EXHIBIT 4.2
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BANK ONE ISSUANCE TRUST
as Issuer
and
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION
as Indenture Trustee and Collateral Agent
____________________
ASSET POOL ONE SUPPLEMENT
dated as of May 1, 2002
to
INDENTURE
dated as of May 1, 2002
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1 Definitions...................................................................3
Section 1.2 Effect of Headings and Table of Contents.....................................17
Section 1.3 Successors and Assigns.......................................................17
Section 1.4 Separability.................................................................17
Section 1.5 Governing Law................................................................17
Section 1.6 Counterparts.................................................................17
ARTICLE II
COLLATERAL
Section 2.1 Initial Collateral...........................................................19
Section 2.2 Reinvestment in Collateral...................................................19
Section 2.3 Increases in the Invested Amount of an Existing Asset Pool One
Collateral Certificate.......................................................20
Section 2.4 Addition of Collateral.......................................................20
Section 2.5 Removal of Accounts..........................................................25
Section 2.6 Account Allocations. .......................................................26
Section 2.7 Discount Receivables.........................................................27
Section 2.8 Recording, Etc...............................................................28
Section 2.9 Trust Indenture Act Requirements.............................................29
Section 2.10 Suits To Protect the Collateral..............................................30
Section 2.11 Purchaser Protected..........................................................30
Section 2.12 Powers Exercisable by Receiver or Collateral Agent...........................30
Section 2.13 Determinations Relating to Collateral........................................31
Section 2.14 Release of all Collateral....................................................31
Section 2.15 Certain Actions by Collateral Agent..........................................32
Section 2.16 Opinions as to Collateral....................................................32
Section 2.17 Delegation of Duties.........................................................33
Section 2.18 Issuer's Representations and Warranties......................................33
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.1 Collections and Allocations..................................................35
Section 3.2 Allocations of Finance Charge Collections and Default
Amounts......................................................................36
Section 3.3 Allocations of Principal Collections.........................................36
Section 3.4 Allocations of the Asset Pool One Servicing Fee. ...........................37
Section 3.5 Allocations of Amounts to the Excess Funding Account and
Allocations of Amounts on Deposit in the Excess Funding Account..............37
Section 3.6 Final Payment................................................................38
Section 3.7 Payments within a Series, Class or Tranche...................................38
Section 3.8 Allocations of Finance Charge Collections, Default Amounts,
Servicing Fees and Principal Collections Allocable to the Trans-
feror Interest...............................................................38
Section 3.9 Transfer of Defaulted Accounts...............................................39
Section 3.10 Adjustments for Miscellaneous Credits and Fraudulent
Charges......................................................................39
Section 3.11 Recoveries and Interchange...................................................40
Section 3.12 Reallocation Groups..........................................................41
Section 3.13 Designation of Remaining Principal Shortfalls................................41
ARTICLE IV
THE COLLATERAL AGENT
Section 4.1 Certain Duties and Responsibilities..........................................43
Section 4.2 Certain Rights of the Collateral Agent.......................................44
Section 4.3 Not Responsible for Recitals or Issuance of Notes............................45
Section 4.4 May Hold Notes...............................................................45
Section 4.5 Money Held in Trust..........................................................46
Section 4.6 Compensation and Reimbursement; Limit on Compensation,
Reimbursement and Indemnity..................................................46
Section 4.7 Disqualification; Conflicting Interests......................................46
Section 4.8 Corporate Collateral Agent Required; Eligibility.............................47
Section 4.9 Resignation and Removal; Appointment of Successor............................47
Section 4.10 Acceptance of Appointment by Successor.......................................49
Section 4.11 Merger, Conversion, Consolidation or Succession to Business..................49
Section 4.12 Preferential Collection of Claims Against Issuer.............................50
Section 4.13 Representations and Covenants of the Collateral Agent........................50
Section 4.14 Custody of Asset Pool One Collateral Certificates and Collateral.............50
Section 4.15 Collateral Agent's Application for Instructions from the Issuer..............50
Section 4.16 Events of Default and Remedies; Reports of Indenture Trustee;
Reports to Issuer............................................................51
ARTICLE V
BANK ACCOUNTS AND INVESTMENTS
Section 5.1 Bank Accounts................................................................52
Section 5.2 Investment of Funds in the Bank Accounts.....................................53
ARTICLE VI
MISCELLANEOUS
Section 6.1 No Petition..................................................................55
Section 6.2 Actions by the Issuer........................................................55
Section 6.3 Limitations on Liability.....................................................55
Section 6.4 Termination of Issuer........................................................56
Section 6.5 Termination Distributions....................................................56
Section 6.6 Derivative Counterparty, Supplemental Credit Enhancement
Provider and Supplemental Liquidity Provider as Third-Party
Beneficiary..................................................................56
Section 6.7 Amendments...................................................................56
EXHIBITS
EXHIBIT A Form of Transferor Certificate..............................................A-1
EXHIBIT B Form of Assignment of Receivables in
Additional Accounts
Included in Asset Pool One..................................................B-1
EXHIBIT C Form of Assignment of Additional Collateral
Certificate Included in Asset Pool One......................................C-1
EXHIBIT D Form of Reassignment of Receivables in
Removed Accounts Included in Asset Pool One.................................D-1
EXHIBIT E Form of Monthly Payment Instructions and
Notification to the First USA
Credit Card Master Trust Trustee............................................E-1
EXHIBIT F Form of Asset Pool One Monthly Servicer's Certificate.......................F-1
This ASSET POOL ONE SUPPLEMENT between BANK ONE ISSUANCE
TRUST, a statutory business trust organized under the laws of the State of
Delaware (the "Issuer" or the "Trust"), having its principal office at c/o
Wilmington Trust Company, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx
00000-0000, Attention: Corporate Trust Administration, and XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association, in its
capacity as Collateral Agent (the "Collateral Agent") for the benefit of the
parties listed in the Granting Clause of this Asset Pool One Supplement, is
made and entered into as of May 1, 2002.
All things necessary to make this Asset Pool One Supplement
a valid agreement of the Issuer, in accordance with its terms, have been done.
GRANTING CLAUSE
The Issuer hereby grants to the Collateral Agent (the
"Secured Party") for the benefit and security of the following: (a) the Asset
Pool One Noteholders, (b) the Indenture Trustee, in its individual capacity
and (c) the Collateral Agent, in its individual capacity, a security interest
in all of its right, title and interest, whether now owned or hereafter
acquired, in and to the following:
(i) each Asset Pool One Collateral Certificate;
(ii) all Asset Pool One Receivables;
(iii) the Excess Funding Account established for Asset
Pool One;
(iv) the Collection Account established for Asset Pool
One;
(v) each Supplemental Bank Account (including all
Sub-Accounts thereof) established from time to time
for Asset Pool One;
(vi) all Permitted Investments and all investment
property, money and other property held in or
through the Collection Account, the Excess Funding
Account or any Supplemental Bank Account and
including any Sub-Accounts therein;
(vii) all rights, benefits and powers under any
Derivative Agreement;
(viii) all rights, benefits and powers under any
Supplemental Credit Enhancement Agreement or
Supplemental Liquidity Agreement;
(ix) all rights, benefits and powers under the Transfer
and Servicing Agreement with respect to the Asset
Pool One Collateral Certificates and the Asset Pool
One Receivables;
(x) all present and future claims, demands, causes of
and choses in action in respect of any of the
foregoing and all interest, principal, payments and
distributions of any nature or type on any of the
foregoing;
(xi) all accounts, general intangibles, chattel paper,
instruments, documents, goods, money, investment
property, deposit accounts, certificates of
deposit, letters of credit, letter-of-credit rights
and advices of credit consisting of, arising from,
or relating to any of the foregoing; and
(xii) all proceeds of the foregoing.
Items (i) through (xii) above are collectively referred to
as the "Collateral." The Security Interest in the Collateral is granted to
secure the Asset Pool One Notes (and the obligations under the Indenture and
this Asset Pool One Supplement), equally and ratably without prejudice,
priority or distinction between any Asset Pool One Note by reason of
difference in time of issuance or otherwise, except as otherwise expressly
provided in the Indenture, or in the Indenture Supplement which establishes
any Series, Class or Tranche of Notes, and to secure (i) the payment of all
amounts due on such Asset Pool One Notes in accordance with their respective
terms, (ii) the payment of all other sums payable by the Issuer under the
Indenture, any Indenture Supplement and this Asset Pool One Supplement
relating to the Asset Pool One Notes and (iii) compliance by the Issuer with
the provisions of the Indenture, any Indenture Supplement or this Asset Pool
One Supplement relating to the Asset Pool One Notes. This Asset Pool One
Supplement is a security agreement within the meaning of the UCC.
The Collateral Agent acknowledges the grant of such Security
Interest, and accepts the Collateral in trust hereunder in accordance with the
provisions hereof and agrees to perform the duties herein to the end that the
interests of the Asset Pool One Noteholders may be adequately and effectively
protected.
The Asset Pool One Notes, Derivative Agreements,
Supplemental Credit Enhancement Agreements, Supplemental Liquidity Agreements
and other obligations under the Indenture, this Asset Pool One Supplement and
any Indenture Supplement relating to the Asset Pool One Notes will benefit
from the Security Interest to the extent (and only to the extent) proceeds of
and distributions on the Collateral are allocated for their benefit pursuant
to the Indenture, this Asset Pool One Supplement and the applicable Indenture
Supplement.
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF
GENERAL APPLICATION
Section 1.1 Definitions. For all purposes of this Asset Pool
One Supplement, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and, along with any other term defined in
any Section of this Asset Pool One Supplement, include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
Indenture, the applicable Indenture Supplement or the Transfer and Servicing
Agreement, either directly or by reference therein, have the meanings assigned
to them therein;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted accounting
principles and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder means such accounting principles as are
generally accepted in the United States of America at the date of such
computation;
(4) all references in this Asset Pool One Supplement to
designated "Articles," "Sections" and other subdivisions are to the designated
Articles, Sections and other subdivisions of this Asset Pool One Supplement as
originally executed. The words "herein," "hereof" and "hereunder" and other
words of similar import refer to this Asset Pool One Supplement as a whole and
not to any particular Article, Section or other subdivision;
(5) in the event that any term or provision contained herein
shall conflict with or be inconsistent with any term or provision contained in
the Indenture, the applicable Indenture Supplement or the Transfer and
Servicing Agreement, the terms and provisions of this Asset Pool One
Supplement shall be controlling;
(6) each capitalized term defined herein shall relate only
to the Asset Pool One Notes and no other notes issued by the Issuer; and
(7) "including" and words of similar import will be deemed
to be followed by "without limitation."
"Account Assignment" has the meaning specified in subsection
2.4(c)(v).
"Account Owner" has the meaning specified in the Transfer
and Servicing Agreement.
"Act" has the meaning specified in the Indenture.
"Additional Account" has the meaning specified in the
Transfer and Servicing Agreement.
"Additional Asset Pool One Account" has the meaning
specified in subsection 2.4(a).
"Additional Asset Pool One Collateral Certificate" has the
meaning specified in subsection 2.4(a).
"Additional Collateral Certificate" has the meaning
specified in the Transfer and Servicing Agreement.
"Addition Cut Off Date" means each date as of which
Additional Accounts will be selected to be included as Asset Pool One Accounts
pursuant to Section 2.4.
"Addition Date" has the meaning specified in subsection
2.4(a)(i).
"Adjustment Payment" has the meaning specified in subsection
3.10(a).
"Administrator" means First USA Bank, National Association
in its capacity as Administrator of the Trust, and any successors or assigns
thereto.
"Adverse Effect" has the meaning specified in the Indenture.
"Affiliate" has the meaning specified in the Indenture.
"Aggregate Addition Limit" means, with respect to any Asset
Pool, the aggregate number of Additional Asset Pool One Accounts that may be
designated for inclusion in Asset Pool One without prior satisfaction of the
Note Rating Agency Condition, equal to the aggregate number of Additional
Asset Pool One Accounts which would either (x) with respect to any consecutive
three-month period, equal 15% of the aggregate number of Asset Pool One
Accounts as of the first day of such three-month period or (y) with respect to
any twelve-month period, equal 20% of aggregate number of Asset Pool One
Accounts as of the first day of such twelve- month period.
"Amortization Period" has, with respect to any Series, Class
or Tranche of Asset Pool One Notes, the meaning specified in the applicable
Indenture Supplement with respect to such Series, Class or Tranche of Asset
Pool One Notes.
"Asset Pool One" means the Collateral granted to the
Collateral Agent pursuant to this Asset Pool One Supplement.
"Asset Pool One Accounts" means "Accounts" (as defined in
the Transfer and Servicing Agreement) that have been designated by the Issuer,
pursuant to Section 2.4, to have their Receivables included in Asset Pool One.
"Asset Pool One Average Principal Balance" means, with
respect to Asset Pool One, (a) for any Monthly Period in which no Addition
Date, Removal Date or Discount Option Date occurs, the Asset Pool One
Principal Receivables as of the close of business on the last day of the prior
Monthly Period and (b) for any Monthly Period in which one or more Addition
Dates, Removal Dates or Discount Option Dates occurs, the sum of:
(i) the product of (x) th Asset Pool One Principal
Receivables as of the close of business on the last day of the prior
Monthly Period and (y) a fraction, (i) th numerator of which is the
number of days from and including the first day of such Monthly Period
to but excluding the initial Addition Date, Removal Date or Discount
Option Date, as the case may be, in such Monthl Period and (ii) the
denominator of which is the number of days in such Monthly Period; and
(ii) the product of (x) the Asset Pool One
Principal Receivables as of the close of business on the initial
Addition Date, Removal Date or Discount Option Date in such Monthly
Period, after giving effect to such addition, removal or discount, as
the case may be, and (y) a fraction, (i) the numerator of which is
the number of days from and including the initial Addition Date,
Removal Date or Discount Option Date, as the case may be, in such
Monthly Period to but excluding the next subsequent Addition Date,
Removal Date or Discount Option Date in such Monthly Period or, if no
such next subsequent date occurs in such Monthly Period, to and
including the last day of such Monthly Period and (ii) the
denominator of which is the number of days in such Monthly Period;
and
(iii) for each subsequent Addition Date, Removal
Date or Discount Option Date in such Monthly Period, the product of (x)
the Asset Pool One Principal Receivables at the close of business on
such Addition Date, Removal Date or Discount Option Date, after giving
effect to such addition, removal or discount, as the case may be, and
(y) a fraction, (i) the numerator of which is the number of days from
and including such Addition Date, Removal Date or Discount Option Date,
as the case may be, in such Monthly Period to but excluding the next
subsequent Addition Date, Removal Date or Discount Option Date or, if
no such next subsequent date occurs in such Monthly Period, to and
including the last day of such Monthly Period and (ii) the denominator
of which is the number of days in such Monthly Period.
"Asset Pool One Collateral Certificate" means each
"Collateral Certificate" (as defined in the Indenture) that has been
designated by the Issuer for inclusion in Asset Pool One pursuant to Sections
2.1 and 2.4.
"Asset Pool One Collateral Certificate Principal Shortfall
Payments" means, for any Monthly Period, amounts received on Asset Pool One
Collateral Certificates in respect of Principal Shortfalls.
"Asset Pool One Default Amount" means, for any Monthly
Period, the Default Amount for Asset Pool One for such Monthly Period.
"Asset Pool One Finance Charge Collections" means, for any
Monthly Period, the amount of Finance Charge Collections for all Asset Pool
One Receivables and Asset Pool One Collateral Certificates for such Monthly
Period.
"Asset Pool One Minimum Pool Balance" means, for any Monthly
Period, an amount equal to the sum of (i) for all Asset Pool One Notes in
their Revolving Period, the sum of the Nominal Liquidation Amounts of such
Asset Pool One Notes as of the close of business on the last day of such
Monthly Period and (ii) for all Asset Pool One Notes in their Amortization
Period, the sum of the Nominal Liquidation Amounts of such Asset Pool One
Notes as of the close of business as of the last day of the most recent
Revolving Period (exclusive of (x) any Asset Pool One Notes which will be paid
in full on the applicable Payment Date in the following Monthly Period and (y)
any Asset Pool One Notes which will have a Nominal Liquidation Amount of zero
on the applicable Payment Date in the following Monthly Period).
"Asset Pool One Nominal Liquidation Amount Deficit" means,
for any Monthly Period, the aggregate Nominal Liquidation Amount Deficit of
all Asset Pool One Notes for such Monthly Period.
"Asset Pool One Notes" means the Notes designated in an
Indenture Supplement as being secured by the Collateral of Asset Pool One.
"Asset Pool One Noteholder" means any person in whose name
an Asset Pool One Note is registered.
"Asset Pool One Pool Balance" means, for any Monthly Period,
the sum of (1) the sum of the Invested Amounts of the Asset Pool One
Collateral Certificates on the close of business on the last day of such
Monthly Period plus (2) the Asset Pool One Principal Receivables as of the
close of business as of the last day of such Monthly Period plus (3) the
Excess Funding Amount as of the close of business on the last day of such
Monthly Period.
"Asset Pool One Principal Collections" means, for any
Monthly Period, the amount of Principal Collections for all Asset Pool One
Receivables and Asset Pool One Collateral Certificates for such Monthly Period
minus Asset Pool One Collateral Certificate Principal Shortfall Payments for
such Monthly Period.
"Asset Pool One Principal Receivables" means, with respect
to any date of determination, the aggregate outstanding dollar amount of Asset
Pool One Receivables that are Principal Receivables.
"Asset Pool One Receivables" means "Receivables" (as defined
in the Transfer and Servicing Agreement) arising in Asset Pool One Accounts.
"Asset Pool One Receivables Servicing Fee" means, with
respect to any Monthly Period, one-twelfth of the product of (a) the Asset
Pool One Receivables Servicing Fee Percentage for such Monthly Period and (b)
the Asset Pool One Average Principal Balance for such Monthly Period.
"Asset Pool One Receivables Servicing Fee Percentage" means,
1.50% for so long as First USA Bank, National Association is the Servicer or
2.00% if First USA Bank, National Association is no longer the Servicer.
"Asset Pool One Reinvestment Amount" means, with respect to
any Monthly Period, an amount equal to (A) the sum of (i) the Asset Pool One
Principal Collections for such Monthly Period, plus (ii) the Asset Pool One
Finance Charge Collections and similar amounts applied with respect to the Asset
Pool One Default Amount and the Asset Pool One Nominal Liquidation Amount
Deficit for all Series of Asset Pool One Notes with respect to such Monthly
Period, plus (iii) Asset Pool One Collateral Certificate Principal Shortfall
Payments plus (iv) the portion of the Prefunding Excess Amount paid to the
Issuer pursuant to the applicable Indenture Supplement plus (v) Dollar payments
which will be received under Derivative Agreements with respect to principal for
such Monthly Period plus (vi) the aggregate amount of the accretion of principal
on all Discount Notes secured by Asset Pool One with respect to such Monthly
Period paid to the Issuer pursuant to the applicable Indenture Supplement, minus
(B) the sum of (i) the aggregate amount deposited in the Principal Funding
Accounts for all Series of Asset Pool One Notes with respect to such Monthly
Period plus (ii) the aggregate amount of Asset Pool One Principal Collections
reallocated to pay the Targeted Interest Deposit Amount and a portion of the
Asset Pool One Notes' share of the Asset Pool One Servicing Fee for such Monthly
Period.
"Asset Pool One Required Transferor Amount" means, for any
Monthly Period, the product of (1) the Asset Pool One Principal Receivables as
of the close of business on the last day of such Monthly Period and (2) the
Asset Pool One Required Transferor Amount Percentage.
"Asset Pool One Required Transferor Amount Percentage" means
4% or such other percentage as shall be designated from time to time by the
Servicer; provided, however, that prior to designating any lesser percentage
the Servicer shall have provided to the Indenture Trustee and the Collateral
Agent an Issuer Tax Opinion and written confirmation from each Note Rating
Agency that such designation shall not have a Ratings Effect.
"Asset Pool One Servicing Fee" has the meaning specified in
Section 3.4.
