policies and procedures may be amended from time to time.
Credit Card Program Agreement means one or more agreements between Originator and a Retailer pursuant to which Originator provides a Private Label Program, a Dual Card Program or both to the Retailer and its customers.
Creditors means the holders of the Notes and the Lender.
Debtor Relief Laws means Title 11 of the United States Code, the Federal Deposit Insurance Act and all other applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, receivership, insolvency, reorganization, suspension of payments, readjustment of debt, marshalling of assets or similar debtor relief laws of the United States, any state or any foreign country from time to time in effect, affecting the rights of creditors generally.
Dual Card Program means any arrangement in which Originator agrees to extend general purpose credit card accounts to customers of a Retailer, which accounts combine a
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private label credit line for use at the Retailers retail establishments or in its catalogue sales business and a general purpose credit line for use elsewhere.
Eligible Servicer means the Indenture Trustee, a wholly owned subsidiary of the Indenture Trustee or an entity that, at the time of its appointment as Servicer: (a) is servicing a portfolio of consumer open end credit card accounts or other consumer open end credit accounts (or is a successor to an entity that was engaged and continues to be engaged in such servicing); (b) is legally qualified and has the capacity to service the Accounts; (c) is qualified (or licensed) to use the software that is then being used to service the Accounts or obtains the right to use, or has its own, software which is adequate to perform its duties under the Servicing Agreement; (d) has the ability to professionally and competently service a portfolio of similar accounts; and (e) has a net worth of at least $50,000,000 as of the end of its most recent fiscal quarter.
Finance Charge Receivables means Receivables created in respect of periodic finance charges, late fees, returned check fees and all other similar fees and charges billed or accrued and unpaid on an Account.
Funding Agreement means that certain Receivables Funding Agreement dated as of June 27, 2003 by and between the Initial Owner and Edison Asset Securitization L.L.C., which amends and restates that certain Third Amended and Restated Receivables Funding and Servicing Agreement dated as of September 25, 1997 and amended and restated as of July 22, 1998, as of March 22, 2001 and as of December 30, 2002, by and among the Initial Owner, Edison Asset Securitization L.L.C., Servicer, and GE Capital.
Gap Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. and Monogram.
Gap Retailers means Gap, Inc. and its permitted assigns under the Gap Program Agreement.
GE Capital means General Electric Capital Corporation, a Delaware corporation.
GECAF Retailer means each retailer who is from time to time a party to a dealer agreement with Originator relating to Originators GECAF private label credit card program.
Governmental Authority means any nation or government, any state or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Indemnified Amounts means, with respect to any Person, any and all suits, actions, proceedings, claims, damages, losses, liabilities and expenses (including reasonable attorneys fees and disbursements and other costs of investigation or defense, including those incurred upon any appeal).
Indenture means the master indenture to be entered into between the Successor Owner and an indenture trustee.
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Indenture Supplement means, with respect to any Series, a supplement to the Indenture, executed and delivered in connection with the original issuance of the Notes of such Series.
Indenture Trustee means, at any time, the Person acting as indenture trustee under the Indenture.
Initial Owner is defined in the preamble .
Issuer Trust Agreement means the trust agreement pursuant to which Successor Owner is formed.
JCPenney Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of December 6, 1999, by and between J.C. Penney Company, Inc. and Monogram.
JCPenney Retailers means J.C. Penney Company, Inc. and other Authorized Entities as such term is defined in the J.C. Penney Program Agreement.
Lender means the Person that makes advances under the Funding Agreement.
Lender Collateral Interest means the interest in the Transferred Receivables and related assets that secures the Lenders obligations under the Funding Agreement.
Lien means any mortgage or deed of trust, pledge, hypothecation, assignment, deposit arrangement, lien, charge, claim, security interest, easement or encumbrance, or preference, priority or other security agreement or preferential arrangement of any kind or nature whatsoever (including any lease or title retention agreement, any financing lease having substantially the same economic effect as any of the foregoing, and the filing of, or agreement to give, any financing statement perfecting a security interest under the UCC or comparable law of any jurisdiction).
Litigation means, with respect to any Person, any action, claim, lawsuit, demand, investigation or proceeding pending or threatened against such Person before any court, board, commission, agency or instrumentality of any federal, state, local or foreign government or of any agency or subdivision thereof or before any arbitrator or panel of arbitrators.
Lowes Program Agreement means that certain Amended and Restated Consumer Credit Card Program Agreement, dated as of March 31, 2001, and as amended from time to time, by and among the Lowes Retailers and Monogram.
Lowes Retailers means each of Lowes Companies, Inc., Lowes Home Centers, Inc., The Contractor Yard, Inc., Lowes HIW, Inc. and certain of their affiliates.
Material Adverse Effect means a material adverse effect on (a) the ability of Servicer to perform any of its obligations under the Related Documents in accordance with the terms thereof, (b) the validity or enforceability of any Related Document or the rights and remedies of Owner under any Related Document or (c) the Transferred Receivables, the Contracts or the ownership interests or Liens of Owner thereon or the priority of such interests or Liens.
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Monogram is defined in the preamble.
Montgomery Ward means Montgomery Ward & Co., Incorporated.
Monthly Period means each period beginning on the 22nd day of one calendar month and ending on the 21st day of the next calendar month; except that the Monthly Period that ends in July 2003 shall begin on June 19, 2003 and shall end on July 21, 2003.
Monthly Servicing Fee is defined in Section 2.5 .
Notes means all notes issued by the Successor Owner pursuant to the Indenture and the applicable Indenture Supplements.
Obligor means, with respect to any Receivable, any Person obligated to make payments in respect thereof.
Officers Certificate means, with respect to any Person, a certificate signed by an Authorized Officer of such Person.
Old Navy Program Agreement means that certain Consumer Credit Card Program Agreement, dated as of August 28, 2000, by and among Gap, Inc. and Monogram.
Old Navy Retailers means Gap, Inc. d/b/a Old Navy and its permitted assigns under the Old Navy Program Agreement.
Originator means Monogram or any other Person designated as an Originator pursuant to Section 2.2(b) .
Owner means, when only a single Owner is referenced: before the date of dissolution of the Initial Owner, the Initial Owner, and on the date of dissolution of the Initial Owner and thereafter, the Successor Owner. The phrase either Owner means either the Initial Owner (so long as it has not dissolved) or the Successor Owner, and Owners means both the Initial Owner (so long as it has not dissolved) and the Successor Owner.
Payment Date means, except as otherwise specified for any Series in the related Indenture Supplement, the 15th day of each calendar month, or if the 15th day is not a Business Day, the next Business Day.
Person means any individual, sole proprietorship, partnership, joint venture, unincorporated organization, trust, association, corporation (including a business trust), limited liability company, institution, public benefit corporation, joint stock company, Governmental Authority or any other entity of whatever nature.
Principal Receivable means each Receivable, other than a Finance Charge Receivable.
Private Label Program means a business arrangement in which Originator agrees to extend open-end credit card accounts to customers of such Retailer and such Retailer agrees to
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allow purchases to be made at its retail establishment, or in its catalogue sales business, under such accounts.
Rating Agency means, as to any class of Notes, the rating agency or agencies, if any, specified in the related supplement to the Indenture.
Rating Agency Condition means, with respect to any action, that each Rating Agency, if any, shall have notified Successor Owner that such action will not result in a reduction or withdrawal of the rating, if any, of any outstanding class with respect to which it is a Rating Agency.
Receivable means any amount owing by an Obligor under an Account from time to time.
Records means all Contracts and other documents, books, records and other information (including computer programs, tapes, disks, data processing software and related property and rights) prepared and maintained by Transferred Originator, Servicer, any Sub-Servicer or Owner with respect to the Transferred Receivables and the Obligors thereunder.
Recoveries means proceeds from the sale or other disposition of Charged-Off Receivables pursuant to Section 2.7(c) of the Trust Receivables Purchase Agreement.
Related Documents means this Agreement, the Indenture, the Indenture Supplements and all other pledges, powers of attorney, consents, assignments, contracts, notices, and all other written matter whether heretofore, now or hereafter executed by or on behalf of Servicer, or any employee of Servicer, and delivered in connection with any of the foregoing or the transactions contemplated thereby.
Related Security means with respect to any Receivable: (a) all of the Originators interest, if any, in the goods, merchandise (including returned merchandise) or equipment, if any, the sale of which gave rise to such Receivable; (b) all guarantees, insurance or other agreements or arrangements of any kind from time to time supporting or securing payment of such Receivable whether pursuant to the Contract related to such Receivable or otherwise; and (c) all Records relating to such Receivable.
Requirements of Law means, as to any Person, the certificate of incorporation or articles of association 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.
Retailer means the Banana Republic Retailers, the Gap Retailers, the GECAF Retailers, Home Depot U.S.A., Inc., the JCPenney Retailers, the Lowes Retailers, Montgomery Ward, the Old Navy Retailers, the Sams Club Retailers, the Wal-Mart Retailers, and from time to time, any Additional Retailers. It is understood and agreed that (a) additional retailers who from time to time become GECAF Retailers shall automatically be treated as Retailers with respect to Monograms GECAF program without the necessity of complying with the terms of Section 2.8 of the Bank Receivables Sale Agreement and (b) any Person designated as a Retailer shall cease
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to be included as a Retailer if all of the Accounts related to that Person are designated as Removed Accounts pursuant to Section 2.7(b) of the Bank Receivables Sale Agreement, effective at the time that the repurchase of the related Transferred Receivables is completed.
RFS Funding Trustee means Deutsche Bank Trust Company Delaware, in its capacity as trustee of the Initial Owner under the Trust Agreement, its successors in interest and any successor owner trustee under the Trust Agreement.
Sams Club Program Agreement means that certain Third Amended and Restated Consumer Credit Card Program Agreement, dated as of February 1, 1999, by and among Wal-Mart Stores, Inc., Sams West, Inc., Sams East, Inc. and Monogram.
Sams Club Retailers means Sams West, Inc., a Delaware corporation, Sams East, Inc., a Delaware corporation and their respective successors and permitted assigns under the Sams Club Program Account.
Series means any series of Notes, which may include within any such Series a class or classes of Notes subordinate to another such class or classes of Notes.
Series Account means any deposit, trust, escrow or similar account maintained for the benefit of the Noteholders of any Series or class, as specified in any Indenture Supplement.
Series Closing Date means, with respect to any Series, the date of issuance of such Series.
Servicer means Monogram or any other Person designated as a Successor Servicer.
Servicer Default is defined in Section 5.1 .
Servicer Indemnified Person is defined in Section 7.1 .
Servicer Termination Notice means any notice by the Indenture Trustee or holders of Notes representing more than 50% of the Outstanding Amount (as defined in the Indenture) to Servicer or the Servicer and the Indenture Trustee, respectively, that (a) a Servicer Default has occurred and (b) Servicers appointment under this Agreement has been terminated.
Servicing Records means all documents, books, Records and other information (including computer programs, tapes, disks, data processing software and related property and rights) prepared and maintained by Servicer with respect to the Transferred Receivables and the Obligors thereunder.
Sub-Servicer means any Person with whom Servicer enters into a Sub-Servicing Agreement.
Sub-Servicing Agreement means any written contract entered into between Servicer and any Sub-Servicer pursuant to and in accordance with Section 2.1 relating to the servicing, administration or collection of the Transferred Receivables.
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Successor Owner is defined in the preamble .
Successor Servicer is defined in Section 6.2 .
Transfer Agreement means the Transfer Agreement to be entered into between RFS Holding, L.L.C. and the Successor Owner.
Transferred Receivable means each credit card receivable purchased or otherwise acquired by either Owner pursuant to the Trust Receivables Purchase Agreement, the Transfer Agreement or the Prior Transfer Agreement, including related Finance Charge Receivables, but excluding Receivables that have been repurchased by RFS Holding, L.L.C. pursuant to the Trust Receivables Purchase Agreement or the Transfer Agreement or purchased by Servicer pursuant to this Agreement.
Trust Agreement means that certain Amended and Restated Trust Agreement dated as December 19, 2002, among RFS Holding, L.L.C., General Electric Capital Services, Inc. and the Trustee, as amended and restated of June 27, 2003, among RFS Holding, L.L.C., RFS Holding, Inc. (as assignee of General Electric Capital Services, Inc.) and the Trustee.
Trust Receivables Purchase Agreement means that certain Receivables Purchase and Contribution Agreement dated as of June 27, 2003, between RFS Holding, L.L.C. and the Trust.
Trustee means Deutsche Bank Trust Company Delaware, not in its individual capacity but solely as trustee pursuant to the Trust Agreement.
UCC means, with respect to any jurisdiction, the Uniform Commercial Code as the same may, from time to time, be enacted and in effect in such jurisdiction.
Unrelated Amounts is defined in Section 2.3 of the Agreement.
Wal-Mart Program Agreement means that certain Consumer Credit Card Program Agreement dated as of August 26, 1999, by and between Wal-Mart Stores, Inc. and Monogram.
Wal-Mart Retailers means Retailer as such term is defined in the Wal-Mart Program Agreement.
SECTION 1.2 Other Interpretive Matters . All terms defined directly or by incorporation in the Servicing Agreement shall have the defined meanings when used in any certificate or other document delivered pursuant thereto unless otherwise defined therein. For purposes of the Servicing Agreement and all such certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined in such Agreement, and accounting terms partly defined in such Agreement to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; and references to any month, quarter or year refer to a fiscal month, quarter or year as determined in accordance with the GE Capital fiscal calendar; (b) terms defined in Article 9 of the UCC and not otherwise defined in such Agreement are used as defined in that Article; (c) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (d) the words hereof, herein and hereunder and words of similar
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import refer to such Agreement (or the certificate or other document in which they are used) as a whole and not to any particular provision of such Agreement (or such certificate or document); (e) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to such Agreement (or the certificate or other document in which the reference is made), and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (f) the term including means including without limitation; (g) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (h) references to any agreement refer to that agreement as from time to time amended or supplemented or as the terms of such agreement are waived or modified in accordance with its terms; and (i) references to any Person include that Persons successors and assigns.
ARTICLE II
APPOINTMENT OF SERVICER; CERTAIN
DUTIES
AND RESPONSIBILITIES OF SERVICER.
SECTION 2.1 Appointment of Servicer . Owner hereby appoints Servicer as its agent to service the Transferred Receivables and enforce its rights and interests in and under the Transferred Receivables and to serve in such capacity until the termination of its responsibilities pursuant to Sections 5.1 or 6.1 . In connection therewith, Servicer hereby accepts such appointment and agrees to perform the duties and obligations set forth herein. Servicer may delegate any duties to any of its Affiliates or First Data Resources, Inc. without further action or, upon giving prior written notice to Owner, subcontract with a Sub-Servicer, for the collection, servicing or administration of the Transferred Receivables or any portion thereof; provided , that (a) Servicer shall remain liable for the performance of the duties and obligations of any such Affiliate, First Data Resources, Inc. or Sub-Servicer pursuant to the terms hereof and (b) any Sub-Servicing Agreement that may be entered into with, and any other transactions or services relating to the Transferred Receivables involving a Sub-Servicer shall be deemed to be between the Sub-Servicer and Servicer alone, and Owner shall not be deemed party thereto and shall have no obligations, duties or liabilities with respect to the Sub-Servicer.
SECTION 2.2 Duties and Responsibilities of Servicer . (a) Subject to the provisions of this Agreement, Servicer shall conduct the servicing, administration and collection of the Transferred Receivables with reasonable care and diligence and in accordance with the Contracts, the Credit Card Program Agreements and the Credit and Collection Policies.
(b) Owner shall provide Servicer not less than five Business Days prior notice of (i) any designation of additional or removed Accounts, (ii) any designation of any additional Originator or Additional Retailer contemplated pursuant to the Trust Receivables Purchase Agreement or the Transfer Agreement and (iii) any designation of a discount percentage to be applied to any or all of the Principal Receivables. Any such designation or removal shall be effective for purposes of this Agreement on the date the designation or removal is given effect under the Trust Receivables Purchase Agreement or the Transfer Agreement, as specified by Owner to Servicer. In the case of any
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designation of an Additional Retailer, Owner shall provide Servicer a copy of the related Credit Card Program Agreement (if not already in Servicers possession) not less than 10 days prior to the date such designation is to become effective.
(c) Following receipt of notice of any designation of additional or removed Accounts, an additional Originator or Additional Retailer or any discounting of any or all Principal Receivables pursuant to Section 2.2(b) , Servicer shall assist Owner in producing any information required by Owner in connection with such designation.
(d) Servicer shall not be obligated to use separate servicing procedures, offices, employees or accounts for servicing the Transferred Receivables from the procedures, offices, employees and accounts used by Servicer in connection with servicing other credit card receivables.
(e) Servicer shall maintain fidelity bond or other appropriate insurance 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 Servicer believes to be reasonable from time to time.
SECTION 2.3 Unrelated Amounts . If Servicer determines that amounts which are not property of Owner ( Unrelated Amounts ) have been deposited in either Collection Account, then Servicer shall provide written evidence thereof to Owner no later than the first Business Day following the day on which Servicer had actual knowledge thereof, which evidence shall be provided in writing. Upon receipt of any such notice, Servicer shall withdraw the Unrelated Amounts from the applicable Collection Account, and the same shall not be treated as Collections on Transferred Receivables and shall not be subject to the provisions of Section 2.12 .
SECTION 2.4 Authorization of Servicer . Servicer is hereby authorized to take any and all reasonable steps necessary or desirable and consistent with the ownership of the Transferred Receivables by Owner and the pledge of all or partial direct or indirect interest in the Transferred Receivables to the Creditors or their representatives in the determination of Servicer, to (a) collect all amounts due under the Transferred Receivables, including endorsing its name on checks and other instruments representing Collections on the Transferred Receivables, and executing and delivering 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 Transferred Receivables and (b) after the Transferred Receivables become delinquent and to the extent permitted under and in compliance with applicable law and regulations, (i) commence proceedings with respect to the enforcement of payment of the Transferred Receivables, (ii) adjust, settle or compromise any payments due thereunder, and (iii) initiate proceedings against any collateral securing the obligations due under the Transferred Receivables, in each case, consistent with the Credit and Collection Policies, (c) to make withdrawals from either Collection Account and any Series Account, as set forth in this Agreement, the Funding Agreement, the Indenture or any Indenture Supplement, and (d) to take any action required or permitted under any enhancement for any Series or class of Notes, as set forth in this Agreement, the Indenture or any Indenture Supplement. Owner shall furnish (or cause to be furnished) Servicer with any powers of attorney and other documents necessary or appropriate to enable Servicer to carry out its servicing and administrative duties hereunder, and Owner shall assist
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Servicer to the fullest extent to enable Servicer to collect the Transferred Receivables and otherwise discharge its duties hereunder.
SECTION 2.5 Servicing Fees . As compensation for its servicing activities and as reimbursement for its reasonable expenses in connection therewith, Servicer shall be entitled to receive a monthly servicing fee in respect of any Monthly Period (or portion thereof) prior to the termination of Servicers obligations under this Agreement (the Monthly Servicing Fee ). The Monthly Servicing Fee for each Monthly Period shall equal one-twelfth of the product of (a) the total outstanding balance of Transferred Receivables (excluding Finance Charge Receivables) as of the end of the prior Monthly Period and (b) 2%. Portions of the Monthly Servicing Fee shall be allocated to the portion of the Transferred Receivables that is pledged as collateral for the various Creditors and shall be payable solely from Collections available to those Creditors. The portion of the Monthly Servicing Fee allocable to the Lender Collateral Interest with respect to any Monthly Period shall be payable on the dates and in the amounts specified in the Funding Agreement. The share of the Monthly Servicing Fee allocable to each Series of Notes shall be payable on the dates and in the amounts specified in the related Indenture Supplement. Owner shall be obligated to pay the excess of the Monthly Servicing Fee over the portions allocated as specified above. Servicer shall be required to pay for all expenses incurred by it in connection with its activities hereunder (including any payments to accountants, counsel or any other Person) and shall not be entitled to any payment or reimbursement of those expenses other than the Monthly Servicing Fees.
SECTION 2.6 Covenants of Servicer . Servicer covenants and agrees that from and after the Closing Date and until the date on which the outstanding balances of all Transferred Receivables have been reduced to zero:
(a) Ownership of Transferred Receivables . Servicer shall identify the Transferred Receivables clearly and unambiguously in its Servicing Records to reflect that the Transferred Receivables are owned by Owner.
(b) Compliance with Requirements of Law . Servicer shall duly satisfy all obligations on its part to be fulfilled under or in connection with the Transferred Receivables and the related Accounts, will maintain in effect all qualifications required under Requirements of Law in order to properly service the Transferred Receivables and the related Accounts and will comply in all material respects with all other Requirements of Law in connection with servicing the Transferred Receivables and the related Accounts, the failure to comply with which would have a Material Adverse Effect.
(c) No Rescission or Cancellation . Servicer shall not permit any rescission or cancellation of a Transferred Receivable except as ordered by a court of competent jurisdiction or other Governmental Authority or in the ordinary course of its business and in accordance with the Credit and Collection Policies. Servicer shall reflect any such rescission or cancellation in its computer file of revolving credit card accounts. In addition, Servicer may waive the accrual and/or payment of certain Finance Charge Receivables in respect of certain past due Accounts, the Obligors of which have enrolled with a consumer credit counseling service.
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If Servicer breaches either of the covenants contained in paragraph (b) or ( c ) with respect to any Transferred Receivable or the related Account, and as a result of such breach Owners rights in, to or under any Transferred Receivable(s) in the related Account or the proceeds of such Transferred Receivable are materially impaired or such proceeds are not available for any reason to Owner free and clear of any Lien, then no later than the expiration of 60 days from the earlier to occur of the discovery of such event by Servicer, or receipt by Servicer of notice of such event given by Owner, all Transferred Receivables in the Account or Accounts to which such event relates shall be assigned to Servicer as set forth below; provided that such Transferred Receivables will not be assigned to Servicer if, on any day prior to the end of such 60-day period, (i) the relevant breach shall have been cured and the covenant shall have been complied with in all material respects and (ii) Servicer shall have delivered an Officers Certificate describing the nature of such breach and the manner in which such breach was cured.
Servicer shall effect such assignment by paying Owner in immediately available funds prior to the related Payment Date in an amount equal to the amount of such Transferred Receivables, which deposit shall be considered a Collection with respect to such Receivables and divided between the Collection Accounts accordingly.
Upon each such assignment to Servicer, Owner shall automatically and without further action be deemed to transfer, assign, set over and otherwise convey to Servicer, without recourse, representation or warranty all right, title and interest of Owner in and to such Transferred Receivables, all moneys due or to become due and all amounts received with respect thereto and all proceeds thereof. Owner shall execute such documents and instruments of transfer or assignment and take such other actions as shall be reasonably requested by Servicer to effect the conveyance of any such Transferred Receivables pursuant to this Section.
SECTION 2.7 Reporting Requirements . Servicer hereby agrees that, from and after the Closing Date and until the date on which the outstanding balances of all Transferred Receivables have been reduced to zero, it shall deliver or cause to be delivered financial statements, notices, and other information (including the reports required by Sections 2.8 and 2.9 ) at the times, to the Persons and in a manner set forth in Schedule 2.7 .
SECTION 2.8 Annual Servicers Certificate . Servicer shall deliver to Owners on or before the 75 th day following the end of Servicers fiscal year in which the Closing Date occurs and each subsequent fiscal year, an Officers Certificate substantially in the form of Exhibit A .
SECTION 2.9 Annual Independent Public Accountants Servicing Report .
(a) On or before the 75th day following the end of Servicers fiscal year in which the Closing Date occurs and each subsequent fiscal year, Servicer shall cause a firm of nationally recognized independent public accountants (who may also render other services to Servicer) to furnish a report to Owners to the effect that they have applied certain procedures with Servicer and such firm has examined certain documents and records relating to the servicing of Accounts under this Agreement, compared the information contained in Servicers certificates delivered pursuant to this Agreement during the period covered by such report with such documents and records and that, on the basis of such agreed upon procedures (and assuming the accuracy of any reports
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generated by Servicers third party agents), such servicing was conducted in compliance with this Agreement during the period covered by such report (which shall be the prior fiscal year, or the portion thereof falling after the Closing Date), except for such exceptions, errors or irregularities as such firm shall believe to be immaterial and such other exceptions, errors or irregularities as shall be set forth in such report. Such report shall set forth the agreed upon procedures performed.
(b) On or before the 75th day following the end of Servicers fiscal year in which the Closing Date occurs and each subsequent fiscal year, Servicer shall cause a firm of nationally recognized independent public accountants (who may also render other services to Servicer) to furnish a report to Owners to the effect that they have applied certain procedures agreed upon with Servicer to compare the mathematical calculations of certain amounts set forth in Servicers reports delivered pursuant to Section 2.7 during the period covered by such report with Servicers computer reports which were the source of such amounts and that on the basis of such agreed upon procedures and comparison, 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.
SECTION 2.10 Notices to Transferor . If Monogram is no longer acting as Servicer, any Successor Servicer appointed pursuant to Section 6.2 shall deliver or make available to Owner each certificate and report required to be prepared, forwarded or delivered thereafter pursuant to Sections 2.7 , 2.8 , and 2.9 .
SECTION 2.11 Reports to the Commission . Servicer shall, on behalf of Successor Owner, cause to be filed with the Commission any periodic reports required to be filed under the provisions of the Securities Exchange Act of 1934, and the rules and regulations of the Commission thereunder relating to the Notes.
SECTION 2.12 Collections . Servicer shall apply all Collections with respect to the receivables for each Monthly Period as described in the Funding Agreement, the Indenture and each Indenture Supplement.
SECTION 2.13 Allocations and Disbursements . With respect to each Series, Servicer shall make the allocations and disbursements for such Series on behalf of the Successor Owner as is required to be made by the Successor Owner under the terms of the Indenture and the Indenture Supplement for such Series.
SECTION 2.14 New Series . Pursuant to one or more Indenture Supplements, Successor Owner may issue one or more new Series of Notes (a New Issuance ), as more fully described in the Indenture. To enable Servicer to perform its obligations pursuant to Sections 2.12 and 2.13 , Successor Owner shall give reasonable prior notice to Servicer of each New Issuance and shall provide Servicer an opportunity to review and comment upon each Indenture Supplement. All outstanding Series shall be equally and ratably entitled as provided herein to the benefits of this Servicing Agreement without preference, priority or distinction, all in accordance with the terms and provisions of this Servicing Agreement except, with respect to any Series, as provided in the related Indenture Supplement.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES
SECTION 3.1 Representations and Warranties of Servicer . Servicer represents and warrants to Owners as of the date hereof and as of each Series Closing Date:
(a) It is a bank, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization and is duly qualified to do business, and is in good standing, in each jurisdiction in which the servicing of the Transferred Receivables hereunder requires it to be so qualified, except where the failure to comply would not reasonably be expected to have a Material Adverse Effect.
(b) It has the power and authority to execute and deliver this Agreement and to perform the transactions contemplated hereby.
(c) This Agreement has been duly authorized, executed and delivered by Servicer and constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, subject to any applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting the enforceability of creditors rights generally and general equitable principles, whether applied in a proceeding at law or in equity.
