7
DOCSDC1:218874.1
CONFORMED COPY
DELEGATION OF SERVICING AGREEMENT
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THIS DELEGATION OF SERVICING AGREEMENT is made as of July 16, 2005 (this
"Agreement"), between Bank of America, National Association (USA), a national
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banking association (the "Servicer") and Banc of America Card Servicing
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Corporation, an Arizona corporation (the "Subservicer").
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RECITALS
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WHEREAS, Bank of America, National Association (USA) in its capacity as
Servicer and in its capacity as a Transferor (in such latter capacity, a
"Transferor") is a party to the Pooling and Servicing Agreement, dated as of
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July 19, 1996 (as the same may be amended, modified or supplemented, the "Master
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Pooling and Servicing Agreement"), among the Transferor, the Servicer, and U.S.
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Bank National Association (formerly known as First Bank National Association) as
Trustee (the "Trustee"); and
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WHEREAS, the Transferor, the Servicer and the Trustee are parties to certain
series supplements to the Master Pooling and Servicing Agreement described on
Annex I attached hereto (collectively, the "Series Supplements", and the Master
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Pooling and Servicing Agreement as supplemented by the Series Supplements, the
"Pooling and Servicing Agreement"); and
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WHEREAS, pursuant to the Pooling and Servicing Agreement, the Servicer has
agreed to service and administer, or cause to be serviced and administered, the
Receivables (as such term is defined in the Pooling and Servicing Agreement) in
the BA Master Credit Card Trust (the "Trust"), along with assuming certain other
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obligations relating to the Trust; and
WHEREAS, subject to the terms and conditions of this Agreement, the Servicer
desires to delegate to the Subservicer the obligations of such servicing
functions relating to the Receivables and certain of the other obligations of
the Servicer under the Pooling and Servicing Agreement; and
WHEREAS, the Subservicer desires to accept such delegation and the rights,
powers, duties, and obligations set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Agreement, and for other valuable consideration the receipt
and sufficiency of which are hereby acknowledged, the Servicer and the
Subservicer hereby agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
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shall have the meanings set forth in the Pooling and Servicing Agreement, a copy
of which has been delivered by the Servicer to the Subservicer.
2. Engagement of the Subservicer. Pursuant to Section 8.07 of the Pooling
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and Servicing Agreement, the Servicer hereby delegates to the Subservicer all of
the obligations and duties of the Servicer under the Pooling and Servicing
Agreement as the Servicer shall identify to the Subservicer along with any and
all rights and powers of the Servicer necessary to such delegation; provided
that the right to receive the Servicing Fee is a right of the Servicer that is
not delegated hereunder. The Subservicer hereby accepts such delegation of
obligations, duties, rights and powers.
3. Subservicing Fees. (a) As compensation for accepting such delegation
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of servicing in accordance with this Agreement, the Servicer shall pay to the
Subservicer, in immediately available funds on each Distribution Date, a
subservicing fee in an amount equal to one-twelfth of the product of (i) 2.0%
and (ii) the average amount of Principal Receivables during the prior Monthly
Period (the "Subservicing Fee"). The Subservicing Fee may be adjusted from time
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to time to reflect such factors as the Servicer and the Subservicer mutually
agree will result in a Subservicing Fee determined to be fair consideration for
the subservicing and administrative obligations delegated to and performed by
the Subservicer.
(b) Payment of the Subservicing Fee shall be independent of, and shall
not be conditioned in any way on, the receipt by the Servicer of the Servicing
Fee under the Pooling and Servicing Agreement.
4. Duties of the Subservicer. (a) The Subservicer shall perform all of
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the duties of the Servicer under the Pooling and Servicing Agreement which the
Servicer shall request that the Subservicer perform. In connection with such
performance, the Subservicer shall, as agent for the Servicer, take all actions
reasonably requested by the Servicer to subservice and administer the applicable
Receivables, to collect and deposit into the Collection Account payments
due under such Receivables and to charge-off as uncollectible such Receivables,
in each case in accordance with the Pooling and Servicing Agreement, the
applicable Credit Card Agreements, the applicable Credit Card Guidelines, and
the Subservicer's customary and usual servicing procedures for servicing credit
or charge receivables comparable to such Receivables. As agent for the Servicer,
the Subservicer shall have full power and authority, acting alone or through the
Servicer, to do any and all things in connection with such subservicing and
administration which it may deem necessary or desirable and which is permitted
of the Servicer under the Pooling and Servicing Agreement.
(b) The Subservicer shall not be obligated to use separate servicing
procedures, offices, employees, or accounts for any of its duties hereunder
including subservicing the applicable Receivables from the procedures, offices,
employees, and accounts used by the Subservicer in connection with its other
activities including servicing other comparable receivables. The Subservicer may
commingle Collections on the applicable Receivables to the extent permitted of
the Servicer under the Pooling and Servicing Agreement.