"Asset Pool One Supplement" means this Asset Pool Supplement
as originally executed and as amended, supplemented, restated or otherwise
modified from time to time.
"Asset Pool One Transferor Amount" means, for any Monthly
Period, an amount equal to (i) the Asset Pool One Pool Balance for such
Monthly Period minus (ii) the aggregate Nominal Liquidation Amount of all
Asset Pool One Notes as of close of business on the last day of such Monthly
Period.
"Asset Pool One Transferor Percentage" means, with respect
to any Monthly Period, 100% minus, the sum of the Noteholder Percentages for
all Series of Asset Pool One Notes with respect to Asset Pool One Principal
Collections, Asset Pool One Finance Charge Collections, the Asset Pool One
Servicing Fee or the Asset Pool One Default Amount, as applicable.
"Bank Accounts" means, collectively, the Excess Funding
Account, the Collection Account and any Supplemental Bank Account, including
any Sub-Accounts therein.
"Beneficiary" has the meaning specified in the Trust
Agreement.
"Business Day" has the meaning specified in the Indenture.
"Certificate Assignment" has the meaning specified in
subsection 2.4(c)(vi).
"Class" has the meaning specified in the Indenture.
"Collateral" has the meaning specified in the Granting
Clause of this Asset Pool One Supplement.
"Collateral Agent" means the Person named as the Collateral
Agent in the first paragraph of this Asset Pool One Supplement until a
successor Collateral Agent shall have become such pursuant to the applicable
provisions of this Asset Pool One Supplement, and thereafter "Collateral
Agent" means and includes each Person who is then a Collateral Agent
hereunder. If at any time there is more than one such Person, "Collateral
Agent" as used with respect to the Asset Pool One Notes of any Series, Class
or Tranche means the Collateral Agent with respect to Asset Pool One Notes of
that Series, Class or Tranche.
"Collateral Agent Authorized Officer" when used with respect
to the Collateral Agent, means any vice president, any assistant vice
president, the treasurer, any assistant treasurer, any senior trust officer or
trust officer, or any other officer of the Collateral Agent customarily
performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter,
any other officer to whom such matter is referred because of his knowledge of
and familiarity with the particular subject.
"Collections" has the meaning specified in the Transfer and
Servicing Agreement.
"Collection Account" has the meaning specified in subsection
5.1(a)(i).
"Commission" means the U.S. Securities and Exchange
Commission.
"Corporate Trust Office" means, with respect to the
Collateral Agent, the principal corporate trust office of the Collateral Agent
located at Xxxxx Fargo Bank Minnesota, National Association, 0xx & Xxxxxxxxx,
XXX X0000-000, Xxxxxxxxxxx, Xxxxxxxxx 00000, Attention: Corporate Trust
Services Asset Backed Administration; or such other address as the Collateral
Agent may designate by notice to the Transferor, or the principal corporate
trust office of any successor Collateral Agent (the address of which the
successor Collateral Agent will notify the Indenture Trustee and the
Transferor).
"Credit Adjustment" has the meaning specified in subsection
3.10(a).
"Date of Processing" has the meaning specified in the
Transfer and Servicing Agreement.
"Default Amount" has the meaning specified in the Transfer
and Servicing Agreement.
"Defaulted Account" has the meaning specified in the
Transfer and Servicing Agreement.
"Derivative Agreement" has the meaning specified in the
Indenture.
"Derivative Counterparty" has the meaning specified in the
Indenture.
"Determination Date" means the Business Day before the First
Note Transfer Date for a Series in a Monthly Period.
"Discount Note" has the meaning specified in the Indenture.
"Discount Option Date" has the meaning specified in the
Transfer and Servicing Agreement.
"Discount Receivables" has the meaning specified in the
Transfer and Servicing Agreement.
"Discount Receivables Collections" has the meaning specified
in the Transfer and Servicing Agreement.
"Dollar" or "$" has the meaning specified in the Transfer
and Servicing Agreement.
"Early Amortization Event" has the meaning specified in the
Indenture.
"Effective Date" means the date on which this Asset Pool One
Supplement is executed and delivered by the parties hereto.
"Eligible Account" has the meaning specified in the Transfer
and Servicing Agreement.
"Eligible Collateral Certificate" has the meaning specified
in the Transfer and Servicing Agreement.
"Event of Default" has the meaning specified in the
Indenture.
"Excess Funding Account" has the meaning specified in
subsection 5.1(a)(ii).
"Excess Funding Amount" means at any time the aggregate
amount on deposit in the Excess Funding Account.
"Finance Charge Collections" has the meaning specified in
the Transfer and Servicing Agreement.
"Finance Charge Receivables" has the meaning specified in
the Transfer and Servicing Agreement.
"First Note Transfer Date" means, with respect to any
Monthly Period, the initial Note Transfer Date for any Series, Class or
Tranche of Asset Pool One Notes in such Monthly Period.
"First USA" means First USA Bank, National Association, a
national banking association, and its successors and permitted assigns.
"First USA Credit Card Master Trust Pooling and Servicing
Agreement" has the meaning specified in the Transfer and Servicing Agreement.
"Fitch" has the meaning specified in the Transfer and
Servicing Agreement.
"Gross Principal Receivables" has the meaning specified in
the Transfer and Servicing Agreement.
"Holder" has the meaning specified in the Indenture.
"Increase Date" has the meaning specified in subsection
2.4(a)(i).
"Indenture" means the Indenture, dated as of May 1, 2002,
between the Issuer and the Indenture Trustee, as the same may be amended,
supplemented or otherwise modified from time to time.
"Indenture Supplement" has the meaning specified in the
Indenture.
"Indenture Trustee" has the meaning specified in the
Indenture.
"Ineligible Receivables" has the meaning specified in the
Transfer and Servicing Agreement.
"Initial Collateral Certificate" has the meaning specified
in the Transfer and Servicing Agreement.
"Insolvency Event" has the meaning specified in the Transfer
and Servicing Agreement.
"Interchange" has the meaning specified in the Transfer and
Servicing Agreement.
"Interchange Amount" has the meaning specified in the
Transfer and Servicing Agreement.
"Invested Amount" has, with respect to any Asset Pool One
Collateral Certificate, the meaning specified in the applicable Series
Supplement.
"Issuer" has the meaning specified in the first paragraph of
this Asset Pool One Supplement.
"Issuer Tax Opinion" has the meaning specified in the
Indenture.
"Legal Maturity Date" has, for any Note, the meaning
specified in the Indenture.
"Majority Holders" has the meaning specified in the
Indenture.
"Master Trust" has the meaning specified in the Indenture.
"Moody's" has the meaning specified in the Transfer and
Servicing Agreement.
"Monthly Period" has the meaning specified in the Indenture.
"Nominal Liquidation Amount" has, with respect to any
Series, Class or Tranche of Asset Pool One Notes, the meaning specified in the
applicable Indenture Supplement for such Series, Class or Tranche of Asset
Pool One Notes.
"Nominal Liquidation Amount Deficit" has, with respect to
any Series, Class or Tranche of Asset Pool One Notes, the meaning specified in
the applicable Indenture Supplement for such Series, Class or Tranche of Asset
Pool One Notes.
"Note" or "Notes" has the meaning specified in the
Indenture.
"Noteholder Percentage" means, for any Series of Asset Pool
One Notes, with respect to Asset Pool One Principal Collections, Asset Pool
One Finance Charge Collections, the Asset Pool One Default Amount and the
Asset Pool One Servicing Fee, the percentage stated in the applicable
Indenture Supplement for such Series of Asset Pool One Notes.
"Note Rating Agency" means, with respect to any Outstanding
Asset Pool One Notes, each statistical rating agency selected by the Issuer to
rate such Notes.
"Note Rating Agency Condition" has the meaning specified in
the Transfer and Servicing Agreement.
"Note Registrar" has the meaning specified in the Indenture.
"Note Transfer Date" means the Business Day prior to the
Payment Date for a Series, Class or Tranche of Asset Pool One Notes.
"Notice Date" has the meaning specified in subsection
2.4(c)(ii).
"Obligor" has the meaning specified in the Transfer and
Servicing Agreement.
"Officer's Certificate" has the meaning specified in the
Indenture.
"Opinion of Counsel" has the meaning specified in the
Indenture.
"Outstanding" has the meaning specified in the Indenture.
"Outstanding Dollar Principal Amount" has the meaning
specified in the Indenture.
"Owner Trustee" has the meaning specified in the Transfer
and Servicing Agreement.
"Payment Date" has the meaning specified in the Indenture.
"Permitted Investments" has the meaning specified in the
Indenture.
"Person" has the meaning specified in the Indenture.
"Prefunding Excess Amount" has, with respect to any Series,
Class or Tranche of Asset Pool One Notes, the meaning specified in the
applicable Indenture Supplement for such Series, Class or Tranche of Asset
Pool One Notes.
"Principal Collections" has the meaning specified in the
Transfer and Servicing Agreement.
"Principal Receivables" has the meaning specified in the
Transfer and Servicing Agreement.
"Principal Shortfalls" has the meaning specified in the
applicable Series Supplement for a Collateral Certificate.
"Proposed Principal Shortfall Amount" has the meaning
specified in Section 3.13.
"Qualified Bank Account" has the meaning specified in the
Indenture.
"Qualified Institution" has the meaning specified in the
Indenture.
"Ratings Effect" has the meaning specified in the Indenture.
"Reallocation Group" means all Reallocation Series that have
the same Reallocation Group designation.
"Reallocation Series" means a Series that, pursuant to the
Indenture Supplement therefor, will share certain Finance Charge Collections
or other specified amounts with other series in the same Reallocation Group,
as more specifically specified in such Indenture Supplement.
"Reassignment" has the meaning specified in subsection
2.5(b)(ii).
"Receivables" has the meaning specified in the Transfer and
Servicing Agreement.
"Recoveries" has the meaning specified in the Transfer and
Servicing Agreement.
"Remaining Series Available Principal Collections Shortfall"
has, with respect to any Series of Asset Pool One Notes, the meaning specified
in the applicable Indenture Supplement for such Series of Asset Pool One
Notes.
"Removal Date" has the meaning specified in subsection
2.5(a).
"Removal Notice Date" has the meaning specified in
subsection 2.5(a).
"Removed Asset Pool One Accounts" has the meaning specified
in subsection 2.5(a).
"Requirements of Law" has the meaning specified in the
Transfer and Servicing Agreement.
"Revolving Period" has, with respect to any Series, Class or
Tranche of Asset Pool One Notes, the meaning specified in the applicable
Indenture Supplement with respect to such Series, Class or Tranche of Asset
Pool One Notes.
"Security Interest" means the security interest granted
pursuant to the Granting Clause.
"Secured Party" has the meaning specified in the Granting
Clause of this Asset Pool One Supplement.
"Series" means, with respect to any Note, the series
specified in the applicable Indenture Supplement.
"Series Available Principal Collections Shortfall" has, with
respect to any Series of Asset Pool One Notes, the meaning specified in the
applicable Indenture Supplement for such Series of Asset Pool One Notes.
"Series 2002-CC Supplement" has the meaning specified in the
Transfer and Servicing Agreement.
"Series Supplement" has the meaning specified in the
Indenture.
"Servicer" has the meaning specified in the Transfer and
Servicing Agreement.
"Servicer Rating Event" has the meaning specified in the
Transfer and Servicing Agreement.
"SFAS 140" has the meaning specified in the Transfer and
Servicing Agreement.
"Shared Excess Available Principal Collections" has, with
respect to any Series of Asset Pool One Notes, the meaning specified in the
applicable Indenture Supplement for such Series of Asset Pool One Notes.
"Standard and Poor's" has the meaning specified in the
Transfer and Servicing Agreement.
"Sub-Account" has the meaning specified in the Indenture.
"Successor Servicer" has the meaning specified in subsection
10.02(a) of the Transfer and Servicing Agreement.
"Supplemental Bank Account" means the trust account or
accounts designated as such and established pursuant to subsection 5.1(a)(i).
"Supplemental Credit Enhancement Agreement" has the meaning
specified in the Indenture.
"Supplemental Credit Enhancement Provider" has the meaning
specified in the Indenture.
"Supplemental Liquidity Agreement" has the meaning specified
in the Indenture.
"Supplemental Liquidity Provider" has the meaning specified
in the Indenture.
"Targeted Interest Deposit Amount" has, with respect to any
Series, Class or Tranche of Asset Pool One Notes, the meaning specified in the
applicable Indenture Supplement for such Series, Class or Tranche of Asset
Pool One Notes.
"Targeted Principal Deposit Amount" has, with respect to any
Series, Class or Tranche of Asset Pool One Notes, the meaning specified in the
applicable Indenture Supplement for such Series, Class or Tranche of Asset
Pool One Notes.
"Tranche" has the meaning specified in the Indenture.
"Transfer and Servicing Agreement" means the Transfer and
Servicing Agreement, dated as of May 1, 2002, among First USA, as Transferor,
Servicer and Administrator, the Issuer, and Xxxxx Fargo Bank Minnesota,
National Association, as Indenture Trustee and Collateral Agent, as amended,
supplemented or restated from time to time.
"Transfer Restriction Event" has the meaning specified in
the Transfer and Servicing Agreement.
"Transferor" has the meaning specified in the Transfer and
Servicing Agreement.
"Transferor Certificate" means, for Asset Pool One, if any
Transferor elects to evidence its interest in the Transferor Interest in
certificated form, the certificate executed by the Issuer and authenticated by
the Owner Trustee, substantially in the form set forth as Exhibit A; provided,
that as used herein and in any Indenture Supplement "Transferor Certificate"
shall mean either a certificate executed and delivered by the Issuer and
authenticated by the Owner Trustee substantially in the form of Exhibit A or
the uncertificated interest in the Transferor Interest.
"Transferor Interest" means, with respect to Asset Pool One,
the interest in Asset Pool One not represented by the issued and Outstanding
Asset Pool One Notes.
"Trust" has the meaning specified in the first paragraph of
this Asset Pool One Supplement.
"Trust Agreement" has the meaning specified in the Transfer
and Servicing Agreement.
"Trust Indenture Act" has the meaning specified in the
Indenture.
"UCC" has the meaning specified in the Transfer and
Servicing Agreement.
"Yield Factor" has the meaning specified in the Transfer and
Servicing Agreement.
Section 1.2 Effect of Headings and Table of Contents. The
Article and Section headings herein and the Table of Contents are for
convenience only and will not affect the construction hereof.
Section 1.3 Successors and Assigns. All covenants and
agreements in this Asset Pool One Supplement by the Issuer will bind its
successors and assigns, whether so expressed or not. All covenants and
agreements of the Collateral Agent in this Asset Pool One Supplement shall
bind the successors and agents of the Collateral Agent.
Section 1.4 Separability. In case any provision in this
Asset Pool One Supplement will be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions will not in
any way be affected or impaired thereby.
Section 1.5 Governing Law. THIS ASSET POOL ONE SUPPLEMENT
WILL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY 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 1.6 Counterparts. This Asset Pool One Supplement may
be executed in any number of counterparts, each of which so executed will be
deemed to be an original, but all such counterparts will together constitute
but one and the same instrument.
[END OF ARTICLE I]
ARTICLE II
COLLATERAL
Section 2.1 Initial Collateral.
The Issuer hereby designates the Initial Collateral
Certificate issued pursuant to the Series 2002-CC Supplement to the First USA
Credit Card Master Trust Pooling and Servicing Agreement as an Asset Pool One
Collateral Certificate. Such Initial Collateral Certificate shall be
registered in the name of the Collateral Agent and delivered to the Collateral
Agent on the date hereof in accordance with Section 4.14 and, unless written
notice has been delivered to the Servicer, the Owner Trustee and the Indenture
Trustee, shall be held by the Collateral Agent in the State of New York.
Section 2.2 Reinvestment in Collateral
(a) On each First Note Transfer Date, the Asset Pool One
Reinvestment Amount for the immediately preceding Monthly Period shall be
applied in the following order of priority:
(i) if the Collateral includes one or more Asset
Pool One Collateral Certificates, pursuant to the Transfer and
Servicing Agreement, the Servicer, on behalf of the Issuer, shall
specify the amount of the Asset Pool One Reinvestment Amount to be
reinvested in each Asset Pool One Collateral Certificate previously
designated as part of the Collateral for Asset Pool One which amount
shall be determined by the Servicer, on behalf of the Issuer, in its
own discretion, and no such reinvestment shall be required; provided,
however, that, subject to the restrictions specified in subsection
2.3(c), the Issuer shall be required to increase the Invested Amount
of an existing Asset Pool One Collateral Certificate if Collateral is
required to be added pursuant to subsection 2.4(a) and the applicable
Transferor elects to increase the Invested Amount of one or more
existing Asset Pool One Collateral Certificates as specified in such
Section (so long as the Transfer and Servicing Agreement and the
applicable Series Supplement each allows such reinvestment and the
transferor or seller for the related Master Trust agrees to such
reinvestment); and
(ii) the remainder of such amounts shall be paid to
the holders of the Asset Pool One Transferor Amount; provided, however,
that if the Asset Pool One Transferor Amount for the prior Monthly
Period did not equal or exceed the Asset Pool One Required Transferor
Amount for the prior Monthly Period or the Asset Pool One Pool Balance
for such prior Monthly Period did not equal or exceed the Asset Pool
One Minimum Pool Balance for such prior Monthly Period (after
application of the Asset Pool One Reinvestment Amount, if any, pursuant
to this Section), such amount shall be deposited in the Excess Funding
Account for Asset Pool One.
(b) Each Asset Pool One Receivable shall be transferred to
the Issuer pursuant to the Transfer and Servicing Agreement and designated for
inclusion in Asset Pool One and pledged to secure the Asset Pool One Notes on
the day that such Asset Pool One Receivable arises pursuant to this Asset Pool
One Supplement.
Section 2.3 Increases in the Invested Amount of an Existing
Asset Pool One Collateral Certificate.
(a) In addition to the increases described in Section 2.2
above, the Invested Amount of any existing Asset Pool One Collateral
Certificate may be increased by the applicable Transferor on any Business Day
in connection with:
(i) the issuance of an additional Series, Class or
Tranche of Asset Pool One Notes; or
(ii) the increase of the Asset Pool One Transferor
Amount.
(b) In connection with any increase in the Invested Amount
of an existing Asset Pool One Collateral Certificate, such increase shall
either be funded from the proceeds of the issuance of an additional Series,
Class or Tranche of Asset Pool One Notes or be funded by the applicable
Transferor (which funding may be in cash or through an increase in the
Transferor Interest for Asset Pool One).
(c) Notwithstanding any other provision of this Agreement,
with respect to any Monthly Period, the Invested Amount of an existing Asset
Pool One Collateral Certificate shall not be increased if (i) an Early
Amortization Event shall have occurred with respect to any Asset Pool One
Notes as a result of a failure to add Collateral to Asset Pool One or a
failure to increase the Invested Amount of an existing Asset Pool One
Collateral Certificate at a time when the Asset Pool One Pool Balance for the
prior Monthly Period is less than the Asset Pool One Minimum Pool Balance for
such prior Monthly Period and (ii) increasing the Invested Amount of or
reinvesting in an existing Asset Pool One Collateral Certificate would result
in a reduction in the allocation percentage applicable for principal
collections for such existing Asset Pool One Collateral Certificate.
Section 2.4 Addition of Collateral.
(a) Required Additions.