(d) No consent of, notice to, filing with or permits, qualifications or other action by any Governmental Authority or any other party is required for the due execution, delivery and performance of this Agreement, other than consents, notices, filings and other actions which have been obtained or made or where the failure to get such consent or take such action, individually or in the aggregate, would not reasonably be expected to have a Material Adverse Effect.
(e) There is no pending or, to its actual knowledge, threatened Litigation of a material nature against or affecting it in any court or tribunal, before any arbitrator of any kind or before or by any Governmental Authority (i) asserting the invalidity of this Agreement, or (ii) seeking any determination or ruling that might materially and adversely affect the validity or enforceability of this Agreement.
ARTICLE IV
ADDITIONAL MATTERS RELATING
TO SERVICER
SECTION 4.1 Covenants of Servicer Regarding the Transferred Receivables .
(a) Maintenance of Records and Books of Account . Servicer shall maintain and implement administrative and operating procedures (including the ability to recreate records evidencing the Transferred Receivables in the event of the destruction of the originals thereof), and keep and maintain all documents, books, computer records and other information, reasonably necessary or advisable for the collection of all the
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Transferred Receivables. Such documents, books and computer records shall reflect all facts giving rise to the Transferred Receivables, all payments and credits with respect thereto, and such documents, books and computer records shall indicate the interests of Owner in the Transferred Receivables.
(b) Servicer Default . If a Servicer Default shall have occurred and be continuing, promptly upon request therefor, Servicer shall deliver to Owner records reflecting activity through the close of business on the immediately preceding Business Day. Upon the occurrence and during the continuation of a Servicer Default, Servicer shall (i) deliver and turn over to Owner or to its representatives, or at the option of Owner shall provide Owner its representatives with access to, at any time, on demand of Owner, all of Servicers facilities, personnel, books and records pertaining to the Transferred Receivables, including all Records, and (ii) allow Owner to occupy the premises of Servicer where such books, records and Records are maintained, and utilize such premises, the equipment thereon and any personnel of Servicer that Owner may wish to employ to administer, service and collect the Transferred Receivables.
(c) Notice of Adverse Claim . Servicer shall advise Owner promptly, in reasonable detail, (i) of any Adverse Claim known to it made or asserted against any Transferred Receivable, and (ii) of the occurrence of any event known to it which would have a material adverse effect on the aggregate value of the Transferred Receivables.
(d) Further Assurances . Servicer shall furnish to Owner from time to time such statements and schedules further identifying and describing the Transferred Receivables and such other reports in connection with the Transferred Receivables as Owner may reasonably request, all in reasonable detail.
SECTION 4.2 Merger or Consolidation of, or Assumption of the Obligations of, Servicer .
(a) Servicer shall not consolidate with or merge into any other Person or convey or transfer its properties and assets substantially as an entirety to any Person, unless:
(i) Servicer shall have provided prior written notice of such proposed consolidation or merger to the Rating Agencies;
(ii) the Person formed by such consolidation or into which Servicer is merged or the Person which acquires by conveyance or transfer the properties and assets of Servicer substantially as an entirety shall be a corporation or a banking association organized and existing under the laws of the United States of America or any State or the District of Columbia and, if Servicer is not the surviving entity, shall expressly assume, by an agreement supplemental hereto, executed and delivered to Owner in form satisfactory to Owner, the performance of every covenant and obligation of Servicer hereunder;
(iii) Servicer has delivered to Owner (A) an Officers Certificate stating that such consolidation, merger, conveyance or transfer and such supplemental
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agreement comply with this Section and that all conditions precedent herein provided for relating to such transaction have been complied with, and (B) an Opinion of Counsel to the effect that such supplemental agreement is a valid and binding obligation of such surviving entity enforceable against such surviving entity in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors rights generally from time to time in effect and except as such enforceability may be limited by general principles of equity (whether considered in a suit at law or in equity); and
(iv) either (x) the entity formed by such consolidation or into which Servicer is merged or the Person which acquired by conveyance or transfer the properties and assets of Servicer substantially as an entirety shall be an Eligible Servicer (taking into account, in making such determination, the experience and operations of the predecessor Servicer) or (y) upon the effectiveness of such consolidation, merger, conveyance or transfer, a Successor Servicer shall have assumed the obligations of Servicer in accordance with this Agreement;
(b) This Section 4.2 shall not be construed to prohibit or in any way limit Servicers ability to effectuate any consolidation or merger pursuant to which Servicer would be the surviving entity.
SECTION 4.3 Access to Certain Documentation and Information Regarding the Receivables . Servicer shall provide to either Owner or their respective designees access to the documentation regarding the Accounts and the Transferred Receivables in such cases where such Owner or such designee is required in connection with the enforcement of the rights of such Owner or any of its creditors, 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 Servicers normal security and confidentiality procedures and (iv) at offices designated by Servicer. Nothing in this Section 4.3 shall derogate from the obligation of any Person to observe any applicable law prohibiting disclosure of information regarding the Obligors, and the failure of Servicer to provide access as provided in this Section 4.3 as a result of such obligation shall not constitute a breach of this Section 4.3 .
SECTION 5.1 Servicer Defaults . If any of the following events (each, a Servicer Default ) shall occur (regardless of the reason therefor) with respect to Servicer:
(a) any failure by Servicer to make any payment, transfer or deposit on or before the date occurring five Business Days after the date such payment, transfer or deposit is required to be made or given by Servicer, as the case may be; provided , that, if such failure could not have been prevented by the exercise of reasonable due diligence by Servicer and the delay or failure was caused by an act of God or other similar occurrence,
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then a Servicer Default shall not be deemed to have occurred under this Section 5.1(a) until 35 Business Days after the date of such failure;
(b) failure on the part of Servicer duly to observe or perform in any material respect any other covenants or agreements of Servicer set forth in this Agreement which has a material adverse effect on either Owner, which continues unremedied for a period of 60 days after the date on which written notice of such failure requiring the same to be remedied shall have been given to Servicer by either Owner; provided , that, if such failure could not have been prevented by the exercise of reasonable due diligence by Servicer and the delay or failure was caused by an act of God or other similar occurrence, then a Servicer Default shall not be deemed to have occurred under this Section 5.1(b) until 120 days after the date of such failure;
(c) Servicer delegates its duties, except as specifically permitted under Section 2.1 , and the delegation remains unremedied for 15 days after written notice to Servicer by either Owner;
(d) any representation, warranty or certification made by Servicer in this Agreement or in any certificate delivered pursuant to this Agreement shall prove to have been incorrect when made, which has a material adverse effect on either Owner and which continues to be incorrect in any material respect for a period of 60 days after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to Servicer by either Owner; provided , that, if the delay or default could not have been prevented by the exercise of reasonable due diligence by Servicer and the delay or failure was caused by an act of God or other similar occurrence, then Servicer shall have an additional 60 days to cure the default; or
(e) Servicer shall fail generally to, or admit in writing its inability to, pay its debts as they become due; or a proceeding shall have been instituted in a court having jurisdiction in the premises seeking a decree or order for relief in respect of Servicer in an involuntary case under any Debtor Relief Law, or for the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or for any substantial part of its property, or for the winding-up or liquidation of its affairs and, if instituted against Servicer, any such proceeding shall continue undismissed or unstayed and in effect, for a period of 60 consecutive days, or any of the actions sought in such proceeding shall occur; or the commencement by Servicer, of a voluntary case under any Debtor Relief Law, or such Persons consent to the entry of an order for relief in an involuntary case under any Debtor Relief Law, or consent to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, conservator or other similar official of such Person or for any substantial part of its property, or any general assignment for the benefit of creditors; or such Person or any Subsidiary of such Person shall have taken any corporate action in furtherance of any of the foregoing actions;
then, in any such event, Successor Owner (or, prior to the issuance of the first Series of Notes, Initial Owner) may, by delivery of a Servicer Termination Notice to Servicer, terminate the servicing responsibilities of Servicer hereunder, without demand, protest or further notice of any
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kind, all of which are hereby waived by Servicer. Upon the delivery of any such notice, all authority and power of Servicer under this Agreement shall pass to and be vested in the Successor Servicer acting pursuant to Section 6.2 , provided , that notwithstanding anything to the contrary herein, Servicer agrees to act as Servicer and to continue to follow the procedures set forth in this Agreement with respect to Collections on the Transferred Receivables under this Agreement until a Successor Servicer has assumed the responsibilities and obligations of Servicer in accordance with Section 6.2 . Servicer shall send prompt written notice to the Owners of the occurrence of any Servicer Default or potential Servicer Default.
SECTION 6.1 Resignation of Servicer . Servicer may resign in the circumstances set forth in clause (a) or (b) of this Section 6.1 .
(a) Servicer may resign from its obligations and duties hereunder upon the written consent of Owner if it finds a replacement servicer satisfying the eligibility criteria set forth in Section 6.2 . No such resignation shall become effective until (i) the Rating Agency Condition shall have been satisfied and (ii) the replacement servicer shall have obtained Owners approval and appointment pursuant to Section 6.2 .
(b) Servicer may resign from the obligations and duties hereby imposed on it upon determination that (i) in the determination of Servicer, the performance of its duties hereunder has become impermissible under applicable law, and (ii) there is no commercially reasonable action which Servicer could take to make the performance of its duties hereunder permissible under applicable law. No such resignation shall become effective until a Successor Servicer shall have assumed the responsibilities and obligations of Servicer in accordance with Section 6.2 .
SECTION 6.2 Appointment of the Successor Servicer . In connection with the termination of Servicers responsibilities under this Agreement pursuant to Section 5.1 or 6.1 , Owner shall appoint a successor servicer that shall have a long-term debt rating of at least Baa3 by Moodys and BBB- by S&P. The successor servicer shall succeed to all rights and assume all of the responsibilities, duties and liabilities of Servicer under this Agreement (such successor servicer being referred to as the Successor Servicer ); provided , that the Successor Servicer shall have no responsibility for any actions of Servicer prior to the date of its appointment as Successor Servicer. The Successor Servicer shall accept its appointment by executing, acknowledging and delivering to Owner an instrument in form and substance acceptable to Owner and by providing prior written notice of such appointment to the Rating Agencies and the Indenture Trustee.
SECTION 6.3 Duties of Servicer . At any time following the appointment of a Successor Servicer:
(a) Servicer agrees that it shall terminate its activities as Servicer hereunder in a manner acceptable to Owner so as to facilitate the transfer of servicing to the Successor
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Servicer, including timely delivery (i) to Owner of any funds that were required to be deposited in the Collection Account, and (ii) to the Successor Servicer, at a place selected by the Successor Servicer, of all Servicing Records and other information with respect to the Transferred Receivables. Servicer shall account for all funds and shall execute and deliver such instruments and do such other things as may reasonably be required to more fully and definitely vest and confirm in the Successor Servicer all rights, powers, duties, responsibilities, obligations and liabilities of Servicer; and
(b) Servicer shall terminate each Sub-Servicing Agreement that may have been entered into by it and the Successor Servicer shall not be deemed to have assumed any of Servicers interest therein or to have replaced Servicer as a party to any such Sub-Servicing Agreement.
SECTION 6.4 Effect of Termination or Resignation . Any termination or resignation of Servicer under this Agreement shall not affect any claims that Owner may have against Servicer for events or actions taken or not taken by Servicer arising prior to any such termination or resignation.
SECTION 7.1 Indemnities by Servicer . Without limiting any other rights that Owner or its Affiliates or any director, officer, employee, trustee or agent or incorporator thereof (each a Servicer Indemnified Person ) may have hereunder or under applicable law, Servicer hereby agrees to indemnify each Servicer Indemnified Person from and against any and all Indemnified Amounts which may be imposed on, incurred by or asserted against a Servicer Indemnified Person to the extent arising out of or relating to any material breach of Servicers obligations under this Agreement; excluding , however , Indemnified Amounts to the extent resulting from (i) bad faith, gross negligence or willful misconduct on the part of a Servicer Indemnified Person or (ii) recourse for uncollectible Receivables. Any Indemnified Amounts subject to the indemnification provisions of this Section 7.1 shall be paid to Servicer Indemnified Person within ten Business Days following demand therefor.
SECTION 7.2 Limitation of Damages; Indemnified Persons . NO PARTY TO THIS AGREEMENT SHALL BE RESPONSIBLE OR LIABLE TO ANY OTHER PARTY TO THIS AGREEMENT, ANY SUCCESSOR, ASSIGNEE OR THIRD PARTY BENEFICIARY OF SUCH PERSON OR ANY OTHER PERSON ASSERTING CLAIMS DERIVATIVELY THROUGH SUCH PARTY, FOR INDIRECT, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES THAT MAY BE ALLEGED AS A RESULT OF ANY TRANSACTION CONTEMPLATED HEREUNDER.
SECTION 7.3 Limitation on Liability of Servicer and Others . Except as provided in Section 7.1 , neither Servicer nor any of the directors, officers, employees or agents of Servicer in its capacity as Servicer shall be under any liability to Owner or any other Person for any action taken or for refraining from the taking of any action in good faith in its capacity as Servicer
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pursuant to this Agreement; provided that this provision shall not protect Servicer or any such Person 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. Servicer and any director, officer, employee or agent of Servicer may rely in good faith on any document of any kind prima facie properly executed and submitted by any Person (other than Servicer) respecting any matters arising hereunder. Servicer shall not be under any obligation to appear in, prosecute or defend any legal action which is not incidental to its duties as Servicer in accordance with this Agreement and which in its reasonable judgment may involve it in any expense or liability.
SECTION 8.1 Notices . Except as otherwise provided herein, whenever it is provided herein that any notice, demand, request, consent, approval, declaration or other communication shall or may be given to or served upon any of the parties by any other parties, or whenever any of the parties desires to give or serve upon any other parties any communication with respect to this Agreement, each such notice, demand, request, consent, approval, declaration or other communication shall be in writing and shall be deemed to have been validly served, given or delivered (a) upon the earlier of actual receipt and three Business Days after deposit in the United States Mail, registered or certified mail, return receipt requested, with proper postage prepaid, (b) upon transmission, when sent by facsimile or other electronic transmission (with such transmission promptly confirmed by delivery of a copy by personal delivery or United States Mail as otherwise provided in this Section 8.1 ), (c) one Business Day after deposit with a reputable overnight courier with all charges prepaid or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address or facsimile number indicated below or to such other address (or facsimile number) as may be substituted by notice given as herein provided. The giving of any notice required hereunder may be waived in writing by the party entitled to receive such notice. Failure or delay in delivering copies of any notice, demand, request, consent, approval, declaration or other communication to any Person designated in any written notice provided hereunder to receive copies shall in no way adversely affect the effectiveness of such notice, demand, request, consent, approval, declaration or other communication. Notwithstanding the foregoing, whenever it is provided herein that a notice is to be given to any other party hereto by a specific time, such notice shall only be effective if actually received by such party prior to such time, and if such notice is received after such time or on a day other than a Business Day, such notice shall only be effective on the immediately succeeding Business Day.
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If to Servicer:
Monogram Credit Card Bank of
Georgia
7840 Roswell Road, Bldg. 100, Suite 210
Atlanta, Georgia 30350
Attention:
Chief Financial Officer
Telephone:
(770) 353-5337
Facsimile:
(770) 353-2464
If to Initial Owner:
RFS Funding Trust
c/o Deutsche Bank Trust Company Americas
Corporate Trust and Agency Services - Structured Finance Services
60 Wall Street, 26
th
Floor
MS NYC60-2606
New York, New York 10005
Attention: Susan Barstock
Telephone:
(212) 454-4298
Facsimile:
(212) 797-8606
with a copy to:
General Electric Capital
Corporation, as Administrator
1600 Summer Street, 4th Floor
Stamford, Connecticut 06927
Attention:
Portfolio Manager
Telephone:
(203) 357-4328
Facsimile:
(203) 961-2953
If to Successor Owner:
GE Capital Credit Card
Master Note Trust
at the address specified when it becomes a party
to this Agreement
with a copy to:
General Electric Capital
Corporation, as Administrator
1600 Summer Street, 4th Floor
Stamford, Connecticut 06927
Attention:
Portfolio Manager
Telephone:
(203) 357-4328
Facsimile:
(203) 961-2953
SECTION 8.2 Binding Effect; Assignability . This Agreement shall be binding upon and inure to the benefit of Owner and Servicer and their respective successors and permitted assigns. Except as set forth in Section 2.1 , or Article VI , Servicer may not assign, transfer,
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hypothecate or otherwise convey any of its rights or obligations hereunder or interests herein without the express prior written consent of Owner. Any such purported assignment, transfer, hypothecation or other conveyance by Servicer without the prior express written consent of Owner shall be void. Each Owner may, at any time, assign any of its rights and obligations under this Agreement to any Person and any such assignee may further assign at any time its rights and obligations under this Agreement, in each case, without the consent of Servicer. Each of Owner and Servicer acknowledges and agrees that, upon any such assignment, the assignee thereof may enforce directly, all of the obligations of Owner or Servicer hereunder, as applicable.
SECTION 8.3 Termination; Survival of Obligations . This Agreement shall create and constitute the continuing obligations of the parties hereto in accordance with its terms, and shall remain in full force and effect until the date on which the Outstanding Balances of all Transferred Receivables have been reduced to zero; provided , that the rights and remedies provided for herein with respect to any breach of any representation or warranty made by Servicer pursuant to Article III , the indemnification and payment provisions of Article VII and Sections 8.4 , 8.5 and 8.13 shall be continuing and shall survive such reduction.
SECTION 8.4 Confidentiality . NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN, THE OBLIGATIONS OF CONFIDENTIALITY CONTAINED HEREIN, SHALL NOT APPLY TO THE FEDERAL TAX STRUCTURE OR FEDERAL TAX TREATMENT OF THIS TRANSACTION, AND EACH PARTY (AND ANY EMPLOYEE, REPRESENTATIVE, OR AGENT OF ANY PARTY) MAY DISCLOSE TO ANY AND ALL PERSONS, WITHOUT LIMITATION OF ANY KIND, THE FEDERAL TAX STRUCTURE AND FEDERAL TAX TREATMENT OF THIS TRANSACTION. THE PRECEDING SENTENCE IS INTENDED TO CAUSE THIS TRANSACTION TO BE TREATED AS NOT HAVING BEEN OFFERED UNDER CONDITIONS OF CONFIDENTIALITY FOR PURPOSES OF SECTION 1.6011-4(B)(3) (OR ANY SUCCESSOR PROVISION) OF THE TREASURY REGULATIONS PROMULGATED UNDER SECTION 6011 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED, AND SHALL BE CONSTRUED IN A MANNER CONSISTENT WITH SUCH PURPOSE. IN ADDITION, EACH PARTY ACKNOWLEDGES THAT IT HAS NO PROPRIETARY OR EXCLUSIVE RIGHTS TO THE FEDERAL TAX STRUCTURE OF THIS TRANSACTION OR ANY FEDERAL TAX MATTER OR FEDERAL TAX IDEA RELATED TO THIS TRANSACTION.
SECTION 8.5 No Proceedings . Servicer hereby agrees that, from and after the Closing Date and until the date one year plus one day following the date on which the Outstanding Balances of all Transferred Receivables have been reduced to zero, it will not, directly or indirectly, institute or cause to be instituted against either Owner any proceeding of the type referred to in Section 5.1(e) ; provided that the foregoing shall not in any way limit Servicers right to pursue any other creditor rights or remedies that Servicer may have for claims against either Owner.
SECTION 8.6 Complete Agreement; Modification of Agreement . This Agreement constitutes the complete agreement among the parties hereto with respect to the subject matter
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hereof, supersedes all prior agreements and understandings relating to the subject matter hereof, and may not be modified, altered or amended except as set forth in Section 8.7 .
SECTION 8.7 Amendments and Waivers . No amendment, modification, termination or waiver of any provision of this Agreement, or any consent to any departure by any party hereto therefrom, shall in any event be effective unless (i) the same shall be in writing and signed by each of the parties hereto and (ii) in the case of any amendment, modification, termination or waiver that could reasonably be expected to have a material adverse effect on the performance of the Receivables, the Rating Agency Condition shall have been satisfied with respect thereto.
SECTION 8.8 No Waiver; Remedies . The failure by either Owner, at any time or times, to require strict performance by Servicer of any provision of this Agreement shall not waive, affect or diminish any right of either Owner thereafter to demand strict compliance and performance herewith. Any suspension or waiver of any breach or default hereunder shall not suspend, waive or affect any other breach or default whether the same is prior or subsequent thereto and whether the same or of a different type. None of the undertakings, agreements, warranties, covenants and representations of Servicer contained in this Agreement and no breach or default by Servicer hereunder, shall be deemed to have been suspended or waived by either Owner unless such waiver or suspension is by an instrument in writing signed by an officer of or other duly authorized signatory of such Owner and directed to Servicer specifying such suspension or waiver. The rights and remedies of either Owner under this Agreement shall be cumulative and nonexclusive of any other rights and remedies that such Owner may have under any other agreement, including the other Related Documents, by operation of law or otherwise.
SECTION 8.9 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL . THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(a) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED , THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF
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PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 8.1 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTYS ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(b) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 8.10 Counterparts . This Agreement may be executed in any number of separate counterparts, each of which shall collectively and separately constitute one agreement. Executed counterparts may be delivered electronically.
SECTION 8.11 Severability . Wherever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Agreement.
SECTION 8.12 Section Titles . The section titles and table of contents contained in this Agreement are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the agreement between the parties hereto.
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SECTION 8.13 Limited Recourse . (a) The obligations of each Owner under this Agreement are solely the obligations of that Owner. No recourse shall be had for any obligation or claim arising out of or based upon this Agreement against any incorporator, shareholder, officer, manager, member or director, past, present or future, of each Owner or of any successor or of its constituent members or its other Affiliates, either directly or through that Owner or any successor, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by acceptance hereof and as part of the consideration for the acceptance hereof, expressly waived and released. Any accrued obligations owing by each Owner under this Agreement shall be payable by that Owner solely to the extent that funds are available therefor from time to time in accordance with the provisions of Section 2.11 and the priority of payments in the applicable Indenture Supplement or the Funding Agreement ( provided that such accrued obligations shall not be extinguished until paid in full).
(b) The obligations of Servicer under this Agreement are solely the obligations of Servicer. No recourse shall be had for the payment of any amount owing hereunder or any other obligation or claim arising out of or based upon this Agreement, against any shareholder, employee, officer, manager, member or director, agent or organizer, past, present or future, of Servicer or of any successor thereto, either directly or through Servicer or any successor thereto, whether by virtue of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by acceptance hereof and as part of the consideration for the acceptance hereof, expressly waived and released.
SECTION 8.14 Further Assurances . Servicer shall, at its sole cost and expense, promptly and duly execute and deliver any and all further instruments and documents, and take such further action, that may be necessary or desirable or that either Owner may request to enable that Owner to exercise and enforce its rights under this Agreement or otherwise carry out more effectively the provisions and purposes of this Agreement.
SECTION 8.15 Pledge of Assets . Servicer hereby acknowledges that the Initial Owner has granted a security interest in the Transferred Receivables to the Lender pursuant to the Funding Agreement and that the Successor Owner intends to grant a security interest in the Note Trust Certificate (as defined in the Trust Agreement) to the Indenture Trustee under the Indenture, and hereby waives any defenses it may have against the Lender or the Indenture Trustee for the enforcement of this Agreement in the event of foreclosure by the Lender or the Indenture Trustee. Accordingly, the parties hereto agree that, in the event of foreclosure by the Lender or the Indenture Trustee, Lender or the Indenture Trustee shall have the right to enforce this Agreement and the full performance by the parties hereto of their obligations and undertakings set forth herein. Servicer hereby agrees to deliver to the Lender and the Indenture Trustee a copy of all notices to be delivered by Servicer to the applicable Owner hereunder.
SECTION 8.16 Waiver of Setoff . Servicer hereby waives any right of setoff that it may have for amounts owing to it under or in connection with this Agreement.
SECTION 8.17 Limitation of Liability of the Trustee . Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by Deutsche Bank Trust Company Delaware, not in its individual capacity but solely in its capacity as Trustee of the
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Initial Owner, and in no event shall Deutsche Bank Trust Company Delaware, in its individual capacity, or any beneficial owner of the Initial Owner have any liability for the representations, warranties, covenants, agreements or other obligations of the Initial Owner hereunder, as to all of which recourse shall be had solely to the assets of the Initial Owner. For all purposes of this Agreement, in the performance of any duties or obligations of the Initial Owner thereunder, the Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Article VIII of the Trust Agreement.
[ Signatures Follow ]
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IN WITNESS WHEREOF , the parties have caused this Servicing Agreement to be executed by their respective representatives thereunto duly authorized, as of the date first above written.
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RFS FUNDING TRUST, as Initial Owner |
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By: DEUTSCHE BANK TRUST COMPANY, DELAWARE, not in its individual capacity, but solely as RFS Funding Trustee on behalf of the Initial Owner |
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By: |
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/s/ Eileen M. Hughes |
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Name: |
Eileen M. Hughes |
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Title: |
Vice President |
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MONOGRAM CREDIT CARD BANK OF GEORGIA, as Servicer |
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By: |
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/s/ Donald R. Ramon |
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Name: |
Donald R. Ramon |
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Title: |
President |
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By executing in the space provided below, GE Capital Credit Card Master Note Trust shall become a party to this Servicing Agreement. |
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GE CAPITAL CREDIT CARD MASTER NOTE TRUST, as Successor Owner |
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/s/ Michael Santino |
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Michael Santino |
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Senior Vice President |
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S-1
Reporting Requirements
Servicer shall:
1. Prepare a monthly report on behalf of Owner for each Series that is outstanding in the manner described in the Indenture Supplement for such Series. Servicer shall also provide the Indenture Trustee with an electronic or written form of such report for each such Series for delivery as set forth in the Indenture Supplement for such Series.
2. Prepare and deliver the Monthly Report referred to (and as defined in) the Funding Agreement to the parties and at the times specified therein.
Form of Annual Servicers Certificate
(To
be delivered on or before the 75th day following the end
of the fiscal year of Servicer beginning with
[ ],
pursuant to Section 2.8 of the Servicing Agreement referred to below)
MONOGRAM CREDIT CARD BANK OF GEORGIA
RFS FUNDING TRUST
GE CAPITAL CREDIT CARD MASTER TRUST
The undersigned, a duly authorized representative of Monogram Credit Card Bank of Georgia, as Servicer ( Monogram ), pursuant to the Servicing Agreement dated as of June 27, 2003 (as may be further amended and supplemented from time to time, the Agreement ), among Monogram, RFS Funding Trust and GE Capital Credit Card Master Note Trust, does hereby certify that:
1. Monogram is, as of the date hereof, Servicer under the Agreement. Capitalized terms used in this Certificate have their respective meanings as set forth in the Agreement.
2. The undersigned is an Authorized Officer who is duly authorized pursuant to the Agreement to execute and deliver this Certificate to the Owners.
3. A review of the activities of Servicer during the fiscal year ended , , and of its performance under the Agreement was conducted under my supervision.