(c) The Servicer shall furnish the Subservicer with any files, records, or
documents necessary or appropriate to enable the Subservicer to carry out its
subservicing and administrative duties hereunder. The Subservicer shall furnish
the Servicer with any files, records, or documents necessary or appropriate to
enable the Servicer to carry out its servicing and administrative duties under
the Pooling and Servicing Agreement.
(d) The Subservicer shall pay out of its own funds, without reimbursement,
all expenses incurred in connection with its subservicing activities hereunder.
(e) The Subservicer shall duly satisfy all obligations on its part to be
fulfilled under or in connection with each applicable Receivable and the related
Account, will maintain in effect all qualifications required under Requirements
of Law in order to subservice properly each applicable Receivable and the
related Account, and will comply in all material respects with all other
Requirements of Law in connection with subservicing each applicable Receivable
and the related Account, the failure to comply with which would have a material
adverse effect on Certificateholders or the Trust.
(f) The Subservicer shall not authorize any rescission or cancellation of
any Receivable except in accordance with the applicable Credit Card Guidelines
or as ordered by a court of competent jurisdiction or other Governmental
Authority.
(g) The Subservicer shall not take any action which, or omit to take any
action the omission of which, would impair the rights of the Trustee in any
Receivable. The Subservicer shall not reschedule, revise, or defer payments due
on any Receivable except in accordance with the applicable Credit Card
Guidelines, nor shall it sell any assets then held by the Trust, except as may
be provided by the terms of the Pooling and Servicing Agreement.
(h) Except in connection with its enforcement or collection of an Account,
the Subservicer shall not take any action to cause any Receivable to be
evidenced by any instrument or chattel paper (as defined in the UCC).
(i) As reasonably requested by the Servicer, the Subservicer shall (i)
furnish the Servicer with true and complete copies of all reports, statements,
certificates, notices, and other documents received or generated by the
Subservicer in connection with its duties hereunder and (ii) cooperate with the
Servicer in taking any and all actions which the Servicer deems necessary in
order for it to satisfactorily perform its obligations under the Pooling and
Servicing Agreement. Nothing in this Agreement shall be construed as granting to
the Subservicer any right or power with respect to the Receivables that is more
expansive than that granted to the Servicer under the Pooling and Servicing
Agreement.
5. Reimbursement of the Servicer. The Subservicer shall reimburse the
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Servicer for any loss arising from a claim or demand (including any claim for
damages and any demand to accept an assignment of Receivables) that is made
against the Servicer under the Pooling and Servicing Agreement and that arises
from the Subservicer's misconduct, negligence, or failure to abide by the terms
of this Agreement (including the provisions of the Pooling and Servicing
Agreement applicable to the Servicer).
6. Representations, Warranties, and Covenants of the Parties. Each party,
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for and as to itself only, hereby makes the following representations,
warranties, and covenants for the benefit of the other parties:
(a) Such party is and will remain a legal entity duly organized and
validly existing in good standing under the laws of the jurisdiction of its
organization. Such party has, in all material respects, full power and authority
to own its properties and conduct its business as presently owned or conducted.
Such party has and will have, in all material respects, full power and authority
to execute, deliver, and perform its obligations under this Agreement.
(b) Such party is and will remain duly qualified to do business, is and will
remain in good standing as a foreign entity (or is exempt from such
requirements), and has obtained and will retain all necessary licenses and
approvals, in each jurisdiction in which its obligations under this Agreement
require such qualification, except where the failure to so qualify or obtain
licenses or approvals would not have a material adverse effect on its ability to
perform its obligations under this Agreement.
(c) Such party's execution, delivery, and performance of this Agreement have
been duly authorized by all necessary action on the part of such party.
(d) This Agreement constitutes a legal, valid, and binding obligation of
such party, enforceable in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, or other
similar laws affecting creditors' rights generally (or with respect to the
Servicer, the rights of creditors of national banking associations) or by
general principles of equity.
(e) The execution and delivery of this Agreement by such party, and the
performance by such party of the transactions contemplated by this Agreement,
and the fulfillment by such party of the terms hereof and thereof applicable to
such party, will not conflict with, violate or 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 such party is a
party or by which it or its properties are bound.
(f) The execution and delivery of this Agreement by such party, the
performance by such party of the transactions contemplated by this Agreement,
and the fulfillment by such party of the terms hereof and thereof applicable to
such party, will not conflict with or violate any Requirements of Law applicable
to such party.
(g) There are no proceedings or investigations pending or, to the best
knowledge of such party, threatened against such party before any Governmental
Authority seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or seeking any determination or ruling that, in
the reasonable judgment of such party, would materially and adversely affect the
performance by such party of its obligations under this Agreement.