(i) If, (A) as determined on any Determination
Date, the Asset Pool One Transferor Amount for the prior Monthly
Period is less than the Asset Pool One Required Transferor Amount for
such prior Monthly Period, the Issuer shall (1) designate Receivables
in additional Accounts for inclusion in Asset Pool One (each, an
"Additional Asset Pool One Account"), (2) designate one or more
Additional Collateral Certificates for inclusion in Asset Pool One
(each, an "Additional Asset Pool One Collateral Certificate") or (3)
increase the Invested Amount of one or more existing Asset Pool One
Collateral Certificates pursuant to Section 2.2 or Section 2.3 in a
sufficient amount such that, after giving effect to such addition or
increase, the Asset Pool One Transferor Amount for the prior Monthly
Period would have been at least equal to the Asset Pool One Required
Transferor Amount for such prior Monthly Period, or (B) as determined
on any Determination Date, the Asset Pool One Pool Balance for the
prior Monthly Period is less than the Asset Pool One Minimum Pool
Balance for such prior Monthly Period, the Issuer shall (1) designate
Receivables in Additional Asset Pool One Accounts for inclusion in
Asset Pool One, (2) designate one or more Additional Asset Pool One
Collateral Certificates for inclusion in Asset Pool One or (3)
increase the Invested Amount of one or more existing Asset Pool One
Collateral Certificates pursuant to Section 2.2 or Section 2.3 in a
sufficient amount such that, after giving effect to such addition or
increase, the Asset Pool One Pool Balance would have been equal to or
greater than the Asset Pool One Minimum Pool Balance for such prior
Monthly Period; provided, however, that in the event of a Servicer
Rating Event, the Asset Pool One Transferor Amount and the Asset Pool
One Pool Balance will be determined on a daily basis in accordance
with a method to be determined by the Transferor, subject to
satisfaction of the Note Rating Agency Condition.
Any increase in the Invested Amount of one or more existing
Asset Pool One Collateral Certificates shall occur and/or designation
of Receivables in any Additional Asset Pool One Accounts and/or any
Additional Asset Pool One Collateral Certificates to be transferred to
the Trust and designated for inclusion in Asset Pool One shall be
transferred to the Trust and designated for inclusion in Asset Pool
One, as applicable, on or before the thirtieth Business Day following
such Determination Date (such date, in connection with the addition of
Additional Asset Pool One Accounts or Additional Asset Pool One
Collateral Certificates, the "Addition Date" and in connection with the
increase of an existing Asset Pool One Collateral Certificate, the
"Increase Date"); provided, however, that in the event of a Servicer
Rating Event, any such Addition Date or Increase Date shall be on or
before the tenth Business Day following such Determination Date. The
failure of any Transferor to increase the Asset Pool One Transferor
Amount or the Asset Pool One Pool Balance as provided in this clause
(i) solely as a result of the unavailability to such Transferor of a
sufficient amount of Additional Asset Pool One Accounts and/or
Additional Asset Pool One Collateral Certificates and/or the inability
to increase the Invested Amount of one or more existing Asset Pool One
Collateral Certificates shall not constitute a breach of this Asset
Pool One Supplement or the Transfer and Servicing Agreement; provided
that any such failure which has not been timely cured may nevertheless
result in the occurrence of an Early Amortization Event.
(ii) Any Additional Asset Pool One Accounts or
Additional Asset Pool One Collateral Certificates designated to be
included in Asset Pool One pursuant to clause (i) above may only be
so included if the applicable conditions specified in subsection (c)
below have been satisfied.
(b) Permitted Additions.
(i) In addition to its obligation under subsection
2.4(a), the Issuer may, but shall not be obligated to, subject to the
conditions in paragraph (c) below, (x) designate from time to time
Receivables in Additional Asset Pool One Accounts to be included as
Collateral, and/or Additional Asset Pool One Collateral Certificates
to be included as Collateral and (y) increase the Invested Amount of
existing Asset Pool One Collateral Certificates. Such additional
Collateral shall be transferred to the Issuer and designated for
inclusion in Asset Pool One on the Addition Date or Increase Date, as
applicable.
(ii) On any Business Day, consideration in the form
of cash will be applied or an increase in the Asset Pool One
Transferor Amount will be effected in connection with any increase in
the Collateral.
(c) Conditions to Additions. On each Addition Date with
respect to any Additional Asset Pool One Accounts and/or Additional Asset Pool
One Collateral Certificates, the applicable Receivables in Additional Asset
Pool One Accounts (and such Additional Asset Pool One Accounts shall be deemed
to be Accounts for purposes of this Asset Pool One Supplement) or the
applicable Additional Asset Pool One Collateral Certificates existing as of
the close of business on the applicable Addition Date shall be designated as
additional Collateral, subject to the satisfaction of the following conditions
(which shall not apply with respect to any increase in the Invested Amount of
any existing Asset Pool One Collateral Certificate except as specified in
clause (ii) below):
(i) all of the requirements for the addition of
Accounts set forth under subsection 2.12(c) of the Transfer and
Servicing Agreement shall have been satisfied and all of the
representations and warranties set forth under subsection 2.04(a) of
the Transfer and Servicing Agreement to be made on each Addition Date
shall be true and correct in all material respects on such Addition
Date;
(ii) on or before the third Business Day prior to
the Addition Date or Increase Date, as applicable, with respect to
additions or increases pursuant to subsection 2.4(a) and on or before
the fifth Business Day prior to the Addition Date with respect to
additions pursuant to subsection 2.4(b) (the "Notice Date"), the
Issuer shall have delivered to the Indenture Trustee, the Collateral
Agent, each Note Rating Agency and the Servicer written notice
(unless such notice requirement is otherwise waived) that such
additional Collateral will be designated for inclusion in Asset Pool
One, or an increased Invested Amount of an existing Asset Pool One
Collateral Certificate will be designated for inclusion in the
Collateral (the latter notice requirement shall only apply to
increases made pursuant to subsection 2.4(a); provided, however, that
notice shall be delivered to the Collateral Agent in connection with
any increase in the Invested Amount of an existing Asset Pool One
Collateral Certificate) which notice shall specify, as applicable,
(x) the approximate aggregate amount of the Principal Receivables to
be designated for inclusion in Asset Pool One, (y) the Invested
Amount of the Additional Asset Pool One Collateral Certificates to be
designated for inclusion in Asset Pool One or (z) the amount by which
the Invested Amount of an existing Asset Pool One Collateral
Certificate is to be increased, as well as the applicable Addition
Date or Increase Date and, in connection with the Additional Asset
Pool One Accounts, the Addition Cut Off Date;
(iii) as of the applicable Addition Cut Off Date,
each Additional Asset Pool One Account is an Eligible Account;
(iv) as of the applicable Addition Date, each
Additional Asset Pool One Collateral Certificate is an Eligible
Collateral Certificate;
(v) on or before the Addition Date with respect to
Additional Asset Pool One Accounts and the Receivables arising
thereunder, the Issuer shall have delivered to the Collateral Agent
and the Servicer a written assignment (including an acceptance by the
Collateral Agent for the benefit of the Asset Pool One Noteholders
and the other Secured Parties) in substantially the form of Exhibit B
(the "Account Assignment") and the Issuer shall have delivered to the
Collateral Agent a computer file containing a true and complete list
of all Additional Asset Pool One Accounts, identified by account
number and the aggregate amount of the Receivables in each Additional
Asset Pool One Account as of the Addition Cut Off Date, which
computer file shall be as of the date of such Account Assignment
incorporated into and made a part of such Account Assignment and this
Asset Pool One Supplement;
(vi) on or before the Addition Date with respect to
Additional Asset Pool One Collateral Certificates, the Issuer shall
have delivered to the Collateral Agent and the Servicer a written
assignment in substantially the form of Exhibit C (the
"Certificate Assignment") and each Collateral Certificate shall be
registered in the name of and shall be delivered to the Collateral
Agent in accordance with Section 4.14;
(vii) as of each of the Addition Cut Off Date and
the Addition Date, no Insolvency Event with respect to the Account
Owner, as applicable, the applicable Transferor or the Issuer shall
have occurred nor shall the transfer to Asset Pool One of the
Receivables arising in the Additional Asset Pool One Accounts or of
the Additional Asset Pool One Collateral Certificate, as applicable,
have been made in contemplation of the occurrence thereof;
(viii) the designation for inclusion in Asset Pool
One of the Receivables arising in the Additional Asset Pool One
Accounts or of the Additional Asset Pool One Collateral Certificates
shall not, in the reasonable belief of the Issuer, result in an
Adverse Effect;
(ix) if, with respect to any three-month period or
with respect to any twelve-month period, the aggregate number of
Additional Asset Pool One Accounts designated to have their
Receivables added to the Trust shall exceed the applicable Aggregate
Addition Limit, the Issuer shall have received notice from each Note
Rating Agency that the inclusion pursuant to subsection 2.4(b) of
such Additional Asset Pool One Accounts in Asset Pool One in excess
of the applicable Aggregate Addition Limit will not result in the
reduction or withdrawal of its then existing rating of any Series,
Class or Tranche of Asset Pool One Notes then issued and Outstanding
and shall have delivered such notice to the Collateral Agent;
(x) if so notified by any Note Rating Agency on or
before the second Business Day prior to the Addition Date with
respect to additions of Additional Asset Pool One Collateral
Certificates pursuant to subsection 2.4(a) or on or before the fourth
Business Day prior to the Addition Date with respect to additions of
Additional Asset Pool One Collateral Certificates pursuant to
subsection 2.4(b) that such Note Rating Agency has elected to impose
a Note Rating Agency Condition with respect to the addition of an
Additional Asset Pool One Collateral Certificate, the Issuer shall
have received notice from such Note Rating Agency on or prior to the
applicable Addition Date that the Note Rating Agency Condition shall
have been satisfied with respect to such Note Rating Agency and the
Issuer shall have delivered such notice to the Collateral Agent; and
(xi) the Issuer shall have delivered to the
Collateral Agent an Officer's Certificate, dated the Addition Date,
confirming, to the extent applicable, the items set forth in clauses
(iii) through (x) above.
Section 2.5 Removal of Accounts.
(a) Subject to the conditions set forth below, the Issuer
may, but shall not be obligated to, designate Asset Pool One Receivables from
Asset Pool One Accounts for removal ("Removed Asset Pool One Accounts") from
the Collateral. On or before the fifth Business Day (the "Removal Notice
Date") prior to the date on which the Asset Pool One Receivables from the
designated Removed Asset Pool One Accounts will be reassigned by the
Collateral Agent to the Issuer (the "Removal Date"), the Issuer shall give the
Indenture Trustee, the Owner Trustee, the Collateral Agent, the Servicer and
each Note Rating Agency written notice that the Asset Pool One Receivables
from such Removed Asset Pool One Accounts are to be reassigned to the Issuer.
(b) The Issuer shall be permitted to designate and require
reassignment to it of the Asset Pool One Receivables from Removed Asset Pool
One Accounts only upon satisfaction of the following conditions:
(i) the removal of any Asset Pool One Receivables
of any Removed Asset Pool One Accounts on any Removal Date shall not,
in the reasonable belief of the Issuer cause an Adverse Effect or the
Asset Pool One Transferor Amount to be less than the Asset Pool One
Required Transferor Amount or the Asset Pool One Pool Balance to be
less than the Asset Pool One Minimum Pool Balance for the Monthly
Period in which such removal occurs;
(ii) on or prior to the Removal Date, the Issuer
shall have delivered to the Collateral Agent for execution a written
assignment in substantially the form of Exhibit D (the
"Reassignment") and, within 5 Business Days thereafter, or as
otherwise agreed upon between the Issuer and the Collateral Agent,
the Issuer shall have delivered to the Collateral Agent a computer
file containing a true and complete list of all Removed Asset Pool
One Accounts identified by account number and the aggregate amount of
the Asset Pool One Receivables in each Removed Asset Pool One Account
as of the Removal Date, which computer file shall as of the Removal
Date modify and amend and be made a part of this Asset Pool One
Supplement;
(iii) the Servicer shall represent and warrant that
(x) a random selection procedure was used by the Servicer in selecting
the Removed Asset Pool One Accounts and only one such removal of
randomly selected Asset Pool One Accounts shall occur in the then
current Monthly Period, (y) the Removed Asset Pool One Accounts arose
pursuant to an affinity, private-label, agent-bank, co-branding or
other arrangement with a third party that has been cancelled by such
third party or has expired without renewal and which by its terms
permits the third party to repurchase the Removed Asset Pool One
Accounts subject to such arrangement, upon such cancellation or
non-renewal and the third party has exercised such repurchase right or
(z) the Removed Asset Pool One Accounts were selected using another
method that will not preclude transfers from being accounted for as
sales under generally accepted accounting principles or prevent the
Issuer from continuing to qualify as a qualifying special purpose
entity in accordance with SFAS 140 (or any relevant replacement
statement);
(iv) on or before the tenth Business Day prior to
the Removal Date, each Note Rating Agency shall have received notice
from the Servicer of such proposed removal of the Asset Pool One
Receivables of such Asset Pool One Accounts and, if such removal is
pursuant to subclause (iii)(y) or (z) above, the Note Rating Agency
Condition shall have been satisfied; and
(v) (A) the Issuer shall have delivered to the
Collateral Agent an Officer's Certificate confirming the items set
forth in clauses (i) and (ii) above, (B) the Servicer shall have
delivered to the Collateral Agent an Officer's Certificate confirming
the items set forth in clauses (iii) and (iv) above. The Indenture
Trustee and the Collateral Agent may conclusively rely on such
Officer's Certificate, shall have no duty to make inquiries with
regard to the matters set forth therein and shall incur no liability
in so relying.
Upon satisfaction of the above conditions, the Collateral
Agent shall execute and deliver the Reassignment to the Issuer, and the Asset
Pool One Receivables from the Removed Asset Pool One Accounts shall no longer
constitute a part of the Collateral. Thereafter, such Accounts shall be
removed from the Trust pursuant to Section 2.13 of the Transfer and Servicing
Agreement.
Section 2.6 Account Allocations. In the event that the
Issuer is unable for any reason to designate Asset Pool One Receivables for
inclusion in Asset Pool One in accordance with the provisions of this Asset
Pool One Supplement (including, without limitation, by reason of a Transfer
Restriction Event), then, in any such event, (a) the Issuer and the Servicer
agree (except as prohibited by any such order) to allocate and pay to Asset
Pool One, after the date of such inability, all Collections, including
Collections of Principal Receivables and Finance Charge Receivables designated
for inclusion in Asset Pool One prior to the occurrence of such event, and all
amounts which would have constituted Collections with respect to Principal
Receivables and Finance Charge Receivables but for the Issuer's inability to
designate such Asset Pool One Receivables (up to the lesser of the amount of
such insufficiency or an aggregate amount equal to the amount of Principal
Receivables and Finance Charge Receivables in Asset Pool One on such date
transferred to Asset Pool One by the Issuer), (b) the Issuer and the Servicer
agree that such amounts will be applied as Collections in accordance with the
terms hereof and the terms of each Indenture Supplement and (c) for only so
long as the allocation and application of all Collections and all amounts that
would have constituted Collections are made in accordance with clauses (a)
and (b) above, Principal Receivables and Finance Charge Receivables (and all
amounts which would have constituted Principal Receivables and Finance Charge
Receivables but for the Issuer's inability to designate Asset Pool One
Receivables for inclusion in Asset Pool One) which are charged off as
uncollectible in accordance with this Asset Pool One Supplement shall continue
to be allocated in accordance with the terms hereof and each Indenture
Supplement and all amounts that would have constituted Principal Receivables
but for the Issuer's inability to designate Asset Pool One Receivables for
inclusion in Asset Pool One shall be deemed to be Principal Receivables for
the purpose of calculating the applicable Noteholder Percentage with respect
to Principal Receivables with respect to any Series, Class or Tranche secured
by the Asset Pool One Receivables. For the purpose of the immediately
preceding sentence, the Issuer and the Servicer shall treat the first received
Collections with respect to the Asset Pool One Accounts as allocable to Asset
Pool One until Asset Pool One shall have been allocated and paid Collections
in an amount equal to the aggregate amount of Principal Receivables in Asset
Pool One as of the date of the occurrence of such event. If the Issuer and the
Servicer are unable pursuant to any Requirements of Law to allocate
Collections as described above, the Issuer and the Servicer agree that, after
the occurrence of such event, payments on each Asset Pool One Account with
respect to the principal balance of such Asset Pool One Account shall be
allocated first to the oldest principal balance of such Asset Pool One Account
and shall have such payments applied as Collections in accordance with the
terms hereof and each Indenture Supplement. The parties hereto agree that
Asset Pool One Finance Charge Receivables, whenever created, accrued in
respect of Principal Receivables which have been conveyed to Asset Pool One,
or that would have been conveyed to Asset Pool One but for the above described
inability to designate such Asset Pool One Receivables, shall continue to be a
part of Asset Pool One notwithstanding any cessation of the transfer of
additional Principal Receivables to Asset Pool One and Collections with
respect thereto shall continue to be allocated and paid in accordance with the
terms hereof and each Indenture Supplement.
Section 2.7 Discount Receivables.
(a) In the event the Transferor, pursuant to the Transfer
and Servicing Agreement, opts to designate at any time and from time to time
the Yield Factor of all or any specified portion of Gross Principal
Receivables outstanding in Asset Pool One on any date of determination and
subsequently created to be treated as Discount Receivables and included in
Finance Charge Receivables, such designation shall be applicable under this
Asset Pool One Supplement and each Indenture Supplement. Subject to the
conditions specified in the Transfer and Servicing Agreement, the Yield Factor
may, without notice to or the consent of any Noteholder in Asset Pool One,
from time to time, be increased, reduced or eliminated on or after such
Discount Option Date; provided, however, that on each Discount Option Date
after a change in Yield Factor, the Transferor shall apply the new Yield
Factor to all or the portion of the Gross Principal Receivables outstanding in
Asset Pool One which are to be treated as Discount Receivables.
(b) After the Discount Option Date, Discount Receivables
Collections with respect to Asset Pool One Receivables shall be treated as
Asset Pool One Finance Charge Collections.
Section 2.8 Recording, Etc.
(a) The Issuer intends the Security Interest granted
pursuant to this Asset Pool One Supplement in favor of the Collateral Agent to
be prior to all other liens in respect of the Collateral. Subject to Section
2.9, the Issuer will take all actions necessary to obtain and maintain a
perfected lien on and security interest in the Collateral in favor of the
Collateral Agent. The Issuer will from time to time execute, authorize and
deliver all such supplements and amendments hereto and all such financing
statements, continuation statements, instruments of further assurance and
other instruments, all as prepared by the Issuer, and will take such other
action necessary or advisable to:
(i) grant a Security Interest more effectively in
all or any portion of the Collateral;
(ii) maintain or preserve the Security Interest
(and the priority thereof) created by this Asset Pool One Supplement
or carry out more effectively the purposes hereof;
(iii) perfect, publish notice of or protect the
validity of any grant made or to be made by this Asset Pool One
Supplement;
(iv) enforce each Asset Pool One Collateral
Certificate, the Asset Pool One Receivables, any Derivative
Agreements, any Supplemental Credit Enhancement Agreements and any
Supplemental Liquidity Agreements and each other instrument or
agreement designated for inclusion in the Collateral;
(v) preserve and defend title to the Collateral and
the rights of the Collateral Agent in the Collateral against the
claims of all persons and parties; or
(vi) pay all taxes or assessments levied or
assessed upon the Collateral when due.
(b) The Issuer will from time to time promptly pay and
discharge all financing and continuation statement recording and/or filing
fees, charges and taxes relating to this Indenture, any amendments thereto and
any other instruments of further assurance. The Issuer hereby designates the
Servicer its agent and attorney-in-fact to authorize upon the Issuer's failure
to do so, any financing statement, continuation statement or other instrument
required by the Collateral Agent pursuant to this Section.
(c) Without limiting the generality of clause (a)(ii) or
(a)(iii):
(i) The Issuer will cause this Asset Pool One
Supplement, all amendments and supplements hereto and/or all
financing statements and continuation statements and any other
necessary documents covering the Collateral Agent's right, title and
interest in and to the Collateral to be promptly recorded, registered
and filed, and at all times to be kept, recorded, registered and
filed, all in such manner and in such places as may be required by
law fully to preserve and protect the right, title and interest of
the Collateral Agent in and to all property comprising the
Collateral. The Issuer will deliver to the Collateral Agent
file-stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above, as soon as available
following such recording, registration or filing.
(ii) Within 30 days after the Issuer makes any
change in its name, identity or corporate structure which would make
any financing statement or continuation statement filed in accordance
with paragraph (d) seriously misleading within the meaning of Section
9-506 (or any comparable provision) of the UCC, the Issuer will give
the Collateral Agent notice of any such change and will file such
financing statements or amendments as may be necessary to continue
the perfection of the Collateral Agent's interest in the Collateral.