4. Based on such review, Servicer has, to the best of my knowledge, performed in all material respects its obligations under the Agreement throughout such year and no default in the performance of such obligations has occurred or is continuing except as set forth in paragraph 5 .
5. The following is a description of each default in the performance of Servicers obligations under the provisions of the Agreement known to me to have been made by Servicer during the fiscal year ended , , which sets forth in detail (i) the nature of each such default, (ii) the action taken by Servicer, if any, to remedy each such default and (iii) the current status of each such default: [ if applicable, insert None. ]
IN WITNESS WHEREOF, the undersigned has duly executed this Certificate this day of , 20 .
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MONOGRAM CREDIT CARD BANK OF GEORGIA, as Servicer, |
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EXHIBIT 4.14
ADMINISTRATION AGREEMENT
among
GE CAPITAL CREDIT CARD MASTER NOTE
TRUST,
as Trust
GENERAL
ELECTRIC CAPITAL CORPORATION,
as Administrator,
and
THE
BANK OF NEW YORK (Delaware),
not in its individual capacity, but solely as trustee
Dated as of September 25, 2003
TABLE OF CONTENTS
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Term of Agreement; Resignation and Removal of the Administrator |
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Not Applicable to General Electric Capital Corporation in Other Capacities |
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i
ADMINISTRATION AGREEMENT dated as of September 25, 2003, among GE CAPITAL CREDIT CARD MASTER NOTE TRUST, a Delaware statutory trust (the Trust ), GENERAL ELECTRIC CAPITAL CORPORATION, a Delaware corporation, as administrator (the Administrator ) and The Bank of New York (Delaware), as Trustee ( Trustee ).
RECITALS
WHEREAS , the Trust has entered into a Master Indenture, dated as of the date hereof (as amended and supplemented by any Indenture Supplement, or otherwise, from time to time in accordance with the provision thereof, the Indenture ), between the Trust and Deutsche Bank Trust Company Americas, as indenture trustee ( Indenture Trustee ), to provide for the issuance of its asset backed notes (the Notes ) from time to time pursuant to one or more indenture supplements. Capitalized terms used herein and not otherwise defined herein are defined in the Indenture;
WHEREAS , the Trust has entered into certain agreements in connection with the issuance of the Notes and the issuance of the Transferor Certificate (as defined in the Trust Agreement) and transactions related thereto, including (i) the Transfer Agreement, (ii) the Servicing Agreement, (iii) the Trust Agreement, and (iv) the Indenture (collectively, the Related Documents );
WHEREAS , pursuant to the Related Documents, the Trust and Trustee are required to perform certain duties in connection with: (a) the Notes and the collateral therefor pledged pursuant to the Indenture (the Collateral ) and (b) the Transferor Certificate;
WHEREAS , the Trust and Trustee desire to have the Administrator perform certain of the duties of the Trust and Trustee referred to in the preceding clause, and to provide such additional services consistent with this Agreement and the Related Documents as the Trust or Trustee may from time to time request;
WHEREAS , the Administrator has the capacity to provide the services required hereby and is willing to perform such services for the Trust and Trustee on the terms set forth herein;
NOW, THEREFORE , in consideration of the mutual terms and covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator .
(a) Duties with Respect to the Transfer Agreement . The Administrator, on behalf of the Trust, shall perform the administrative duties of the Trust under the Transfer Agreement. The Administrator, on behalf of the Trust, shall monitor the performance of the Trust and shall advise the Trust when action is necessary to comply with the Trusts duties under the Transfer Agreement. The Administrator, on behalf of the Trust, shall prepare for execution by the Trust or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Trust (or Trustee) to prepare, file or deliver pursuant to the Transfer Agreement. In furtherance of the foregoing, the Administrator, on behalf of the Trust (or Trustee) shall take all appropriate action that is the duty
of the Trust to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Transfer Agreement):
(i) the duty to maintain possession of the Account Schedules delivered pursuant to the Transfer Agreement ( Section 2.1 );
(ii) the duty to cause the payment of the Purchase Price for each Monthly Period ( Section 2.4 );
(iii) (A) the preparation and the execution of any Reassignment or any other documents and instruments of transfer and (B) the duty to take such actions as requested by the Transferor to effect the conveyance of the Transferred Receivables ( Section 2.7 ); and
(iv) (A) the notification to the Transferor of any breach in representation or warranty of the Transferor under the Transfer Agreement or (B) the acceptance of a reassignment of the Transferred Receivables if such breach is not cured as provided in Section 6.1 of the Transfer Agreement ( Section 6.1 ).
(b) Duties with Respect to the Servicing Agreement . The Administrator, on behalf of the Trust, shall perform the administrative duties of the Trust under the Servicing Agreement. The Administrator, on behalf of the Trust, shall monitor the performance of the Trust and shall advise the Trust when action is necessary to comply with the Trusts duties under the Servicing Agreement. The Administrator, on behalf of the Trust, shall prepare for execution by the Trust or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Trust (or Trustee) to prepare, file or deliver pursuant to the Servicing Agreement. In furtherance of the foregoing, the Administrator, on behalf of the Trust shall take all appropriate action that is the duty of the Trust (or Trustee) to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Servicing Agreement):
(i) (A) the notification to the Servicer prior to any designation of (I) additional or removed Accounts, (II) any additional Originator or Additional Retailer and (III) any discount percentage and (B) the duty to provide the Servicer a copy of the related Credit Card Program Agreements of an Additional Retailer. ( Section 2.2 );
(ii) (A) the duty to furnish the Servicer with powers of attorney and other documents necessary or appropriate to enable the Servicer to carry out its servicing duties and (B) the duty to assist the Servicer in collecting the Transferred Receivables ( Section 2.4 );
(iii) (A) the notification to the Servicer of a breach of the applicable covenants under Section 2.6 of the Servicing Agreement and (B) the execution and the delivery of any documents or instruments of transfer or assignment requested by the Servicer to effect the conveyance of the Transferred Receivables to the Servicer ( Section 2.6 );
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(iv) the delivery of a Servicer Termination Notice to the Servicer ( Section 5.1 ); and
(v) the appointment of a successor servicer ( Section 6.2 ).
(c) Duties with Respect to the Indenture . The Administrator, on behalf of the Trust, shall perform the administrative duties of the Trust under the Indenture. The Administrator, on behalf of the Trust, shall monitor the performance of the Trust and shall advise the Trust when action is necessary to comply with the Trusts duties under the Indenture. The Administrator, on behalf of the Trust, shall prepare for execution by the Trust or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Trust (or Trustee) to prepare, file or deliver pursuant to the Indenture. In furtherance of the foregoing, the Administrator, on behalf of the Trust (or Trustee) shall take all appropriate action that is the duty of the Trust to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Indenture):
(i) (A) the preparation of or the obtaining of the documents and instruments required for authentication of the Notes and (B) the delivery of the same to the Indenture Trustee ( Sections 2.2 , 2.3 and 2.5 );
(ii) (A) the duty to cause the Note Registrar to be kept, (B) the appointment of a successor Note Registrar, (C) the notification to the Indenture Trustee of any appointment of a new Note Registrar or the Note Registrars change in location, (D) the preparation of a new Note upon the surrender of a Note for transfer and (E) the appoint of a co-transfer agent if any Series of Notes is listed on the Luxembourg Stock Exchange ( Section 2.4 );
(iii) the notification to the Indenture Trustee of the date on which the Trust expects that the final installment of principal of and interest on the Notes will be paid ( Section 2.7 );
(iv) (A) the notification to the Indenture Trustee and each Rating Agency of a New Issuance and (B) the delivery of any Indenture Supplement, Series Enhancement Agreement and Tax Opinion to the Indenture Trustee ( Section 2.8 );
(v) the delivery of any Notes to the Indenture Trustee for cancellation ( Section 2.9 );
(vi) the communication with any Clearing Agency ( Section 2.10 and 2.11 );
(vii) (A) the appointment of a successor Clearing Agency and (B) the notification to the Indenture Trustee that the Clearing Agency is no longer willing or able to discharge its responsibilities under the Note Depository Agreement and that the Trust is unable to locate a successor Clearing Agency ( Section 2.12 );
(viii) the notification to the Indenture Trustee 30 days prior to of any change in the location of the Trusts offices or its jurisdiction of organization ( Section 3.2 );
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(ix) the duty to cause each Paying Agent to comply with its obligations under the Indenture ( Section 3.3 );
(x) the duty to cause the Trust to (A) keep in full effect its existence, rights and franchises as a Delaware statutory trust and (B) observe and comply in all material respects with (I) all laws applicable to the Trust (II) all requisite and appropriate organizational and other formalities in the management of the Trusts business and affairs and (III) conduct the transactions contemplated thereby ( Section 3.4 );
(xi) the duty to cause the preparation and delivery of all supplements and amendments to the Indenture in accordance with Section 3.5 of the Indenture ( Section 3.5 );
(xii) the delivery of an Opinion of Counsel to the Indenture Trustee under Section 3.6 of the Indenture ( Section 3.6 );
(xiii) the duty to cause the Trust (A) to punctually perform and observe its obligations and agreements under the Related Documents, including filing or causing to be filed all UCC financing statements and continuation statements pursuant to the Related Documents, (B) to enforce the obligations of the Servicer under the Servicing Agreement (C) to perform the reasonable actions necessary to remedy any Servicer Default, (D) to deliver a notice to the Servicer of any Servicer Default as required under Section 3.7(d) of the Indenture, (E) to exercise its rights to terminate the Servicer, (F) to obtain the consent of the Noteholders upon a voluntary dismissal of the Servicer, (G) to appoint a Successor Servicer, (H) to notify the Indenture Trustee upon any termination of the Servicers rights and powers under the Servicing Agreement and each appointment of a Successor Servicer, (I) to provide, or to cause the Servicer to provide, the Trustee access to any documents regarding the Accounts and the Transferred Receivables and (J) to provide notice to the Rating Agencies of a merger or consolidation of the Servicer or an Originator ( Section 3.7 );
(xiv) to contest or to pay all taxes on behalf of the Trust when due and payable ( Section 3.8 );
(xv) the delivery of an Officers Certificate to the Indenture Trustee under Section 3.9 of the Indenture ( Section 3.9 );
(xvi) the delivery of an Officers Certificate, Opinion of Counsel and Officers Certificate to the Indenture Trustee under Sections 3.10 , 4.1 , and 9.1(b) and 10.1 of the Indenture ( Sections 3.10 , 4.1 , 9.1(b) and 10.1 ) or as may otherwise be required pursuant to the Indenture;
(xvii) the notification to the Indenture Trustee and the Rating Agencies of each Early Amortization Event, Event of Default and Servicer Default and (B) the delivery of an Officers Certificate to the Indenture Trustee required under Section 3.12 of the Indenture ( Section 3.12 );
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(xviii) (A) the preparation of and the delivery of any further instruments and (B) to perform any further acts as may be reasonably necessary to carry out the provisions of the Indenture ( Section 3.13 );
(xix) the duty to cause the Trust to take all such lawful actions to compel or secure the performance and observance by the Servicer or the Transferor of their obligations to the Trust ( Section 5.15 );
(xx) the delivery, or the duty to cause the Servicer to deliver, to each Noteholder such information as may be required to enable such Noteholder to prepare any income tax returns ( Section 6.6 );
(xxi) (A) the removal of the Indenture Trustee and (B) the appointment of a successor Indenture Trustee in accordance with Section 6.8 of the Indenture ( Section 6.8 );
(xxii) the notification to the Indenture Trustee in writing if any of the Notes become listed on any stock exchange or market trading system ( Section 6.14 );
(xxiii) (A) the duty to cause the Paying Agent (other that the Indenture Trustee) to pay the Indenture Trustee any sums held in trust by such Paying Agent with respect to the Notes and (B) the appointment of each Paying Agent ( Section 6.16 );
(xxiv) the duty to furnish to the Indenture Trustee a list of Noteholders as required pursuant to Section 7.1 of the Indenture ( Section 7.1 );
(xxv) (A) the filing with the Indenture Trustee and the Commission copies of reports or documents required pursuant to the Securities Exchange Act and the Commission (B) the delivery of the summaries of any information required to be filed with the Commission to the Indenture Trustee and (C) the notification to the Indenture Trustee of any change in the Trusts fiscal year ( Section 7.3 );
(xxvi) (A) the delivery of an Officers Certificate to the Indenture Trustee and (B) the preparation and the delivery any Supplemental Indentures ( Sections 9.1 and 9.2 );
(xxvii) (A) the preparation and the delivery of any agreement entered into with a Noteholder pursuant to Section 10.6 of the Indenture and (B) the delivery of a copy of such agreement to the Indenture Trustee ( Section 10.6 );
(xxviii) the filing of all appropriate financing statements (Schedule I) and;
(xxix) the duties of the Trust pursuant to any Indenture Supplement.
(d) Duties with respect to sale of Notes . The Administrator, on behalf of the Trust, shall perform the administrative duties of the Trust under any note purchase agreement, loan agreement or underwriting agreement. The Administrator, on behalf of the Trust, shall monitor the performance of the Trust and shall advise the Trust when action is necessary to comply with the Trusts duties under any note purchase agreement, loan agreement or underwriting
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agreement. The Administrator, on behalf of the Trust, shall prepare for execution by the Trust or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Trust (or Trustee) to prepare, file or deliver pursuant any note purchase agreement, loan agreement or underwriting agreement. In furtherance of the foregoing, the Administrator, on behalf of the Trust (or Trustee) shall take all appropriate action that is the duty of the Trust to take pursuant to such documents.
(e) Duties with Respect to the Trust . (i) The Administrator shall perform such calculations, and shall prepare for execution by the Trust (or the Trustee, on behalf of the Trust) or shall cause the preparation by other appropriate persons, of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Trust (or the Trustee, on behalf of the Trust), to perform, prepare, file or deliver pursuant to the Related Documents. At the request of the Trust, the Administrator shall take all appropriate action that it is the duty of the Trust (or the Trustee, on behalf of the Trust), to take pursuant to the Related Documents. Subject to Section 5 of this Agreement, and in accordance with the directions of the Trust (or the Trustee, on behalf of the Trust), the Administrator, on behalf of the Trust, shall administer, perform or supervise the performance of such other activities permitted by the Related Documents as are not covered by any of the foregoing and as are expressly requested by the Trust (or the Trustee, on behalf of the Trust), and are reasonably within the capability of the Administrator.
(ii) The Administrator, on behalf of the Trust, shall perform the duties specified in Section 9.2 of the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust Agreement.
(iii) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however , that the terms of any such transactions or dealings shall be in accordance with any directions received from the Trust and shall be, in the Administrators opinion, no less favorable to the Trust than would be available from unaffiliated parties.
(iv) The Administrator hereby agrees to execute on behalf of the Trust all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Trust to prepare, file or deliver pursuant to the Related Documents or otherwise by law.
(f) Non-Ministerial Matters . (i) With respect to matters that in the reasonable judgment of the Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such action the Administrator shall have notified the Trustee or the Trust, as applicable, of the proposed action and the Trustee or the Trust, as applicable, shall have consented or provided an alternative direction. For the purpose of the preceding sentence, non-ministerial matters shall include, without limitation:
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(A) the initiation of any claim or lawsuit by the Trust and the compromise of any action, claim or lawsuit brought by or against the Trust (other than in connection with the collection of the Transferred Receivables);
(B) the amendment, change, supplement or modification of the Related Documents other than an Indenture Supplement; and
(C) the appointment of successor Note Registrars, successor Paying Agents and successor Indenture Trustees pursuant to the Indenture or the appointment of successor Administrators or successor Servicers, or the consent to the assignment by the Note Registrar, Paying Agent or Indenture Trustee of its obligations under the Indenture.
(ii) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not take any other action that the Trust directs the Administrator not to take on its behalf.
2. Records . The Administrator shall maintain appropriate books of account and records relating to services performed hereunder, which books of account and records shall be accessible for inspection by the Trust or its designees, at any time during normal business hours.
3. Compensation . As compensation for the performance of the Administrators obligations under this Agreement and as reimbursement for its expenses related thereto, the Administrator shall be entitled to $350 per month payable in arrears on each Payment Date, which payment shall be solely an obligation of the Trust.
4. Additional Information To Be Furnished to the Trust . The Administrator shall furnish to the Trust from time to time such additional information regarding the Collateral as the Trust shall reasonably request.
5. Independence of the Administrator . For all purposes of this Agreement, the Administrator shall be an independent contractor and shall not be subject to the supervision of the Trust or Trustee with respect to the manner in which it accomplishes the performance of its obligations hereunder. Unless expressly authorized by the Trust, the Administrator shall have no authority to act for or represent the Trust in any way (other than as permitted hereunder) and shall not otherwise be deemed an agent of the Trust.
6. No Joint Venture . Nothing contained in this Agreement: (i) shall constitute the Administrator and the Trust as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (ii) shall be construed to impose any liability as such on any of them or (iii) shall be deemed to confer on any of them any express, implied or apparent authority to incur any obligation or liability on behalf of the others.
7. Other Activities of the Administrator . Nothing herein shall prevent the Administrator or its Affiliates from engaging in other businesses or, in their sole discretion, from acting in a similar capacity as an administrator for any other Person even though such Person may engage in business activities similar to those of the Trust.
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8. Term of Agreement ; Resignation and Removal of the Administrator . (a) This Agreement shall continue in force until the dissolution of the Trust, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(g) , the Administrator may resign its duties hereunder by providing the Trust and the Servicer with at least 60 days prior written notice.
(c) Subject to Section 8(e) , the Trust may remove the Administrator without cause by providing the Administrator and the Servicer with at least 60 days prior written notice.
(d) Subject to Section 8(e) , at the sole option of the Trust, the Administrator may be removed immediately upon written notice of termination from the Trust to the Administrator and the Transferor if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of its duties under this Agreement and, after notice of such default, shall not cure such default within ten days (or, if such default cannot be cured in such time, shall not give within ten days such assurance of cure as shall be reasonably satisfactory to the Trust);
(ii) a court having jurisdiction in the premises shall enter a decree or order for relief, and such decree or order shall not have been vacated within 60 days, in respect of the Administrator in any involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for the Administrator or any substantial part of its property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official for the Administrator or any substantial part of its property, shall consent to the taking of possession by any such official of any substantial part of its property, shall make any general assignment for the benefit of creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses (ii) or (iii) of this subsection shall occur, it shall give written notice thereof to the Trust, the Servicer and the Indenture Trustee within seven days after the happening of such event.
(e) Upon the Administrators receipt of notice of termination, pursuant to Sections 8(c) or (d) , or the Administrators resignation in accordance with this Agreement, the predecessor Administrator shall continue to perform its functions as Administrator under this Agreement, in the case of termination, only until the date specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of: (x) the date 45 days from the delivery to the Trust, the Indenture Trustee and the Servicer of written notice of such resignation (or written confirmation of such notice) in accordance with this Agreement and (y) the date upon which the predecessor Administrator shall become unable to act as Administrator, as specified in the notice of
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resignation and accompanying Opinion of Counsel. In the event of the Administrators termination hereunder, the Trust shall appoint a successor Administrator, and the successor Administrator shall accept its appointment by a written assumption. No resignation or removal of the Administrator pursuant to this Section shall be effective until: (i) a successor Administrator shall have been appointed by the Trust and (ii) such successor Administrator shall have agreed in writing to be bound by the terms of this Agreement in the same manner as the Administrator is bound hereunder.
(f) Upon appointment, the successor Administrator shall be the successor in all respects to the predecessor Administrator and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Administrator and shall be entitled to the compensation specified in Section 3 and all the rights granted to the predecessor Administrator by the terms and provisions of this Agreement.
(g) The appointment of any successor Administrator shall be effective only after satisfaction of the Rating Agency Condition with respect to the proposed appointment.
(h) The Administrator or the Trust, as the case may be, shall provide to the Indenture Trustee a copy of all notices required to be delivered under this Article 8.
9. Action upon Termination, Resignation or R emoval . Promptly upon the effective date of termination of this Agreement pursuant to Section 8(a) , or the resignation or removal of the Administrator pursuant to Section 8(b) or (c) , respectively, the Administrator shall be entitled to be paid all fees and reimbursable expenses accruing to it to the date of such termination, resignation or removal. The Administrator shall forthwith upon such termination pursuant to Section 8(a) deliver to the Trust all property and documents of or relating to the Collateral then in the custody of the Administrator. In the event of the resignation or removal of the Administrator pursuant to Section 8(b) or (c) , respectively, the Administrator shall cooperate with the Trust and the Indenture Trustee and take all reasonable steps requested to assist the Trust and the Indenture Trustee in making an orderly transfer of the duties of the Administrator.
10. Notices . Any notice, report or other communication given hereunder shall be in writing and addressed as follows:
(a) if to the Trust, to:
GE Capital Credit Card
Master Note Trust
c/o The Bank of New York (Delaware), as Trustee
101 Barclay Street, Floor 8 West (ABS Unit)
New York, New York 10286
Attn: Antonio Vayas
Telephone: (212) 815-8322
Telecopy: (212) 815-2493 or, 3883
(b) if to the Administrator, to:
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General Electric Capital
Corporation, as Administrator
1600 Summer Street, 4th Floor
Stamford, CT 06928
Attn: Manager Conduit Administration
Telephone: (203) 357-4328
Telecopy: (203) 961-2953
(c) if to the Indenture Trustee, to:
Deutsche Bank Trust Company
Americas
60 Wall Street, 26th Floor
MS NYC 60-2606
New York, New York 10005
Attn: Corporate Trust & Agency
Services
Telephone: (212) 250-8522
Telecopy: (212) 797-8606
or to such other address as any party shall have provided to the other parties in writing. Any notice required to be in writing hereunder shall be deemed given if such notice is mailed by certified mail, postage prepaid, or hand-delivered to the address of such party as provided above.
11. Amendments . This Agreement may be amended from time to time by a written amendment duly executed and delivered by the Trust and the Administrator. Promptly after the execution of any such amendment (or, in the case of the Rating Agencies, 10 days prior thereto), the Administrator shall furnish written notification of the substance of such amendment or consent to the Holder of the Transferor Certificate and each of the Rating Agencies.
12. Successors and Assigns . This Agreement may not be assigned by the Administrator unless such assignment is previously consented to in writing by the Trust and subject to the satisfaction of the Rating Agency Condition in respect thereof. An assignment with such consent and satisfaction, if accepted by the assignee, shall bind the assignee hereunder in the same manner as the Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned by the Administrator without the consent of the Trust to a corporation or other organization that is a successor (by merger, consolidation or purchase of assets) to the Administrator, provided that such successor organization executes and delivers to the Trust, an agreement in which such corporation or other organization agrees to be bound hereunder by the terms of said assignment in the same manner as the Administrator is bound hereunder. Subject to the foregoing, this Agreement shall bind any successors or assigns of the parties hereto.
13. Governing Law . GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. (a) THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW
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PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED, FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE BORROWER COLLATERAL OR ANY OTHER SECURITY FOR THE BORROWER SECURED OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN ACCORDANCE WITH SECTION 10 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTYS ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
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14. Other Interpretive Matters . All terms defined directly or by incorporation in this Agreement shall have the defined meanings when used in any document delivered pursuant thereto unless otherwise defined therein. For purposes of this Agreement, unless the context otherwise requires: (a) accounting terms not otherwise defined herein and accounting terms partly defined herein to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; and unless otherwise provided, references to any month, quarter or year refer to a fiscal month, quarter or year as determined in accordance with the GE Capital fiscal calendar; (b) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (c) the words hereof, herein and hereunder and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Agreement, and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (e) the term including means including without limitation; (f) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (g) references to any agreement refer to that agreement as from time to time amended, restated or supplemented or as the terms of such agreement are waived or modified in accordance with its terms; and (h) references to any Person include that Persons successors and assigns.
15. Headings . The section headings hereof have been inserted for convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Agreement.
16. Counterparts . This Agreement may be executed in counterparts, all of which when so executed shall together constitute but one and the same agreement.
17. Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
18. Not Applicable to Gener al Electric Capital Corporation in Other Capacities . Nothing in this Agreement shall affect any obligation General Electric Capital Corporation may have in any other capacity.
19. Limitation of Liability of the Trustee . Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by The Bank of New York (Delaware), not in its individual capacity but solely in its capacity as Trustee of the Trust, and in no event shall The Bank of New York (Delaware), in its individual capacity, or any beneficial owner of the Trust have any liability for the representations, warranties, covenants, agreements or other obligations of the Trust hereunder, as to all of which recourse shall be had solely to the assets of the Trust. For all purposes of this Agreement, in the performance of any duties or obligations of the Trust thereunder, the Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Article VII of the Trust Agreement.
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20. Indemnification . The Administrator shall indemnify the Trust (and its officers, directors, employees, trustees, and agents) (the Indemnified Parties ) for, and hold them harmless against, any losses, liability or expense, including attorneys fees reasonably incurred by them (all of the foregoing being collectively referred to as Indemnified Amounts ), incurred without gross negligence or willful misconduct on their part, arising out of or in connection with: (i) actions taken by either of them pursuant to instructions given by the Administrator pursuant to this Agreement or (ii) the failure of the Administrator to perform its obligations hereunder. The indemnities contained in this Section shall survive the termination of this Agreement and the resignation or removal of the Administrator or the Trust.
In the event any proceeding (including any governmental investigation) shall be instituted involving any Indemnified Party pursuant to the preceding paragraph, such person shall promptly notify the Administrator in writing, and the Administrator shall have the option to assume the defense thereof, including the retention of counsel reasonably satisfactory to such Indemnified Party to represent such Indemnified Party in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding upon delivery to the Administrator of demand therefor. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the Administrator has failed to assume the defense thereof, (ii) the Administrator and the Indemnified Party shall have mutually agreed to the retention of such counsel or (iii) the named parties to any such proceeding (including any impleaded parties) include both the Administrator and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Administrator shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such Indemnified Parties. The Administrator shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Administrator agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. The Administrator shall not, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding.
21. No Proceedings . From and after the Closing Date and until the date one year plus one day following the date on which the Outstanding Balance of all Transferred Receivables have been reduced to zero, the Administrator shall not, directly or indirectly, institute or cause to be instituted against the Trust any proceeding of the type referred to in the definition of Insolvency Event.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the day and year first above written.
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GE CAPITAL CREDIT CARD MASTER NOTE TRUST |
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By: The Bank of New York (Delaware), not in its individual capacity but solely as Trustee on behalf of the Trust |
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/s/ Michael Santino |
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Michael Santino |
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Senior Vice President |
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GENERAL ELECTRIC CAPITAL CORPORATION, |
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as Administrator |
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/s/ Iain J. Mackay |
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Iain J. Mackay |
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Vice President |
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THE BANK OF NEW YORK (DELAWARE), not in its individual capacity, but solely as trustee |
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By: |
/s/ Michael Santino |
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Name: |
Michael Santino |
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Title: |
Senior Vice President |
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S-1
EXHIBIT 4.15
SERVICER PERFORMANCE GUARANTY
Dated as of June 27, 2003
by
GENERAL ELECTRIC CAPITAL CORPORATION,
as Servicer Performance Guarantor
TABLE OF CONTENTS
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GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL |
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SERVICER PERFORMANCE GUARANTY , dated as of June 27, 2003 (this Guaranty ) by GENERAL ELECTRIC CAPITAL CORPORATION , ( GE Capital ) a Delaware corporation, in its capacity as performance guarantor hereunder (in such capacity, together with its successors and assigns, the Servicer Performance Guarantor ).