(h) All authorizations, consents, orders, or approvals of or registrations
or declarations with any Governmental Authority required to be obtained,
effected, or given by such party in connection with the execution and delivery
of this Agreement by such party, and the performance of the transactions
contemplated by this Agreement by such party, have been duly obtained, effected,
or given and are and will remain in full force and effect.
7. Resignation or Termination of the Subservicer. The Subservicer may
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resign at any time upon at least 45-days prior written notice to the Servicer.
The Servicer may terminate the Subservicer at any time upon at least 45-days
prior written notice to the Subservicer. The Servicer also may terminate the
Subservicer at any time without prior notice if (i) the Subservicer fails to
perform its obligations hereunder, as determined by the Servicer or (ii) any
event occurs which materially and adversely affects the ability of the
Subservicer or the Servicer to collect the applicable Receivables, the ability
of the Subservicer to perform its obligations hereunder, or the ability of the
Servicer to perform its obligations under the Pooling and Servicing Agreement.
8. Term. Except as provided in Section 7 of this Agreement, this Agreement
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shall continue in full force and effect until the earlier of (i) the termination
of the Servicer under the Pooling and Servicing Agreement or (ii) the
termination of the Pooling and Servicing Agreement.
9. Notices. All notices, requests, and other communications permitted or
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required hereunder shall be in writing and shall be delivered personally or
mailed by certified mail, postage prepaid and return receipt requested, or by
telex or facsimile as follows:
If to the Servicer, addressed to:
Bank of America, National Association (USA)
000 X. Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxx Xxxxx (facsimile no. (000) 000-0000),
with a copy to:
Bank of America Corporation
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxx, Assistant General Counsel (facsimile no. (000) 000-0000),
If to the Subservicer, addressed to:
Banc of America Card Servicing Corporation
000 X. Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attn: Xxx Xxxxx (facsimile no. (000) 000-0000),
with a copy to:
Bank of America Corporation
000 X. Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
Attn: Xxxxx Xxxx, Assistant General Counsel (facsimile no. (000) 000-0000)
or to such other place within the United States of America as any party may
designate as to itself by written notice to the other parties. All notices
given by personal delivery or mail shall be effective on the date of actual
receipt at the appropriate address. Notice given by telex or facsimile shall be
effective upon actual receipt if received during the recipient's normal business
hours or the beginning of the next business day after receipt if received after
the recipient's normal business hours.
10. Non-Petition Covenant. Each of the Servicer and the Subservicer hereby
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covenants and agrees that it will not at any time institute against any
Transferor, or join in instituting against any Transferor, any case or
proceeding under the United States Bankruptcy Code or any other bankruptcy,
insolvency, or similar law.
11. Successors and Assigns. This Agreement shall be binding on the parties
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hereto and their respective successors and assigns; provided, however, that the
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Subservicer may not assign any of its rights or delegate any of its duties
hereunder without the prior written consent of the Servicer.
12. Severability. The provisions of this Agreement are intended to be
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severable. If any provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, such provision shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without in any manner affecting the validity or enforceability
of such provision in any other jurisdiction or the remaining provisions hereof
in any jurisdiction.
13. Counterparts. This Agreement may be executed in any number of
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counterparts, all of which taken together shall constitute one and the same
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instrument, and any of the parties hereto may execute this Agreement by signing
any such counterpart.
14. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN
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ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ITS
CONFLICTS OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS, AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
15. Captions. The captions in this Agreement are for convenience of
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reference only and shall not define or limit any of the terms or provisions
hereof.
16. Entire Agreement; Amendments; Waiver. This Agreement constitutes the
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entire agreement of the parties on the subject matter addressed herein and
supersedes any other agreement of the parties on such subject matter. This
Agreement may not be amended, and no rights hereunder may be waived, except by a
written document signed by the duly authorized representatives of the parties
hereto. No waiver of any of the provisions of this Agreement shall be deemed to
be or shall constitute a waiver of any other provisions hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
BANK OF AMERICA, NATIONAL ASSOCIATION (USA)
By: /s/ XXX XXXXX
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Name: Xxx Xxxxx
Title: Vice President
BANC OF AMERICA CARD SERVICING CORPORATION
By: /s/ XXXX HOBBY
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President Name: Xxxx Hobby
Title: Senior Vice
ANNEX I TO
DELEGATION OF SERVICING AGREEMENT
1. Series 1999-C Supplement to Pooling and Servicing Agreement, dated as of
July 28, 1999, between Bank of America, National Association (USA), as
Transferor and Servicer and U.S. Bank National Association (formerly known as
First Bank National Association).
2. Series 2001-A Supplement to Pooling and Servicing Agreement, dated as of
June 7, 2001, between Bank of America, National Association (USA), as Transferor
and Servicer and U.S. Bank National Association (formerly known as First Bank
National Association).