(d) The Issuer will give the Collateral Agent prompt notice
of any relocation of its state of location, and any change in the jurisdiction
of its organization, and whether, as a result of such relocation or change,
the applicable provision of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement and will file such financing statements or amendments as
may be necessary to perfect or to continue the perfection of the Collateral
Agent's security interest in the Collateral. The Issuer will at all times
maintain its chief executive office within the United States.
(e) The duty of the Collateral Agent to execute or authorize
any instrument required pursuant to this Section will arise only if the
Collateral Agent has actual knowledge of the type described in Section 6.01(c)
of the Indenture of any default of the Issuer in complying with the provisions
of this Section.
Section 2.9 Trust Indenture Act Requirements. The release of
any Collateral from the lien created by this Asset Pool One Supplement or the
release, in whole or in part, of the liens on all Collateral, will not be deemed
to impair the Security Interest in contravention of the provisions hereof if and
to the extent the Collateral or liens are released pursuant to the terms hereof.
The Collateral Agent and the Indenture Trustee, each in its individual capacity,
and each of the Asset Pool One Noteholders are hereby deemed to acknowledge that
a release of Collateral securing an Asset Pool or liens strictly in accordance
with the terms hereof will not be deemed for any purpose to be an impairment of
the remaining Security Interests in contravention of the terms of this Asset
Pool One Supplement. To the extent applicable, without limitation, the Issuer
will cause Section 314(d) of the Trust Indenture Act relating to the release of
property or securities from the liens hereof to be complied with. Any
certificate or opinion required by Section 314(d) of the Trust Indenture Act may
be made by an officer of the Issuer, except in cases in which Section 314(d) of
the Trust Indenture Act requires that such certificate or opinion be made by an
independent person.
Section 2.10 Suits To Protect the Collateral. Subject to the
provisions of this Asset Pool One Supplement, the Collateral Agent will have
power to institute and to maintain such suits and proceedings as it may deem
expedient to prevent any impairment of the Collateral by any acts which may be
unlawful or in violation of this Asset Pool One Supplement, and such suits and
proceedings as the Collateral Agent may deem expedient to preserve or protect
the interests of the Asset Pool One Noteholders and the interests of the
Indenture Trustee and the Collateral Agent, each in its individual capacity,
in the Collateral (including power to institute and maintain suits or
proceedings to restrain the enforcement of or compliance with any legislative
or other governmental enactment, rule or order that may be unconstitutional or
otherwise invalid if the enforcement of, or compliance with, such enactment,
rule or order would impair the Security Interest or be prejudicial to the
interests of the Asset Pool One Noteholders or the Collateral Agent). No
counterparties to a Derivative Agreement, Supplemental Credit Enhancement
Agreement or Supplemental Liquidity Agreement may direct the Collateral Agent
to enforce the Security Interest. Each Derivative Counterparty's, Supplemental
Credit Enhancement Provider's and Supplemental Liquidity Provider's rights
consist solely of the right to receive Collections allocated for such party's
benefit pursuant to the related Indenture Supplement.
Section 2.11 Purchaser Protected. In no event will any
purchaser in good faith of any property purported to be released hereunder be
bound to ascertain the authority of the Collateral Agent to execute the
release or to inquire as to the satisfaction of any conditions required by the
provisions hereof for the exercise of such authority or to see to the
application of any consideration given by such purchaser or other transferee;
nor will any purchaser or other transferee of any property or rights permitted
by this Article to be sold be under any obligation to ascertain or inquire
into the authority of the Issuer or any other obligor, as applicable, to make
any such sale or other transfer.
Section 2.12 Powers Exercisable by Receiver or Collateral
Agent. In case the Collateral shall be in the possession of a receiver or
trustee, lawfully appointed, the powers conferred in this Article II upon the
Issuer or any other obligor, as applicable, with respect to the release, sale or
other disposition of such property may be exercised by such receiver or trustee,
and an instrument signed by such receiver or trustee shall be deemed the
equivalent of any similar instrument of the Issuer or any other obligor, as
applicable, or of any officer or officers thereof required by the provisions of
this Article II.
Section 2.13 Determinations Relating to Collateral. In the
event (i) the Collateral Agent or the Indenture Trustee shall receive any
written request from the Issuer or any other obligor for consent or approval
with respect to any matter or thing relating to any Collateral or the Issuer's
or any other obligor's obligations with respect thereto or (ii) there shall be
due to or from the Collateral Agent or the Indenture Trustee under the
provisions hereof any performance or the delivery of any instrument or (iii)
the Collateral Agent or the Indenture Trustee shall become aware of any
nonperformance by the Issuer or any other obligor of any covenant or any
breach of any representation or warranty of the Issuer or any other obligor
set forth in this Asset Pool One Supplement, then, in each such event, the
Collateral Agent or the Indenture Trustee, as applicable, shall be entitled to
hire experts, consultants, agents and attorneys to advise the Collateral Agent
or the Indenture Trustee, as applicable, on the manner in which the Collateral
Agent or the Indenture Trustee, as applicable, should respond to such request
or render any requested performance or response to such nonperformance or
breach (the expenses of which will be reimbursed to the Collateral Agent or
the Indenture Trustee, as applicable pursuant to Section 4.6). Each of the
Collateral Agent and the Indenture Trustee will be fully protected in the
taking of any action recommended or approved by any such expert, consultant,
agent or attorney or agreed to by Holders of more than 662/3% of the
Outstanding Dollar Principal Amount of the Outstanding Asset Pool One Notes.
Section 2.14 Release of all Collateral.
(a) Subject to the payment of its fees and expenses pursuant
to Section 4.6, the Collateral Agent shall, at the request of the Issuer or
when otherwise required by the provisions of this Asset Pool One Supplement,
execute instruments to release property from the lien of this Asset Pool One
Supplement, or convey the Collateral Agent's interest (which is held by the
Collateral Agent for the benefit of the Noteholders) in the same, in a manner
and under circumstances which are not inconsistent with the provisions of this
Asset Pool One Supplement. No party relying upon an instrument executed by the
Collateral Agent as provided in this Article II will be bound to ascertain the
Collateral Agent's authority, inquire into the satisfaction of any conditions
precedent or see to the application of any funds.
(b) Upon delivery of an Officer's Certificate certifying that
the Issuer's obligations under the Indenture and this Asset Pool One Supplement
have been satisfied and discharged by complying with the provisions of this
Article II, the Collateral Agent shall (i) execute and deliver such releases,
termination statements and other instruments (in recordable form, where
appropriate) as the Issuer or any other obligor, as applicable, may reasonably
request evidencing the termination of the Security Interest created by this
Asset Pool One Supplement and (ii) not be deemed to hold the Security Interest
for the benefit of itself, the Indenture Trustee, the Asset Pool One
Noteholders, any applicable Derivative Counterparty, any applicable Supplemental
Credit Enhancement Provider or any applicable Supplemental Liquidity Provider.
(c) The Transferor and the Asset Pool One Noteholders shall
be entitled to receive at least 10 days written notice when the Collateral
Agent proposes to take any action pursuant to clause (a), accompanied by
copies of any instruments involved, and the Collateral Agent shall also be
entitled to 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. Counsel rendering any such opinion may
rely, without independent investigation, on the accuracy and validity of any
certificate or other instrument delivered to the Collateral Agent in
connection with any such action.
Section 2.15 Certain Actions by Collateral Agent. Any action
taken by the Collateral Agent pursuant to this Article in respect of the
release of any or all of the Collateral will be taken by the Collateral Agent
as its interest in such Collateral may appear, and no provision of this
Article II is intended to, or will, excuse compliance with any provision
hereof.
Section 2.16 Opinions as to Collateral.
(a) On the Effective Date, the Issuer shall furnish to the
Collateral Agent 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 Asset Pool One Supplement, 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 are
necessary to perfect and maintain the perfection of the Security Interest
granted by this Asset Pool One Supplement in favor of the Collateral Agent and
reciting the details of such action, or stating that, in the opinion of such
counsel, no such action is necessary to make such lien and security interest
perfected.
(b) On or before April 30 in each calendar year, beginning in
2003, the Issuer shall furnish to the Collateral Agent an Opinion of Counsel
with respect to each UCC financing statement which has been filed by the Issuer
either stating that, (i) in the opinion of such counsel, such action has been
taken with respect to the recording, filing, re-recording and refiling of this
Asset Pool One Supplement, any amendments, supplements or modifications 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 first priority lien and Security Interest created by this Asset
Pool One Supplement and reciting the details of such action or (ii) in the
opinion of such counsel no such action is necessary to maintain such lien and
Security Interest. Such Opinion of Counsel will also describe the recording,
filing, re-recording and refiling of this Asset Pool One Supplement, any
amendments, supplements or modifications 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 and Security Interest of this Asset Pool One Supplement
until April 30 in the following calendar year.
Section 2.17 Delegation of Duties. Until this appointment is
rescinded by the Issuer, the Issuer hereby appoints First USA to assist it in
its performance of its duties under this Asset Pool One Supplement. In
addition, the Issuer may contract with or appoint other Persons (including
First USA and its Affiliates) to assist it in performing its duties under this
Asset Pool One Supplement. Any performance of duties by a Person who is
identified to the Collateral Agent and the Indenture Trustee in an Officer's
Certificate will be deemed to be action taken by the Issuer.
Section 2.18 Issuer's Representations and Warranties. As of
each Issuance Date, the Issuer shall make the following representations and
warranties to the Collateral Agent. Such representations and warranties shall
survive until the termination of this Asset Pool One Supplement. Such
representations and warranties shall not be waived by any of the parties to
this Asset Pool One Supplement unless the Note Rating Agency Condition shall
have been satisfied with respect to such waiver.
(a) At the time of the granting of the security interest in
the Collateral, the Issuer owned and had good marketable title to the
Collateral free and clear of any Lien (other than any Lien for municipal or
other local taxes if such taxes were not then due and payable or if the Issuer
was then contesting the validity thereof in good faith by appropriate
proceedings and had set aside on its books and records adequate reserves with
respect thereto), claim or encumbrance of any Person.
(b) This Asset Pool One Supplement creates a valid and
continuing security interest (as defined in the applicable UCC) in the
Collateral in favor of the Collateral Agent, which security interest is prior
to all other Liens, and is enforceable as such against creditors of and
purchasers from the Issuer.
(c) The Issuer has caused or will have caused within ten
days of the granting of the security interest in any portion of the
Collateral, the filing of all appropriate financing statements in the proper
filing office in the appropriate jurisdictions under applicable law in order
to perfect the security interest in the Collateral granted to the Collateral
Agent hereunder.
(d) Other than the security interest granted to the
Collateral Agent pursuant to this Asset Pool One Supplement or any other
security interest that has been terminated, the Issuer has not pledged,
assigned, sold, granted a security interest in, or otherwise conveyed the
Collateral; 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 Collateral other than any financing statement relating
to the security interest granted to the Collateral Agent hereunder or that has
been terminated; and the Issuer is not aware of any judgment or tax lien
filings against the Issuer.
(e) Each Asset Pool One Collateral Certificate constitutes a
"certificated security" within the meaning of the applicable UCC; the Issuer
has in its possession all original copies of the certificates that constitute
such Asset Pool One Collateral Certificate; none of the certificates that
constitute or evidence such Asset Pool One Collateral Certificate have any
marks or notations indicating that it has been pledged, assigned or otherwise
conveyed to any Person other than the Collateral Agent; and all financing
statements filed or to be filed against the Issuer in favor of the Collateral
Agent in connection herewith describing such Asset Pool One Collateral
Certificate contain a statement to the following effect: "A purchase of or
security interest in any collateral described in this financing statement will
violate the rights of the Collateral Agent."
(f) Each Asset Pool One Receivable constitutes an "account"
within the meaning of the applicable UCC.
[END OF ARTICLE II]
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.1 Collections and Allocations.
The Servicer pursuant to the terms of the Transfer and
Servicing Agreement (or, if the authority of the Servicer has been revoked
pursuant to Section 10.01 of the Transfer and Servicing Agreement, the
Indenture Trustee, or, if a Successor Servicer has been appointed, the
Successor Servicer) shall instruct the Collateral Agent to apply all funds on
deposit in the Collection Account as described in this Article III (or, with
respect to amounts deposited therein pursuant to Section 2.2, in accordance
with the provisions of Section 2.2) and in any Indenture Supplement for any
Series. Except as otherwise provided below, the Servicer pursuant to the terms
of Transfer and Servicing Agreement shall deposit Collections with respect to
the Asset Pool One Receivables into the Collection Account for Asset Pool One
as promptly as possible after the Date of Processing of such Collections, but
in no event later than the second Business Day following the Date of
Processing and shall deposit Collections received with respect to the Asset
Pool One Collateral Certificates with respect to any Monthly Period into the
Collection Account for Asset Pool One no later than the First Note Transfer
Date in the next succeeding Monthly Period.
Subject to the express terms of any Indenture Supplement, but
notwithstanding anything else in this Asset Pool One Supplement, the Indenture
or the Transfer and Servicing Agreement to the contrary, for as long as First
USA remains the Servicer under the Transfer and Servicing Agreement and (i) no
Servicer Rating Event shall have occurred and be continuing or (ii) First USA
obtains a guarantee or letter of credit covering risk of collection with respect
to its deposit and payment obligations under the Transfer and Servicing
Agreement (in form and substance satisfactory to each Note Rating Agency) from a
guarantor having a short-term credit rating of at least"A-1" from Standard &
Poor's or "P-1" from Moody's or "F1" from Fitch (or such other rating below
"A-1" or "P-1," or to the extent rated by Fitch, "F1," as the case may be, which
is acceptable to such Note Rating Agency), or (iii) the Note Rating Agency
Condition will have been satisfied despite the Servicer's inability to satisfy
the rating requirement specified in clause (i) or (ii) above, or (iv) for 5
Business Days following any reduction of any such rating or failure to satisfy
the conditions specified in clause (i) or (ii) above, the Servicer need not make
the daily deposits of Collections into the Collection Account as provided in the
preceding paragraph, but may make deposits in an amount equal to the net amount
of such deposits and payments which would have been made with respect to Asset
Pool One Notes to receive payments on the related Payment Date had the
conditions of this sentence not applied, in the Collection Account in
immediately available funds not later than 1:00 p.m., New York City time, on
each applicable Note Transfer Date following the Monthly Period with respect to
which such deposit relates. To the extent that, in accordance with this Section
3.1, the Servicer has retained amounts which would otherwise be required to be
deposited into the Collection Account or any Supplemental Bank Account with
respect to any Monthly Period, the Servicer shall be required to deposit such
amounts in the Collection Account or such Supplemental Bank Account on the
applicable Note Transfer Date to the extent necessary to make required
distributions on the related Payment Date. Notwithstanding anything in this
Asset Pool One Supplement to the contrary, unless otherwise specified in the
Indenture or any Indenture Supplement, the Servicer need not deposit any amount
allocated to be paid to any Transferor pursuant to the Indenture, this Asset
Pool One Supplement or any applicable Indenture Supplement into the Collection
Account or any Supplemental Bank Account, but shall pay such amounts as
collected to the applicable Transferor.
Section 3.2 Allocations of Finance Charge Collections and
Default Amounts.
(a) With respect to each Monthly Period, the Collateral
Agent, at the direction of the Servicer, shall allocate to each Series of
Asset Pool One Notes an amount equal to the product of (i) the Noteholder
Percentage for Asset Pool One Finance Charge Collections for such Monthly
Period for such Series and (ii) the sum of the Asset Pool One Finance Charge
Collections for such Monthly Period and the investment earnings for such
Monthly Period on amounts on deposit in the Collection Account and the Excess
Funding Account established for the benefit of all Asset Pool One Notes.
(b) With respect to each Monthly Period, the Collateral
Agent, at the direction of the Servicer, shall allocate to each Series of
Asset Pool One Notes an amount equal to the product of (i) the Noteholder
Percentage for the Asset Pool One Default Amount for such Monthly Period for
such Series and (ii) the Asset Pool One Default Amount for such Monthly
Period.
Section 3.3 Allocations of Principal Collections. With
respect to each Monthly Period, the Collateral Agent, at the direction of the
Servicer, shall allocate to each Series of Asset Pool One Notes an amount
equal to the product of (i) the Noteholder Percentage for Asset Pool One
Principal Collections for such Monthly Period for such Series and (ii) the
Asset Pool One Principal Collections for such Monthly Period. In addition,
with respect to each Monthly Period, if there is a Remaining Series Available
Principal Collections Shortfall for any Series of Asset Pool One Notes, the
Collateral Agent shall allocate to each such Series of Asset Pool One Notes a
portion of Asset Pool One Collateral Certificate Principal Shortfall Payments
for such Monthly Period in an amount equal to the Remaining Series Available
Principal Collections Shortfall for such Series in accordance with the
applicable Indenture Supplement; provided, however, that if the aggregate
amount of Asset Pool One Collateral Certificate Principal Shortfall Payments
is less than the aggregate Remaining Series Available Principal Collections
Shortfall for all Series, then Asset Pool One Collateral Certificate Principal
Shortfall Payments allocable to each Series shall equal the product of (i) the
Asset Pool One Collateral Certificate Principal Shortfall
Payments for such Monthly Period and (ii) a fraction, the numerator of which
is the Remaining Series Available Principal Collections Shortfall for such
Series and the denominator of which is the aggregate Remaining Series
Available Principal Collections Shortfall for all Series of Asset Pool One
Notes for such Monthly Period.
Section 3.4 Allocations of the Asset Pool One Servicing Fee.
(a) As compensation for its servicing activities hereunder
and as reimbursement for any expense incurred by it in connection therewith,
the Servicer shall be entitled to receive a servicing fee (the "Asset Pool One
Servicing Fee"). For each Monthly Period, the Asset Pool One Servicing Fee
shall equal the sum of (i) the servicing fee amount for each Asset Pool One
Collateral Certificate, as specified in the related Series Supplement, and
(ii) the Asset Pool One Receivables Servicing Fee.
(b) With respect to each Monthly Period, the Collateral
Agent, at the direction of the Servicer, shall allocate to each Series of
Asset Pool One Notes an amount equal to the product of (i) the Asset Pool One
Servicing Fee for such Monthly Period and (ii) the Noteholder Percentage for
the Asset Pool One Servicing Fee for such Monthly Period for such Series of
Asset Pool One Notes.
Section 3.5 Allocations of Amounts to the Excess Funding
Account and Allocations of Amounts on Deposit in the Excess Funding Account.
With respect to each Monthly Period, if (i) the Asset Pool One Transferor
Amount is, or as a result of a payment on the related First Note Transfer Date
would become, less than the Asset Pool One Required Transferor Amount or (ii)
the Asset Pool One Pool Balance is, or as a result of a payment on the related
First Note Transfer Date would become, less than the Asset Pool One Minimum
Pool Balance, the Collateral Agent shall allocate or deposit pursuant to
subsection 3.8(d) of this Asset Pool Supplement to the Excess Funding Account
an amount equal to the greater of the amount by which the Asset Pool One
Transferor Amount would be less than the Asset Pool One Required Transferor
Amount and the amount by which the Asset Pool One Pool Balance would be less
than the Asset Pool One Minimum Pool Balance, each determined with respect to
the related Monthly Period.
Amounts on deposit in the Excess Funding Account shall be
treated as Shared Excess Available Principal Collections and, to the extent
required, allocated to each Series of Asset Pool One Notes in accordance with
the applicable Indenture Supplement. Any remaining amounts on deposit in the
Excess Funding Account in excess of the amount required to be treated as Shared
Excess Available Principal Collections for a Monthly Period shall be released to
the holders of the Transferor Interest in Asset Pool One in accordance with the
related Indenture Supplement to the extent that after such release (i) the Asset
Pool One Transferor Amount is equal to or greater than the Asset Pool One
Required Transferor Amount and (ii) the Asset Pool One Pool Balance is equal to
or greater than the Asset Pool One Minimum Pool Balance.