DEFINITIONS AND INTERPRETATION
Section 1.1 Definitions .
Administration Agreement means that certain Administration Agreement dated as of the Conversion Restatement Date, among the Administrator, the Borrower and the Trustee.
Administrator means GE Capital, in its capacity as Administrator under the Administration Agreement, or any other Person designated as a successor Administrator.
Bankruptcy Code means the provisions of title II of the United States Code, 11 U.S.C. §§ 101, et seq .
Borrower means RFC, in its capacity as the Borrower under the Funding Agreement.
Borrower Collateral is defined in Section 7.1 of the Funding Agreement.
Business Day means any day that is not a Saturday, a Sunday or a day on which banks are required or permitted to be closed in the State of New York or the State of Georgia.
Collateral Agent means GE Capital, in its capacity as collateral agent for the Lender and the Lender Secured Parties under the Related Documents.
Collateral Agent Agreement means that certain Collateral Agent and Security Agreement dated as of September 22, 1997, among Edison, the Depositary and GE Capital, in its capacities as (a) the Collateral Agent, (b) the Operating Agent, (c) the Liquidity Agent and (d) the Letter of Credit Provider.
Commercial Paper means the short-term promissory notes of the Lender issued and sold from time to time in the U.S. commercial paper market and other similar short-term debt instruments from time to time issued by the Lender in other markets.
Conversion Restatement Date means December 30, 2002.
Depositary means Deutsche Bank Trust Company Americas (successor to Bankers Trust Company), or any other Person designated as the successor Depositary pursuant to and in accordance with the terms of the Depositary Agreement, in its capacity as issuing and paying agent or trustee in connection with the issuance of Commercial Paper.
Depositary Agreement means that certain Depositary Agreement dated September 22, 1997 by and between Edison and the Depositary and consented to by the Liquidity Agent.
Edison means Edison Asset Securitization, L.L.C., a limited liability company organized under the laws of the State of Delaware.
Funding Agreement means that certain Receivables Funding Agreement dated as of June 27, 2003, by and between the Borrower and the Lender which amends and restates that certain Third Amended and Restated Receivables Funding and Servicing Agreement dated as of September 25, 1997 and amended and restated as of July 22, 1998, as of March 22, 2001, and as of December 30, 2002, among the Borrower, the Lender, the Servicer, the Operating Agent and the Collateral Agent.
GE Capital is defined in the preamble.
GECS means General Electric Capital Services, Inc., a Delaware corporation.
Governmental Authority means any nation or government, any state or other political subdivision thereof, and any agency, department or other entity exercising executive, legislative, judicial, regulatory or administrative functions of or pertaining to government.
Guaranteed Servicer Obligations is defined in Section 2.1 .
Guaranty is defined in the preamble.
Indenture means the master indenture to be entered into between the Trust and an indenture trustee.
Indenture Trustee means, at any time, the Person acting as indenture trustee under the Indenture.
Initial Owner means the Trust, in its capacity as Initial Owner under the Servicing Agreement.
Interest Rate Swap means the ISDA Master Agreement, together with any schedules thereto and confirmations thereof, between RFC and the Swap Counterparty, each dated as of March 24, 1997 and amended and restated as of June 26, 2001, and any other schedules thereto and confirmations thereof entered into thereafter, as each of the foregoing has been and may in the future be amended, modified or replaced.
Issuer means GE Capital Credit Card Master Note Trust, a Delaware statutory trust.
Lender means Edison, in its capacity as the Lender under the Funding Agreement.
Lender Secured Obligations means the obligations of the Lender secured pursuant to the Collateral Agent Agreement.
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Lender Secured Parties means the holders of Lender Secured Obligations.
Letter of Credit means that certain Irrevocable Letter of Credit No. EASLOC1 dated September 22, 1997, issued by the Letter of Credit Providers at the request of Edison in favor of the Collateral Agent pursuant to the Letter of Credit Agreement.
Letter of Credit Agreement means that certain Letter of Credit Reimbursement Agreement dated as of September 22, 1997, among Edison, the Letter of Credit Providers and the Collateral Agent.
Letter of Credit Providers means, initially, GE Capital, in its capacity as issuer of the Letter of Credit under the Letter of Credit Agreement, and thereafter its successors and permitted assigns in such capacity.
Liquidity Agent means GE Capital, in its capacity as agent for the Liquidity Lenders pursuant to the Liquidity Loan Agreement.
Liquidity Lenders means, collectively, GE Capital and any other provider of Liquidity Loans under the Liquidity Loan Agreement.
Liquidity Loan Agreement means that certain Amended and Restated Liquidity Loan Agreement dated as of September 25, 1997, among Edison and GE Capital, in its capacities as (a) the Operating Agent, (b) the Collateral Agent, (c) the initial Liquidity Lender and (d) the Liquidity Agent.
Liquidity Loans means any and all borrowings by Edison under the Liquidity Loan Agreement.
Litigation means, with respect to any Person, any action, claim, lawsuit, demand, investigation or proceeding pending or threatened against such Person before any court, board, commission, agency or instrumentality of any federal, state, local or foreign government or of any agency or subdivision thereof or before any arbitrator or panel of arbitrators.
Monogram means Monogram Credit Card Bank of Georgia, a Bank organized under the laws of the State of Georgia.
Moodys means Moodys Investors Service, Inc. or any successor thereto.
Note is defined in Section 2.5(a) of the Funding Agreement.
Operating Agent means GE Capital, in its capacity as operating agent for the Lender under the Related Documents.
Originator means Monogram.
Originator Performance Guaranty means that certain Originator Performance Guaranty dated as of June 27, 2003, by GE Capital, as Originator Performance Guarantor.
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Owner means, when only a single Owner is referenced: before the date of dissolution of the Initial Owner, the Initial Owner, and on the date of dissolution of the Initial Owner and thereafter, the Successor Owner. The phrase either Owner means, either the Initial Owner (so long as it has not dissolved) or the Successor Owner, and Owners means both the Initial Owner (so long as it has not dissolved) and the Successor Owner.
Person means any individual, sole proprietorship, partnership, joint venture, unincorporated organization, trust, association, corporation (including a business trust), limited liability company, institution, public benefit corporation, joint stock company, Governmental Authority or any other entity of whatever nature.
Rating Agency means Moodys or S&P.
Rating Agency Condition means, with respect to any action, that each Rating Agency has notified the Lender and the Operating Agent that such action will not result in a reduction or withdrawal of the rating of any outstanding Commercial Paper.
Related Documents means the Funding Agreement, the Trust Receivables Purchase Agreement, the Note, the Interest Rate Swap, the Trust Agreement, the Administration Agreement, the RFS Holding, Inc. Letter of Credit, the Servicing Agreement, this Guaranty, the Originator Performance Guaranty, the Indenture and including all other pledges, powers of attorney, consents, assignments, contracts, notices, and all other written matter whether heretofore, now or hereafter executed by or on behalf of any Person, or any employee of any Person, and delivered in connection with any of the foregoing or the transactions contemplated thereby. Any reference in the Funding Agreement to a Related Document shall include all Appendices thereto, and all amendments, restatements, supplements or other modifications thereto, and shall refer to such Related Document as the same may be in effect at any and all times such reference becomes operative.
Restatement Date means June 27, 2003.
RFC means RFS Funding Trust, a Delaware statutory trust and successor to RFS Funding Incorporated, a Delaware corporation.
RFS Holding, Inc. Letter of Credit is defined in the RFS Holding, Inc. Letter of Credit Agreement.
RFS Holding, Inc. Letter of Credit Agreement means that certain RFS Holding, Inc. Letter of Credit Agreement dated as of June 27, 2003 among RFS Holding, Inc., the Borrower and Edison.
RFS Holding, L.L.C. means RFS Holding, L.L.C. , a limited liability company organized under the laws of the State of Delaware.
S&P means Standard & Poors Ratings Services, a division of the McGraw-Hill Companies, Inc., or any successor thereto .
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Servicer means the Originator, in its capacity as the Servicer under the Servicing Agreement, or any other Person designated as a successor servicer, pursuant to the Servicing Agreement.
Servicer Performance Guarantor is defined in the preamble.
Servicing Agreement means that certain Servicing Agreement dated as of June 27, 2003, among Monogram, as Servicer, the Initial Owner and, upon its accession in accordance with the terms thereof, the Successor Owner.
Successor Owner means the Issuer, in its capacity as Successor Owner under the Servicing Agreement.
Swap Counterparty means General Electric Capital Corporation.
Termination Event is defined in Section 8.2 of the Funding Agreement.
Transferred Receivable is defined in the Funding Agreement.
Trust means the Borrower.
Trust Agreement means that certain Trust Agreement dated as of December 19, 2002 among RFS Holding, L.L.C., General Electric Capital Services, Inc., and Trustee, as amended and restated on June 27, 2003 among RFS Holding, L.L.C., RFS Holding, Inc. (as assignee of General Electric Capital Services, Inc.) and Trustee.
Trustee means Deutsche Bank Trust Company Delaware, not in its individual capacity but solely as trustee pursuant to the Trust Agreement.
Trust Receivables Purchase Agreement means that certain Receivables Purchase and Contribution Agreement dated as of June 27, 2003, between RFS Holding, L.L.C. and the Trust.
Section 1.2 Rules of Construction . All terms defined directly or by incorporation in this Guaranty shall have the defined meanings when used in any certificate or other document delivered pursuant hereto unless otherwise defined therein. For purposes of this Guaranty and all such certificates and other documents, unless the context otherwise requires: (a) accounting terms not otherwise defined herein, and accounting terms partly herein to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; and references to any month, quarter or year refer to a fiscal month, quarter or year as determined in accordance with the GE Capital fiscal calendar; (b) terms defined in Article 9 of the UCC and not otherwise defined in herein are used as defined in that Article; (c) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (d) the words hereof, herein and hereunder and words of similar import refer to this Guaranty (or the certificate or other document in which they are used) as a whole and not to any particular provision of such Agreement (or such certificate or document); (e) references to any Section, Schedule or Exhibit are references to Sections, Schedules and
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Exhibits in or to this Guaranty (or the certificate or other document in which the reference is made), and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (f) the term including means including without limitation; (g) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (h) references to any agreement refer to that agreement as from time to time amended or supplemented or as the terms of such agreement are waived or modified in accordance with its terms; (i) references to any Person include that Persons successors and assigns; and (j) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
SERVICER PERFORMANCE GUARANTY
Section 2.1 Servicer Performance Guaranty . (a) Unconditional Undertaking; Enforcement . The Servicer Performance Guarantor hereby unconditionally and irrevocably undertakes and agrees with and for the benefit of the Owners and their respective permitted assignees to cause the due performance and observance by the Servicer (for so long as Monogram or any Affiliate of GE Capital is the Servicer under the Servicing Agreement) and its assigns of all of the terms, covenants, conditions, agreements and undertakings on the part of the Servicer, to be performed or observed under the Servicing Agreement or any document delivered in connection with the Servicing Agreement in accordance with the terms hereof and thereof including any agreement of the Servicer to pay any money under the Servicing Agreement or any such other document (all such terms, covenants, conditions, agreements and undertakings on the part of the Servicer to be performed or observed by the Servicer being collectively called the Guaranteed Servicer Obligations ). In the event that the Servicer shall fail in any manner whatsoever to perform or observe any of the Guaranteed Servicer Obligations when the same shall be required to be performed or observed under the Servicing Agreement or any such other document (after giving effect to any cure period), then the Servicer Performance Guarantor will itself duly perform or observe, or cause to be duly performed or observed, such Guaranteed Servicer Obligation, and it shall not be a condition to the accrual of the obligation of the Servicer Performance Guarantor hereunder to perform or observe any Guaranteed Servicer Obligation (or to cause the same to be performed or observed) that either Owner or its permitted assignees shall have first made any request of or demand upon or given any notice to the Servicer Performance Guarantor or to the Servicer or its successors or assigns, or have instituted any action or proceeding against the Servicer Performance Guarantor or the Servicer or its successors or assigns in respect thereof. Notwithstanding anything to the contrary contained in this Guaranty, the obligations of the Servicer Performance Guarantor hereunder in respect of the Servicer are expressly limited to the Guaranteed Servicer Obligations. The obligations of the Servicer Performance Guarantor hereunder shall rank pari passu with the senior unsecured debt of the Servicer Performance Guarantor.
(b) Enforcement. The Owners and their respective permitted assignees may proceed to enforce the obligations of the Servicer Performance Guarantor under this Guaranty without first pursuing or exhausting any right or remedy which the Owners or their respective permitted assignees may have against the Servicer any other Person or any collateral.
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(c) Obligations Absolute . To the extent permitted by law, the Servicer Performance Guarantor will perform its obligations under this Guaranty regardless of any Law now or hereafter in effect in any jurisdiction affecting any of the terms of this Guaranty or any document delivered in connection with this Guaranty or the rights of the Owners or their respective permitted assignees with respect thereto. The obligations of the Servicer Performance Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability or the discharge or disaffirmance (by any Person, including a trustee in bankruptcy) of the Guaranteed Servicer Obligations, the Servicing Agreement or any Transferred Receivable or any document or any other agreement or instrument relating thereto;
(ii) any exchange, release or non-perfection of any collateral or any release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Guaranteed Servicer Obligations;
(iii) the existence of any claim, setoff or other rights that the Servicer Performance Guarantor may have at any time against the Servicer in connection herewith or any unrelated transaction;
(iv) any failure to obtain any authorization or approval from or other action by, or to notify or file with, any Governmental Authority or regulatory body required in connection with the performance of such obligations by the Servicer; or
(v) any impossibility or impracticality of performance, illegality, force majeure, any act of any governmental or any other circumstance which might constitute a legal or equitable defense available to, or a discharge of, the Servicer or the Servicer Performance Guarantor, or any other circumstance, event or happening whatsoever, whether foreseen or unforeseen and whether similar or dissimilar to anything referred to above in this Guaranty.
The Servicer Performance Guarantor further agrees that its obligations under this Guaranty shall not be limited by any valuation or estimation made in connection with any proceedings involving the Servicer or the Servicer Performance Guarantor filed under the Bankruptcy Code, whether pursuant to Section 502 of the Bankruptcy Code or any other Section thereof. The Servicer Performance Guarantor further agrees that neither of the Owners shall be under any obligation to marshall any assets in favor of or against or in payment of any or all of the Guaranteed Servicer Obligations. The Servicer Performance Guarantor further agrees that, to the extent that a payment or payments are made by or on behalf of the Servicer, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to the Servicer or the estate, trustee, receiver or any other party relating to the Servicer, including the Servicer Performance Guarantor, under any bankruptcy law, state or federal law, common law or equitable cause then to the extent of such payment or repayment, the Guaranteed Servicer Obligations or part thereof which had been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payments, reduction or satisfaction occurred. The obligations of the Servicer
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Performance Guarantor under this Guaranty shall not be discharged except by performance as provided herein.
(d) Irrevocability . The Servicer Performance Guarantor agrees that its obligations under this Guaranty shall be irrevocable. In the event that under applicable Law (notwithstanding the Servicer Performance Guarantors agreement regarding the irrevocable nature of its obligations hereunder) the Servicer Performance Guarantor shall have the right to revoke this Guaranty, this Guaranty shall continue in full force and effect until a written revocation hereof specifically referring hereto, signed by the Servicer Performance Guarantor, is actually received by the Owners at the address set forth on the signature page hereto. Any such revocation shall not affect the right of the Owners or their respective permitted assignees to enforce their respective rights under this Performance Guaranty with respect of (i) any Guaranteed Servicer Obligation (including any Guaranteed Servicer Obligation that is contingent or unmatured) which arose on or prior to the date the aforementioned revocation was received by the Owners or (ii) any Transferred Receivable which was purchased or otherwise acquired by the Borrower or its respective permitted assignees on or prior to the date the aforementioned revocation was received by the Owners. For purposes of the preceding sentence, all Guaranteed Servicer Obligations that relate to, or arise in connection with, any Transferred Receivable that existed on or prior to the date the aforementioned revocation is received by the Owners, shall be covered by this Guaranty notwithstanding such revocation. If the Borrower or its respective permitted assignees acquires an ownership interest in the Transferred Receivables or takes other action in reliance on this Guaranty after any such revocation by the Servicer Performance Guarantor but prior to the receipt by the Owners of said written notice, the rights of the Borrower or such permitted assignee with respect thereto shall be the same as if such revocation had not occurred. Without limiting the foregoing, this Guaranty may not be revoked at any time until the Termination Date.
(e) Waiver . The Servicer Performance Guarantor hereby waives promptness, diligence, notice of acceptance and any other notice with respect to any of the Guaranteed Servicer Obligations and this Guaranty, the Servicing Agreement and any other document related thereto and any requirement that either Owner or its respective permitted assignees exhaust any right or take any action against the Servicer, any other Person or any collateral.
(f) Subrogation . The Servicer Performance Guarantor will not exercise or assert any rights which it may acquire by way of subrogation under this Guaranty unless and until all of the Guaranteed Servicer Obligations shall have been paid and performed in full. If any payment shall be made to the Servicer Performance Guarantor on account of any subrogation rights at any time when all of the Guaranteed Servicer Obligations shall not have been paid and performed in full each and every amount so paid will be held in trust for the benefit of the Lender and forthwith be paid to the Lender in accordance with the Servicing Agreement and the Liquidity Loan Agreement, to be credited and applied to the Guaranteed Servicer Obligations to the extent then unsatisfied, in accordance with the terms of the Servicing Agreement or any document delivered in connection with the Servicing Agreement, as the case may be. In the event (i) the Servicer Performance Guarantor shall have satisfied any of the Guaranteed Servicer Obligations and (ii) all of the Guaranteed Servicer Obligations shall have been paid and performed in full, the Lender will at the Servicer Performance Guarantors request and expense, execute and deliver to the Servicer Performance Guarantor appropriate documents, without recourse and without
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representation or warranty of any kind, necessary to evidence or confirm the transfer by way of subrogation to the Servicer Performance Guarantor of the rights of the Lender or any permitted assignee, as the case may be, with respect to the Guaranteed Servicer Obligations to which the Servicer Performance Guarantor shall have become entitled by way of subrogation and thereafter the Lender and its respective permitted assignees shall have no responsibility to the Servicer Performance Guarantor or any other person with respect thereof.
MISCELLANEOUS
Section 3.1 Notices . Except as otherwise provided herein, whenever it is provided herein that any notice, demand, request, consent, approval, declaration or other communication shall or may be given to or served upon any Person, or whenever any Person desires to give or serve upon any other Person any communication with respect to this Guaranty, each such notice, demand, request, consent, approval, declaration or other communication shall be in writing and shall be deemed to have been validly served, given or delivered (a) upon the earlier of actual receipt and three Business Days after deposit in the United States Mail, registered or certified mail, return receipt requested, with proper postage prepaid, (b) upon transmission, when sent by telecopy or other similar facsimile transmission (with such telecopy or facsimile promptly confirmed by delivery of a copy by personal delivery or United States Mail as otherwise provided in this Section 3.1 ), (c) one Business Day after deposit with a reputable overnight courier with all charges prepaid or (d) when delivered, if hand-delivered by messenger, all of which shall be addressed to the party to be notified and sent to the address or facsimile number indicated below or to such other address (or facsimile number) as may be substituted by notice given as herein provided. The giving of any notice required hereunder may be waived in writing by the party entitled to receive such notice. Whenever it is provided herein that a notice is to be given to any Person by a specific time, such notice shall only be effective if actually received by such Person prior to such time, and if such notice is received after such time or on a day other than a Business Day, such notice shall only be effective on the immediately succeeding Business Day.
If to the Servicer Performance Guarantor:
General Electric Capital
Corporation, as Servicer Performance Guarantor
1600 Summer Street, 6th Floor
Stamford, Connecticut 06927
Attention: Manager of Finance Securitization
Telephone: (203)357-4756
Facsimile: (203)357-6796
Section 3.2 Binding Effect; Assignability . (a) This Guaranty shall be binding upon and inure to the benefit of the Owners and their respective successors and permitted assigns. The Servicer Performance Guarantor may not assign, transfer, hypothecate or otherwise convey any of its rights or obligations hereunder or interests herein without the express prior written consent of the Owners and unless the Rating Agency Condition shall have been satisfied with respect to any such assignment. Any such purported assignment, transfer, hypothecation or other
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conveyance by the Servicer Performance Guarantor without the prior express written consent of the Owners shall be void. The Owners may, at any time, assign any of their respective rights and obligations hereunder or interests herein to any Person and any such assignee may further assign at any time its rights and obligations hereunder or interests herein (including any rights it may have to exercise remedies hereunder), in each case without the consent of the Servicer Performance Guarantor.
Section 3.3 Costs, Expenses and Taxes . (a) The Servicer Performance Guarantor shall reimburse the Owners for all out-of-pocket expenses incurred in connection with the negotiation and preparation of this Guaranty (including the reasonable fees and expenses of all of its special counsel, advisors, consultants, auditors and the Rating Agencies retained in connection with the transactions contemplated thereby and advice in connection therewith). The Servicer Performance Guarantor is also liable for all of its own out-of-pocket expenses incurred in connection with the negotiation, preparation and the carrying out of its obligations under this Guaranty (including the reasonable fees and expenses of all of its special counsel, advisors, consultants, auditors and the Rating Agencies retained in connection with the transactions contemplated thereby and advice in connection therewith). The Servicer Performance Guarantor shall reimburse each Owner for all fees, costs and expenses, including the fees, costs and expenses of counsel or other advisors for advice, assistance, or other representation in connection with:
(i) any amendment, modification or waiver of, consent with respect to, or termination of this Guaranty or advice in connection with the administration thereof or their respective rights hereunder or thereunder; and
(ii) any Litigation, contest or dispute (whether instituted by the Servicer Performance Guarantor, such Owner or any other Person as a party, witness, or otherwise) in any way relating to this Guaranty or any other agreement to be executed or delivered in connection herewith, including any Litigation, contest, dispute, suit, case, proceeding or action, and any appeal or review thereof, in connection with a case commenced by or against the Servicer Performance Guarantor or any other Person that may be obligated to the Owners by virtue of this Guaranty, including any such Litigation, contest, dispute, suit, proceeding or action arising in connection with any work-out or restructuring of the transactions contemplated hereby during the pendency of one or more Termination Events.
including all attorneys and other professional and service providers fees arising from such services, including those in connection with any appellate proceedings, and all expenses, costs, charges and other fees incurred by such counsel and others in connection with or relating to any of the events or actions described in this Section 3.3 , all of which shall be payable, on demand, by the Servicer Performance Guarantor to such Owner. Without limiting the generality of the foregoing, such expenses, costs, charges and fees may include: fees, costs and expenses of accountants and paralegals; court costs and expenses; photocopying and duplication expenses; court reporter fees, costs and expenses; long distance telephone charges; air express charges; telegram or telecopy charges; secretarial overtime charges; and expenses for travel, lodging and food paid or incurred in connection with the performance of such legal or other advisory services.
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(b) In addition, the Servicer Performance Guarantor shall pay on demand any and all stamp, sales, excise and other taxes (excluding income taxes) and fees payable or determined to be payable in connection with the execution, delivery, filing or recording of this Guaranty, and the Servicer Performance Guarantor agrees to indemnify and save each Lender Indemnified Person harmless from and against any and all liabilities with respect to or resulting from any delay or failure to pay such taxes and fees.
Section 3.4 No Waiver; Remedies . The failure by either Owner, at any time or times, to require strict performance by the Servicer Performance Guarantor of any provision of this Guaranty shall not waive, affect or diminish any right of the Owners thereafter to demand strict compliance and performance herewith or therewith. Any suspension or waiver of any breach or default hereunder shall not suspend, waive or affect any other breach or default whether the same is prior or subsequent thereto and whether the same or of a different type. None of the undertakings, agreements, warranties, covenants and representations of the Servicer Performance Guarantor contained in this Guaranty, and no breach or default by the Servicer Performance Guarantor hereunder or thereunder, shall be deemed to have been suspended or waived by either Owner unless such waiver or suspension is by an instrument in writing signed by an officer of or other duly authorized signatory of such Owner and directed to the Servicer Performance Guarantor, as applicable, specifying such suspension or waiver. The rights and remedies of the Owners under this Guaranty shall be cumulative and nonexclusive of any other rights and remedies that the Owners may have under any other agreement, including the other Related Documents, by operation of law or otherwise. Recourse to the Borrower Collateral shall not be required.
Section 3.5 GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL . (a) THIS GUARANTY AND THE OBLIGATIONS ARISING HEREUNDER AND THEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) THE SERVICER PERFORMANCE GUARANTOR HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES PERTAINING TO THIS GUARANTY OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS GUARANTY; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED, FURTHER, THAT NOTHING IN THIS GUARANTY SHALL BE DEEMED OR OPERATE TO PRECLUDE EITHER OWNER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF SUCH OWNER. THE SERVICER PERFORMANCE GUARANTOR SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
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ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND THE SERVICER PERFORMANCE GUARANTOR HEREBY WAIVES ANY OBJECTION THAT IT MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. THE SERVICER PERFORMANCE GUARANTOR HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT THE ADDRESS SET FORTH BENEATH ITS NAME ON THE SIGNATURE PAGES HEREOF AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTYS ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE SERVICER PERFORMANCE GUARANTOR DESIRES THAT DISPUTES ARISING WITH RESPECT TO THE GUARANTY BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE SERVICER PERFORMANCE GUARANTOR WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THIS GUARANTY OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 3.6 Counterparts . This Guaranty may be executed in any number of separate counterparts, each of which shall collectively and separately constitute one agreement.
Section 3.7 Severability . Wherever possible, each provision of this Guaranty shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Guaranty shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this Guaranty.
Section 3.8 Section Titles . The section titles and table of contents contained in this Guaranty are and shall be without substantive meaning or content of any kind whatsoever and are not a part of the guaranty.
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IN WITNESS WHEREOF , the parties have caused this Servicer Performance Guaranty to be executed by their respective officers thereunto duly authorized, as of the date first above written.
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GENERAL ELECTRIC CAPITAL |
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CORPORATION , as Servicer Performance |
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Guarantor |
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/s/ Iain J. Mackay |
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Name: |
Iain J. Mackay |
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Title: |
Vice President |
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S-1
EXHIBIT 4.16
OMNIBUS AMENDMENT NO. 1
TO
SECURITIZATION DOCUMENTS
This OMNIBUS AMENDMENT NO. 1 TO SECURITIZATION DOCUMENTS, dated as of February 9, 2004 (this Amendment ), is entered into among: (i) RFS Holding, L.L.C., a Delaware limited liability company ( RFSHLLC ); (ii) RFS Funding Trust, a Delaware statutory trust; (iii) Monogram Credit Card Bank of Georgia, a bank organized under the laws of Georgia ( Bank ); (iv) GE Capital Credit Card Master Note Trust, a Delaware statutory trust ( GECCMNT ); (v) solely for the purposes of amending the RFS Funding Trust Agreement referenced below, Deutsche Bank Trust Company Delaware, a Delaware banking corporation, as trustee for RFS Funding Trust (in such capacity, RFS Funding Trustee ); (vi) RFS Holding, Inc., a Delaware corporation ( RFSHI ) and (vii) Deutsche Bank Trust Company Americas, as indenture trustee under the Indenture referred to below (in such capacity, the Indenture Trustee ).