Section 3.6 Final Payment. Each Series, Class or Tranche of
Asset Pool One Notes, as applicable, will be considered to be paid in full in
the manner set forth in the applicable Indenture Supplement. The Holders of
such Series, Class or Tranche of Asset Pool One Notes, as applicable, will
have no further right or claim, and the Issuer will have no further obligation
or liability with respect to such Series, Class or Tranche of Notes, as
applicable, on the earliest to occur of:
(a) the date of the payment in full of the Outstanding
Dollar Principal Amount of and all accrued interest on that Series, Class or
Tranche of Asset Pool One Notes, as applicable;
(b) the date on which the Outstanding Dollar Principal
Amount of such Asset Pool One Notes, after giving effect to all deposits,
allocations, reallocations, sales of Collateral and payments to be made on
such date, is reduced to zero, and all accrued interest on such Asset Pool One
Notes is paid in full; or
(c) on the Legal Maturity Date of such Asset Pool One Notes,
after giving effect to all deposits, allocations, reallocations, sales of
Collateral and payments to be made on such date.
Section 3.7 Payments within a Series, Class or Tranche. All
payments of principal, interest or other amounts to Holders of the Asset Pool
One Notes of a Series, Class or Tranche will be made in accordance with the
related Indenture Supplement.
Section 3.8 Allocations of Finance Charge Collections,
Default Amounts, Servicing Fees and Principal Collections Allocable to the
Transferor Interest.
(a) Unless otherwise stated in any Indenture Supplement, the
Servicer shall allocate to the holders of the Transferor Interest in Asset
Pool One an amount equal to the product of (i) the Asset Pool One Transferor
Percentage for Asset Pool One Finance Charge Collections with respect to such
Monthly Period and (ii) the Asset Pool One Finance Charge Collections and
earnings on amounts on deposit in the Collection Account and the Excess
Funding Account with respect to such Monthly Period. If so specified in any
Indenture Supplement, such amounts may be applied to cover certain shortfalls
in the amount of investment earnings on investments of funds in certain
Supplemental Bank Accounts.
(b) The Servicer shall allocate to the holders of the
Transferor Interest in Asset Pool One an amount equal to the product of (i) the
Asset Pool One Transferor Percentage for the Asset Pool One Default Amount with
respect to such Monthly Period and (ii) the Asset Pool One Default Amount with
respect to such Monthly Period.
(c) The Servicer shall allocate to the holders of the
Transferor Interest in Asset Pool One an amount equal to the product of (i)
Asset Pool One Transferor Percentage with respect to such Monthly Period and
(ii) the Asset Pool One Servicing Fee with respect to such Monthly Period.
(d) Unless otherwise stated in any Indenture Supplement, the
Servicer shall allocate to the holders of the Transferor Interest in Asset
Pool One an amount equal to the product of (i) the Asset Pool One Transferor
Percentage for Asset Pool One Principal Collections with respect to such
Monthly Period and (ii) the Asset Pool One Principal Collections with respect
to such Monthly Period; provided, however, that amounts payable to the holders
of the Transferor Interest pursuant to this subsection 3.8(d) shall instead be
deposited in the Excess Funding Account to the extent that (i) the Asset Pool
One Transferor Amount is, or as a result of such payment would become less
than the Asset Pool One Required Transferor Amount or (ii) the Asset Pool One
Pool Balance is, or as a result of such payment would become, less than the
Asset Pool One Minimum Pool Balance.
Section 3.9 Transfer of Defaulted Accounts. Unless otherwise
provided in any Indenture Supplement, in consideration of receiving Recoveries
as provided in subsection 3.11(a) hereof, on the date on which an Asset Pool
One Account becomes a Defaulted Account, the Collateral Agent shall
automatically and without further action or consideration be deemed to
transfer, set over, and otherwise convey to the applicable Transferor, without
recourse, representation, or warranty, all the right, title and interest of
the Collateral Agent in and to the Asset Pool One Receivables in such
Defaulted Account, all monies due or to become due with respect thereto, all
proceeds thereof allocable to Asset Pool One with respect to such Asset Pool
One Receivables, excluding Recoveries in respect of Asset Pool One Defaulted
Accounts relating thereto, which shall remain a part of the Collateral.
Section 3.10 Adjustments for Miscellaneous Credits and
Fraudulent Charges.
(a) The Servicer shall be obligated to reduce on a net basis
for each Monthly Period the aggregate amount of Asset Pool One Principal
Receivables (a "Credit Adjustment") with respect to any Asset Pool One
Principal Receivable (i) which was created in respect of merchandise refused
or returned by the Obligor thereunder or as to which the Obligor thereunder
has asserted a counterclaim or defense, (ii) which is reduced by the Servicer
by any rebate, refund, charge-back or adjustment (including Servicer errors)
or (iii) which was created as a result of a fraudulent or counterfeit charge.
In the event that the inclusion of the amount of a Credit
Adjustment in (x) the calculation of the Asset Pool One Transferor Amount
would cause the Asset Pool One Transferor Amount to be an amount less than the
Asset Pool One Required Transferor Amount or (y) the calculation of the Asset
Pool One Pool Balance would cause the Asset Pool One Pool Balance to be an
amount less than the Asset Pool One Minimum Pool Balance, the applicable
Transferor shall make a deposit, no later than (a) the First Note Transfer
Date following the Monthly Period with respect to which such Credit Adjustment
occurs or (b) in the event of a Servicer Rating Event, 10 Business Days after
the inclusion of the Credit Adjustment that caused the Asset Pool One
Transferor Amount to be less than the Asset Pool One Required Transferor
Amount or the Asset Pool One Pool Balance to be less than the Asset Pool One
Minimum Pool Balance, into the Excess Funding Account for Asset Pool One in
immediately available funds in an amount equal to the greater of the amount by
which (i) the Asset Pool One Transferor Amount would be less than the Asset
Pool One Required Transferor Amount or (ii) the Asset Pool One Pool Balance
would be an amount less than the Asset Pool One Minimum Pool Balance, due to
Credit Adjustments with respect to Asset Pool One Receivables conveyed by such
Transferor (each such deposit, an "Adjustment Payment").
(b) If (i) the Servicer makes a deposit into the Collection
Account for Asset Pool One in respect of a Collection of an Asset Pool One
Receivable and such Collection was received by the Servicer in the form of a
check which is not honored for any reason or (ii) the Servicer makes a mistake
with respect to the amount of any Collection for Asset Pool One and deposits
an amount that is less than or more than the actual amount of such Collection,
the Servicer shall appropriately adjust the amount subsequently deposited into
the Collection Account for Asset Pool One to reflect such dishonored check or
mistake. Any Asset Pool One Receivable in respect of which a dishonored check
is received shall be deemed not to have been paid. Notwithstanding the first
two sentences of this paragraph, adjustments made pursuant to this Section
shall not require any change in any report previously delivered.
Section 3.11 Recoveries and Interchange.
(a) Recoveries. On or prior to the second Business Day
following the end of each Monthly Period, the Transferor shall notify the
Servicer of the amount of Recoveries in respect of Asset Pool One Defaulted
Accounts to be included as Collections for Asset Pool One with respect to the
preceding Monthly Period. On the First Note Transfer Date following the
applicable Monthly Period, the Transferor shall pay to the Servicer and the
Servicer shall deposit into the Collection Account for Asset Pool One, in
immediately available funds, the amount of Recoveries in respect of Asset Pool
One Defaulted Accounts to be so included as Collections for Asset Pool One with
respect to the preceding Monthly Period; provided, however, that such deposit
need be made only to the extent that such funds are required to be retained in
the applicable Bank Accounts for the benefit of any Series, Class or Tranche of
Asset Pool One Notes pursuant to the provisions of this Article III of this
Asset Pool One Supplement or any applicable Indenture Supplement and any such
amount that is not so deposited shall be paid to the applicable Transferor.
(b) Interchange. On or prior to the second Business Day
following the end of each Monthly Period, each Account Owner shall notify the
Servicer of the Interchange Amount, if any, which is required to be included
as Asset Pool One Finance Charge Collections with respect to the preceding
Monthly Period. On the First Note Transfer Date following the applicable
Monthly Period, each Account Owner shall pay to the Servicer and the Servicer
shall deposit into the Collection Account, in immediately available funds, the
Interchange Amount to be so included as Asset Pool One Finance Charge
Collections with respect to the preceding Monthly Period; provided, however,
that such deposit need be made only to the extent that such funds are required
to be retained in the applicable Bank Accounts for the benefit of any Series,
Class or Tranche of Asset Pool One Notes pursuant to the provisions of this
Article III of this Asset Pool One Supplement or any applicable Indenture
Supplement and any such amount that is not so deposited shall be paid to the
applicable Transferor.
Section 3.12 Reallocation Groups.
Asset Pool One Finance Charge Collections and other
specified amounts allocated to each Series of Asset Pool One Notes in the same
Reallocation Group shall be reallocated to cover interest and other expenses
related to each Series of Asset Pool One Notes in such Reallocation Group as
specified in each related Indenture Supplement. The reallocation provisions of
the Indenture Supplement for each Series of Asset Pool One Notes in the same
Reallocation Group are required to be identical in all material respects.
Section 3.13 Designation of Remaining Principal Shortfalls.
On each Determination Date, the Servicer shall determine with respect to the
prior Monthly Period whether there is a Remaining Series Available Principal
Collections Shortfall for any Series of Asset Pool One Notes after application
of Shared Excess Available Principal Collections for the benefit of such
Series of Notes for such Monthly Period. The Servicer shall determine the
aggregate amount of such Remaining Series Available Principal Collections
Shortfalls for all Series of Asset Pool One Notes for such Monthly Period and
shall propose, with respect to each Asset Pool One Collateral Certificate, a
principal shortfall amount (the "Proposed Principal Shortfall Amount") for
such Monthly Period. The sum of all such Proposed Principal Shortfall Amounts
shall equal the aggregate amount of such Remaining Series Available Principal
Collections Shortfalls for such Monthly Period. In determining the Proposed
Principal Shortfall Amount for each Asset Pool One Collateral Certificate, the
Servicer agrees to determine such amount in a manner that shall maximize the
amount of payments received from Asset Pool One Collateral Certificates in
respect of Proposed Principal Shortfalls Amounts.
[END OF ARTICLE III]
ARTICLE IV
THE COLLATERAL AGENT
Section 4.1 Certain Duties and Responsibilities.
(a) The Collateral Agent undertakes to perform such duties
and only such duties as are specifically set forth in this Asset Pool One
Supplement with respect to the Asset Pool One Notes of any Series, Classes or
Tranche, and no implied covenants or obligations will be read into this Asset
Pool One Supplement against the Collateral Agent.
(b) The Collateral Agent hereby agrees that it shall hold
all Collateral Certificates designated for inclusion in Asset Pool One in the
State of New York and shall give written notice to the Owner Trustee, the
Indenture Trustee and the Servicer before relocating any Collateral
Certificate.
(c) In the absence of bad faith on its part, the Collateral
Agent may, with respect to Notes of any Series, Class or Tranche secured by
Asset Pool One, conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or opinions
furnished to the Collateral Agent and conforming to the requirements of the
Indenture, this Asset Pool One Supplement or the related Indenture Supplement,
as applicable, but in the case of any such certificates or opinions which by
any provision hereof are specifically required to be furnished to the
Collateral Agent, the Collateral Agent will be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Asset Pool One Supplement but need not confirm or investigate the accuracy of
any mathematical calculations or other facts stated therein.
(d) In case an Event of Default with respect to any Series,
Class or Tranche of Asset Pool One Notes has occurred and is continuing, the
Collateral Agent will exercise with respect to the Asset Pool One Notes of
such Series, Class or Tranche secured by Asset Pool One such of the rights and
powers vested in it by this Asset Pool One Supplement, and use the same degree
of care and skill in their exercise, as a fiduciary would exercise or use
under the circumstances in the conduct of such person's own affairs.
(e) No provision of this Asset Pool One Supplement will be
construed to relieve the Collateral Agent from liability for its own negligent
action, its own negligent failure to act, or its own willful misconduct,
except that:
(i) this clause (e) will not be construed to limit
the effect of subsection (a) of this Section;
(ii) the Collateral Agent will not be liable for
any error of judgment made in good faith by a Collateral Agent
Authorized Officer, unless it will be proved that the Collateral
Agent was negligent in ascertaining the pertinent facts;
(iii) the Collateral Agent will not be liable with
respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Indenture Trustee or
Holders of more than 662/3% of the Outstanding Dollar Principal
Amount of any Series, Class or Tranche secured by Asset Pool One
relating to the time, method and place of conducting any proceeding
for any remedy available to the Collateral Agent, or exercising any
trust or power conferred upon the Collateral Agent, under this Asset
Pool One Supplement with respect to the Asset Pool One Notes of such
Series, Class or Tranche; and
(iv) no provision of this Asset Pool One Supplement
will require the Collateral Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or
powers, if it will have reasonable grounds for believing that
repayment of such funds or indemnity satisfactory to the Collateral
Agent against such risk or liability is not reasonably assured to it.
(f) Whether or not therein expressly so provided, every
provision of this Asset Pool One Supplement relating to the conduct or
affecting the liability of or affording protection to the Collateral Agent
will be subject to the provisions of this Section.
Section 4.2 Certain Rights of the Collateral Agent. Except as
otherwise provided in Section 4.1:
(a) the Collateral Agent may conclusively rely and will be
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture or other paper or document (whether
in its original or facsimile form) believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) whenever in the performance of its duties under this
Asset Pool One Supplement the Collateral Agent will deem it desirable that a
matter be proved or established before taking, suffering or omitting any
action hereunder, the Collateral Agent (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part, rely
upon an Officer's Certificate;
(c) the Collateral Agent may consult with counsel of its own
selection and the advice of such counsel or any Opinion of Counsel will be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(d) the Collateral Agent will be under no obligation to
exercise any of the rights or powers vested in it by this Asset Pool One
Supplement at the request or direction of the Indenture Trustee or any of the
Asset Pool One Noteholders pursuant to this Asset Pool One Supplement, unless
the Indenture Trustee or such Asset Pool One Noteholders shall have offered to
the Collateral Agent security or indemnity reasonably satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(e) the Collateral Agent will 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, bond, debenture or other paper or document, but the Collateral Agent,
in its discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Collateral Agent will
determine to make such further inquiry or investigation, it will be entitled
to examine the books, records and premises of the Issuer, personally or by
agent or attorney;
(f) the Collateral Agent may execute any of the trusts or
powers hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Collateral Agent will not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder; and
(g) the Collateral Agent will not be responsible for filing
any financing statements or continuation statements in connection with the
Collateral, but will cooperate with the Issuer in connection with the filing
of such financing statements or continuation statements.
Section 4.3 Not Responsible for Recitals or Issuance of
Notes. The recitals contained herein and in the Asset Pool One Notes, except
the certificates of authentication, will be taken as the statements of the
Issuer, and the Collateral Agent assumes no responsibility for their
correctness. The Collateral Agent makes no representations as to the validity
or sufficiency of this Asset Pool One Supplement or of the Asset Pool One
Notes. The Collateral Agent will not be accountable for the use or application
by the Issuer of Asset Pool One Notes or the proceeds thereof.
Section 4.4 May Hold Notes. The Collateral Agent, in its
individual or any other capacity, may become the owner or pledgee of Asset
Pool One Notes and, subject to Sections 4.7 and 4.12, may otherwise deal with
the Issuer with the same rights it would have if it were not Collateral Agent.
Section 4.5 Money Held in Trust. Money held by the
Collateral Agent in trust hereunder need not be segregated from other funds
except to the extent required by law. The Collateral Agent will be under no
liability for interest on any money received by it hereunder except as
otherwise agreed with the Issuer.
Section 4.6 Compensation and Reimbursement; Limit on
Compensation, Reimbursement and Indemnity.
(a) The Issuer agrees:
(i) to pay to the Collateral Agent from time to
time reasonable compensation for all services rendered by it
hereunder (which compensation will not be limited by any provision of
law in regard to the compensation of a trustee of an express trust);
(ii) except as otherwise expressly provided herein,
to reimburse the Collateral Agent upon its request for all reasonable
expenses, disbursements and advances incurred or made by the
Collateral Agent in accordance with any provision of this Asset Pool
One Supplement (including the reasonable compensation and the
reasonable expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(iii) to indemnify the Collateral Agent for, and to
hold it harmless against, any and all loss, liability or expense
incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this trust,
including the costs and expenses of defending itself against any
claim or liability (whether asserted by the Issuer, the Servicer, any
Holder or any other Person) in connection with the exercise or
performance of any of its powers or duties hereunder.
The Collateral Agent will have no recourse to (x) any asset of the Issuer
other than funds available pursuant to the Indenture, the relevant Indenture
Supplement, or this Asset Pool One Supplement and any such recourse shall be
subordinate to the payment obligations on the Asset Pool One Notes, or to (y)
any Person other than the Transferor, the Servicer or the Issuer.
(b) This Section will survive the termination of this Asset
Pool One Supplement and the resignation or replacement of the Collateral Agent
under Section 4.9.
Section 4.7 Disqualification; Conflicting Interests. If the
Collateral Agent has or will acquire a conflicting interest within the meaning
of the Trust Indenture Act, the Collateral Agent will, if so required by the
Trust Indenture Act, either eliminate such interest or resign, to the extent and
in the manner provided by, and subject to the provisions of, the Trust Indenture
Act and this Asset Pool One Supplement. Nothing herein will prevent the
Collateral Agent from filing with the Commission the application referred to in
the second to last paragraph of Section 310(b) of the Trust Indenture Act.
Section 4.8 Corporate Collateral Agent Required;
Eligibility. There will at all times be a Collateral Agent hereunder with
respect to each Series, Class or Tranche of Asset Pool One Notes which will be
either a bank or a corporation organized and doing business under the laws of
the United States of America or of any state, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000, subject to supervision or examination by federal or state
authority, and having a rating of at least "BBB-" by Standard & Poor's. If
such corporation publishes reports of condition at least annually, pursuant to
law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation will be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. The
Issuer may not, nor may any Person directly or indirectly controlling,
controlled by, or under common control with the Issuer, serve as Collateral
Agent. If at any time the Collateral Agent with respect to any Series, Class
or Tranche of Asset Pool One Notes will cease to be eligible in accordance
with the provisions of this Section, it will resign immediately in the manner
and with the effect hereinafter specified in this Article.
Section 4.9 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Collateral Agent and no
appointment of a successor Collateral Agent pursuant to this Article shall
become effective until the acceptance of appointment by the successor
Collateral Agent under Section 4.10.
(b) The Collateral Agent may resign with respect to any
Series, Class or Tranche of Asset Pool One Notes at any time by giving written
notice thereof to the Issuer. If an instrument of acceptance by a successor
Collateral Agent shall not have been delivered to the Collateral Agent within
30 days after the giving of such notice of resignation, the resigning
Collateral Agent may petition any court of competent jurisdiction for the
appointment of a successor Collateral Agent.
(c) The Collateral Agent may be removed with respect to any
Series, Class or Tranche of Asset Pool One Notes at any time by Act of the
Majority Holders of that Series, Class or Tranche of Asset Pool One Notes
delivered to the Collateral Agent on behalf of the Indenture Trustee and the
Issuer.
(d) If at any time:
(i) the Collateral Agent fails to comply with
Section 310(b) of the Trust Indenture Act with respect to any Series,
Class or Tranche of Notes after written request therefor by the
Issuer or by any Asset Pool One Noteholder who has been a bona fide
Holder of an Asset Pool One Note of that Series, Class or Tranche for
at least 6 months, or
(ii) the Collateral Agent ceases to be eligible
under Section 4.8 with respect to any Series, Class or Tranche of
Asset Pool One Notes and fails to resign after written request
therefor by the Issuer or by any such Asset Pool One Noteholder, or
(iii) the Collateral Agent becomes incapable of
acting with respect to any Series, Class or Tranche of Asset Pool One
Notes, or
(iv) the Collateral Agent is adjudged bankrupt or
insolvent or a receiver of the Collateral Agent or of its property is
appointed or any public officer takes charge or control of the
Collateral Agent or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (A) the Issuer may remove the Collateral Agent or (B)
subject to Section 6.17 of the Indenture, any Asset Pool One Noteholder who
has been a bona fide Holder of an Asset Pool One Note of such Series, Class
and Tranche for at least 6 months may, on behalf of itself and all others
similarly situated, petition any court of competent jurisdiction for the
removal of the Collateral Agent with respect to such Series, Class or Tranche
and the appointment of a successor Collateral Agent with respect to such
Series, Class or Tranche, or, in the case of clause (iv), with respect to all
Series, Classes and Tranches.
(e) If the Collateral Agent resigns, is removed or becomes
incapable of acting with respect to Asset Pool One, or if a vacancy shall
occur in the office of the Collateral Agent with respect to Asset Pool One for
any cause, the Issuer shall promptly appoint a successor Collateral Agent for
Asset Pool One. If, within one year after such resignation, removal or
incapacity, or the occurrence of such vacancy, a successor Collateral Agent
with respect to Asset Pool One is appointed by Act of the Majority Holders of
the Asset Pool One Notes delivered to the Issuer and the retiring Collateral
Agent, the successor Collateral Agent so appointed will, forthwith upon its
acceptance of such appointment, become the successor Collateral Agent with
respect to Asset Pool One and supersede the successor Collateral Agent
appointed by the Issuer with respect to Asset Pool One. If no successor
Collateral Agent with respect to the Asset Pool One Notes shall have been so
appointed by the Issuer or the Asset Pool One Noteholders and accepted
appointment in the manner hereinafter provided, any Asset Pool One Noteholder
who has been a bona fide Holder of an Asset Pool One Note for at least 6
months may, on behalf of itself and all others similarly situated, petition
any court of competent jurisdiction for the appointment of a successor
Collateral Agent with respect to Asset Pool One.
(f) The Issuer shall give written notice of each resignation
and each removal of the Collateral Agent with respect to Asset Pool One and
each appointment of a successor Collateral Agent with respect to Asset Pool
One provided in Section 1.06 of the Indenture and to each Note Rating Agency.
To facilitate delivery of such notice, upon request by the Issuer, the Note
Registrar shall provide to the Issuer a list of the relevant registered
Noteholders. Each notice will include the name of the successor Collateral
Agent and the address of its principal Corporate Trust Office.
Section 4.10 Acceptance of Appointment by Successor. Every
successor Collateral Agent appointed hereunder shall execute, acknowledge and
deliver to the Issuer and to the predecessor Collateral Agent an instrument
accepting such appointment, with a copy to the Note Rating Agencies, and
thereupon the resignation or removal of the predecessor Collateral Agent will
become effective with respect to Asset Pool One, and such successor Collateral
Agent, without any further act, deed or conveyance, will become vested with
all the rights, powers, trusts and duties of the predecessor Collateral Agent;
but, on request of the Issuer or the successor Collateral Agent, such
predecessor Collateral Agent shall, upon payment of its reasonable charges, if
any, execute and deliver an instrument transferring to such successor
Collateral Agent all the rights, powers and trusts of the predecessor
Collateral Agent, and will duly assign, transfer and deliver to such successor
Collateral Agent all property and money held by such predecessor Collateral
Agent hereunder, subject nevertheless to its lien, if any, provided for in
Section 4.6. Upon request of any such successor Collateral Agent, the Issuer
will execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Collateral Agent all such rights, powers and
trusts.
No successor Collateral Agent will accept its appointment
unless at the time of such acceptance such successor Collateral Agent will be
qualified and eligible with respect to Asset Pool One under this Article.
Section 4.11 Merger, Conversion, Consolidation or Succession
to Business. Any corporation into which the Collateral Agent 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 Collateral Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate trust business of the Collateral Agent, will be the successor of
the Collateral Agent hereunder, provided such corporation shall be otherwise
qualified and eligible under this Article, without the execution or filing of
any paper or any further act on the part of any of the parties hereto. The
Collateral Agent shall give prompt written notice of such merger, conversion,
consolidation or succession to the Note Rating Agencies. In addition, upon
such merger, conversion, consolidation or succession the Collateral Agent
shall give written notice to the Servicer, the Owner Trustee and the Indenture
Trustee of any change of address of the surviving entity and stating where the
Collateral Certificates are to be held.
Section 4.12 Preferential Collection of Claims Against
Issuer. If and when the Collateral Agent shall be or become a creditor of the
Issuer (or any other obligor upon the Asset Pool One Notes), the Collateral
Agent will be subject to the provisions of Section 311 of the Trust Indenture
Act. A Collateral Agent who has resigned or been removed will be subject to
Section 311(a) of the Trust Indenture Act to the extent provided therein.
Section 4.13 Representations and Covenants of the Collateral
Agent. The Collateral Agent represents, warrants and covenants that:
(i) The Collateral Agent is a national banking
association duly organized and validly existing under the laws of the
United States of America;
(ii) The Collateral Agent has full power and
authority to deliver and perform this Asset Pool One Supplement and
has taken all necessary action to authorize the execution, delivery
and performance by it of this Asset Pool One Supplement and other
documents to which it is a party; and
(iii) Each of this Asset Pool One Supplement and
the other documents to which it is a party has been duly executed and
delivered by the Collateral Agent and constitutes legal, valid and
binding obligation of the Collateral Agent in accordance with its
terms.
Section 4.14 Custody of Asset Pool One Collateral
Certificates and Collateral. Each Asset Pool One Collateral Certificate,
including the Initial Collateral Certificate, shall be registered in the name
of and shall be delivered to and held by the Collateral Agent separate and
apart from all other property held by such Collateral Agent. The Collateral
Agent shall hold the Collateral that constitutes Permitted Investments
separate from, and shall not commingle such Collateral with, any and all other
funds or property of the Issuer or the Indenture Trustee.
Section 4.15 Collateral Agent's Application for Instructions
from the Issuer. Any application by the Collateral Agent for written
instructions from the Issuer may, at the option of the Collateral Agent, set
forth in writing any action proposed to be taken or omitted by the Collateral
Agent under and in accordance with this Asset Pool One Supplement and the date
on and/or after which such action shall be taken or such omission shall be
effective, provided that such application shall make specific reference to this
Section 4.15. The Collateral Agent shall not be liable for any action taken by,
or omission of, the Collateral Agent in accordance with a proposal included in
such application on or after the date specified in such application (which date
shall not be less than 5 Business Days after the date any officer of the Issuer
actually receives such application, unless any such officer shall have consented
in writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Collateral Agent shall have
received written instructions in response to such application specifying the
action be taken or omitted.
Section 4.16 Events of Default and Remedies; Reports of
Indenture Trustee; Reports to Issuer.
(a) The Collateral Agent shall promptly give notice to the
Indenture Trustee and the Issuer upon the occurrence of any of the Events of
Default set forth in Section 6.01 of the Indenture of which it has knowledge,
including, without limitation, any "Notice of Default" pursuant to subsection
6.10(c) (unless it has received notice of any such Event of Default by the
Indenture Trustee).
(b) The Collateral Agent agrees to perform its obligations
and, in its discretion, exercise the rights of, and pursue remedies on behalf
of, the Secured Parties pursuant to Article VI of the Indenture.
(c) The Collateral Agent agrees to provide in a timely
fashion to the Indenture Trustee the information applicable to the Collateral
Agent and the Collateral required to be included in the reports of the
Indenture Trustee pursuant to the Indenture or any Indenture Supplement,
including, without limitation, pursuant to Sections 8.03 and 8.06 of the
Indenture.
(d) The Collateral Agent shall report to the Issuer or the
Indenture Trustee, as applicable, with respect to the amounts on deposit in
each of the Bank Accounts, and the identity of the investments included
therein and the amount of earnings thereon, as the Issuer or the Indenture
Trustee reasonably may request from time to time.
[END OF ARTICLE IV]
ARTICLE V
BANK ACCOUNTS AND INVESTMENTS
Section 5.1 Bank Accounts.
(a) Bank Accounts; Deposits to and Distributions from Bank
Accounts.
(i) On or before the date hereof the Issuer shall
cause to be established and maintained for Asset Pool One, one or
more Qualified Bank Accounts (each such account, a "Collection
Account" and collectively, the "Collection Accounts") in the name of
the Collateral Agent, bearing a designation clearly indicating that
the funds deposited therein are held for the benefit of the
Collateral Agent, the Indenture Trustee and the applicable Asset Pool
One Noteholders. All collections received pursuant to Section 3.1
shall be deposited into the Collection Account. From time to time in
connection with the issuance of a Series, Class or Tranche of Notes,
the Indenture Trustee may cause the Collateral Agent to establish one
or more Qualified Bank Accounts denominated as "Supplemental Bank
Accounts" in the name of the Collateral Agent, bearing a designation
clearly indicating that the funds deposited therein are held for the
benefit of the Collateral Agent, the Indenture Trustee and the
applicable Asset Pool One Noteholders. The Collection Account and any
Supplemental Bank Account shall be under the control (within the
meaning of Section 9-104 of the UCC) of the Collateral Agent for the
benefit of the Collateral Agent, the Indenture Trustee and the
applicable Asset Pool One Noteholders. If, at any time, the
institution holding the Collection Account or any Supplemental Bank
Account ceases to be a Qualified Institution, the Issuer shall within
10 Business Days (or such longer period, not to exceed 30 calendar
days, as to which each Note Rating Agency may consent in writing)
establish a new Collection Account or Supplemental Bank Account, as
applicable, that is a Qualified Bank Account and shall transfer any
cash and/or investments from such Collection Account or Supplemental
Bank Account, as applicable, to such new Collection Account or
Supplemental Bank Account, as applicable. From the date each such new
Collection Account is established, it shall be the "Collection
Account." From the date each such new Supplemental Bank Account is
established, it shall be a "Supplemental Bank Account." Any
Supplemental Bank Account will receive deposits as set forth herein,
in the Indenture and in the applicable Indenture Supplement.
(ii) On or before the date hereof, the Issuer shall
cause to be established and maintained for Asset Pool One, one or more
Qualified Bank Accounts (each such account, an "Excess Funding Account"
and collectively, the "Excess Funding Accounts") in the name of the
Collateral Agent, bearing a designation clearly indicating that the
funds deposited therein are held for the benefit of the Collateral
Agent, the Indenture Trustee and the Asset Pool One Noteholders.
Principal Collections allocated to Asset Pool One that would otherwise
be paid to the holders of the Transferor Interest or that the
applicable Indenture Supplement specifies are to be deposited in the
Excess Funding Account, shall be deposited in the Excess Funding
Account, if, after giving effect to reinvestment in new Collateral on
that day the Asset Pool One Transferor Amount is not greater than or
equal to the Asset Pool One Required Transferor Amount or the Asset
Pool One Pool Balance is not greater than or equal to the Asset Pool
One Minimum Pool Balance. Each Excess Funding Account shall be under
the control (within the meaning of Section 9-104 of the UCC) of the
Collateral Agent for the benefit of the Collateral Agent, the Indenture
Trustee and the Asset Pool One Noteholders. If, at any time, the
institution holding any Excess Funding Account ceases to be a Qualified
Institution, the Issuer shall within 10 Business Days (or such longer
period, not to exceed 30 calendar days, as to which each Note Rating
Agency may consent in writing) establish a new Excess Funding Account
that is a Qualified Bank Account and shall transfer any cash and/or
investments to such new Excess Funding Account. From the date each such
new Excess Funding Account is established, it shall be an "Excess
Funding Account."
(b) All payments to be made from time to time by or on
behalf of the Indenture Trustee to Asset Pool One Noteholders out of funds in
the Bank Accounts pursuant to this Asset Pool One Supplement, the Indenture
and any Indenture Supplement will be made by the Collateral Agent to the
Indenture Trustee or on behalf of the Indenture Trustee directly to the Paying
Agent not later than 1:00 p.m. New York City time on the applicable Payment
Date or earlier, if necessary, or as otherwise provided in the applicable
Indenture Supplement but only to the extent of available funds in the
applicable Bank Account or Sub-Account.
Section 5.2 Investment of Funds in the Bank Accounts.
(a) Funds on deposit in the Bank Accounts shall (unless
otherwise stated in the applicable Indenture Supplement) be invested and
reinvested by the Collateral Agent acting on behalf of the Indenture Trustee
at the written direction of the Issuer in one or more Permitted Investments.
Absent such written direction, the Collateral Agent shall invest the funds in
the Permitted Investments described in clause (a)(v) of the definition
thereof. The Issuer may authorize the Indenture Trustee to direct the
Collateral Agent to make specific investments pursuant to written
instructions, in such amounts as the Issuer will specify. Notwithstanding the
foregoing, funds held by the Collateral Agent in any of the Bank Accounts will
be invested in Permitted Investments that will mature in each case no later
than the date on which such funds in the Bank Accounts are scheduled to be
transferred or distributed by the Indenture Trustee pursuant to the Indenture
(or as necessary to provide for timely payment of principal or interest on the
applicable Principal Payment Date or Interest Payment Date (as each such term
is defined in the Indenture)).
(b) All funds deposited from time to time in the Bank
Accounts pursuant to the Indenture and all investments made with such funds
will be held by the Collateral Agent in the Bank Accounts as part of the
Collateral as herein provided, subject to withdrawal by the Collateral Agent
or the Indenture Trustee for the purposes set forth in the Indenture.
(c) Funds and other property in any of the Bank Accounts
will not be commingled with any other funds or property of the Issuer, the
Indenture Trustee or the related Collateral Agent.
(d) The Servicer shall not give direction to dispose of a
Permitted Investment and no Permitted Investment shall be disposed of prior to
its maturity if such disposal results in a loss.
[END OF ARTICLE V]
ARTICLE VI
MISCELLANEOUS
Section 6.1 No Petition. The Collateral Agent, by entering
into this Asset Pool One Supplement, each Derivative Counterparty, by
designating that the obligations of the Issuer pursuant to the applicable
Derivative Agreement are secured by the Collateral, each Supplemental Credit
Enhancement Provider or Supplemental Liquidity Provider, as applicable, by
designating that the obligations of the Issuer pursuant to the applicable
Supplemental Credit Enhancement Agreement or Supplemental Liquidity Agreement
are secured by the Collateral, and each Asset Pool One Noteholder, by
accepting a Note, agrees, to the fullest extent permitted by applicable law,
that it will not at any time institute against First USA, any Master Trust or
the Issuer, or join in any institution against First USA, any Master Trust or
the Issuer 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 Asset Pool One Notes, the Indenture, any Derivative Agreement, any
Supplemental Credit Enhancement Agreement and any Supplemental Liquidity
Agreement.
Section 6.2 Actions by the Issuer. All action to be taken by
the Issuer under this Asset Pool One Supplement shall be taken by the
Administrator on behalf of the Issuer and all notices to be given and/or
received by the Issuer under this Asset Pool One Supplement shall be given and
received by the Administrator.
Section 6.3 Limitations on Liability.
(a) It is expressly understood and agreed by the parties
hereto that (i) this Asset Pool One Supplement is executed and delivered by
each Transferor not individually or personally but solely as Beneficiary under
the Trust Agreement, in the exercise of the powers and authority conferred and
vested in it, (ii) each of the representations, undertakings and agreements
herein made on the part of the Issuer is made and intended not as a personal
representation, undertaking or agreement by any Transferor but is made and
intended for the purpose of binding only the Issuer, (iii) nothing herein
contained will be construed as creating any liability on any Transferor
individually or personally, to perform any covenant of the Issuer either
expressed or implied contained herein, all such liability, if any, being
expressly waived by the parties to the Indenture and by any Person claiming
by, through or under them and (iv) under no circumstances will any Transferor
be personally liable for the payment of any indebtedness or expenses of the
Issuer or be liable for the breach or failure of any obligation,
representation, warranty or covenant made or undertaken by the Issuer under
this Asset Pool One Supplement or any related documents.
(b) None of the Collateral Agent, the Indenture Trustee, the
Owner Trustee, First USA or any other Beneficiary of the Issuer or any of
their respective officers, directors, employees, incorporators or agents will
have any liability with respect to this Asset Pool One Supplement, and
recourse may be had solely to the Collateral pledged to secure the Asset Pool
One Notes under this Asset Pool One Supplement.
Section 6.4 Termination of Issuer. The Issuer and the
respective obligations and responsibilities of the Collateral Agent created
hereby shall terminate as provided in the Trust Agreement.
Section 6.5 Termination Distributions. Upon the termination
of the Issuer pursuant to the terms of the Trust Agreement, the Collateral
Agent shall release, assign and convey to the applicable Transferor or any of
its designees, without recourse, representation or warranty, all of its right,
title and interest in the Collateral securing Asset Pool One, whether then
existing or thereafter created, all monies due or to become due and all
amounts received or receivable with respect thereto (including all moneys then
held in any Bank Account) and all proceeds thereof. The Collateral Agent shall
execute and deliver such instruments of transfer and assignment as shall be
provided to it, in each case without recourse, as shall be reasonably
requested by any Transferor, to vest in such Transferor, as Beneficiary under
the Trust Agreement, or any of its designees all right, title and interest
which the Collateral Agent had in and to the Collateral and such other
property securing Asset Pool One.
Section 6.6 Derivative Counterparty, Supplemental Credit
Enhancement Provider and Supplemental Liquidity Provider as Third-Party
Beneficiary. Each Derivative Counterparty, Supplemental Credit Enhancement
Provider and Supplemental Liquidity Provider is a third-party beneficiary of
this Asset Pool One Supplement to the extent specified in the applicable
Derivative Agreement, Supplemental Credit Enhancement Agreement, Supplemental
Liquidity Agreement or Indenture Supplement.
Section 6.7 Amendments. Except as expressly set forth in
Article IX of the Indenture, this Asset Pool One Supplement may not be
amended, supplemented or modified.
[END OF ARTICLE VI]
IN WITNESS WHEREOF, the parties hereto have caused this
Asset Pool One Supplement to be duly executed as of the day and year first
above written.
BANK ONE ISSUANCE TRUST,
By: FIRST USA BANK, NATIONAL ASSOCIATION,
as Beneficiary and not in its individual capacity
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: First Vice President
XXXXX FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Indenture Trustee and Collateral Agent
and not in its individual capacity
By: /s/ Xxxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
Acknowledged and Accepted:
FIRST USA BANK,
NATIONAL ASSOCIATION,
as Transferor, Servicer and Administrator
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxxxx
Title: First Vice President
Exhibit A
---------
Exhibit B
---------
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
INCLUDED IN ASSET POOL ONE
(as required by section 2.4(c)(v) of the Asset Pool One Supplement)
ASSIGNMENT No. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS
INCLUDED IN ASSET POOL ONE (this "Assignment"), dated as of _____________,(1)
by and between BANK ONE ISSUANCE TRUST (the "Trust") and XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION ("Xxxxx Fargo") as collateral Agent (the
"Collateral Agent"), pursuant to the Asset Pool One Supplement referred to
below.
W I T N E S S E T H:
WHEREAS, the Trust and Xxxxx Fargo, as Collateral Agent and
Indenture Trustee, are parties to the Asset Pool One Supplement, dated as of
May 1, 2002 (hereinafter as such agreement may have been, or may from time to
time be, amended, supplemented or otherwise modified, the "Asset Pool One
Supplement");
WHEREAS, pursuant to the Asset Pool One Supplement, the
Trust wishes to designate Additional Accounts to be included as Asset Pool One
Accounts and to pledge hereby the Receivables of such Additional Accounts (as
each such term is defined in the Asset Pool One Supplement), whether now
existing or hereafter created, to the Collateral Agent to be included as Asset
Pool One Receivables; and
WHEREAS, the Collateral Agent, on behalf of and for the
benefit and security of the Asset Pool One Noteholders, the Indenture Trustee,
in its individual capacity and the Collateral Agent, in its individual
capacity, is willing to accept such designation and pledge subject to the
terms and conditions hereof;
NOW, THEREFORE, the Trust and the Collateral Agent hereby
agree as follows:
1. Defined Terms. All capitalized terms used herein shall
have the meanings ascribed to them in the Asset Pool One Supplement unless
otherwise defined herein.