BACKGROUND
1. RFSHLLC, RFSHI and the RFS Funding Trustee are parties to the Amended and Restated Trust Agreement dated as of December 19, 2002 (the RFS Funding Trust Agreement ).
2. RFSHLLC and RFS Funding Trust are parties to the Receivables Purchase and Contribution Agreement dated as of June 27, 2003, as amended by the First Amendment to the Receivables Purchase and Contribution Agreement, dated as of September 25, 2003 (the RPCA ).
3. The Bank and RFSHLLC are parties to the Receivables Sale Agreement dated as of June 27, 2003 (the Receivables Sale Agreement ).
4. The Indenture Trustee and GECCMNT are parties to the Master Indenture, dated as of September 25, 2003 (the Indenture ).
5. RFSHLLC and GECCMNT are parties to the Transfer Agreement dated as of September 25, 2003 (the Transfer Agreement ; and together with the RFS Funding Trust Agreement, the RPCA, the Receivables Sale Agreement and the Indenture, collectively, the Securitization Documents ).
6. The parties to the Securitization Documents desire to amend the Securitization Documents as set forth herein.
AMENDMENTS
The parties hereto agree as follows:
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SECTION 1. DEFINITIONS . As used herein, (a) capitalized terms which are defined in the preamble hereto shall have the meanings as so defined, and (b) capitalized terms not so defined shall have the meanings set forth in the Indenture as amended hereby.
SECTION 2. AMENDMENTS TO RPCA . Each party to this Amendment that is a party to the RPCA agrees that the RPCA shall be amended as set forth below.
(a) Section 2.7 of the RPCA is amended by deleting Subsection 2.7(a)(vi) and substituting the following therefor:
(vi) [Reserved].
(b) Section 2.7(b) is amended by deleting the second sentence of such Section and substituting the following therefor:
All Transferred Receivables in Removed Accounts designated pursuant to this Section 2.7(b) shall be repurchased on the date of the Involuntary Removal for a cash purchase price equal to the Outstanding Balance of the Principal Receivables in the Removed Accounts, plus the accrued Finance Charge Receivables in such Removed Accounts, in each case as of the same date that the balance of principal receivables in the Removed Accounts is determined for purposes of calculating the purchase price to be paid by or on behalf of the related Retailer for such Removed Accounts in accordance with the related Credit Card Program Agreement, and such cash purchase price shall be treated in the same manner as the purchase price for Ineligible Receivables paid by the Transferor pursuant to Section 6.1(e) .
(c) Section 6.1(f) of the RPCA is amended by deleting the first sentence of such Section and substituting the following therefor:
(f) If any representation or warranty of Seller contained in Section 6.1(a)(i) , 6.1(a)(ii) , 6.1(a)(iii) or 6.1(a)(iv) of this Agreement is not true and correct in any material respect and such breach has a material adverse effect on the Transferred Receivables transferred to Buyer by Seller or the availability of the proceeds thereof to Buyer, then Seller shall be obligated to accept a reassignment of the Transferred Receivables if such breach and any material adverse effect caused by such breach is not cured within 60 days of receipt of notice of such breach from the Buyer (or within such longer period, not in excess of 150 days, as specified in such notice); provided that such Transferred Receivables will not be reassigned to Seller if, on any day prior to the end of such 60-day or longer period (i) the relevant representation and warranty shall be true and correct in all material respects as if made on such day and (ii) Seller shall have delivered an Officers Certificate
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describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct..
SECTION 3. AMENDMENTS TO RECEIVABLES SALE AGREEMENT . Each party to this Amendment that is a party to the Receivables Sale Agreement agrees that the Receivables Sale Agreement shall be amended as set forth below.
(a) Section 6.1(f) of the Receivables Sale Agreement is amended by deleting the first sentence of such Section and substituting the following therefor:
(f) If any representation or warranty of Seller contained in Section 6.1(a)(i) , 6.1(a)(ii) , 6.1(a)(iii) or 6.1(a)(iv) of this Agreement is not true and correct in any material respect and such breach has a material adverse effect on the Transferred Receivables transferred to Buyer by Seller or the availability of the proceeds thereof to Buyer, then Seller shall be obligated to accept a reassignment of the Transferred Receivables if such breach and any material adverse effect caused by such breach is not cured within 60 days of receipt of notice of such breach from the Buyer (or within such longer period, not in excess of 150 days, as specified in such notice); provided that such Transferred Receivables will not be reassigned to Seller if, on any day prior to the end of such 60-day or longer period (i) the relevant representation and warranty shall be true and correct in all material respects as if made on such day and (ii) Seller shall have delivered an Officers Certificate describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct..
(b) Section 6.2(f) of the Receivables Sale Agreement is amended by deleting each reference to Transferor in such Section and substituting the word Seller for each such reference.
SECTION 4. AMENDMENTS TO TRANSFER AGREEMENT . Each party to this Amendment that is a party to the Transfer Agreement agrees that the Transfer Agreement shall be amended as set forth below:
(a) Section 2.7 of the Transfer Agreement is amended by deleting Subsection 2.7(a)(vi) and substituting the following therefor:
(vi) [Reserved].
(b) Section 2.7(b) is amended by deleting the second sentence of such Section and substituting the following therefor:
All Transferred Receivables in Removed Accounts designated pursuant to this Section 2.7(b) shall be repurchased on the date of the Involuntary Removal for a cash purchase price
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equal to the Outstanding Balance of the Principal Receivables in the Removed Accounts, plus the accrued Finance Charge Receivables in such Removed Accounts, in each case as of the same date that the balance of principal receivables in the Removed Accounts is determined for purposes of calculating the purchase price to be paid by or on behalf of the related Retailer for such Removed Accounts in accordance with the related Credit Card Program Agreement, and such cash purchase price shall be treated in the same manner as the purchase price for Ineligible Receivables paid by the Transferor pursuant to Section 6.1(e) .
(c) Section 6.1(f) of the Transfer Agreement is amended by deleting the first sentence of such Section and substituting the following therefor:
(f) If any representation or warranty of Transferor contained in Section 6.1(a)(i) , 6.1(a)(ii) , 6.1(a)(iii) or 6.1(a)(iv) of this Agreement is not true and correct in any material respect and such breach has a material adverse effect on the Transferred Receivables transferred to Buyer by Transferor or the availability of the proceeds thereof to Buyer, then Seller shall be obligated to accept a reassignment of the Transferred Receivables if such breach and any material adverse effect caused by such breach is not cured within 60 days of receipt of notice of such breach from the Buyer (or within such longer period, not in excess of 120 days, as specified in such notice); provided that such Transferred Receivables will not be reassigned to Transferor if, on any day prior to the end of such 60-day or longer period (i) the relevant representation and warranty shall be true and correct in all material respects as if made on such day and (ii) Transferor shall have delivered an Officers Certificate describing the nature of such breach and the manner in which the relevant representation and warranty became true and correct..
SECTION 5. AMENDMENTS TO RFS FUNDING TRUST AGREEMENT . Each party to this Amendment that is a party to the RFS Funding Trust Agreement agrees that Section 1.1 of the RFS Funding Trust Agreement shall be amended as set forth below.
(a) The following definitions are added to Section 1.1 of the RFS Funding Trust Agreement in appropriate alphabetical order:
Average Principal Balance means for any Monthly Period in which a Reset Date occurs as a result of an Addition Date (as defined in the Trust Receivables Purchase Agreement) or Removal Date (as defined in the Trust Receivables Purchase Agreement), the sum of (i) the aggregate Outstanding Balance of all Transferred Receivables other than Specified Retailer
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Receivables as of the close of business on the last day of the prior Monthly Period, multiplied by a fraction the numerator of which is the number of days from and including the first day of such Monthly Period, to but excluding the related Reset Date, and the denominator of which is the number of days in such Monthly Period, plus (ii) for each such Reset Date, the product of the aggregate Outstanding Balance of all Transferred Receivables other than Specified Retailer Receivables determined as of the close of business on such Reset Date, multiplied by a fraction, the numerator of which is the number of days from and including such Reset Date, to the earlier of the last day of such Monthly Period (in which case such period shall include such date) or the next succeeding Reset Date (in which case such period shall exclude such date), and the denominator of which is the number of days in such Monthly Period.
Reset Date shall mean any date designated as a Reset Date pursuant to the Indenture or any supplement to the Indenture.
(b) The definition of Lender Collateral Interest Percentage is hereby amended by adding the following proviso immediately prior to the end of clause (y) of such definition:
provided that if one or more Reset Dates occur in a Monthly Period, the denominator shall be (A) the aggregate Outstanding Balance of all Transferred Receivables other than Specified Retailer Receivables as of the close of business on the last day of the prior Monthly Period, for the period from and including the first day of the current Monthly Period, to but excluding the first such Reset Date and (B) the aggregate Outstanding Balance of all Transferred Receivables other than Specified Retailer Receivables as of the close of business on each such Reset Date, for the period from and including such Reset Date to the earlier of the last day of such Monthly Period (in which case such period shall include such day) or the next succeeding Reset Date (in which case such period shall not include such succeeding Reset Date); and provided further , that notwithstanding the preceding proviso, if a Reset Date occurs during any Monthly Period and if the Note Trust is permitted to make a single monthly deposit to the Collection Account pursuant to Section 8.4 of the Indenture for such Monthly Period, then the denominator for each day during such Monthly Period shall equal the Average Principal Balance for such Monthly Period.
SECTION 6. AMENDMENTS TO INDENTURE . Each party to this Amendment that is a party to the Indenture agrees that the Indenture shall be amended as set forth below:
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(a) Section 3.10(c) of the Indenture is amended by deleting the reference to limited liability company agreement where it appears in such Section and substituting the phrase trust agreement.
(b) Section 3.10(k) of the Indenture is amended by deleting clause (i) of such Section and substituting the following therefor:
(i)(A) the amendment is being entered into to cure any ambiguity or correct or supplement any provision of or to add or change any provisions concerning matters or questions raised under the Transfer Agreement, Servicing Agreement or Trust Receivables Purchase Agreement; (B) the Rating Agency Condition is satisfied and (C) the Transferor has delivered an Officers Certificate to the Issuer certifying the amendment will not cause an Adverse Effect,
SECTION 7. EFFECTIVENESS . The amendments set forth in Sections 2 through 6 above shall become effective as of December 22, 2003; provided that each of the parties listed in the preamble to this Amendment shall have executed a counterpart of this Amendment.
SECTION 8. CONSENTS . To the extent that any party hereto is required under any Securitization Document to consent to any of the foregoing amendments, each such party hereby grants such consent.
SECTION 9. BINDING EFFECT; RATIFICATION . (a) On and after the execution and delivery hereof, (i) this Amendment shall be a part of each Securitization Document amended hereby and (ii) each reference in each such amended Securitization Document to this Agreement or hereof, hereunder or words of like import, and each reference in any other Securitization Document to such amended Securitization Document, shall mean and be a reference to such Securitization Document as amended hereby.
(b) Except as expressly amended hereby, the Securitization Documents shall remain in full force and effect and are hereby ratified and confirmed by the parties hereto.
SECTION 10. MISCELLANEOUS . (a) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAW; PROVIDED THAT SECTION 5 OF THIS AMENDMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE.
(b) Headings used herein are for convenience of reference only and shall not affect the meaning of this Amendment.
(c) This Amendment may be executed in any number of counterparts, and by the parties hereto on separate counterparts, each of which shall be an original and all of which taken together shall constitute one and the same agreement. Executed counterparts may be delivered electronically.
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IN WITNESS WHEREOF , the parties have executed this Amendment by their respective officers thereunto duly authorized as of the date first above written.
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MONOGRAM CREDIT CARD BANK OF GEORGIA |
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/s/ Donald R. Ramon |
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Donald R. Ramon |
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President & CEO |
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RFS HOLDING, L.L.C. |
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/s/ Iain J. Mackay |
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Iain J. Mackay |
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Principal Financial Officer and Manager |
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GE CAPITAL CREDIT CARD MASTER NOTE TRUST |
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By: General Electric Capital Corporation not in its
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Iain J. Mackay |
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Vice President |
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RFS FUNDING TRUST |
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By: General Electric Capital Corporation, not in its individual capacity but solely as Administrator on behalf of RFS Funding Trust |
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DEUTSCHE BANK TRUST COMPANY DELAWARE, |
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/s/ Robert F. Frier |
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RFS HOLDING, INC. |
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Iain J. Mackay |
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Principal Financial
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DEUTSCHE BANK TRUST COMPANY AMERICAS, as
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Acknowledged and Consented to: |
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GENERAL ELECTRIC CAPITAL CORPORATION, |
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Funding Trust Agreement |
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By: |
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/s/ Iain J. Mackay |
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Name: |
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Iain J. Mackay |
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Title: |
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Vice President |
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S-3
EXHIBIT 4.17
ADMINISTRATION AGREEMENT
between
RFS FUNDING TRUST
GENERAL ELECTRIC
CAPITAL CORPORATION,
as Administrator
and
DEUTSCHE BANK
TRUST COMPANY DELAWARE,
not in its individual capacity, but solely as trustee
Dated as of December 30, 2002
Table of Contents
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TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF THE ADMINISTRATOR |
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i
ADMINISTRATION AGREEMENT dated as of December 30, 2002 between RFS FUNDING TRUST, a Delaware statutory trust (the Trust ), and GENERAL ELECTRIC CAPITAL CORPORATION ( GECC ), a Delaware corporation, as administrator (the Administrator ).
RECITALS
WHEREAS , the Trust is purchasing certain credit card account receivables owned by the Bank pursuant to the Third Amended and Restated Receivables Transfer Agreement (the Transfer Agreement ) dated as of September 25, 1997 and amended and restated as of July 22, 1998, as of March 22, 2001 and as of December 30, 2002 between Monogram Credit Card Bank of Georgia and the Trust;
WHEREAS , the Trusts purchases under the Transfer Agreement will be financed by the use of a loan facility provided by Edison Asset Securitization, L.L.C. (the Lender ) pursuant to the Third Amended and Restated Receivables Funding and Servicing Agreement, dated as of September 25, 1997 and as amended and restated on July 22, 1998, as of March 22, 2001 and as of December 30, 2002 (the Funding Agreement ) among the Trust, the Lender, the Bank as Servicer, and GECC as Operating Agent and Collateral Agent;
WHEREAS , the Trust has been formed pursuant to a Trust Agreement dated as of the date hereof (the Trust Agreement ) between General Electric Capital Services, Inc. ( GECS ) and Deutsche Bank Trust Company Delaware, as trustee ( Trustee ), and has entered into certain agreements in connection with the loan facility including the GECS Letter of Credit Agreement dated as of December 30, 2002 (the GECS Letter of Credit Agreement ) among GECS, the Trust and the Lender (the Transfer Agreement, the Funding Agreement, the Trust Agreement and the GECS Letter of Credit Agreement), being hereinafter referred to collectively as the Trust Related Documents ). Capitalized terms used herein and not otherwise defined herein are defined in Annex X to the Funding Agreement;
WHEREAS , pursuant to the Trust Related Documents, the Trust and Trustee are required to perform certain duties in connection with the purchase of the Transferred Receivables and the acceptance of Advances;
WHEREAS , the Trust and Trustee desire to have the Administrator perform certain of the duties of the Trust or Trustee referred to in the preceding clause, and to provide such additional services consistent with this Agreement and the Trust Related Documents as the Trust or Trustee may from time to time request;
WHEREAS , the Administrator has the capacity to provide the services required hereby and is willing to perform such services for the Trust or Trustee on the terms set forth herein;
NOW, THEREFORE , in consideration of the mutual terms and covenants contained herein, and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Duties of the Administrator .
(a) Duties with Respect to the Transfer Agreement . The Administrator, on behalf of the Trust, shall perform the administrative duties of the Trust under the Transfer Agreement. The Administrator, on behalf of the Trust, shall monitor the performance of the Trust and shall advise the Trust when action is necessary to comply with the Trusts duties under the Transfer Agreement. The Administrator, on behalf of the Trust, shall prepare for execution by the Trust or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Trust (or Trustee) to prepare, file or deliver pursuant to the Transfer Agreement. In furtherance of the foregoing, the Administrator, on behalf of the Trust (or Trustee), shall take or cause the Servicer to take all appropriate action that is the duty of the Trust to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Transfer Agreement):
(i) taking receipt of the Transfer List (Section 2.1(b));
(ii) offsetting of any amounts owed by an Originator to the Trust against the Sale Price paid to such Originator (Section 2.3(b));
(iii) taking receipt of each Transfer Notice, mitigating any loss or expense incurred by the Trust as a result of any failure by the Originator to complete a Transfer, notifying the Originator of any such loss or expense and delivering an officers certificate setting forth the calculations of such loss (Section 2.3(c));
(iv) requesting of any delivery of approvals, consents, opinions, document and instruments by each Originator as a condition precedent to any transfer (Section 3.2(d));
(v) requesting an audit, visit, or inspection of any properties of an Originator (Section 4.2(b));
(vi) giving written consent to an Originator to assign, transfer, hypothecate or otherwise convey such Originators rights, benefits, obligations or duties under the Transfer Agreement (Section 8.3);
(vii) amending, modifying, terminating or waiving any provision of the Transfer Agreement or any other Related Documents (Section 8.6);
(viii) consenting to news releases or public announcements pertaining to the transactions contemplated by the Related Documents (Section 8.12(b));
(ix) requesting action to be taken by each Originator that may be necessary or desirable (Section 8.13(a)); and
(x) performing or causing the performance of any agreement or obligation that any Originator fails to perform (Section 8.13(b)).
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(b) Duties with Respect to the Funding Agreement . The Administrator, on behalf of the Trust, shall perform the administrative duties of the Trust under the Funding Agreement. The Administrator, on behalf of the Trust, shall monitor the performance of the Trust and shall advise the Trust when action is necessary to comply with the Trusts duties under the Funding Agreement. The Administrator, on behalf of the Trust, shall prepare for execution by the Trust or shall cause the preparation by other appropriate persons of all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Trust (or Trustee) to prepare, file or deliver pursuant to the Funding Agreement. In furtherance of the foregoing, the Administrator, on behalf of the Trust (or Trustee), shall take or cause the Servicer to take all appropriate action that is the duty of the Trust to take pursuant to such documents, including, without limitation, such of the foregoing as are required with respect to the following matters (references in this Section are to sections of the Funding Agreement):
(i) notifying the Lender and the Operating Agent of each Advance (Section 2.4);
(ii) providing documents, instruments, agreements, acknowledgment copies of financing statements and legal opinions to the Lender and Operating Agent, as the Lender and the Operating Agent shall request (Section 3.1(a));
(iii) obtaining all required consents and approvals of all Persons, to the execution, delivery and performance of the Related Documents and providing an Officers Certificate for the Trust that no such consents are approvals are required (Section 3.1(b));
(iv) causing compliance in all material respects with all applicable foreign, federal, state and local laws and regulations (Sections 3.1(c) and 5.1(a));
(v) taking any action, including delivery of approvals, consents, opinions, notices, documents and instruments to the Lender and the Operating Agent, as the Lender or the Operating Agent may reasonably request or a Rating Agency may request (Section 3.2(g));
(vi) filing of all United States Federal income tax returns and all other material tax returns, paying all taxes shown on such returns and paying or contesting any assessments received by the Trust relating to such returns (Section 4.1(i));
(vii) operating the Trust in a manner such that the separate existence of the Trust and GECS would not be disregarded in the event of the bankruptcy or insolvency of GECS (Section 4.1(q));
(viii) maintaining all deposit or bank accounts at the banks or financial institutions listed on Schedule 4.1(r) of the Funding Agreement (Section 4.1 (r));
(ix) causing all things necessary to preserve and keep in full force and effect the Trusts statutory trust existence and its rights and franchises (Section 5.1(b));
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(x) transferring to the Servicer, and in any event no later than the first Business Day after receipt thereof, all Collections that the Trust may receive with respect to any Transferred Receivable (Section 5.1(c));
(xi) paying, performing and discharging or causing to be paid, performed and discharged promptly all charges payable by the Trust (Section 5.1(e));
(xii) entering into hedge arrangements acceptable to the Lender with respect to any Transferred Assets that accrue interest at a fixed rate (Section 5.1(f));
(xiii) notifying the Servicer to make all future payments to a new Blocked Account with a new Blocked Account Bank (Section 6.1(a)(ii));
(xiv) instructing each Blocked Account Bank to transfer available funds deposited in the Blocked Account to the Collection Account upon the occurrence of a Servicer Downgrade Event (Section 6.1(b)(ii));
(xv) depositing into the Collection account, from the Borrowers funds, an amount sufficient to make payments required pursuant to Section 6.3(b) (Section 6.6);
(xvi) furnishing the Servicer with any powers of attorney and other documents necessary or appropriate to enable the Servicer to carry out its servicing and administrative duties under the Funding Agreement and cooperating with the Servicer to collect the Transferred Receivables and discharge its duties under the Related Documents (Section 7.4);
(xvii) enforcing the obligations of the Performance Guarantor (Section 7.8);
(xviii) maintaining the Trusts chief place of business and chief executive offices and the office where the Trust keeps its Records at the locations specified in Section 4.1(b) of the Funding Agreement or providing notice to the Collateral Agent, of such other location (Section 8.6(a));
(xix) maintaining the Records with respect to each Transferred Receivable, permitting representatives of the Operating Agent and the Collateral Agent to perform the tasks as provided for in Section 8.6(a) of the Funding Agreement;
(xx) collecting, or causing to be collected, all amount due or to become due to the Trust under the Transferred Receivables, the Borrower Assigned Agreements and any other Borrower Collateral (Section 8.6(b));
(xxi) maintaining satisfactory and complete records of the Collateral and delivering all of the Trusts facilities, personal books and records pertinent to the Collateral and allowing the Collateral Agent to occupy the premises of the Trust and utilize such premises, equipment or any personnel of the Trust that the Collateral Agent may wish to employ to administer, service and collect the Transferred Receivables (Section 8.6(c));
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(xxii) performing and observing all terms and provision of the Borrower Assigned Agreements and making to any other party to the Borrower Assigned Agreements such demands and requests for information and reports or for action as the Trust is entitled to make (Section 8.6(d));
(xxiii) advising the Lender, the Operating Agent and the Collateral Agent of any Adverse Claim known to it made or asserted against any of the Borrower Collateral and of the occurrence of any event which would have a material adverse affect on the aggregate value of the Borrower Collateral or on the assignments and security interests granted by the Trust under Section 8.6(e) the Funding Agreement;
(xxiv) taking any further action that may be necessary or desirable or that the Lender, the Operating Agent of the Collateral Agent may request and filing financing or continuation statements or amendment thereto or such other instruments or notices as may be necessary (Section 8.6(f));
(xxv) requesting a release, termination statement or the like from the Lender from a Lien on any Transferred Assets, upon the exercise of a purchase option by a Retailer (Section 8.7);
(xxvi) delivering or causing to be delivered all of the Borrower Collateral sold to the purchaser or the purchasers in accordance with Section 10 of the Funding Agreement;
(xxvii) notifying each Rating Agency of the identity of the holder of the Note if such holder is not the Collateral Agent (Section 10.1(c));
(xxviii) providing consent to any party to the Funding Agreement to issue any news releases or public announcement pertaining to the transactions contemplated under the Related Documents (Section 14.5);
(xxix) amending, modifying or terminating any provision of the Funding Agreement or Related Documents(Section 14.8);
(xxx) executing and delivering any other further instruments and documents and taking any other further action that may be necessary or desirable or that the Lender, the Operating Agent or the Collateral Agent may request (Section 14.15); and
(xxxi) taking such further actions as may be required to effectuate the intent that the Trust be treated as a FASIT (Section 16.1).
(c) Duties with Respect to the Trust . The Administrator shall perform such calculations, and shall prepare for execution by the Trust (or the Trustee, on behalf of the Trust) or shall cause the preparation by other appropriate persons, of all such documents, reports, filings, instruments, certificates and opinions, as it shall be the duty of the Trust (or the Trustee, on behalf of the Trust), to perform, prepare, file or deliver pursuant to the Related Documents. At the request of the Trust, the Administrator shall take all appropriate action that it is the duty of the Trust (or the Trustee, on behalf of the Trust), to take pursuant to the Related Documents. Subject to Section 5 of this Agreement, and in accordance with the directions of the Trust (or the
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Trustee, on behalf of the Trust), the Administrator, on behalf of the Trust, shall administer, perform or supervise the performance of such other activities permitted by the Related Documents (including the Related Documents) as are not covered by any of the foregoing and as are expressly requested by the Trust (or the Trustee, on behalf of the Trust), and are reasonably within the capability of the Administrator.
(i) The Administrator, on behalf of the Trust, shall perform the duties specified in Section 10.2 of the Trust Agreement required to be performed in connection with the resignation or removal of the Trustee, and any other duties expressly required to be performed by the Administrator under the Trust.
(ii) In carrying out the foregoing duties or any of its other obligations under this Agreement, the Administrator may enter into transactions with or otherwise deal with any of its affiliates; provided, however, that the terms of any such transactions or dealings shall be in accordance with any directions received from the Trust and shall be, in the Administrators opinion, no less favorable to the Trust than would be available from unaffiliated parties.
(iii) The Administrator hereby agrees to execute on behalf of the Trust all such documents, reports, filings, instruments, certificates and opinions as it shall be the duty of the Trust to prepare, file or deliver pursuant to the Related Documents or otherwise by law.
(d) Non-Ministerial Matters . With respect to matters that in the reasonable judgment of the Administrator are non-ministerial, the Administrator shall not take any action unless within a reasonable time before the taking of such action the Administrator shall have notified the Trustee or the Trust, as applicable, of the proposed action and the Trustee or the Trust, as applicable, shall have consented or provided an alternative direction. For the purpose of the preceding sentence, non-ministerial matters shall include, without limitation:
(A) the initiation of any claim or lawsuit by the Trust and the compromise of any action, claim or lawsuit brought by or against the Trust (other than in connection with the collection of the Transferred Receivables);
(B) the amendment, change, supplement or modification of the Related Documents; and
(C) the appointment of successor Certificate Registrars and successor Trustees pursuant to the Trust Agreement or the appointment of successor Administrators.
(ii) Notwithstanding anything to the contrary in this Agreement, the Administrator shall not be obligated to, and shall not take any other action that the Trust directs the Administrator not to take on its behalf.
2. Records . The Administrator shall maintain appropriate books of account and records relating to services performed hereunder, which books of account and records shall be accessible for inspection by the Trust or its designees, at any time during normal business hours.
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3. Compensation . As compensation for the performance of the Administrators obligations under this Agreement and as reimbursement for its expenses related thereto, the Administrator shall be entitled to $350 per month payable in arrears on each Settlement Date, which payment shall be solely an obligation of the Trust.
4. Additional Information To Be Furnished t o the Trust . The Administrator shall furnish to the Trust from time to time such additional information regarding the Collateral as the Trust shall reasonably request.
5. Independence of the Administrator . For all purposes of this Agreement, the Administrator shall be an independent contractor and shall not be subject to the supervision of the Trust with respect to the manner in which it accomplishes the performance of its obligations hereunder. Unless expressly authorized by the Trust, the Administrator shall have no authority to act for or represent the Trust in any way (other than as permitted hereunder) and shall not otherwise be deemed an agent of the Trust.
6. No Joint Venture . Nothing contained in this Agreement: (i) shall constitute the Administrator and the Trust as members of any partnership, joint venture, association, syndicate, unincorporated business or other separate entity, (ii) shall be construed to impose any liability as such on any of them or (iii) shall be deemed to confer on any of them any express, implied or apparent authority to incur any obligation or liability on behalf of the others.
7. Other Activities of the Administrator . Nothing herein shall prevent the Administrator or its Affiliates from engaging in other businesses or, in their sole discretion, from acting in a similar capacity as an administrator for any other Person even though such Person may engage in business activities similar to those of the Trust.
8. Term of Agreement; Resignation and Remov al of the Administrator . This Agreement shall continue in force until the dissolution of the Trust, upon which event this Agreement shall automatically terminate.
(b) Subject to Section 8(g) , the Administrator may resign its duties hereunder by providing the Trust and the Servicer with at least 60 days prior written notice.
(c) Subject to Section 8(e) , the Trust may remove the Administrator without cause by providing the Administrator and the Servicer with at least 60 days prior written notice.
(d) Subject to Section 8(e) , at the sole option of the Trust, the Administrator may be removed immediately upon written notice of termination from the Trust to the Administrator and the Servicer if any of the following events shall occur:
(i) the Administrator shall default in the performance of any of its duties under this Agreement and, after notice of such default, shall not cure such default within ten days (or, if such default cannot be cured in such time, shall not give within ten days such assurance of cure as shall be reasonably satisfactory to the Trust);
(ii) a court having jurisdiction in the premises shall enter a decree or order for relief, and such decree or order shall not have been vacated within 60 days, in respect of
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the Administrator in any involuntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect or appoint a receiver, liquidator, assignee, custodian, trustee, sequestrator or similar official for the Administrator or any substantial part of its property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any applicable bankruptcy, insolvency or other similar law now or hereafter in effect, shall consent to the entry of an order for relief in an involuntary case under any such law, or shall consent to the appointment of a receiver, liquidator, assignee, trustee, custodian, sequestrator or similar official for the Administrator or any substantial part of its property, shall consent to the taking of possession by any such official of any substantial part of its property, shall make any general assignment for the benefit of creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses (ii) or (iii) of this subsection shall occur, it shall give written notice thereof to the Trust and the Servicer within seven days after the happening of such event.
(e) Upon the Administrators receipt of notice of termination, pursuant to Sections 8(c) or (d) , or the Administrators resignation in accordance with this Agreement, the predecessor Administrator shall continue to perform its functions as Administrator under this Agreement, in the case of termination, only until the date specified in such termination notice or, if no such date is specified in a notice of termination, until receipt of such notice and, in the case of resignation, until the later of: (x) the date 45 days from the delivery to the Trust and the Servicer of written notice of such resignation (or written confirmation of such notice) in accordance with this Agreement and (y) the date upon which the predecessor Administrator shall become unable to act as Administrator, as specified in the notice of resignation and accompanying opinion of counsel. In the event of the Administrators termination hereunder, the Trust shall appoint a successor Administrator, and the successor Administrator shall accept its appointment by a written assumption. No resignation or removal of the Administrator pursuant to this Section shall be effective until: (i) a successor Administrator shall have been appointed by the Trust and (ii) such successor Administrator shall have agreed in writing to be bound by the terms of this Agreement in the same manner as the Administrator is bound hereunder.
(f) Upon appointment, the successor Administrator shall be the successor in all respects to the predecessor Administrator and shall be subject to all the responsibilities, duties and liabilities arising thereafter relating thereto placed on the predecessor Administrator and shall be entitled to the compensation specified in Section 3 and all the rights granted to the predecessor Administrator by the terms and provisions of this Agreement.
(g) The appointment of any successor Administrator shall be effective only after satisfaction of the Rating Agency Condition with respect to the proposed appointment.
9. Action upon Termination, Resignation or Removal . Promptly upon the effective date of termination of this Agreement pursuant to Section 8(a) , or the resignation or removal of the Administrator pursuant to Section 8(b) or (c) , respectively, the Administrator shall be entitled to be paid all fees and reimbursable expenses accruing to it to the date of such termination,
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resignation or removal. The Administrator shall forthwith upon such termination pursuant to Section 8(a) deliver to the Trust all property and documents of or relating to the Collateral then in the custody of the Administrator. In the event of the resignation or removal of the Administrator pursuant to Section 8(b) or (c) , respectively, the Administrator shall cooperate with the Trust and take all reasonable steps requested to assist the Trust in making an orderly transfer of the duties of the Administrator.
10. Notices . Any notice, report or other communication given hereunder shall be in writing and addressed as follows:
(a) if to the Trust, to:
RFS Funding Trust
c/o Deutsche Bank Trust Company Americas, as Trustee
Corporate Trust and Agency Services Structured Finance Services
280 Park Avenue, 9th Floor
MS NYC03-918
New York, New York 10017
Attention: Susan Barstock
with a copy to the Administrator:
General Electric Capital
Corporation, as Administrator
3001 Summer Street, 2nd Floor
Stamford, Connecticut 06927
Attention: Manager, Conduit
Administration
Telephone:
(203)
357-4328
Facsimile:
(203)
961 2953
(b) if to the Administrator, to:
General Electric Capital
Corporation, as Administrator
3001 Summer Street, 2nd Floor
Stamford, Connecticut 06927
Attention: Manager, Conduit
Administration
Telephone:
(203)
357-4328
Facsimile:
(203)
961 2953
or to such other address as any party shall have provided to the other parties in writing. Any notice required to be in writing hereunder shall be deemed given if such notice is mailed by certified mail, postage prepaid, or hand-delivered to the address of such party as provided above.
11. Amendments . This Agreement may be amended from time to time by a written amendment duly executed and delivered by the Trust and the Administrator. Promptly after the execution of any such amendment, the Administrator shall furnish written notification of the substance of such amendment or consent to each Certificateholder and each of the Rating Agencies.
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12. Successors and Assigns . This Agreement may not be assigned by the Administrator unless such assignment is previously consented to in writing by the Trust and subject to the satisfaction of the Rating Agency Condition in respect thereof. An assignment with such consent and satisfaction, if accepted by the assignee, shall bind the assignee hereunder in the same manner as the Administrator is bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned by the Administrator without the consent of the Trust to a corporation or other organization that is a successor (by merger, consolidation or purchase of assets) to the Administrator, provided that such successor organization executes and delivers to the Trust, an agreement in which such corporation or other organization agrees to be bound hereunder by the terms of said assignment in the same manner as the Administrator is bound hereunder. Subject to the foregoing, this Agreement shall bind any successors or assigns of the parties hereto.
13. Governing Law . GOVERNING LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL. THIS AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL IN ALL RESPECTS, INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND PERFORMANCE, BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401(1) OF THE GENERAL OBLIGATIONS LAW, BUT WITHOUT REGARD TO ANY OTHER CONFLICT OF LAW PROVISIONS THEREOF) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
(b) EACH PARTY HERETO HEREBY CONSENTS AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN THE BOROUGH OF MANHATTAN IN NEW YORK CITY SHALL HAVE EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES BETWEEN THEM PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF OR RELATING TO THIS AGREEMENT; PROVIDED, THAT EACH PARTY HERETO ACKNOWLEDGES THAT ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF THE BOROUGH OF MANHATTAN IN NEW YORK CITY; PROVIDED, FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL BE DEEMED OR OPERATE TO PRECLUDE THE LENDER FROM BRINGING SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON THE BORROWER COLLATERAL OR ANY OTHER SECURITY FOR THE BORROWER SECURED OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER COURT ORDER IN FAVOR OF THE LENDER. EACH PARTY HERETO SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH PARTY HERETO HEREBY WAIVES ANY OBJECTION THAT SUCH PARTY MAY HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS AND HEREBY CONSENTS TO THE GRANTING OF SUCH LEGAL OR EQUITABLE RELIEF AS IS DEEMED APPROPRIATE BY SUCH COURT. EACH PARTY HERETO HEREBY WAIVES PERSONAL SERVICE OF THE SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY REGISTERED OR CERTIFIED MAIL ADDRESSED TO SUCH PARTY AT ITS ADDRESS DETERMINED IN
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ACCORDANCE WITH SECTION 10 AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH PARTYS ACTUAL RECEIPT THEREOF OR THREE DAYS AFTER DEPOSIT IN THE UNITED STATES MAIL, PROPER POSTAGE PREPAID. NOTHING IN THIS SECTION SHALL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.
(c) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
14. Other Interpretive Matters . All terms defined directly or by incorporation in this Agreement shall have the defined meanings when used in any document delivered pursuant thereto unless otherwise defined therein. For purposes of this Agreement, unless the context otherwise requires: (a) accounting terms not otherwise defined herein and accounting terms partly defined herein to the extent not defined, shall have the respective meanings given to them under generally accepted accounting principles; and unless otherwise provided, references to any month, quarter or year refer to a fiscal month, quarter or year as determined in accordance with the GECC fiscal calendar; (b) references to any amount as on deposit or outstanding on any particular date means such amount at the close of business on such day; (c) the words hereof, herein and hereunder and words of similar import refer to this Agreement as a whole and not to any particular provision of this Agreement; (d) references to any Section, Schedule or Exhibit are references to Sections, Schedules and Exhibits in or to this Agreement, and references to any paragraph, subsection, clause or other subdivision within any Section or definition refer to such paragraph, subsection, clause or other subdivision of such Section or definition; (e) the term including means including without limitation ; (f) references to any law or regulation refer to that law or regulation as amended from time to time and include any successor law or regulation; (g) references to any agreement refer to that agreement as from time to time amended, restated or supplemented or as the terms of such agreement are waived or modified in accordance with its terms; (h) references to any Person include that Persons successors and assigns; and (i) headings are for purposes of reference only and shall not otherwise affect the meaning or interpretation of any provision hereof.
15. Headings . The section headings hereof have been inserted for convenience of reference only and shall not be construed to affect the meaning, construction or effect of this Agreement.
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16. Counterparts . This Agreement may be executed in counterparts, all of which when so executed shall together constitute but one and the same agreement.
17. Severability . Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
18. Not Applicable to GECC in Other Capacities . Nothing in this Agreement shall affect any obligation GECC may have in any other capacity.
19. Limitation of Liability of the Trustee . Notwithstanding anything contained herein to the contrary, this instrument has been countersigned by Deutsche Bank Trust Company Delaware, not in its individual capacity but solely in its capacity as Trustee of the Trust, and in no event shall Deutsche Bank Trust Company Delaware, in its individual capacity, or any beneficial owner of the Trust have any liability for the representations, warranties, covenants, agreements or other obligations of the Trust hereunder, as to all of which recourse shall be had solely to the assets of the Trust. For all purposes of this Agreement, in the performance of any duties or obligations of the Trust thereunder, the Trustee shall be subject to, and entitled to the benefits of, the terms and provisions of Article VIII of the Trust Agreement.
20. Indemnification . The Administrator shall indemnify the Trust (and its officers, directors, employees, trustees, and agents) (the Indemnified Parties ) for, and hold them harmless against, any losses, liability or expense, including attorneys fees reasonably incurred by them (all of the foregoing being collectively referred to as Indemnified Amounts ), incurred without [gross negligence or willful misconduct] on their part, arising out of or in connection with: (i) actions taken by either of them pursuant to instructions given by the Administrator pursuant to this Agreement or (ii) the failure of the Administrator to perform its obligations hereunder. The indemnities contained in this Section shall survive the termination of this Agreement and the resignation or removal of the Administrator or the Trust.
In the event any proceeding (including any governmental investigation) shall be instituted involving any Indemnified Party pursuant to the preceding paragraph, such person shall promptly notify the Administrator in writing, and the Administrator shall have the option to assume the defense thereof, including the retention of counsel reasonably satisfactory to such Indemnified Party to represent such Indemnified Party in such proceeding and shall pay the reasonable fees and disbursements of such counsel related to such proceeding upon delivery to the Administrator of demand therefor. In any such proceeding, any Indemnified Party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Party unless (i) the Administrator has failed to assume the defense thereof, (ii) the Administrator and the Indemnified Party shall have mutually agreed to the retention of such counsel or (iii) the named parties to any such proceeding (including any impleaded parties) include both the Administrator and the Indemnified Party and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the Administrator shall not, in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one
12
separate firm (in addition to any local counsel) for all such Indemnified Parties. the Administrator shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the Administrator agrees to indemnify the Indemnified Party from and against any loss or liability by reason of such settlement or judgment. the Administrator shall not, without the prior written consent of the Indemnified Party, effect any settlement of any pending or threatened proceeding in respect of which such Indemnified Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such proceeding.
21. No Proceedings . From and after the Closing Date and until the date one year plus one day following the Termination Date, the Administrative Agent shall not, directly or indirectly, institute or cause to be instituted against the Trust any proceeding of the type referred to in the definition of Bankruptcy Event.
13
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed and delivered as of the day and year first above written.
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Exhibits 5.1 and 8.1
Mayer, Brown, Rowe &
Maw LLP
190 South La Salle Street
Chicago, Illinois 60603-3441
Main Tel (312) 782-0600
Main Fax (312) 701-7711
www.mayerbrownrowe.com
May 20, 2004
RFS Holding, L.L.C.
1600 Summer Street
Stamford, Connecticut 06927
RFS Funding Trust
1600 Summer Street
Stamford, Connecticut 06927
GE Capital Credit Card Master Note Trust
1600 Summer Street
Stamford, Connecticut 06927
Re: |
RFS Holding, L.L.C. |
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RFS Funding Trust |
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GE Capital Credit Card Master Note Trust |
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Amendment No. 1 to Registration Statement on Form S-3 |
We have acted as special counsel for RFS Holding, L.L.C., a Delaware limited liability company ( RFSHL ), RFS Funding Trust, a Delaware statutory trust, and GE Capital Credit Card Master Note Trust (the Note Trust ), as co-registrants (collectively, the Co-Registrants ) in connection with the filing by the Co-Registrants with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the Act ), of a Registration Statement on Form S-3 (Registration Nos. 333-107495, 333-107495-01 and 333-107495-02), as amended (the Registration Statement ), and the related base prospectus, dated as of the date hereof (the Base Prospectus ) and the form of prospectus supplement (together with the Base Prospectus, the Prospectus ), filed by the Co-Registrants under the Act, registering a Note Trust Certificate issued pursuant to the Amended and Restated Trust Agreement, dated as of December 19, 2002
Brussels Charlotte Chicago
Cologne Frankfurt Houston
London Los Angeles Manchester New York Palo Alto Paris
Washington, D.C.
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Mayer, Brown, Rowe & Maw LLP operates in combination with our associated English limited liability partnership in the offices listed above. |
and as amended and restated as of June 27, 2003 and as further amended by the Omnibus Amendment No. 1 to Securitization Documents (the Omnibus Amendment ), dated as of February 9, 2004 (as amended, the Trust Agreement ), among RFSHL, General Electric Capital Services, Inc. and Deutsche Bank Trust Company Delaware, as trustee, and asset-backed notes (the Notes ) secured by the Note Trust Certificate. The Note Trust Certificate represents an undivided interest in all of the property of RFS Funding Trust, including, but not limited to, receivables in a portfolio of private label credit card accounts and related assets. The Notes of a particular Series will be issued pursuant to a Master Indenture dated as of September 25, 2003 and as amended by the Omnibus Amendment (as amended, the Master Indenture ), between the Note Trust and Deutsche Bank Trust Company Americas, as indenture trustee (the Indenture Trustee ), and a related Indenture Supplement (the Indenture Supplement and together with the Master Indenture, the Indenture ), between the Note Trust and the Indenture Trustee, substantially in the form filed as Exhibit 4.2 to the Registration Statement. Unless otherwise defined herein, all capitalized terms used herein shall have the meanings assigned to them in the Master Indenture.
We have examined executed copies of the Registration Statement, the Master Indenture, the form of Indenture Supplement, the Trust Agreement and the Transfer Agreement, dated as of September 25, 2003 and as amended by the Omnibus Amendment (as amended, the Transfer Agreement ), between RFSHL and the Note Trust and such other documents as we have deemed necessary for the purposes of this opinion (collectively, the Transaction Documents ).
We have assumed for the purposes of the opinions set forth below that the Notes will be issued in Series created as described in the Registration Statement and that the Notes will, at RFSHLs direction, be sold by the Note Trust for reasonably equivalent consideration.
We have also assumed that: (i) the Transaction Documents, the Note Trust Certificate and the Notes have been or will be duly authorized by all necessary corporate action; (ii) the Notes will be duly issued, executed, authenticated and delivered in accordance with the provisions of the Indenture; (iii) the issuance of the Note Trust Certificate to RFSHL pursuant to the Trust Agreement, the transfer of the Note Trust Certificate to the Note Trust pursuant to the Transfer Agreement and the pledge of the Note Trust Certificate pursuant to the Indenture were not contrary to any applicable law, rule, regulation or order; and (iv) the Note Trust Certificate has been duly executed, authenticated and delivered in the name of the Indenture Trustee in accordance with the terms of the Trust Agreement.
In expressing our opinion, we have assumed, without independent verification, that the facts presented in the Transaction Documents are correct, the Transaction Documents have been or will be consummated according to their terms, and the factual representations of RFSHL and its affiliates are correct. In addition, we have assumed that the parties to each Transaction Document will satisfy their respective obligations thereunder. We express no opinion with respect to any series of Notes or any Note Trust Certificate for which we do not act as counsel to you.
2
The opinion set forth in paragraph 3 of this letter is based upon the applicable provisions of the Internal Revenue Code of 1986, as amended, Treasury regulations promulgated and proposed thereunder, current positions of the Internal Revenue Service (the IRS ) contained in published Revenue Rulings and Revenue Procedures, current administrative positions of the IRS and existing judicial decisions. This opinion is subject to the explanations and qualifications set forth under the caption Federal Income Tax Consequences in the Prospectus. No tax rulings will be sought from the IRS with respect to any of the matters discussed herein.
On the basis of the foregoing examination and assumptions, and upon consideration of applicable law, it is our opinion that:
1. When the Indenture Supplement for a Series of Notes has been duly and validly authorized, executed and delivered by the Note Trust and the Indenture Trustee substantially in the form filed as an exhibit to the Registration Statement and the Notes of that Series have been duly executed, authenticated, delivered and sold as contemplated in the Master Indenture and the Registration Statement, such Notes will be binding obligations of the Note Trust.
2 The Note Trust Certificate is legally and validly issued, fully paid and non-assessable and the holder of the Note Trust Certificate will be entitled to the benefits of the Trust Agreement.
3. While the Tax Description does not purport to discuss all possible federal income tax ramifications of the purchase, ownership, and disposition of the Notes, particularly to U.S. purchasers subject to special rules under the Internal Revenue Code of 1986, as amended, we hereby adopt and confirm the opinions set forth in the Prospectus under the heading Federal Income Tax Consequences, which discusses the federal income tax consequences of the purchase, ownership and disposition of the Notes. There can be no assurance, however, that the tax conclusions presented therein will not be successfully challenged by the IRS, or significantly altered by new legislation, changes in IRS positions or judicial decisions, any of which challenges or alterations may be applied retroactively with respect to completed transactions. We note, however, that the forms of prospectus supplement filed with the Registration Statement does not relate to a specific transaction. Accordingly, the above referenced description of the federal income tax consequences may, under certain circumstances, require modification when an actual transaction is undertaken.
We hereby consent to the filing of this letter as an exhibit to the Registration Statement and to the references to this firm under the headings Federal Income Tax Consequences in the Base Prospectus and under the heading Legal Matters in the prospectus supplement, without admitting that we are experts within the meaning of the Act or the rules and regulations of the Commission issued thereunder, with respect to any part of the Registration Statement, including this opinion as an exhibit.
Our opinion set forth above is subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors
3
rights generally and general equitable principles (whether considered in a proceeding in equity or at law) and by the discretion of the court before which any proceeding therefore may be brought.
We are members of the Bar of the State of Illinois and New York, and we do not express any opinion herein concerning any law other than the law of the State of New York, the General Corporation Law of Delaware and the Federal law of the United States.
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/s/ Mayer, Brown, Rowe & Maw LLP |
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MAYER, BROWN, ROWE & MAW LLP |
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4
Exhibit 25.1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
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STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939 OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE |
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CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO SECTION 305(b)(2) |
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DEUTSCHE BANK TRUST COMPANY AMERICAS
(formerly BANKERS TRUST COMPANY)
(Exact name of trustee as specified in its charter)
NEW YORK |
13-4941247 |
(Jurisdiction of Incorporation or
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(I.R.S. Employer
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60 WALL STREET
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10005 |
(Address of principal
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(Zip Code) |
Deutsche
Bank Trust Company Americas
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(Name, address and telephone number of agent for service)
GE Capital Credit Card Master Note Trust
(Exact name of registrant as specified in its charter)
Delaware |
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20-0268039 |
(State or other
jurisdiction
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(IRS Employer
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1600
Summer Street
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(Address,
including zip code, and telephone number,
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RFS Funding Trust |
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RFS Holding, L.L.C. |
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(Exact name of registrant as specified in its charter) |
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(Exact name of registrant as specified in its charter) |
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Delaware |
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06-1495145 |
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Delaware |
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57-1173164 |
(State or other
jurisdiction of
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(IRS Employer
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(State or other
jurisdiction of
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(IRS Employer
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1600
Summer Street
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1600
Summer Street
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(Address,
including zip code, and telephone number, including
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(Address,
including zip code, and telephone number, including
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Asset Backed Notes
(Title of the Indenture securities)
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising authority to which it is subject.
Name |
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Address |
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Federal Reserve Bank (2nd District) |
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New York, NY |
Federal Deposit Insurance Corporation |
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Washington, D.C. |
New York State Banking Department |
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Albany, NY |
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
Item 2. Affiliations with Obligor.
If the obligor is an affiliate of the Trustee, describe each such affiliation.
None.
Item 3. -15. Not Applicable
Item 16. List of Exhibits.
Exhibit 1 - |
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Restated Organization Certificate of Bankers Trust Company dated August 6, 1998, |
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Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated September 25, 1998, |
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Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated December 16, 1998, |
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and Certificate of Amendment of the Organization Certificate of Bankers Trust Company dated February 27, 2002, copies attached. |
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Exhibit 2 - |
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Certificate of Authority to commence business - Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 33-21047. |
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Exhibit 3 - |
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Authorization of the Trustee to exercise corporate trust powers - Incorporated herein by reference to Exhibit 2 filed with Form T-1 Statement, Registration No. 33-21047. |
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Exhibit 4 - |
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Existing By-Laws of Deutsche Bank Trust Company Americas, as amended on April 15, 2002. Copy attached. |
2
Exhibit 5 - |
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Not applicable. |
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Exhibit 6 - |
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Consent of Bankers Trust Company required by Section 321(b) of the Act. - Incorporated herein by reference to Exhibit 4 filed with Form T-1 Statement, Registration No. 22-18864. |
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Exhibit 7 - |
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The latest report of condition of Deutsche Bank Trust Company Americas dated as of September 30, 2003. Copy attached separately. |
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Exhibit 8 - |
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Not Applicable. |
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Exhibit 9 - |
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Not Applicable. |
3
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as amended, the trustee, Deutsche Bank Trust Company Americas, a corporation organized and existing under the laws of the State of New York, has duly caused this statement of eligibility to be signed on its behalf by the undersigned, thereunto duly authorized, all in The City of New York, and State of New York, on this 20th day of April 2004.
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DEUTSCHE BANK TRUST COMPANY AMERICAS |
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By: |
/s/ Susan Barstock |
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Susan Barstock |
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Vice President |
4
State of New York,
Banking Department
I, MANUEL KURSKY , Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled RESTATED ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8007 of the Banking Law, dated August 6, 1998, providing for the restatement of the Organization Certificate and all amendments into a single certificate.
Witness, my hand and official seal of the Banking Department at the City of New York, this 31st day of August in the Year of our Lord one thousand nine hundred and ninety-eight .
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/s/ Manuel Kursky |
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Deputy Superintendent of Banks |
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RESTATED
ORGANIZATION
CERTIFICATE
OF
BANKERS TRUST COMPANY
Under Section 8007
Of the Banking Law
Bankers Trust Company
1301 6 th Avenue, 8 th Floor
New York, N.Y. 10019
Counterpart Filed in the Office of the Superintendent of Banks, State of New York, August 31, 1998
RESTATED
ORGANIZATION CERTIFICATE
OF
BANKERS TRUST
Under Section 8007 of the Banking Law
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and an Assistant Secretary and a Vice President and an Assistant Secretary of BANKERS TRUST COMPANY, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of the corporation was filed by the Superintendent of Banks of the State of New York on March 5, 1903.
3. The text of the organization certificate, as amended heretofore, is hereby restated without further amendment or change to read as herein-set forth in full, to wit:
Certificate of
Organization
of
Bankers Trust Company
Know All Men By These Presents That we, the undersigned, James A. Blair, James G. Cannon, E. C. Converse, Henry P. Davison, Granville W. Garth, A. Barton Hepburn, Will Logan, Gates W. McGarrah, George W. Perkins, William H. Porter, John F. Thompson, Albert H. Wiggin, Samuel Woolverton and Edward F. C. Young, all being persons of full age and citizens of the United States, and a majority of us being residents of the State of New York, desiring to form a corporation to be known as a Trust Company, do hereby associate ourselves together for that purpose under and pursuant to the laws of the State of New York, and for such purpose we do hereby, under our respective hands and seals, execute and duly acknowledge this Organization Certificate in duplicate, and hereby specifically state as follows, to wit:
I. The name by which the said corporation shall be known is Bankers Trust Company.
II. The place where its business is to be transacted is the City of New York, in the State of New York.
III. Capital Stock: The amount of capital stock which the corporation is hereafter to have is Three Billion One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1,000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.
(a) Common Stock
1. Dividends: Subject to all of the rights of the Series Preferred Stock, dividends may be declared and paid or set apart for payment upon the Common Stock out of any assets or funds of the corporation legally available for the payment of dividends.
2. Voting Rights: Except as otherwise expressly provided with respect to the Series Preferred Stock or with respect to any series of the Series Preferred Stock, the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes, each holder of the Common Stock being entitled to one vote for each share thereof held.
3. Liquidation: Upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, and after the holders of the Series Preferred Stock of each series shall have been paid in full the amounts to which they respectively shall be entitled, or a sum sufficient for the payment in full set aside, the remaining net assets of the corporation shall be distributed pro rata to the holders of the Common Stock in accordance with their respective rights and interests, to the exclusion of the holders of the Series Preferred Stock.
4. Preemptive Rights: No holder of Common Stock of the corporation shall be entitled, as such, as a matter of right, to subscribe for or purchase any part of any new or additional issue of stock of any class or series whatsoever, any rights or options to purchase stock of any class or series whatsoever, or any securities convertible into, exchangeable for or carrying rights or options to purchase stock of any class or series whatsoever, whether now or hereafter authorized, and whether issued for cash or other consideration, or by way of dividend or other distribution.
(b) Series Preferred Stock
1. Board Authority: The Series Preferred Stock may be issued from time to time by the Board of Directors as herein provided in one or more series. The designations, relative rights, preferences and limitations of the Series Preferred Stock, and particularly of the shares of each series thereof, may, to the extent permitted by law, be similar to or may differ from those of any other series. The Board of Directors of the corporation is hereby expressly granted authority, subject to the provisions of this Article III, to issue from time to time Series Preferred Stock in one or more series and to fix from time to time before issuance thereof, by filing a certificate pursuant to the Banking Law, the number of shares in each such series of such class and all designations, relative rights (including the right, to the extent permitted by law, to convert into shares of any class or into shares of any series of any class), preferences and limitations of the shares in each such series, including, buy without limiting the generality of the foregoing, the following:
(i) The number of shares to constitute such series (which number may at any time, or from time to time, be increased or decreased by the Board of Directors, notwithstanding that shares of the series may be outstanding at the time of such increase or decrease, unless the Board of Directors shall have otherwise provided in creating such series) and the distinctive designation thereof;
(ii) The dividend rate on the shares of such series, whether or not dividends on the shares of such series shall be cumulative, and the date or dates, if any, from which dividends thereon shall be cumulative;
(iii) Whether or not the share of such series shall be redeemable, and, if redeemable, the date or dates upon or after which they shall be redeemable, the amount or amounts per share (which shall be, in the case of each share, not less than its preference upon involuntary liquidation,
plus an amount equal to all dividends thereon accrued and unpaid, whether or not earned or declared) payable thereon in the case of the redemption thereof, which amount may vary at different redemption dates or otherwise as permitted by law;
(iv) The right, if any, of holders of shares of such series to convert the same into, or exchange the same for, Common Stock or other stock as permitted by law, and the terms and conditions of such conversion or exchange, as well as provisions for adjustment of the conversion rate in such events as the Board of Directors shall determine;
(v) The amount per share payable on the shares of such series upon the voluntary and involuntary liquidation, dissolution or winding up of the corporation;
(vi) Whether the holders of shares of such series shall have voting power, full or limited, in addition to the voting powers provided by law and, in case additional voting powers are accorded, to fix the extent thereof; and
(vii) Generally to fix the other rights and privileges and any qualifications, limitations or restrictions of such rights and privileges of such series, provided, however, that no such rights, privileges, qualifications, limitations or restrictions shall be in conflict with the organization certificate of the corporation or with the resolution or resolutions adopted by the Board of Directors providing for the issue of any series of which there are shares outstanding.
All shares of Series Preferred Stock of the same series shall be identical in all respects, except that shares of any one series issued at different times may differ as to dates, if any, from which dividends thereon may accumulate. All shares of Series Preferred Stock of all series shall be of equal rank and shall be identical in all respects except that to the extent not otherwise limited in this Article III any series may differ from any other series with respect to any one or more of the designations, relative rights, preferences and limitations described or referred to in subparagraphs (I) to (vii) inclusive above.
2. Dividends: Dividends on the outstanding Series Preferred Stock of each series shall be declared and paid or set apart for payment before any dividends shall be declared and paid or set apart for payment on the Common Stock with respect to the same quarterly dividend period. Dividends on any shares of Series Preferred Stock shall be cumulative only if and to the extent set forth in a certificate filed pursuant to law. After dividends on all shares of Series Preferred Stock (including cumulative dividends if and to the extent any such shares shall be entitled thereto) shall have been declared and paid or set apart for payment with respect to any quarterly dividend period, then and not otherwise so long as any shares of Series Preferred Stock shall remain outstanding, dividends may be declared and paid or set apart for payment with respect to the same quarterly dividend period on the Common Stock out the assets or funds of the corporation legally available therefor.
All Shares of Series Preferred Stock of all series shall be of equal rank, preference and priority as to dividends irrespective of whether or not the rates of dividends to which the same shall be entitled shall be the same and when the stated dividends are not paid in full, the shares of all series of the Series Preferred Stock shall share ratably in the payment thereof in accordance with the sums which would be payable on such shares if all dividends were paid in full, provided, however, that any two or more series of the Series Preferred Stock may differ from each other as to the existence and extent of the right to cumulative dividends, as aforesaid.
3. Voting Rights: Except as otherwise specifically provided in the certificate filed pursuant to law with respect to any series of the Series Preferred Stock, or as otherwise provided by law, the Series Preferred Stock shall not have any right to vote for the election of directors or for any other purpose and the Common Stock shall have the exclusive right to vote for the election of directors and for all other purposes.
4. Liquidation: In the event of any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, each series of Series Preferred Stock shall have preference and priority over the Common Stock for payment of the amount to which each outstanding series of Series Preferred Stock shall be entitled in accordance with the provisions thereof and each holder of Series Preferred Stock shall be entitled to be paid in full such amount, or have a sum sufficient for the payment in full set aside, before any payments shall be made to the holders of the Common Stock. If, upon liquidation, dissolution or winding up of the corporation, the assets of the corporation or proceeds thereof, distributable among the holders of the shares of all series of the Series Preferred Stock shall be insufficient to pay in full the preferential amount aforesaid, then such assets, or the proceeds thereof, shall be distributed among such holders ratably in accordance with the respective amounts which would be payable if all amounts payable thereon were paid in full. After the payment to the holders of Series Preferred Stock of all such amounts to which they are entitled, as above provided, the remaining assets and funds of the corporation shall be divided and paid to the holders of the Common Stock.
5. Redemption: In the event that the Series Preferred Stock of any series shall be made redeemable as provided in clause (iii) of paragraph 1 of section (b) of this Article III, the corporation, at the option of the Board of Directors, may redeem at any time or times, and from time to time, all or any part of any one or more series of Series Preferred Stock outstanding by paying for each share the then applicable redemption price fixed by the Board of Directors as provided herein, plus an amount equal to accrued and unpaid dividends to the date fixed for redemption, upon such notice and terms as may be specifically provided in the certificate filed pursuant to law with respect to the series.
6. Preemptive Rights: No holder of Series Preferred Stock of the corporation shall be entitled, as such, as a matter or right, to subscribe for or purchase any part of any new or additional issue of stock of any class or series whatsoever, any rights or options to purchase stock of any class or series whatsoever, or any securities convertible into, exchangeable for or carrying rights or options to purchase stock of any class or series whatsoever, whether now or hereafter authorized, and whether issued for cash or other consideration, or by way of dividend.
(c) Provisions relating to Floating Rate Non-Cumulative Preferred Stock, Series A. (Liquidation value $1,000,000 per share.)
1. Designation: The distinctive designation of the series established hereby shall be Floating Rate Non-Cumulative Preferred Stock, Series A (hereinafter called Series A Preferred Stock).
2. Number: The number of shares of Series A Preferred Stock shall initially be 250 shares. Shares of Series A Preferred Stock redeemed, purchased or otherwise acquired by the corporation shall be cancelled and shall revert to authorized but unissued Series Preferred Stock undesignated as to series.
3. Dividends:
(a) Dividend Payments Dates. Holders of the Series A Preferred Stock shall be entitled to receive non-cumulative cash dividends when, as and if declared by the Board of Directors of the corporation, out of funds legally available therefor, from the date of original issuance of such shares (the Issue Date) and such dividends will be payable on March 28, June 28, September 28 and December 28 of each year (Dividend Payment Date) commencing September 28, 1990, at a rate per annum as determined in paragraph 3(b) below. The period beginning on the Issue Date and ending on the day preceding the first Dividend Payment Date and each successive period beginning on a Dividend Payment Date and ending on the date preceding the next succeeding Dividend Payment Date is herein called a Dividend Period. If any Dividend Payment Date shall be, in The City of New York, a Sunday or a legal holiday or a day on which banking institutions are authorized by law to close, then payment will be postponed to the next succeeding business day with the same force and effect as if made on the Dividend Payment Date, and no interest shall accrue for such Dividend Period after such Dividend Payment Date.
(b) Dividend Rate. The dividend rate from time to time payable in respect of Series A Preferred Stock (the Dividend Rate) shall be determined on the basis of the following provisions:
(i) On the Dividend Determination Date, LIBOR will be determined on the basis of the offered rates for deposits in U.S. dollars having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date, as such rates appear on the Reuters Screen LIBO Page as of 11:00 A.M. London time, on such Dividend Determination Date. If at least two such offered rates appear on the Reuters Screen LIBO Page, LIBOR in respect of such Dividend Determination Dates will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of such offered rates. If fewer than those offered rates appear, LIBOR in respect of such Dividend Determination Date will be determined as described in paragraph (ii) below.
(ii) On any Dividend Determination Date on which fewer than those offered rates for the applicable maturity appear on the Reuters Screen LIBO Page as specified in paragraph (I) above, LIBOR will be determined on the basis of the rates at which deposits in U.S. dollars having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date and in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market at such time are offered by three major banks in the London interbank market selected by the corporation at approximately 11:00 A.M., London time, on such Dividend Determination Date to prime banks in the London market. The corporation will request the principal London office of each of such banks to provide a quotation of its rate. If at least two such quotations are provided, LIBOR in respect of such Dividend Determination Date will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of such quotations. If fewer than two quotations are provided, LIBOR in respect of such Dividend Determination Date will be the arithmetic mean (rounded to the nearest one-hundredth of a percent, with five one-thousandths of a percent rounded upwards) of the rates quoted by three major banks in New York City selected by the corporation at approximately 11:00 A.M., New York City time, on such Dividend Determination Date for loans in U.S. dollars to leading European banks having a maturity of three months commencing on the second London Business Day immediately following such Dividend Determination Date and in a principal amount of not less than $1,000,000 that is representative of a single transaction in such market at such time; provided, however, that if the banks selected as aforesaid by the corporation are not quoting as aforementioned in this sentence, then, with respect to such Dividend Period, LIBOR for the preceding Dividend Period will be continued as LIBOR for such Dividend Period.
(ii) The Dividend Rate for any Dividend Period shall be equal to the lower of 18% or 50 basis points above LIBOR for such Dividend Period as LIBOR is determined by sections (I) or (ii) above.
As used above, the term Dividend Determination Date shall mean, with respect to any Dividend Period, the second London Business Day prior to the commencement of such Dividend Period; and the term London Business Day shall mean any day that is not a Saturday or Sunday and that, in New York City, is not a day on which banking institutions generally are authorized or required by law or executive order to close and that is a day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.
4. Voting Rights: The holders of the Series A Preferred Stock shall have the voting power and rights set forth in this paragraph 4 and shall have no other voting power or rights except as otherwise may from time to time be required by law.
So long as any shares of Series A Preferred Stock remain outstanding, the corporation shall not, without the affirmative vote or consent of the holders of at least a majority of the votes of the Series Preferred Stock entitled to vote outstanding at the time, given in person or by proxy, either in writing or by
resolution adopted at a meeting at which the holders of Series A Preferred Stock (alone or together with the holders of one or more other series of Series Preferred Stock at the time outstanding and entitled to vote) vote separately as a class, alter the provisions of the Series Preferred Stock so as to materially adversely affect its rights; provided, however, that in the event any such materially adverse alteration affects the rights of only the Series A Preferred Stock, then the alteration may be effected with the vote or consent of at least a majority of the votes of the Series A Preferred Stock; provided, further, that an increase in the amount of the authorized Series Preferred Stock and/or the creation and/or issuance of other series of Series Preferred Stock in accordance with the organization certificate shall not be, nor be deemed to be, materially adverse alterations. In connection with the exercise of the voting rights contained in the preceding sentence, holders of all series of Series Preferred Stock which are granted such voting rights (of which the Series A Preferred Stock is the initial series) shall vote as a class (except as specifically provided otherwise) and each holder of Series A Preferred Stock shall have one vote for each share of stock held and each other series shall have such number of votes, if any, for each share of stock held as may be granted to them.
The foregoing voting provisions will not apply if, in connection with the matters specified, provision is made for the redemption or retirement of all outstanding Series A Preferred Stock.
5. Liquidation: Subject to the provisions of section (b) of this Article III, upon any liquidation, dissolution or winding up of the corporation, whether voluntary or involuntary, the holders of the Series A Preferred Stock shall have preference and priority over the Common Stock for payment out of the assets of the corporation or proceeds thereof, whether from capital or surplus, of $1,000,000 per share (the liquidation value) together with the amount of all dividends accrued and unpaid thereon, and after such payment the holders of Series A Preferred Stock shall be entitled to no other payments.
6. Redemption: Subject to the provisions of section (b) of this Article III, Series A Preferred Stock may be redeemed, at the option of the corporation in whole or part, at any time or from time to time at a redemption price of $1,000,000 per share, in each case plus accrued and unpaid dividends to the date of redemption.
At the option of the corporation, shares of Series A Preferred Stock redeemed or otherwise acquired may be restored to the status of authorized but unissued shares of Series Preferred Stock.
In the case of any redemption, the corporation shall give notice of such redemption to the holders of the Series A Preferred Stock to be redeemed in the following manner: a notice specifying the shares to be redeemed and the time and place of redemption (and, if less than the total outstanding shares are to be redeemed, specifying the certificate numbers and number of shares to be redeemed) shall be mailed by first class mail, addressed to the holders of record of the Series A Preferred Stock to be redeemed at their respective addresses as the same shall appear upon the books of the corporation, not more than sixty (60) days and not less than thirty (30) days previous to the date fixed for redemption. In the event such notice is not given to any shareholder such failure to give notice shall not affect the notice given to other shareholders. If less than the whole amount of outstanding Series A Preferred Stock is to be redeemed, the shares to be redeemed shall be selected by lot or pro rata in any manner determined by resolution of the Board of Directors to be fair and proper. From and after the date fixed in any such notice as the date of redemption (unless default shall be made by the corporation in providing moneys at the time and place of redemption for the payment of the redemption price) all dividends upon the Series A Preferred Stock so called for redemption shall cease to accrue, and all rights of the holders of said Series A Preferred Stock as stockholders in the corporation, except the right to receive the redemption price (without interest) upon surrender of the certificate representing the Series A Preferred Stock so called for redemption, duly endorsed for transfer, if required, shall cease and terminate. The corporations obligation to provide moneys in accordance with the preceding sentence shall be deemed fulfilled if, on or before the redemption date, the corporation shall deposit with a bank or trust company (which may be an affiliate of the corporation) having an office in the Borough of Manhattan, City of New York, having a capital and surplus of at least $5,000,000 funds necessary for such redemption, in trust with irrevocable instructions that such funds be
applied to the redemption of the shares of Series A Preferred Stock so called for redemption. Any interest accrued on such funds shall be paid to the corporation from time to time. Any funds so deposited and unclaimed at the end of two (2) years from such redemption date shall be released or repaid to the corporation, after which the holders of such shares of Series A Preferred Stock so called for redemption shall look only to the corporation for payment of the redemption price.
IV. The name, residence and post office address of each member of the corporation are as follows:
Name |
|
Residence |
|
Post Office Address |
|
|
|
|
|
James A. Blair |
|
9
West 50
th
Street,
|
|
33
Wall Street,
|
|
|
|
|
|
James G. Cannon |
|
72
East 54
th
Street,
|
|
14
Nassau Street,
|
|
|
|
|
|
E. C. Converse |
|
3
East 78
th
Street,
|
|
139
Broadway,
|
|
|
|
|
|
Henry P. Davison |
|
Englewood,
|
|
2
Wall Street,
|
|
|
|
|
|
Granville W. Garth |
|
160
West 57
th
Street,
|
|
33
Wall Street
|
|
|
|
|
|
A. Barton Hepburn |
|
205
West 57
th
Street
|
|
83
Cedar Street
|
|
|
|
|
|
William Logan |
|
Montclair,
|
|
13
Nassau Street
|
|
|
|
|
|
George W. Perkins |
|
Riverdale,
|
|
23
Wall Street,
|
|
|
|
|
|
William H. Porter |
|
56
East 67
th
Street
|
|
270
Broadway,
|
|
|
|
|
|
John F. Thompson |
|
Newark,
|
|
143
Liberty Street,
|
|
|
|
|
|
Albert H. Wiggin |
|
42
West 49
th
Street,
|
|
214
Broadway,
|
|
|
|
|
|
Samuel Woolverton |
|
Mount
Vernon,
|
|
34
Wall Street,
|
|
|
|
|
|
Edward F.C. Young |
|
85
Glenwood Avenue,
|
|
1
Exchange Place,
|
V. The existence of the corporation shall be perpetual.
VI. The subscribers, the members of the said corporation, do, and each for himself does, hereby declare that he will accept the responsibilities and faithfully discharge the duties of a director therein, if elected to act as such, when authorized accordance with the provisions of the Banking Law of the State of New York.
VII. The number of directors of the corporation shall not be less than 10 nor more than 25.
4. The foregoing restatement of the organization certificate was authorized by the Board of Directors of the corporation at a meeting held on July 21, 1998.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 6th day of August, 1998.
|
/s/ James T. Byrne, Jr. |
|
|
James T. Byrne, Jr. |
|
|
Managing Director and Secretary |
|
|
|
|
|
|
|
|
/s/ Lea Lahtinen |
|
|
Lea Lahtinen |
|
|
Vice President and Assistant Secretary |
|
|
|
|
|
|
|
|
/s/ Lea Lahtinen |
|
|
Lea Lahtinen |
|
State of New York |
) |
|
) ss: |
County of New York |
) |
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true.
|
/s/ Lea Lahtinen |
|
|
Lea Lahtinen |
|
Sworn to before me this
6th day of August, 1998.
/s/ Sandra L. West |
|
Notary Public |
|
SANDRA L. WEST
|
|
State of New York,
Banking Department
I, MANUEL KURSKY , Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the Banking Law, dated September 16, 1998, providing for an increase in authorized capital stock from $3,001,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,000 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New York, this 25th day of September in the Year of our Lord one thousand nine hundred and ninety-eight .
|
/s/ Manuel Kursky |
|
|
Deputy Superintendent of Banks |
|
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and Secretary and a Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith.
4. Article III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows:
III. The amount of capital stock which the corporation is hereafter to have is Three Billion, One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,001,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1000 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.
is hereby amended to read as follows:
III. The amount of capital stock which the corporation is hereafter to have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1500 shares with a
par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.
5. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 25th day of September, 1998
|
/s/ James T. Byrne, Jr. |
|
|
James T. Byrne, Jr. |
|
|
Managing Director and Secretary |
|
|
|
|
|
|
|
|
/s/ Lea Lahtinen |
|
|
Lea Lahtinen |
|
|
Vice President and Assistant Secretary |
|
State of New York |
) |
|
) ss: |
County of New York |
) |
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true.
|
/s/ Lea Lahtinen |
|
|
Lea Lahtinen |
|
Sworn to before me this 25 th day
of September, 1998
/s/ Sandra L. West |
|
Notary Public |
|
SANDRA L. WEST
|
|
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY Under Section 8005 of the Banking Law, dated December 16, 1998, providing for an increase in authorized capital stock from $3,501,666,670 consisting of 200,166,667 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock to $3,627,308,670 consisting of 212,730,867 shares with a par value of $10 each designated as Common Stock and 1,500 shares with a par value of $1,000,000 each designated as Series Preferred Stock.
Witness, my hand and official seal of the Banking Department at the City of New York, this 18th day of December in the Year of our Lord one thousand nine hundred and ninety-eight .
|
/s/ P. Vincent Conlon |
|
|
Deputy Superintendent of Banks |
|
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing Director and Secretary and a Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th of March, 1903.
3. The organization certificate as heretofore amended is hereby amended to increase the aggregate number of shares which the corporation shall have authority to issue and to increase the amount of its authorized capital stock in conformity therewith.
4. Article III of the organization certificate with reference to the authorized capital stock, the number of shares into which the capital stock shall be divided, the par value of the shares and the capital stock outstanding, which reads as follows:
III. The amount of capital stock which the corporation is hereafter to have is Three Billion, Five Hundred One Million, Six Hundred Sixty-Six Thousand, Six Hundred Seventy Dollars ($3,501,666,670), divided into Two Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven (200,166,667) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.
is hereby amended to read as follows:
III. The amount of capital stock which the corporation is hereafter to have is Three Billion, Six Hundred Twenty-Seven Million, Three Hundred Eight Thousand, Six Hundred Seventy Dollars ($3,627,308,670), divided into Two Hundred Twelve Million, Seven Hundred Thirty Thousand, Eight Hundred Sixty- Seven (212,730,867) shares with a par value of $10 each designated as Common Stock and 1500 shares with a par value of One Million Dollars ($1,000,000) each designated as Series Preferred Stock.
5. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 16th day of December, 1998
|
/s/ James T. Byrne, Jr. |
|
|
James T. Byrne, Jr. |
|
|
Managing Director and Secretary |
|
|
|
|
|
|
|
|
/s/ Lea Lahtinen |
|
|
Lea Lahtinen |
|
|
Vice President and Assistant Secretary |
|
State of New York |
) |
|
) ss: |
County of New York |
) |
Lea Lahtinen, being fully sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements herein contained are true.
|
/s/ Lea Lahtinen |
|
|
Lea Lahtinen |
|
Sworn to before me this
16
th
day
of December, 1998
/s/ Sandra L. West |
|
Notary Public |
|
SANDRA L. WEST
|
|
BANKERS TRUST COMPANY
ASSISTANT SECRETARYS CERTIFICATE
I, Lea Lahtinen, Vice President and Assistant Secretary of Bankers Trust Company, a corporation duly organized and existing under the laws of the State of New York, the United States of America, do hereby certify that attached copy of the Certificate of Amendment of the Organization Certificate of Bankers Trust Company, dated February 27, 2002, providing for a change of name of Bankers Trust Company to Deutsche Bank Trust Company Americas and approved by the New York State Banking Department on March 14, 2002 to effective on April 15, 2002, is a true and correct copy of the original Certificate of Amendment of the Organization Certificate of Bankers Trust Company on file in the Banking Department, State of New York.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the seal of Bankers Trust Company this 4th day of April, 2002.
[SEAL]
|
/s/ Lea Lahtinen |
|
|
Lea Lahtinen, Vice President and Assistant Secretary |
|
|
Bankers Trust Company |
|
State of New York |
) |
|
) ss.: |
County of New York |
) |
On the 4th day of April in the year 2002 before me, the undersigned, a Notary Public in and for said state, personally appeared Lea Lahtinen, personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her capacity, and that by her signature on the instrument, the individual, or the person on behalf of which the individual acted, executed the instrument.
/s/ Sonja K. Olsen |
|
Notary Public |
|
|
SONJA K. OLSEN |
|
|
Notary Public, State of New York |
|
|
No. 01OL4974457 |
|
|
Qualified in New York County |
|
|
Commission Expires November 13, 2002 |
|
State of New York,
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New York, DO HEREBY APPROVE the annexed Certificate entitled CERTIFICATE OF AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY under Section 8005 of the Banking Law dated February 27, 2002, providing for a change of name of BANKERS TRUST COMPANY to DEUTSCHE BANK TRUST COMPANY AMERICAS.
Witness, my hand and official seal of the Banking Department at the City of New York, this 14th day of March two thousand and two.
|
/s/ P. Vincent Conlon |
|
Deputy Superintendent of Banks |
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF
BANKERS TRUST COMPANY
Under Section 8005 of the Banking Law
We, James T. Byrne Jr., and Lea Lahtinen, being respectively the Secretary, and Vice President and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the Superintendent of Banks on the 5th day of March, 1903.
3. Pursuant to Section 8005 of the Banking Law, attached hereto as Exhibit A is a certificate issued by the State of New York, Banking Department listing all of the amendments to the Organization Certificate of Bankers Trust Company since its organization that have been filed in the Office of the Superintendent of Banks.
4. The organization certificate as heretofore amended is hereby amended to change the name of Bankers Trust Company to Deutsche Bank Trust Company Americas to be effective on April 15, 2002.
5. The first paragraph number 1 of the organization of Bankers Trust Company with the reference to the name of the Bankers Trust Company, which reads as follows:
1. The name of the corporation is Bankers Trust Company.
is hereby amended to read as follows effective on April 15, 2002:
1. The name of the corporation is Deutsche Bank Trust Company Americas.
6. The foregoing amendment of the organization certificate was authorized by unanimous written consent signed by the holder of all outstanding shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this 27th day of February, 2002.
|
/s/ James T. Byrne Jr. |
|
|
James T. Byrne Jr. |
|
|
Secretary |
|
|
|
|
|
|
|
|
/s/ Lea Lahtinen |
|
|
Lea Lahtinen |
|
|
Vice President and Assistant Secretary |
|
State of New York |
) |
|
) ss.: |
County of New York |
) |
Lea Lahtinen, being duly sworn, deposes and says that she is a Vice President and an Assistant Secretary of Bankers Trust Company, the corporation described in the foregoing certificate; that she has read the foregoing certificate and knows the contents thereof, and that the statements therein contained are true.
|
/s/ Lea Lahtinen |
|
Lea Lahtinen |
Sworn to before me this
27th day
of February, 2002
/s/ Sandra L. West |
|
Notary Public |
|
SANDRA L. WEST |
|
|
Notary Public, State of New York |
|
|
No. 01WE4942401 |
|
|
Qualified in New York County |
|
|
Commission Expires September 19, 2002 |
|
EXHIBIT A
State of New York
Banking Department
I, P. VINCENT CONLON, Deputy Superintendent of Banks of the State of New York, DO HEREBY CERTIFY:
THAT, the records in the Office of the Superintendent of Banks indicate that BANKERS TRUST COMPANY is a corporation duly organized and existing under the laws of the State of New York as a trust company, pursuant to Article III of the Banking Law; and
THAT, the Organization Certificate of BANKERS TRUST COMPANY was filed in the Office of the Superintendent of Banks on March 5, 1903, and such corporation was authorized to commence business on March 24, 1903; and
THAT, the following amendments to its Organization Certificate have been filed in the Office of the Superintendent of Banks as of the dates specified:
Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on January 14, 1905
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on August 4, 1909
Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on February 1, 1911
Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on June 17, 1911
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on August 8, 1911
Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on August 8, 1911
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on March 21, 1912
Certificate of Amendment of Certificate of Incorporation providing for a decrease in number of directors - filed on January 15, 1915
1
Certificate of Amendment of Certificate of Incorporation providing for a decrease in number of directors - filed on December 18, 1916
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on April 20, 1917
Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on April 20, 1917
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on December 28, 1918
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on December 4, 1919
Certificate of Amendment of Certificate of Incorporation providing for an increase in number of directors - filed on January 15, 1926
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on June 12, 1928
Certificate of Amendment of Certificate of Incorporation providing for a change in shares - filed on April 4, 1929
Certificate of Amendment of Certificate of Incorporation providing for a minimum and maximum number of directors - filed on January 11, 1934
Certificate of Extension to perpetual - filed on January 13, 1941
Certificate of Amendment of Certificate of Incorporation providing for a minimum and maximum number of directors - filed on January 13, 1941
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on December 11, 1944
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed January 30, 1953
Restated Certificate of Incorporation - filed November 6, 1953
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on April 8, 1955
2
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on February 1, 1960
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on July 14, 1960
Certificate of Amendment of Certificate of Incorporation providing for a change in shares - filed on September 30, 1960
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on January 26, 1962
Certificate of Amendment of Certificate of Incorporation providing for a change in shares - filed on September 9, 1963
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on February 7, 1964
Certificate of Amendment of Certificate of Incorporation providing for an increase in capital stock - filed on February 24, 1965
Certificate of Amendment of the Organization Certificate providing for a decrease in capital stock - filed January 24, 1967
Restated Organization Certificate - filed June 1, 1971
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed October 29, 1976
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed December 22, 1977
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed August 5, 1980
Restated Organization Certificate - filed July 1, 1982
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed December 27, 1984
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed September 18, 1986
3
Certificate of Amendment of the Organization Certificate providing for a minimum and maximum number of directors - filed January 22, 1990
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed June 28, 1990
Restated Organization Certificate - filed August 20, 1990
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed June 26, 1992
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed March 28, 1994
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed June 23, 1995
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed December 27, 1995
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed March 21, 1996
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed December 27, 1996
Certificate of Amendment to the Organization Certificate providing for an increase in capital stock - filed June 27, 1997
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed September 26, 1997
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed December 29, 1997
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed March 26, 1998
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed June 23, 1998
4
Restated Organization Certificate - filed August 31, 1998
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed September 25, 1998
Certificate of Amendment of the Organization Certificate providing for an increase in capital stock - filed December 18, 1998; and
Certificate of Amendment of the Organization Certificate providing for a change in the number of directors - filed September 3, 1999; and
THAT, no amendments to its Restated Organization Certificate have been filed in the Office of the Superintendent of Banks except those set forth above; and attached hereto; and
I DO FURTHER CERTIFY THAT, BANKERS TRUST COMPANY is validly existing as a banking organization with its principal office and place of business located at 130 Liberty Street, New York, New York.
WITNESS, my hand and official seal of the Banking Department at the City of New York this 16th day of October in the Year Two Thousand and One.
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/s/ P. Vincent Conlon |
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Deputy Superintendent of Banks |
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5
DEUTSCHE BANK TRUST COMPANY AMERICAS
BY-LAWS
APRIL 15, 2002
Deutsche Bank Trust Company Americas
New York
6
BY-LAWS
of
Deutsche Bank Trust Company Americas
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held at the office of the Company in the Borough of Manhattan, City of New York, in January of each year, for the election of directors and such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by statute may be called at any time by a majority of the directors. It shall be the duty of the Chairman of the Board, the Chief Executive Officer, the President or any Co-President to call such meetings whenever requested in writing to do so by stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in person or by proxy, stockholders owning a majority of the capital stock of the Company, in order to constitute a quorum, except at special elections of directors, as provided by law, but less than a quorum shall have power to adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive Officer or, in his absence, the President or any Co-President or, in their absence, the senior officer present, shall preside at meetings of the stockholders and shall direct the proceedings and the order of business. The Secretary shall act as secretary of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers exercised by a Board of Directors consisting of such number of directors, but not less than seven nor more than fifteen, as may from time to time be fixed by resolution adopted by a majority of the directors then in office, or by the stockholders. In the event of any increase in the number of directors, additional directors may be elected within the limitations so fixed, either by the stockholders or within the limitations imposed by law, by a majority of directors then in office. One-third of the number of directors, as fixed from time to time, shall constitute a quorum. Any one or more members of the Board of Directors or any Committee thereof may participate in a meeting of the Board of Directors or Committee thereof by means of a conference telephone, video conference or similar communications equipment which allows all persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at such a meeting.
7
All directors hereafter elected shall hold office until the next annual meeting of the stockholders and until their successors are elected and have qualified.
No Officer-Director who shall have attained age 65, or earlier relinquishes his responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of Directors may be filled by the affirmative vote of a majority of the directors then in office, and the directors so elected shall hold office for the balance of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of Directors. In his absence, the Chief Executive Officer or, in his absence the President or any Co-President or, in their absence such other director as the Board of Directors from time to time may designate shall preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the conduct of its meetings and the management of the affairs of the Company as it may deem proper, not inconsistent with the laws of the State of New York, or these By-Laws, and all officers and employees shall strictly adhere to, and be bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to time provided, however, that the Board of Directors shall hold a regular meeting not less than six times a year, provided that during any three consecutive calendar months the Board of Directors shall meet at least once, and its Executive Committee shall not be required to meet at least once in each thirty day period during which the Board of Directors does not meet. Special meetings of the Board of Directors may be called upon at least two days notice whenever it may be deemed proper by the Chairman of the Board or, the Chief Executive Officer or, the President or any Co-President or, in their absence, by such other director as the Board of Directors may have designated pursuant to Section 3 of this Article, and shall be called upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees shall be fixed from time to time by resolution of the Board of Directors.
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not less than five directors who shall be appointed annually by the Board of Directors. The Chairman of the Board shall preside at meetings of the Executive Committee. In his absence, the Chief Executive Officer or, in his absence, the President or any Co-President or, in their absence, such other member of the Committee as the Committee from time to time may designate shall preside at such meetings.
8
The Executive Committee shall possess and exercise to the extent permitted by law all of the powers of the Board of Directors, except when the latter is in session, and shall keep minutes of its proceedings, which shall be presented to the Board of Directors at its next subsequent meeting. All acts done and powers and authority conferred by the Executive Committee from time to time shall be and be deemed to be, and may be certified as being, the act and under the authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act only by the concurrent vote of not less than one-third of its members, at least one of who must be a director other than an officer. Any one or more directors, even though not members of the Executive Committee, may attend any meeting of the Committee, and the member or members of the Committee present, even though less than a quorum, may designate any one or more of such directors as a substitute or substitutes for any absent member or members of the Committee, and each such substitute or substitutes shall be counted for quorum, voting, and all other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution adopted by a majority of the entire Board of Directors which shall consist of such number of directors, who are not also officers of the Company, as may from time to time be fixed by resolution adopted by the Board of Directors. The Chairman shall be designated by the Board of Directors, who shall also from time to time fix a quorum for meetings of the Committee. Such Committee shall conduct the annual directors examinations of the Company as required by the New York State Banking Law; shall review the reports of all examinations made of the Company by public authorities and report thereon to the Board of Directors; and shall report to the Board of Directors such other matters as it deems advisable with respect to the Company, its various departments and the conduct of its operations.
In the performance of its duties, the Audit Committee may employ or retain, from time to time, expert assistants, independent of the officers or personnel of the Company, to make studies of the Companys assets and liabilities as the Committee may request and to make an examination of the accounting and auditing methods of the Company and its system of internal protective controls to the extent considered necessary or advisable in order to determine that the operations of the Company, including its fiduciary departments, are being audited by the General Auditor in such a manner as to provide prudent and adequate protection. The Committee also may direct the General Auditor to make such investigation as it deems necessary or advisable with respect to the Company, its various departments and the conduct of its operations. The Committee shall hold regular quarterly meetings and during the intervals thereof shall meet at other times on call of the Chairman.
SECTION 3. The Board of Directors shall have the power to appoint any other Committees as may seem necessary, and from time to time to suspend or continue the powers and duties of such Committees. Each Committee appointed pursuant to this Article shall serve at the pleasure of the Board of Directors.
9
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman of the Board and a Chief Executive Officer; and shall also elect a President, or two or more Co-Presidents, and may also elect, one or more Vice Chairmen, one or more Executive Vice Presidents, one or more Managing Directors, one or more Senior Vice Presidents, one or more Directors, one or more Vice Presidents, one or more General Managers, a Secretary, a Controller, a Treasurer, a General Counsel, a General Auditor, a General Credit Auditor, who need not be directors. The officers of the corporation may also include such other officers or assistant officers as shall from time to time be elected or appointed by the Board. The Chairman of the Board or the Chief Executive Officer or, in their absence, the President or any Co-President, or any Vice Chairman, may from time to time appoint assistant officers. All officers elected or appointed by the Board of Directors shall hold their respective offices during the pleasure of the Board of Directors, and all assistant officers shall hold office at the pleasure of the Board or the Chairman of the Board or the Chief Executive Officer or, in their absence, the President, or any Co-President or any Vice Chairman. The Board of Directors may require any and all officers and employees to give security for the faithful performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of the Company who may also hold the additional title of Chairman of the Board, or President, or any Co-President, and such person shall have, subject to the supervision and direction of the Board of Directors or the Executive Committee, all of the powers vested in such Chief Executive Officer by law or by these By-Laws, or which usually attach or pertain to such office. The other officers shall have, subject to the supervision and direction of the Board of Directors or the Executive Committee or the Chairman of the Board or, the Chief Executive Officer, the powers vested by law or by these By-Laws in them as holders of their respective offices and, in addition, shall perform such other duties as shall be assigned to them by the Board of Directors or the Executive Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the Board of Directors for the determination of the program of the internal audit function and the evaluation of the adequacy of the system of internal controls. Subject to the Board of Directors, the General Auditor shall have and may exercise all the powers and shall perform all the duties usual to such office and shall have such other powers as may be prescribed or assigned to him from time to time by the Board of Directors or vested in him by law or by these By-Laws. He shall perform such other duties and shall make such investigations, examinations and reports as may be prescribed or required by the Audit Committee. The General Auditor shall have unrestricted access to all records and premises of the Company and shall delegate such authority to his subordinates. He shall have the duty to report to the Audit Committee on all matters concerning the internal audit program and the adequacy of the system of internal controls of the Company which he deems advisable or which the Audit Committee may request. Additionally, the General Auditor shall have the duty of reporting independently of all officers of the Company to the Audit Committee at least quarterly on any matters concerning the internal audit program and the adequacy of the system of internal controls of the Company that should be brought to the attention of the directors except those matters responsibility for which has been vested in the General Credit Auditor.
10
Should the General Auditor deem any matter to be of special immediate importance, he shall report thereon forthwith to the Audit Committee. The General Auditor shall report to the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer and, through the Audit Committee, to the Board of Directors for the systems of internal credit audit, shall perform such other duties as the Chief Executive Officer may prescribe, and shall make such examinations and reports as may be required by the Audit Committee. The General Credit Auditor shall have unrestricted access to all records and may delegate such authority to subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or plans of position evaluation and salary administration as shall be approved from time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or any person authorized for this purpose by the Chief Executive Officer, shall appoint or engage all other employees and agents and fix their compensation. The employment of all such employees and agents shall continue during the pleasure of the Board of Directors or the Executive Committee or the Chairman of the Board or the Chief Executive Officer or any such authorized person; and the Board of Directors, the Executive Committee, the Chairman of the Board, the Chief Executive Officer or any such authorized person may discharge any such employees and agents at will.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of the New York Banking Law, indemnify any person who is or was made, or threatened to be made, a party to an action or proceeding, whether civil or criminal, whether involving any actual or alleged breach of duty, neglect or error, any accountability, or any actual or alleged misstatement, misleading statement or other act or omission and whether brought or threatened in any court or administrative or legislative body or agency, including an action by or in the right of the Company to procure a judgment in its favor and an action by or in the right of any other corporation of any type or kind, domestic or foreign, or any partnership, joint venture, trust, employee benefit plan or other enterprise, which any director or officer of the Company is servicing or served in any capacity at the request of the Company by reason of the fact that he, his testator or intestate, is or was a director or officer of the Company, or is serving or served such other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in any capacity, against judgments, fines, amounts paid in settlement, and costs, charges and expenses, including attorneys fees, or any appeal therein; provided, however, that no indemnification shall be provided to any such person if a judgment or other final adjudication adverse to the director or officer establishes that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled.
11
SECTION 2. The Company may indemnify any other person to whom the Company is permitted to provide indemnification or the advancement of expenses by applicable law, whether pursuant to rights granted pursuant to, or provided by, the New York Banking Law or other rights created by (i) a resolution of stockholders, (ii) a resolution of directors, or (iii) an agreement providing for such indemnification, it being expressly intended that these By-Laws authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any person referred to in Section 1 the funds necessary for payment of expenses, including attorneys fees, incurred in connection with any action or proceeding referred to in Section 1, upon receipt of a written undertaking by or on behalf of such person to repay such amount(s) if a judgment or other final adjudication adverse to the director or officer establishes that (i) his acts were committed in bad faith or were the result of active and deliberate dishonesty and, in either case, were material to the cause of action so adjudicated, or (ii) he personally gained in fact a financial profit or other advantage to which he was not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another corporation, of which a majority of the shares entitled to vote in the election of its directors is held by the Company, or (ii) any employee benefit plan of the Company or any corporation referred to in clause (i) in any capacity shall be deemed to be doing so at the request of the Company. In all other cases, the provisions of this Article V will apply (i) only if the person serving another corporation or any partnership, joint venture, trust, employee benefit plan or other enterprise so served at the specific request of the Company, evidenced by a written communication signed by the Chairman of the Board, the Chief Executive Officer, the President or any Co-President, and (ii) only if and to the extent that, after making such efforts as the Chairman of the Board, the Chief Executive Officer, the President or any Co-President shall deem adequate in the circumstances, such person shall be unable to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or advancement of expenses as a matter of right pursuant to this Article V may elect to have the right to indemnification (or advancement of expenses) interpreted on the basis of the applicable law in effect at the time of occurrence of the event or events giving rise to the action or proceeding, to the extent permitted by law, or on the basis of the applicable law in effect at the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of expense pursuant to this Article V (i) is a contract right pursuant to which the person entitled thereto may bring suit as if the provisions hereof were set forth in a separate written contract between the Company and the director or officer, (ii) is intended to be retroactive and shall be available with respect to events occurring prior to the adoption hereof, and (iii) shall continue to exist after the rescission or restrictive modification hereof with respect to events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or advancement of expenses pursuant hereto is not paid in full by the Company within thirty days after a written claim has been received by the Company, the claimant may at any time thereafter bring suit against the Company to recover the unpaid amount of the claim and, if successful in whole or in part, the claimant shall be entitled also to be paid the expenses of prosecuting such claim. Neither the failure of the
12
Company (including its Board of Directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such action that indemnification of or reimbursement or advancement of expenses to the claimant is proper in the circumstance, nor an actual determination by the Company (including its Board of Directors, independent legal counsel, or its stockholders) that the claimant is not entitled to indemnification or to the reimbursement or advancement of expenses, shall be a defense to the action or create a presumption that the claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the defense of a civil or criminal action or proceeding of the character described in Section 1 shall be entitled to indemnification only as provided in Sections 1 and 3, notwithstanding any provision of the New York Banking Law to the contrary.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the counterpart dies of which shall be in the charge of the Secretary of the Company and such officers as the Chairman of the Board, the Chief Executive Officer or the Secretary may from time to time direct in writing, to be affixed to certificates of stock and other documents in accordance with the directions of the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified occasion and for a specified transaction or transactions, for the use of a printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books of the Company by the registered holder in person, or by power of attorney, duly executed, witnessed and filed with the Secretary or other proper officer of the Company, on the surrender of the certificate or certificates of such shares properly assigned for transfer.
13
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of Directors at any meeting, or by the stockholders at any annual or special meeting, provided notice thereof has been given.
I, Man Wing Li, Associate, of Deutsche Bank Trust Company Americas, New York, New York, hereby certify that the foregoing is a complete, true and correct copy of the By-Laws of Deutsche Bank Trust Company Americas, and that the same are in full force and effect at this date.
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/s/ Man Wing Li |
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Associate |
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DATED AS OF: April 20, 2004
14
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Board of Governors of the Federal Reserve System |
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OMB Number: 7100-0036 |
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Federal Deposit Insurance Corporation |
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OMB Number: 3064-0052 |
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Office of the Comptroller of the Currency |
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OMB Number: 1557-0081 |
Federal Financial Institutions Examination Council |
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Expires April 30, 2006 |
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Please refer to page i, |
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Table of Contents, for |
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the required disclosure |
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of estimated burden. |
Consolidated Reports of Condition and Income for A Bank With Domestic and Foreign OfficesFFIEC 031
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(20031231) |
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Report at the close of business December 31, 2003 |
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(RCRI 9999) |
This report is required by law: 12 U.S.C. §324 (State member banks); 12 U.S.C. §1817 (State nonmember banks); and 12 U.S.C. §161 (National banks).
This report form is to be filed by banks with branches and consolidated subsidiaries in U.S. territories and possessions, Edge or Agreement subsidiaries, foreign branches, consolidated foreign subsidiaries, or International Banking Facilities.
NOTE: The Reports of Condition and Income must be signed by an authorized officer and the Report of Condition must be attested to by not less than two directors (trustees) for State nonmember banks and three directors for State member and National banks.
I, |
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Name and Title of Officer Authorized to Sign Report |
of the named bank do hereby declare that the Reports of Condition and Income (including the supporting schedules) for this report date have been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and are true to the best of my knowledge and belief.
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Signature of Officer Authorized to Sign Report |
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Date of Signature |
The Reports of Condition and Income are to be prepared in accordance with Federal regulatory authority instructions.
We, the undersigned directors (trustees), attest to the correctness of the Report of Condition (including the supporting schedules) for this report date and declare that it has been examined by us and to the best of our knowledge and belief has been prepared in conformance with the instructions issued by the appropriate Federal regulatory authority and is true and correct.
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Director (Trustee) |
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Director (Trustee) |
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Director (Trustee) |
Submission of Reports
Each bank must prepare its Reports of Condition and Income either:
(a) in electronic form and then file the computer data file directly with the banking agencies collection agent, Electronic Data Systems Corporation (EDS), by modem or on computer diskette; or
(b) in hard-copy (paper) form and arrange for another party to convert the paper report to electronic form. That party (if other than EDS) must transmit the banks computer data file to EDS.
For electronic filing assistance, contact EDS Call Report Services, 13890 Bishops Drive, Suite 110, Brookfield, WI 53005, telephone (800) 255-1571.
To fulfill the signature and attestation requirement for the Reports of Condition and Income for this report date, attach this signature page (or a photocopy or a computer-generated version of this page) to the hard-copy record of the completed report that the bank places in its files.
FDIC Certificate Number |
623 |
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(RCRI 9050) |
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DEUTSCHE BANK TRUST COMPANY AMERICAS
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Legal Title of Bank (TEXT 9010) |
NEW YORK |
City (TEXT 9130) |
NY |
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10006 |
State Abbrev. (TEXT 9200) |
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ZIP Code (TEXT 9220) |
Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Office of the Comptroller of the Currency
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FFIEC 031 |
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Page RC-1 |
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12 |
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NEW YORK |
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NY |
10006 |
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Zip Code |
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Consolidated Report of Condition for Insured Commercial and State-Chartered Savings Banks for December 31, 2003
All schedules are to be reported in thousands of dollars. Unless otherwise indicated, report the amount outstanding as of the last business day of the quarter.
Schedule RCBalance Sheet
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Dollar Amounts in Thousands |
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RCFD |
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ASSETS |
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1. |
Cash and balances due from depository institutions (from Schedule RC-A): |
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|
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a. Noninterest-bearing balances and currency and coin(1) |
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0081 |
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2,035,000 |
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1.a. |
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b. Interest-bearing balances(2) |
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|
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0071 |
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94,000 |
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1.b. |
2. |
Securities: |
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|
|
|
|
|
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|
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a. Held-to-maturity securities (from Schedule RC-B, column A) |
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|
|
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1754 |
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0 |
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2.a. |
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b. Available-for-sale securities (from Schedule RC-B, column D) |
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|
|
|
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1773 |
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59,000 |
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2.b. |
3. |
Federal funds sold and securities purchased under agreements to resell: |
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|
|
|
|
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a. Federal funds sold in domestic offices |
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RCON |
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B987 |
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378,000 |
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3.a. |
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b. Securities purchased under agreements to resell(3) |
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RCFD |
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B989 |
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7,188,000 |
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3.b. |
4. |
Loans and lease financing receivables (from Schedule RC-C): |
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RCFD |
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|
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a. Loans and leases held for sale |
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5369 |
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0 |
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4.a. |
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b. Loans and leases, net of unearned income |
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B528 |
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6,790,000 |
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4.b. |
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c. LESS: Allowance for loan and lease losses |
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3123 |
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371,000 |
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4.c. |
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d. Loans and leases, net of unearned income and allowance (item 4.b minus 4.c) |
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B529 |
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6,419,000 |
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4.d. |
5. |
Trading assets (from Schedule RC-D) |
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3545 |
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11,746,000 |
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5. |
6. |
Premises and fixed assets (including capitalized leases) |
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2145 |
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319,000 |
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6. |
7. |
Other real estate owned (from Schedule RC-M) |
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2150 |
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39,000 |
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7. |
8. |
Investments in unconsolidated subsidiaries and associated companies (from Schedule RC-M) |
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2130 |
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3,043,000 |
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8. |
9. |
Customers liability to this bank on acceptances outstanding |
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2155 |
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0 |
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9. |
10. |
Intangible assets: |
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a. Goodwill |
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3163 |
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0 |
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10.a. |
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b. Other intangible assets (from Schedule RC-M) |
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0426 |
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28,000 |
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10.b. |
11. |
Other assets (from Schedule RC-F) |
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2160 |
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2,720,000 |
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11. |
12. |
Total assets (sum of items 1 through 11) |
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2170 |
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34,068,000 |
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12. |
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
(3) Includes all securities resale agreements in domestic and foreign offices, regardless of maturity.
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FFIEC 031 |
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Page RC-2 |
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13 |
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Dollar Amounts in Thousands |
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LIABILITIES |
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13. Deposits: |
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a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) |
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RCON
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7,962,000 |
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13.a. |
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|
|
|
|
|
|
|
|
|
|
|
(1) Noninterest-bearing(1) |
|
RCON |
|
6631 |
|
3,099,000 |
|
|
|
|
|
13.a.(1) |
(2) Interest-bearing |
|
RCON |
|
6636 |
|
4,863,000 |
|
|
|
|
|
13.a.(2) |
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E, part II) |
|
|
|
|
|
|
|
RCFN
|
|
7,180,000 |
|
13.b. |
(1) Noninterest-bearing |
|
RCFN |
|
6631 |
|
1,951,000 |
|
|
|
|
|
13.b.(1) |
(2) Interest-bearing |
|
RCFN |
|
6636 |
|
5,229,000 |
|
|
|
|
|
13.b.(2) |
14. Federal funds purchased and securities sold under agreements to repurchase: |
|
|
|
|
|
|
|
|
|
|
|
|
a. Federal funds purchased in domestic offices(2) |
|
|
|
|
|
RCON |
|
B993 |
|
7,574,000 |
|
14.a. |
b. Securities sold under agreements to repurchase(3) |
|
|
|
|
|
RCFD |
|
B995 |
|
0 |
|
14.b. |
15. Trading liabilities (from Schedule RC-D) |
|
|
|
|
|
RCFD |
|
3548 |
|
1,425,000 |
|
15. |
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized leases) (from Schedule RC-M) |
|
|
|
|
|
|
|
RCFD
|
|
83,000 |
|
16. |
17. Not applicable |
|
|
|
|
|
|
|
|
|
|
|
|
18. Banks liability on acceptances executed and outstanding |
|
|
|
|
|
|
|
2920 |
|
0 |
|
18. |
19. Subordinated notes and debentures(4) |
|
|
|
|
|
|
|
3200 |
|
9,000 |
|
19. |
20. Other liabilities (from Schedule RC-G) |
|
|
|
|
|
|
|
2930 |
|
2,004,000 |
|
20. |
21. Total liabilities (sum of items 13 through 20) |
|
|
|
|
|
|
|
2948 |
|
26,237,000 |
|
21. |
22. Minority interest in consolidated subsidiaries |
|
|
|
|
|
|
|
3000 |
|
627,000 |
|
22. |
EQUITY CAPITAL |
|
|
|
|
|
|
|
|
|
|
|
|
23. Perpetual preferred stock and related surplus |
|
|
|
|
|
|
|
3838 |
|
1,500,000 |
|
23. |
24. Common stock |
|
|
|
|
|
|
|
3230 |
|
2,127,000 |
|
24. |
25. Surplus (exclude all surplus related to preferred stock) |
|
|
|
|
|
|
|
3839 |
|
584,000 |
|
25. |
26. a. Retained earnings |
|
|
|
|
|
|
|
3632 |
|
2,968,000 |
|
26.a. |
b. Accumulated other comprehensive income(5) |
|
|
|
|
|
|
|
B530 |
|
25,000 |
|
26.b. |
27. Other equity capital components(6) |
|
|
|
|
|
|
|
A130 |
|
0 |
|
27. |
28. Total equity capital (sum of items 23 through 27) |
|
|
|
|
|
|
|
3210 |
|
7,204,000 |
|
28. |
29. Total liabilities, minority interest, and equity capital (sum of items 21, 22, and 28) |
|
|
|
|
|
|
|
3300 |
|
34,068,000 |
|
29. |
Memorandum
To be reported with the March Report of Condition.
1. |
|
Indicate in the box at the right the number of the statement below that best describes the most comprehensive level of auditing work performed for the bank by independent external auditors as of any date during 2002 |
|
|
|
|
|
|
|
RCFD |
|
Number |
|
|
|||
|
6724 |
|
N/A |
|
M.1. |
1 = Independent audit of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the bank
2 = Independent audit of the banks parent holding company conducted in accordance with generally accepted auditing standards by a certified public accounting firm which submits a report on the consolidated holding company (but not on the bank separately)
3 = Attestation on bank managements assertion on the effectiveness of the banks internal control over financial reporting by a certified public accounting firm
4 = Directors examination of the bank conducted in accordance with generally accepted auditing standards by a certified public accounting firm (may be required by state chartering authority)
5 = Directors examination of the bank performed by other external auditors (may be required by state chartering authority)
6 = Review of the banks financial statements by external auditors
7 = Compilation of the banks financial statements by external auditors
8 = Other audit procedures (excluding tax preparation work)
9 = No external audit work
(1) Includes total demand deposits and noninterest-bearing time and savings deposits.
(2) Report overnight Federal Home Loan Bank advances in Schedule RC, item 16, Other borrowed money.
(3) Includes all securities repurchase agreements in domestic and foreign offices, regardless of maturity.
(4) Includes limited-life preferred stock and related surplus.
(5) Includes net unrealized holding gains (losses) on available-for-sale securities, accumulated net gains (losses) on cash flow hedges, cumulative foreign currency translation adjustments, and minimum pension liability adjustments.
(6) Includes treasury stock and unearned Employee Stock Ownership Plan shares.