_________________
(1) To be dated as of the applicable Addition Date.
"Addition Cut Off Date" shall mean, with respect to the
Additional Accounts designated hereby, ____________, ____.
"Addition Date" shall mean, with respect to the Additional
Accounts designated on Schedule 1 hereto, ____________, ____.
"Notice Date" shall mean, with respect to the Additional
Accounts designated on Schedule 1 hereto, , (which shall be a date on or prior
to the third Business Day prior to the Addition Date with respect to additions
pursuant to subsection 2.4(a) of the Asset Pool One Supplement and the fifth
Business Day prior to the Addition Date with respect to additions pursuant to
subsection 2.4(b) of the Asset Pool One Supplement).
2. Designation of Additional Accounts. The Trust shall
deliver to the Collateral Agent not later than five Business Days after the
Addition Date a computer file containing a true and complete list of each
VISA(R) and MasterCard(R) account, which as of the Addition Date shall be
deemed to be an Additional Asset Pool One Account, such accounts being
identified by account number and by the amount of Receivables in such Account
as of the close of business on the related Addition Cut Off Date, which shall
be marked as Schedule 1 to this Assignment. Such list shall be delivered not
later than five Business Days after the date of this Assignment and, as of the
Addition Date, shall be incorporated into and made a part of the Asset Pool
One Supplement.
3. Pledge of Receivables. (a) The Trust does hereby grant to
the Collateral Agent, for the benefit and security of the Asset Pool One
Noteholders, the Indenture Trustee, in its individual capacity and the
Collateral Agent, in its individual capacity, a security interest in all of
its right, title and interest, whether now owned or hereafter acquired, in and
to the Receivables of such Additional Asset Pool One Accounts existing at the
close of business on the Addition Date and thereafter created from time to
time until the termination of the Trust, all Interchange and Recoveries
related thereto, all monies due or to become due and all amounts received or
receivable with respect thereto and all proceeds (including "proceeds" as
defined in the UCC) thereof. The foregoing does not constitute and is not
intended to result in the creation or assumption by the Collateral Agent of
any obligation of the Trust or any other Person in connection with the Asset
Pool One Accounts, the Asset Pool One Receivables or under any agreement or
instrument relating thereto, including any obligation to Obligors, merchant
banks, merchants clearance systems, VISA, MasterCard or insurers. This
Assignment constitutes a security agreement under the UCC.
(b) If necessary, the Trust agrees to record and file, at its
own expense, financing statements (and continuation statements when
applicable) with respect to the Asset Pool One Receivables in
Additional Asset Pool One Accounts existing on the Addition Cut Off
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 Asset Pool One Receivables to the Collateral Agent,
and to deliver a file-stamped copy of each such financing statement or
other evidence of such filing to the Collateral Agent on or prior to
the Addition Date. The Collateral Agent shall be under no obligation
whatsoever to file such financing or continuation statements or to make
any filing under the UCC in connection with such sale and assignment.
(c) In connection with such transfers, the Trust further
agrees, at its own expense, on or prior to the date of this
Assignment, to indicate in the appropriate computer files that
Receivables created in connection with the Additional Asset Pool One
Accounts and designated hereby have been pledged to the Collateral
Agent pursuant to this Assignment for the benefit and security of the
Asset Pool One Noteholders, the Indenture Trustee, in its individual
capacity and the Collateral Agent, in its individual capacity.
(d) It is the intention of the parties hereto that all
pledges of Receivables to the Collateral Agent pursuant to this
Assignment be subject to, and be treated in accordance with, the
Delaware Act and each of the parties hereto agrees that this
Assignment has been entered into by the parties hereto in express
reliance upon the Delaware Act. For purposes of complying with the
requirements of the Delaware Act, each of the parties hereto hereby
agrees that any property, assets or rights purported to be pledged,
in whole or in part, by the Trust pursuant to this Assignment shall
be deemed to no longer be the property, assets or rights of the
Trust. The parties hereto acknowledge and agree that each such
transfer is occurring in connection with a "securitization
transaction" within the meaning of the Delaware Act.
4. Acceptance by Collateral Agent. The Collateral Agent
hereby acknowledges its acceptance of all right, title and interest in and to
the Receivables in the Additional Asset Pool One Accounts now existing and
hereafter created, pledged to the Collateral Agent pursuant to Section 3(a) of
this Assignment and declares that it shall maintain such right, title and
interest, upon the trust herein set forth, for the benefit and security of the
Asset Pool One Noteholders, the Indenture Trustee, in its individual capacity
and the Collateral Agent, in its individual capacity.
5. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Collateral Agent, as the
Addition Date, that:
(a) Conditions Precedent. All of the requirements for the
addition of Accounts set forth under subsection 2.12(c) of the
Transfer and Servicing Agreement shall have been satisfied and all of
the representations and warranties set forth under subsection
2.04(a) of the Transfer and Servicing Agreement to be made on each
Addition Date shall be true and correct in all material respects on
such Addition Date;
(b) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Trust
enforceable against the Trust 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);
(c) Eligibility of Accounts. As of the Addition Cut Off
Date, each Additional Account designated hereby is an Eligible
Account;
(d) Insolvency. As of each of the Addition Cut Off Date and
the Addition Date, no Insolvency Event with respect to the Trust has
occurred and the transfer by the Transferor of Receivables arising in
the Additional Accounts to the Collateral Agent has not been made in
contemplation of the occurrence thereof;
(e) No Adverse Effect. The acquisition by the Collateral
Agent of the Receivables arising in the Additional Accounts shall
not, in the reasonable belief of the Trust, result in an Adverse
Effect;
(f) No Conflict. The execution and delivery by the Trust of
this Assignment, the performance of the transactions contemplated by
this Assignment and the fulfillment of the terms hereof applicable to
the Trust, will not conflict with or violate any Requirements of Law
applicable to the Trust or conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a material default under,
any indenture, contract, agreement, mortgage, deed of trust or other
instrument to which the Trust is a party or by which it or its
properties are bound;
(g) No Proceedings. There are no proceedings or
investigations, pending or, to the best knowledge of the Trust,
threatened against the Trust before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Assignment, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Assignment, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Trust, would
materially and adversely affect the performance by the Transferor of
its obligations under this Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect
the validity or enforceability of this Assignment; and
(h) All Consents. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be
obtained by the Trust in connection with the execution and delivery
of this Assignment by the Trust and the performance of the
transactions contemplated by this Assignment by the Trust, have been
obtained.
6. Amendment of the Asset Pool One Supplement. The Asset
Pool One Supplement is hereby amended to provide that all references therein
to the "Asset Pool One Supplement," to "this Asset Pool One Supplement" and
"herein" shall be deemed from and after the Addition Date to be a dual
reference to the Asset Pool One Supplement as supplemented by this Assignment.
All references therein to Additional Asset Pool One Accounts shall be deemed
to include the Additional Accounts designated hereby and all references
therein to Asset Pool One Receivables shall be deemed to include the
Receivables pledged hereby. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Asset Pool
One Supplement shall remain unamended and shall continue to be, and shall
remain, in full force and effect in accordance with its terms and except as
expressly provided herein shall not constitute or be deemed to constitute a
waiver of compliance with or a consent to noncompliance with any term or
provision of the Asset Pool One Supplement.
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 shall constitute one and the same
instrument.
8. GOVERNING LAW. THIS ASSIGNMENT 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.
9. Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Assignment has been executed and delivered
by Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee, acting of the Trust, in no event shall Wilmington
Trust Company in its individual capacity have any liability in respect of the
representations, warranties, or obligations of the Trust 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 Assignment and each other
document, the Owner 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.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust,
and the Collateral Agent have caused this Assignment to be duly executed by
their respective officers as of the day and year first above written.
BANK ONE ISSUANCE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
on behalf of the Trust
By:_____________________________________
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Collateral Agent
By: _____________________________________
Name:
Title:
Schedule 1 (to Exhibit B)
-------------------------
LIST OF ADDITIONAL ASSET POOL ONE ACCOUNTS
Schedule 2 (to Exhibit B)
-------------------------
Bank One Issuance Trust
Officer's Certificate
____________________, a duly authorized officer of
Wilmington Trust Company, a Delaware banking corporation, as owner trustee
(the "Owner Trustee") for the Bank One Issuance Trust (the "Trust"), hereby
certifies and acknowledges on behalf of the Trust that to the best of
[her/his] knowledge the following statements are true on , (the "Addition
Date"), and acknowledges on behalf of the Trust that this Officer's
Certificate will be relied upon by Xxxxx Fargo Bank Minnesota, National
Association ("Xxxxx Fargo"), as collateral agent (the "Collateral Agent") in
connection with the Collateral Agent entering into Assignment No. of
Receivables in Additional Accounts, dated as of the related Addition Date (the
"Assignment"), by and between the Trust and the Collateral Agent, in
connection with the Asset Pool One Supplement, dated as of May 1, 2002 (as
heretofore supplemented and amended, the "Asset Pool One Supplement"), by and
between the Trust and Xxxxx Fargo as Indenture Trustee and Collateral Agent.
The undersigned hereby certifies and acknowledges on behalf of the Trust that:
(a) Conditions Precedent. All of the requirements for the
addition of Accounts set forth under Section 2.4(c) of the Asset Pool
One Supplement shall have been satisfied in all material respects on
the Addition Date;
(b) Delivery of Assignment. On or prior to the Addition
Date, (i) the Trust has delivered to the Collateral Agent the
Assignment (including an acceptance by the Collateral Agent for the
benefit of the Asset Pool One Noteholders, the Indenture Trustee, in
its individual capacity and the Collateral Agent, in its individual
capacity), (ii) the Trust has indicated in its computer files that
the Receivables created in connection with the Additional Accounts
have been transferred to the Collateral Agent and (iii) the Trust
shall deliver to the Collateral Agent a computer file containing a
true and complete list of all Additional Accounts identified by
account number and the aggregate amount of the Receivables in such
Additional Accounts as of the related Addition Cut Off Date, which
computer file shall be as of the date of such Assignment,
incorporated into and made a part of such Assignment and the Asset
Pool One Supplement.
(c) Legal, Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Trust
enforceable against the Trust 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).
(d) Eligibility of Accounts. As of the Addition Cut Off
Date, each Additional Account designated hereby is an Eligible
Account.
(e) Insolvency. As of each of the Addition Cut Off Date and
the Addition Date, no Insolvency Event with respect to the Trust has
occurred and the transfer by the Transferor of Receivables arising in
the Additional Accounts to the Collateral Agent has not been made in
contemplation of the occurrence thereof.
(f) No Adverse Effect. The acquisition by the Collateral
Agent of the Receivables arising in the Additional Accounts shall
not, in the reasonable belief of the Trust, result in an Adverse
Effect.
(g) No Conflict. The execution and delivery by the Trust of
this Assignment, the performance of the transactions contemplated by
this Assignment and the fulfillment of the terms hereof applicable to
the Trust, will not conflict with or violate any Requirements of Law
applicable to the Trust or conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a material default under,
any indenture, contract, agreement, mortgage, deed of trust or other
instrument to which the Trust is a party or by which it or its
properties are bound.
(h) No Proceedings. There are no proceedings or
investigations, pending or, to the best knowledge of the Trust,
threatened against the Trust before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Assignment, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Assignment, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Trust, would
materially and adversely affect the performance by the Transferor of
its obligations under this Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect
the validity or enforceability of this Assignment.
(i) All Consents. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be
obtained by the Trust in connection with the execution and delivery
of this Assignment by the Trust and the performance of the
transactions contemplated by this Assignment by the Trust, have been
obtained.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Asset Pool One Supplement.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day
of ________ ____.
BANK ONE ISSUANCE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee on behalf of the Trust
By:____________________________
Name:
Title:
Exhibit C
---------
FORM OF ASSIGNMENT OF AN ADDITIONAL COLLATERAL CERTIFICATE
INCLUDED IN ASSET POOL ONE
(as required by section 2.4(c)(vi) of the Asset Pool One Supplement)
ASSIGNMENT No. __ OF AN ADDITIONAL COLLATERAL CERTIFICATE
INCLUDED IN ASSET POOL ONE (this "Assignment") dated as of _____________,(2)
by and between BANK ONE ISSUANCE TRUST (the "Trust") and XXXXX FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION ("Xxxxx Fargo") as collateral agent (the
"Collateral Agent"), pursuant to the Asset Pool One Supplement referred to
below.
W I T N E S S E T H:
WHEREAS, the Trust and Xxxxx Fargo, as Collateral Agent and
Indenture Trustee, are parties to the Asset Pool One Supplement, dated as of
May 1, 2002 (hereinafter as such agreement may have been, or may from time to
time be, amended, supplemented or otherwise modified, the "Asset Pool One
Supplement");
WHEREAS, pursuant to subsection 2.4(a) or 2.4(b) of the
Asset Pool One Supplement, the Trust wishes to designate an Additional
Collateral Certificate to be included as an Asset Pool One Collateral
Certificate and to pledge hereby such Additional Collateral Certificate to the
Collateral Agent; and
WHEREAS, the Collateral Agent, on behalf of and for the
benefit and security of the Asset Pool One Noteholders, the Indenture Trustee,
in its individual capacity and the Collateral Agent, in its individual
capacity, is willing to accept such designation and pledge subject to the
terms and conditions hereof;
NOW, THEREFORE, the Trust and the Collateral Agent agree as
follows:
1. Defined Terms. All capitalized terms used herein shall
have the meanings ascribed to them in the Asset Pool One Supplement unless
otherwise defined herein.
"Addition Date" shall mean, with respect to the Additional
Collateral Certificate designated on Schedule 1 hereto, ____________, ____.
_______________
2 To be dated as of the applicable Addition Date.
"Notice Date" shall mean, with respect to the Additional
Collateral Certificate designated on Schedule 1 hereto, , (which shall be a
date on or prior to the third Business Day prior to the Addition Date with
respect to additions pursuant to subsection 2.4(a) of the Asset Pool One
Supplement and the fifth Business Day prior to the Addition Date with respect
to additions pursuant to subsection 2.4(b) of the Asset Pool One Supplement).
2. Pledge of Additional Collateral Certificates. (a) The Trust
does hereby grant to the Collateral Agent, for the benefit and security of the
Asset Pool One Noteholders, the Indenture Trustee, in its individual capacity
and the Collateral Agent, in its individual capacity, a security interest in all
of its right, title and interest, whether now owned or hereafter acquired, in
and to the Additional Collateral Certificate. The foregoing does not constitute
and is not intended to result in the creation or assumption by the Collateral
Agent of any obligation of the Trust or any other Person in connection with the
Additional Collateral Certificate or under any agreement or instrument relating
thereto, including any obligation to Obligors, merchant banks, merchants
clearance systems, VISA, MasterCard or insurers. This Assignment constitutes a
security agreement under the UCC.
(b) If necessary, the Trust agrees to record and file, at
its own expense, financing statements (and continuation statements
when applicable) with respect to the Additional Collateral
Certificate meeting the requirements of applicable state law in such
manner and in such jurisdictions as are necessary to perfect, and
maintain perfection of, the assignment of its interest in such
Additional Collateral Certificate to the Collateral Agent, and to
deliver a file-stamped copy of each such financing statement or other
evidence of such filing to the Collateral Agent on or prior to the
Addition Date. Neither the Indenture Trustee or the Collateral Agent
shall be under any obligation whatsoever to file such financing or
continuation statements or to make any filing under the UCC in
connection with such assignment.
(c) It is the intention of the parties hereto that all
pledges of Additional Collateral Certificates to the Collateral Agent
pursuant to this Assignment be subject to, and be treated in
accordance with, the Delaware Act and each of the parties hereto
agrees that this Assignment has been entered into by the parties
hereto in express reliance upon the Delaware Act. For purposes of
complying with the requirements of the Delaware Act, each of the
parties hereto hereby agrees that any property, assets or rights
purported to be transferred, in whole or in part, by the Transferor
pursuant to this Assignment shall be deemed to no longer by the
property, assets or rights of the Transferor. The parties hereto
acknowledge and agree that each such transfer is occurring in
connections with a "securitization transaction" within the meaning of
the Delaware Act.
3. Acceptance by the Collateral Agent. The Collateral Agent
hereby acknowledges its acceptance for the benefit and security of the Asset
Pool One Noteholders, the Indenture Trustee, in its individual capacity and the
Collateral Agent, in its individual capacity, of a security interest in all
right, title and interest to the Additional Collateral Certificate which has
been pledged to the Collateral Agent pursuant to Section 2(a) of this
Assignment.
4. Representations and Warranties of the Transferor. The Trust
hereby represents and warrants to the Collateral Agent, as the Addition Date,
that:
(a) Conditions Precedent. All of the requirements for the
addition of Additional Collateral Certificates set forth under
subsection 2.12(c) of the Transfer and Servicing Agreement shall have
been satisfied and all of the representations and warranties set
forth under subsection 2.04(a) of the Transfer and Servicing
Agreement to be made on each Addition Date shall be true and correct
in all material respects on such Addition Date;
(b) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Trust
enforceable against the Trust 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);
(c) Eligibility of Additional Collateral Certificate. As of
the Addition Date, the Additional Collateral Certificate designated
hereby is an Eligible Collateral Certificate;
(d) Insolvency. As of the Addition Date, no Insolvency Event
with respect to the Trust has occurred and the transfer by the
Transferor of Receivables arising in the Additional Collateral
Certificate to the Collateral Agent has not been made in
contemplation of the occurrence thereof;
(e) No Adverse Effect. The acquisition by the Collateral
Agent of the Additional Collateral Certificate shall not, in the
reasonable belief of the Trust, result in an Adverse Effect;
(f) No Conflict. The execution and delivery by the Trust of
this Assignment, the performance of the transactions contemplated by
this Assignment and the fulfillment of the terms hereof applicable to
the Trust, will not conflict with or violate any Requirements of Law
applicable to the Trust or conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with or without
notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust or other
instrument to which the Trust is a party or by which it or its
properties are bound;
(g) No Proceedings. There are no proceedings or
investigations, pending or, to the best knowledge of the Trust,
threatened against the Trust before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Assignment, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Assignment, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Trust, would
materially and adversely affect the performance by the Transferor of
its obligations under this Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect
the validity or enforceability of this Assignment; and
(h) All Consents. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be
obtained by the Trust in connection with the execution and delivery
of this Assignment by the Trust and the performance of the
transactions contemplated by this Assignment by the Trust, have been
obtained.
5. Conditions Precedent. The assignment hereunder of the
Additional Collateral Certificate and the amendment of the Asset Pool One
Supplement pursuant to Section 6 of this Assignment are each subject to:
(a) the delivery, on or prior to the Addition Date, to the
Collateral Agent by the Trust of an Officer's Certificate in the form
of Schedule 2 to this Assignment certifying that (i) as of the
Addition Date, all requirements set forth in Section 2.4(c) of the
Asset Pool One Supplement have been satisfied, and (ii) each of the
representations and warranties made by the Trust in Section 5 hereof
is true and correct as of the Addition Date. The Collateral Agent may
conclusively rely on such Officer's Certificate, shall have no duty
to make inquiries with regard to the matters set forth therein and
shall incur no liability in so relying.
6. Amendment of the Asset Pool One Supplement. The Asset Pool
One Supplement is hereby amended to provide that all references therein to the
"Asset Pool One Supplement," to "this Asset Pool One Supplement" and "herein"
shall be deemed from and after the Addition Date to be a dual reference to the
Asset Pool One Supplement as supplemented by this Assignment. All references
therein to Additional Asset Pool One Collateral Certificates shall be deemed to
include the Additional Collateral Certificate designated hereby. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Asset Pool One Supplement shall remain unamended
and shall continue to be, and shall remain, in full force and effect in
accordance with its terms and except as expressly provided herein shall not
constitute or be deemed to constitute a waiver of compliance with or a consent
to noncompliance with any term or provision of the Asset Pool One Supplement.
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 shall constitute one and the same
instrument.
8. GOVERNING LAW. THIS ASSIGNMENT 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.
9. Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Assignment has been executed and delivered
by Wilmington Trust Company on behalf of the Trust, not in its individual
capacity, but solely in its capacity as Owner Trustee, in no event shall
Wilmington Trust Company in its individual capacity have any liability in
respect of the representations, warranties, or obligations of the Trust
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 Assignment
and each other document, the Owner 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.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the
Trust, and the Collateral Agent have caused this Assignment to be duly
executed by their respective officers as of the day and year first above
written.
BANK ONE ISSUANCE TRUST
By: WILMINGTON TRUST
COMPANY, not in its individual
capacity but solely as Owner
Trustee on behalf of the Trust
By: ________________________________
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Collateral Agent
By:___________________________________
Name:
Title:
Schedule 1 (to Exhibit C)
-------------------------
LIST OF ADDITIONAL ASSET POOL ONE COLLATERAL CERTIFICATES
Schedule 2 (to Exhibit C)
-------------------------
Bank One Issuance Trust
Officer's Certificate
____________________, a duly authorized officer of
Wilmington Trust Company, a Delaware banking corporation, as owner trustee
(the "Owner Trustee") for the Bank One Issuance Trust (the "Trust"), hereby
certifies and acknowledges on behalf of the Trust that to the best of
[her/his] knowledge the following statements are true on , (the "Addition
Date"), and acknowledges on behalf of the Trust that this Officer's
Certificate will be relied upon by Xxxxx Fargo Bank Minnesota, National
Association ("Xxxxx Fargo"), as collateral agent (the "Collateral Agent") in
connection with the Collateral Agent entering into Assignment No. of
Receivables in Additional Accounts, dated as of the related Addition Date (the
"Assignment"), by and between the Trust and the Collateral Agent, in
connection with the Asset Pool One Supplement, dated as of May 1, 2002 (as
heretofore supplemented and amended, the "Asset Pool One Supplement"), by and
between the Trust and Xxxxx Fargo as Indenture Trustee and Collateral Agent.
The undersigned hereby certifies and acknowledges on behalf of the Trust that:
(a) Conditions Precedent. All of the requirements for the
addition of Additional Collateral Certificates set forth under
Section 2.4(c) of the Asset Pool One Supplement shall have been
satisfied in all material respects on such Addition Date.
(b) Delivery of Assignment. On or prior to the Addition
Date, (i) the Trust has delivered to the Collateral Agent the
Assignment (including an acceptance by the Collateral Agent for the
benefit of the Asset Pool One Noteholders, the Indenture Trustee, in
its individual capacity and the Collateral Agent, in its individual
capacity) and (ii) the Trust shall deliver to the Collateral Agent
the Additional Collateral Certificate.
(c) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Trust
enforceable against the Trust 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).
(d) Eligibility of Additional Collateral Certificate. As of
the Addition Date, the Additional Collateral Certificate designated
hereby is an Eligible Collateral Certificate.
(e) Insolvency. As of the Addition Date, no Insolvency Event
with respect to the Trust has occurred and the transfer by the
Transferor of Receivables arising in the Additional Collateral
Certificate to the Collateral Agent has not been made in
contemplation of the occurrence thereof.
(f) No Adverse Effect. The acquisition by the Collateral
Agent of the Additional Collateral Certificate shall not, in the
reasonable belief of the Trust, result in an Adverse Effect.
(g) No Conflict. The execution and delivery by the Trust of
this Assignment, the performance of the transactions contemplated by
this Assignment and the fulfillment of the terms hereof applicable to
the Trust, will not conflict with or violate any Requirements of Law
applicable to the Trust or conflict with, result in any breach of any
of the material terms and provisions of, or constitute (with or
without notice or lapse of time or both) a material default under,
any indenture, contract, agreement, mortgage, deed of trust or other
instrument to which the Trust is a party or by which it or its
properties are bound.
(h) No Proceedings. There are no proceedings or
investigations, pending or, to the best knowledge of the Trust,
threatened against the Trust before any court, regulatory body,
administrative agency or other tribunal or governmental
instrumentality (i) asserting the invalidity of this Assignment, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Assignment, (iii) seeking any determination or
ruling that, in the reasonable judgment of the Trust, would
materially and adversely affect the performance by the Transferor of
its obligations under this Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect
the validity or enforceability of this Assignment.
(i) All Consents. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be
obtained by the Trust in connection with the execution and delivery
of this Assignment by the Trust and the performance of the
transactions contemplated by this Assignment by the Trust, have been
obtained.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Asset Pool One Supplement.
IN WITNESS WHEREOF, I have hereunto set my hand this _____ day
of ________ ____.
BANK ONE ISSUANCE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee on behalf of the Trust
By :_____________________________________
Name:
Title:
Exhibit D
---------
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
INCLUDED IN ASSET POOL ONE
(as required by section 2.5(b)(ii) of the Asset Pool One Supplement)
REASSIGNMENT No. _______ OF RECEIVABLES INCLUDED IN ASSET
POOL ONE (this "Reassignment"), dated as of _________,(3) by and between BANK
ONE ISSUANCE TRUST (the "Trust") and XXXXX FARGO BANK MINNESOTA, NATIONAL
ASSOCIATION (the "Collateral Agent"), pursuant to the Asset Pool One
Supplement referred to below.
W I T N E S S E T H:
WHEREAS, the Trust and the Collateral Agent are parties to
the Asset Pool One Supplement, dated as of May 1, 2002 (hereinafter as such
agreement may have been, or may from time to time be, amended, supplemented or
otherwise modified, the "Asset Pool One Supplement");
WHEREAS, pursuant to the Asset Pool One Supplement, the
Trust wishes to remove from Asset Pool One all Asset Pool One Receivables in
certain designated Asset Pool One Accounts (the "Removed Asset Pool One
Accounts") and to cause the Collateral Agent to reassign the Asset Pool One
Receivables of such Removed Asset Pool One Accounts, whether now existing or
hereafter created, from the Collateral Agent to the Trust; and
WHEREAS the Collateral Agent is willing to accept such
designation and to reconvey the Asset Pool One Receivables in the Removed
Asset Pool One Accounts subject to the terms and conditions hereof;
NOW, THEREFORE, the Trust and the Collateral Agent hereby
agree as follows:
1. Defined Terms. All terms defined in the Asset Pool One
Supplement and used herein shall have such defined meanings when used herein,
unless otherwise defined herein.
"Removal Date" shall mean, with respect to the Removed Asset
Pool One Accounts designated hereby, ___________, ____
__________________
(3) To be dated as of the Removal Date.
"Removal Notice Date" shall mean, with respect to the Removed
Asset Pool One Accounts, ___________, ____
2. Designation of Removed Asset Pool One Accounts. On or
before the Removal Date, the Trust will deliver to the Collateral Agent a
computer file containing a true and complete schedule identifying all Asset Pool
One Accounts, the Asset Pool One Receivables of which are being removed from
Asset Pool One, specifying for each such Asset Pool One Account, as of the
Removal Notice Date, its account number, the aggregate amount outstanding in
such Asset Pool One Account and the aggregate amount of Asset Pool One Principal
Receivables in such Asset Pool One Account, which computer file shall supplement
Schedule 1 to the Asset Pool One Supplement.
3. Conveyance of Receivables. (a) The Collateral Agent does
hereby reassign to the Trust, without recourse, on and after the Removal Date,
all right, title and interest of the Collateral Agent in, to and under the Asset
Pool One Receivables existing at the close of business on the Removal Notice
Date and thereafter created from time to time in the Removed Asset Pool One
Accounts identified on Schedule 1 to this Reassignment, all Interchange and
Recoveries related thereto, all monies due or to become due (including all Asset
Pool One Finance Charge Receivables) and all amounts received or receivable with
respect thereto and all proceeds (as defined in the UCC as in effect in the
applicable jurisdiction) thereof.
(b) In connection with such reassignment, the Collateral
Agent agrees to execute and deliver to the Trust, on or prior to the
date this Reassignment is delivered, applicable termination
statements prepared by the Collateral Agent with respect to the Asset
Pool One Receivables existing at the close of business on the Removal
Date and thereafter created from time to time in the Removed Asset
Pool One Accounts reassigned hereby and the proceeds thereof
evidencing the release by the Collateral Agent of its security
interest in the Asset Pool One Receivables in the Removed Asset Pool
One Accounts, and meeting the requirements of applicable state law,
in such manner and such jurisdictions as necessary to terminate such
interest.
4. Conditions Precedent. The reassignment hereunder of the
Asset Pool One Receivables in the Removed Asset Pool One Accounts and the
amendment of the Asset Pool One Supplement pursuant to Section 6 of this
Reassignment are each subject to:
(a) the satisfaction, on or prior to the Removal Date, of
the conditions set forth in Section 2.5(b) of the Asset Pool One
Supplement; and
(b) the delivery, on or prior to the Removal Date, to the
Collateral Agent by the Trust of an Officer's Certificate in the form
of Schedule 2 to this Reassignment certifying that (i) as of the
Removal Date, all requirements set forth in Section 2.5(b) of the Asset
Pool One Supplement for designating Removed Asset Pool One Accounts and
reconveying the Asset Pool One Receivables of such Removed Asset Pool
One Accounts, whether now existing or hereafter created, have been
satisfied, and (ii) each of the representations and warranties made by
the Trust in Section 5 hereof is true and correct as of the Removal
Date. The Collateral Agent may conclusively rely on such Officer's
Certificate, shall have no duty to make inquiries with regard to the
matters set forth therein and shall incur no liability in so relying.
5. Representations and Warranties. The Trust hereby
represents and warrants to the Collateral Agent as of the Removal
Date:
(a) Legal Valid and Binding Obligation. This Reassignment
constitutes a legal, valid and binding obligation of the Trust
enforceable against the Trust, 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 Asset Pool
One Accounts delivered pursuant to subsection 2.13(b)(iii) of the
Asset Pool One Supplement, as of the Removal Date, is true and
complete in all material respects.
6. Amendment of the Asset Pool One Supplement. The Asset
Pool One Supplement is hereby amended to provide that all references
therein to the "Asset Pool One Supplement," to "this Asset Pool One
Supplement" and "herein" shall be deemed from and after the Removal
Date to be a dual reference to the Asset Pool One Supplement as
supplemented by this Reassignment. All references therein to the
Asset Pool One Accounts shall be deemed not to include the Removed
Asset Pool One Accounts designated hereunder and all references to
Asset Pool One Receivables shall be deemed not to include the Asset
Pool One Receivables reassigned hereunder. Except as expressly
amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Asset Pool One Supplement shall
remain unamended and shall continue to be, and shall remain, in full
force and effect in accordance with its terms and except as expressly
provided herein shall not constitute or be deemed to constitute a
waiver of compliance with or a consent to noncompliance with any term
or provision of the Asset Pool One Supplement.
7. 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.
8. GOVERNING LAW. THIS REASSIGNMENT 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.
9. Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Reassignment has been executed and
delivered by Wilmington Trust Company on behalf of the Trust, not in its
individual capacity, but solely in its capacity as Owner Trustee, in no event
shall Wilmington Trust Company in its individual capacity have any liability
in respect of the representations, warranties, or obligations of the Trust
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
Reassignment and each other document, the Owner 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.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the
Trust, and the Collateral Agent have caused this Reassignment to be duly
executed by their respective officers as of the day and year first above
written.
BANK ONE ISSUANCE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
on behalf of the Trust
By:________________________________
Name:
Title:
XXXXX FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Collateral Agent,
By:________________________________
Name:
Title:
Schedule 1 (to Exhibit D)
-------------------------
REMOVED ASSET POOL ONE ACCOUNTS
Schedule 2-A (to Exhibit D)
---------------------------
Bank One Issuance Trust
Officers Certificate
____________________, a duly authorized officer of the
Wilmington Trust Company (the "Owner Trustee"), on behalf of the Bank One
Issuance Trust (the "Trust"), hereby certifies and acknowledges on behalf of
the Trust that to the best of [her/his] knowledge the following statements are
true on , (the "Removal Date"), and acknowledges on behalf of the Trust that
this Officer's Certificate will be relied upon by Xxxxx Fargo Bank Minnesota,
National Association, as Collateral Agent (the "Collateral Agent") in
connection with the Collateral Agent entering into Reassignment No. of
Receivables in Additional Accounts Included in Asset Pool One, dated as of the
related Removal Date (the "Reassignment"), among the Trust and the Collateral
Agent in connection with the Asset Pool One Supplement, dated as of May 1,
2002 (as heretofore supplemented and amended, the "Asset Pool One
Supplement"), by and among the Trust and the Collateral Agent. The undersigned
hereby certifies and acknowledges on behalf of the Trust that:
(a) On or prior to the Removal Date, the Trust has delivered
to the Collateral Agent, for execution, the Reassignment and within five
Business Days after the Removal Date, the Trust shall deliver to the
Collateral Agent computer list as of , with respect to the Removed Asset Pool
One Accounts identified on Schedule 1 to such Reassignment, containing a true
and complete list of such Removed Asset Pool One Accounts identified by
account number and the aggregate amount of the Asset Pool One Receivables in
such Removed Asset Pool One Accounts incorporated into and made a part of such
Reassignment and the Asset Pool One Supplement.
(b) The Reassignment constitutes a legal, valid and binding
obligation of the Trust enforceable against the Trust 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).
(c) All requirements set forth in Section 2.5(b) of the
Asset Pool One Supplement for designating Removed Asset Pool One Accounts and
conveying the Asset Pool One Principal Receivables of such Asset Pool One
Accounts, whether now existing or hereafter created, have been satisfied.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Asset Pool One Supplement.
IN WITNESS WHEREOF, I have hereunto set my hand as of the
___ day of ________ , _______.
WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
on behalf of the Trust
By: ___________________________
Name:
Title:
Schedule 2-B (to Exhibit D)
---------------------------
First USA Bank, National Association
Bank One Issuance Trust
Officer's Certificate
____________________, a duly authorized officer of First USA
Bank, National Association, a national banking association (the "Servicer"),
hereby certifies and acknowledges on behalf of the Servicer that to the best
of [her/his] knowledge the following statements are true on , (the "Removal
Date"), and acknowledges on behalf of the Servicer that this Officer's
Certificate will be relied upon by Xxxxx Fargo Bank Minnesota, National
Association, as Collateral Agent (the "Collateral Agent") of the Bank One
Issuance Trust in connection with the Collateral Agent entering into
Reassignment No. of Receivables in Additional Accounts, dated as of the
related Removal Date (the "Reassignment"), among the Issuer and the Collateral
Agent, in connection with the Asset Pool One Supplement, dated as of May 1,
2002 (as heretofore supplemented and amended, the "Asset Pool One
Supplement"), by and among the Trust, and Xxxxx Fargo Bank Minnesota, National
Association, as Indenture Trustee and Collateral Agent. The undersigned hereby
certifies and acknowledges on behalf of the Servicer that:
(a) (x) a random selection procedure was used by the
Servicer in selecting the Removed Accounts and only one such removal of
randomly selected Accounts shall occur in the then current Monthly Period, (y)
the Removed Accounts arose pursuant to an affinity, private- label,
agent-bank, co-branding or other arrangement with a third party that has been
cancelled by such third party or has expired without renewal and which by its
terms permits the third party to repurchase the Removed Accounts subject to
such arrangement, upon such cancellation or non- renewal and the third party
has exercised such repurchase right or (z) the Removed Accounts were selected
using another method that will not preclude transfers from being accounted for
as sales under generally accepted accounting principles or prevent the
Transferor from continuing to qualify as a qualifying special purpose entity
in accordance with SFAS No. 140 (or any relevant replacement statement).
(b) On or before the fifth Business Day prior to the Removal
Date, the Servicer gave each Rating Agency written notice that the Asset Pool
One Receivables from the Removed Asset Pool One Accounts are to be reassigned
to the Trust or its designee, specifying the date for removal of the Removed
Asset Pool One Accounts.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Transfer and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of the
___ day of ________ , _______.
FIRST USA BANK, NATIONAL ASSOCIATION,
as Servicer
By: ______________________________
Name:
Title:
EXHIBIT E
---------
BANK ONE ISSUANCE TRUST
Form of Monthly Payment Instructions and Notification to the
First USA Credit Card Master Trust Trustee
First USA Credit Card Master Trust Collateral Certificate
Monthly Period: [ ] 2002
1. Unless otherwise specified herein, capitalized terms used in this
certificate have their respective meanings set forth in the Amended
and Restated Pooling and Servicing Agreement, dated as of March 28,
2002, as supplemented by the Series 2002-CC Supplement, dated as of
May 1, 2002, each as between First USA Bank, National Association
and The Bank of New York (Delaware) (collectively, the "Agreement").
2. First USA Bank, National Association is, as of the date hereof, the
Transferor, Servicer and Administrator under the Transfer and
Servicing Agreement.
3. The undersigned is a Servicing Officer.
4. The Proposed Principal Shortfall Amount for the related Monthly
Period which the Series 2002-CC Certificateholder requests to be
made in accordance with Section 3.13 of the Asset Pool One
Supplement$
5. The Additional Invested Amount which the Series 2002-CC
Certificateholder requests to purchase from the First USA Credit
Card Master Trust on the related Transfer Date $
IN WITNESS WHEREOF, the undersigned has duly executed and delivered
this certificate on this [ ] day of [ ] 2002.
FIRST USA BANK, NATIONAL ASSOCIATION,
as Servicer
By:______________________________
Name:
Title:
EXHIBIT F
---------
BANK ONE ISSUANCE TRUST
Asset Pool One Monthly Servicer's Certificate
Monthly Period: [ ] 2002
1. Capitalized terms used in this certificate have their respective
meanings set forth in the Indenture, dated as of May 1, 2002, and
the Asset Pool One Supplement, dated as of May 1, 2002, each between
Bank One Issuance Trust and Xxxxx Fargo Bank Minnesota, National
Association, and the Amended and Restated Pooling and Servicing
Agreement, dated as of March 28, 2002, between First USA Bank,
National Association and The Bank of New York (Delaware).
2. First USA Bank National Association is, as of the date hereof, the
Transferor, Servicer and Administrator under the Transfer and
Servicing Agreement.
3. The undersigned is a Servicing Officer.
4. Collateral of Asset Pool One as of the last day of the related
Monthly Period
Collateral Certificates $
Principal Receivables $
Excess Funding Amount $
TOTAL: $
5a. The Nominal Liquidation Amount of all Asset Pool
One Note as of the last day of the related Monthly
Period
ONEseries $
TOTAL $
5b. Asset Pool One Transferor Amount as of the last day
of the related Monthly Period $
5c. Asset Pool One Required Transferor Amount for the
related Monthly Period $
6a. The aggregate amount of Collections of Principal
Receivables received by Asset Pool One for the
related Monthly Period $
6b. The aggregate amount of Collections of Principal
Receivables allocated pursuant to Section 3.3 of
the Asset Pool One Supplement for the related
Monthly Period
ONEseries % $
TOTAL % $
7a. The aggregate amount of Collections of Finance
Charge Receivables received by Asset Pool One
for the related Monthly Period $
7b. The aggregate amount of Collections of Finance
Charge Receivables allocated pursuant to
subsection 3.2(a) of the Asset Pool One Supplement
for the related Monthly Period
ONEseries % $
TOTAL % $
8a. The Asset Pool One Servicing Fee for the related
Monthly Period $
8b. The Asset Pool One Servicing Fee allocated to each
Series pursuant to subsection 3.4(b) of the Asset
Pool One Supplement for the related Monthly Period
ONEseries % $
TOTAL % $
9a. The Asset Pool One Default Amount for the related
Monthly Period $
9b. The Asset Pool One Default Amount allocated to
each Series pursuant to subsection 3.2(b) of the
Asset Pool One Supplement for the related Monthly
Period
ONEseries % $
TOTAL % $
10. The percentage of outstanding balances in Asset
Pool One that were delinquent as of the end of the
day of the last day of the related Monthly Period
30-59 days %
60-89 days %
90-119 days %
120-149 days %
150-179 days %
TOTAL %
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this Certificate on this [ ] day of [ ] 200__.
FIRST USA BANK, NATIONAL ASSOCIATION,
as Servicer
By:______________________________
Name:
Title:
