Exhibit 4.4(c)
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FIRST USA BANK, NATIONAL ASSOCIATION
as Transferor and Servicer
and
THE BANK OF NEW YORK (DELAWARE)
as Trustee
on behalf of the Certificateholders
of the First USA Credit Card Master Trust
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FORM OF AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of [ ], 2002
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS
Section 1.01 Definitions................................................2
Section 1.02 Other Definitional Provisions.............................24
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Receivables.................................26
Section 2.02 Acceptance by Trustee.....................................28
Section 2.03 Representations and Warranties of the Transferor..........29
Section 2.04 Representations and Warranties of the Transferor
Relating to the Agreement and the Receivables.............31
Section 2.05 Covenants of the Transferor...............................37
Section 2.06 Addition of Accounts......................................40
Section 2.07 Removal of Accounts.......................................43
Section 2.08 Discount Receivables......................................45
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.01 Acceptance of Appointment and Other Matters Relating
to the Servicer...........................................46
Section 3.02 Servicing Compensation....................................48
Section 3.03 Representations and Warranties of the Servicer............49
Section 3.04 Reports and Records for the Trustee.......................51
Section 3.05 Annual Servicer's Certificate.............................52
Section 3.06 Annual Independent Accountants' Servicing Report..........53
Section 3.07 Tax Treatment.............................................53
Section 3.08 Notices to the Transferor.................................54
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.01 Rights of Certificateholders..............................55
Section 4.02 Establishment of Accounts.................................55
Section 4.03 Collections and Allocations...............................57
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL BE SPECIFIED
IN ANY SUPPLEMENT WITH RESPECT TO ANY SERIES]
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates..........................................64
Section 6.02 Authentication of Certificates............................65
Section 6.03 Registration of Transfer and Exchange of Certificates.....65
Section 6.04 Mutilated, Destroyed, Lost or Stolen Certificates.........69
Section 6.05 Persons Deemed Owners.....................................69
Section 6.06 Appointment of Paying Agent...............................70
Section 6.07 Access to List of Certificateholders' Names and Addresses.71
Section 6.08 Authenticating Agent......................................72
Section 6.09 Tender of Exchangeable Transferor Certificate.............73
Section 6.10 Book-Entry Certificates...................................76
Section 6.11 Notices to Clearing Agency................................77
Section 6.12 Definitive Certificates...................................77
Section 6.13 Global Certificate; Euro-Certificate Exchange Date........78
Section 6.14 Meetings of Certificateholders............................78
ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
Section 7.01 Liability of the Transferor...............................79
Section 7.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Transferor............................79
Section 7.03 Limitation on Liability...................................80
Section 7.04 Liabilities...............................................80
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
Section 8.01 Liability of the Servicer.................................82
Section 8.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer..............................82
Section 8.03 Limitation on Liability of the Servicer and Others........83
Section 8.04 Servicer Indemnification of the Trust and the Trustee.....83
Section 8.05 The Servicer Not to Resign................................84
Section 8.06 Access to Certain Documentation and Information
Regarding the Receivables.................................84
Section 8.07 Delegation of Duties......................................85
Section 8.08 Examination of Records....................................85
ARTICLE IX
PAY OUT EVENTS
Section 9.01 Pay Out Events............................................86
Section 9.02 Additional Rights Upon the Occurrence of Certain Events...86
ARTICLE X
SERVICER DEFAULTS
Section 10.01 Servicer Defaults........................................89
Section 10.02 Trustee to Act; Appointment of Successor.................91
Section 10.03 Notification to Certificateholders.......................93
Section 10.04 Waiver of Past Defaults..................................93
ARTICLE XI
THE TRUSTEE
Section 11.01 Duties of Trustee........................................94
Section 11.02 Certain Matters Affecting the Trustee....................96
Section 11.03 Trustee Not Liable for Recitals in Certificates..........98
Section 11.04 Trustee May Own Certificates.............................98
Section 11.05 The Servicer to Pay Trustee's Fees and Expenses..........98
Section 11.06 Eligibility Requirements for Trustee.....................99
Section 11.07 Resignation or Removal of Trustee........................99
Section 11.08 Successor Trustee.......................................100
Section 11.09 Merger or Consolidation of Trustee......................100
Section 11.10 Appointment of Co-Trustee or Separate Trustee...........101
Section 11.11 Tax Returns.............................................102
Section 11.12 Trustee May Enforce Claims Without Possession
of Certificates.........................................103
Section 11.13 Suits for Enforcement...................................103
Section 11.14 Rights of Certificateholders to Direct Trustee..........103
Section 11.15 Representations and Warranties of Trustee...............104
Section 11.16 Maintenance of Office or Agency.........................104
ARTICLE XII
TERMINATION
Section 12.01 Termination of Trust....................................105
Section 12.02 Optional Purchase.......................................106
Section 12.03 Final Payment with Respect to any Series................107
Section 12.04 Termination Rights of Holder of Exchangeable
Transferor Certificate..................................109
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment...............................................110
Section 13.02 Protection of Right, Title and Interest to Trust........111
Section 13.03 Limitation on Rights of Certificateholders..............112
Section 13.04 Governing Law...........................................113
Section 13.05 Notices.................................................114
Section 13.06 Severability of Provisions..............................114
Section 13.07 Assignment..............................................115
Section 13.08 Certificates Non-Assessable and Fully Paid..............115
Section 13.09 Further Assurances......................................115
Section 13.10 No Waiver; Cumulative Remedies..........................115
Section 13.11 Counterparts............................................115
Section 13.12 Third-Party Beneficiaries...............................115
Section 13.13 Actions by Certificateholders...........................116
Section 13.14 Rule 144A Information...................................116
Section 13.15 Merger and Integration..................................116
Section 13.16 Heading.................................................116
Section 13.17 Characterization of the Trust...........................117
Section 13.18 Nonpetition Covenants...................................117
EXHIBITS
Exhibit A Form of Exchangeable Transferor Certificate
Exhibit B Form of Assignment of Receivables in Additional Accounts
Exhibit C Form of Monthly Servicer's Certificate
Exhibit D Form of Annual Servicer's Certificate
Exhibit E Form of Opinion of Counsel Regarding Additional Accounts
Exhibit F Form of Annual Opinion of Counsel
Exhibit G Form of Reassignment of Receivables
Exhibit H Form of Reconveyance of Receivables
SCHEDULES
Schedule 1 List of Accounts [Deemed Incorporated]
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT,
dated as of [ ], 2002, by and between FIRST USA BANK, NATIONAL ASSOCIATION,
a national banking association, as Transferor and Servicer, and THE BANK OF
NEW YORK (DELAWARE), a banking corporation organized under the laws of the
State of Delaware, as Trustee.
WHEREAS, the predecessors to First USA Bank, National
Association and the Trustee have heretofore executed and delivered a
Pooling and Servicing Agreement, dated as of September 1, 1992 (as amended,
supplemented or otherwise modified, including by the Merger and Assumption
Agreement, dated as of September 17, 1999 among First USA Bank, National
Association, FCC National Bank, as the successor Transferor and the
Servicer, and the Trustee, the "Original Pooling and Servicing Agreement"),
by and between First USA Bank, National Association, as the Transferor and
Servicer, and the Trustee for the issuance by the First USA Credit Card
Master Trust (the "Trust") of the Investor Certificates and the
Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Original Pooling and
Servicing Agreement provides that the Servicer, the Transferor and the
Trustee, without the consent of any of the Certificateholders, may amend
the Original Pooling and Servicing Agreement from time to time so long as
the Trustee shall have received (i) from each Rating Agency then rating the
Investor Certificates a written notification that such action will not
result in a reduction or withdrawal of the rating of any outstanding Series
or Class which it is then rating and (ii) an Opinion of Counsel to the
effect that such amendment will not adversely affect in any material
respect the interests of the Investor Certificateholders;
WHEREAS, the Trustee has received (i) from each Rating
Agency a letter confirming the current rating of each outstanding Series
and Class and (ii) an Opinion of Counsel to the effect that such amendments
will not adversely affect in any material respect the interests of the
Investor Certificateholders; and
WHEREAS, all other conditions precedent to the execution
of this Agreement have been complied with.
NOW, THEREFORE, pursuant to Section 13.01(a) of the
Original Pooling and Servicing Agreement, the Servicer, the Transferor and
the Trustee hereby agree that effective on and as of the date hereof, the
Original Pooling and Servicing Agreement is hereby amended and restated in
its entirety as follows:
In consideration of the mutual agreements herein
contained, each party agrees as follows for the benefit of the other
parties and the Certificateholders:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this
Agreement, the following words and phrases shall have the following
meanings:
"Account Information" shall have the meaning specified in
subsection 2.02(b).
"Account" shall mean each VISA(R) and MasterCard(R)
credit card account established pursuant to a Credit Card Agreement between
First USA (or its predecessor) and any Person identified by account number
and by the Receivable balance as of the Cut-Off Date and as of each
Addition Cut-Off Date in each computer file or microfiche list delivered to
the Trustee by the Transferor pursuant to Section 2.01 or 2.06. The
definition of Account shall include each Transferred Account. The term
"Account" shall be deemed to refer to an Additional Account only from and
after the Addition Date with respect thereto, and the term "Account" shall
be deemed to refer to any Removed Account only prior to the Removal Date
with respect thereto.
"Addition Cut-Off Date" shall mean each date as of which
Additional Accounts shall be selected to be included as Accounts pursuant
to Section 2.06; provided, however, that in no event shall an Addition
Cut-Off Date be greater than ten months prior to the related Addition Date.
"Addition Date" shall mean each date as of which
Additional Accounts will be included as Accounts pursuant to Section 2.06.
"Additional Account" shall mean each VISA(R) and
MasterCard(R) credit card account established pursuant to a Credit Card
Agreement between First USA and any Person identified by account number and
by the Receivable balance as of the relevant Addition Cut-Off Date in the
computer file or microfiche list delivered to or caused to be delivered to
the Trustee by the Transferor pursuant to Section 2.06, to be included as
an Account pursuant to Section 2.06.
"Adjustment Payment" shall have the meaning specified in
subsection 4.03(c).
"Affiliate" of any Person shall mean any other Person
controlling, controlled by or under common control with such Person.
"Aggregate Addition Limit" shall mean the aggregate
number of accounts that may be added as Additional Accounts without prior
satisfaction of the Rating Agency Condition, equal to the aggregate number
of Accounts (exclusive of the aggregate amount of Accounts that
are Approved Accounts), which would either (x) with respect to any
consecutive three-month period, equal 15% of the aggregate number of
Accounts (inclusive of the aggregate number of Accounts that are Approved
Accounts added during such period) as of the first day of such three- month
period or (y) with respect to any twelve-month period, equal 20% of the
aggregate number of Accounts (inclusive of the aggregate number of Accounts
that are Approved Accounts added during such period) as of the first day of
such twelve-month period.
"Aggregate Invested Amount" shall mean, as of any date of
determination, the sum of the Invested Amounts of all Series of
Certificates issued and outstanding on such date of determination.
"Aggregate Investor Percentage" with respect to Principal
Receivables, Finance Charge Receivables and Receivables in Defaulted
Accounts, as the case may be, shall mean, as of any date of determination,
the sum of such Investor Percentages of all Series of Certificates issued
and outstanding on such date of determination; provided, however, that the
Aggregate Investor Percentage shall not exceed 100%.
"Agreement" shall mean this Amended and Restated Pooling
and Servicing Agreement and all amendments hereof and supplements hereto,
including any Supplement.
"Allocated Collections" shall have the meaning specified
in subsection 4.03(f).
"Amendment Closing Date" shall mean [ ], 2002.
"Amortization Period" shall mean, with respect to any
Series, the period following the related Revolving Period, which shall be
the controlled amortization period, the rapid amortization period,
controlled accumulation period, rapid accumulation period or other
amortization or accumulation period, in each case as defined with respect
to such Series in the related Supplement.
"Annual Membership Fee" shall have the meaning specified
in the Credit Card Agreement applicable to each Account for annual
membership fees or similar terms.
"Applicants" shall have the meaning specified in Section
6.07.
"Appointment Day" shall have the meaning specified in
subsection 9.02(a).
"Approved Accounts" shall mean each Additional Account
added to the Trust with respect to which the Rating Agency Condition has
been satisfied.
"Assignment" shall have the meaning specified in
subsection 2.06(c)(ii).
"Authorized Newspaper" shall mean a newspaper of general
circulation in the Borough of Manhattan, The City of New York printed in
the English language and customarily published on each Business Day,
whether or not published on Saturdays, Sundays and holidays.
"Average Principal Receivables" shall mean, for any
period, an amount equal to (a) the sum of the aggregate amount of Principal
Receivables at the end of each day during such period divided by (b) the
number of days in such period.
"Bank Portfolio" shall mean the VISA(R) and MasterCard(R)
credit card accounts originated or owned by First USA.
"Bearer Certificates" shall have the meaning specified in
Section 6.01.
"Bearer Rules" shall mean the provisions of the Internal
Revenue Code, in effect from time to time, governing the treatment of
bearer obligations, including sections 163(f), 871, 881, 1441, 1442 and
4701, and any regulations thereunder including, to the extent applicable to
any Series, proposed or temporary regulations.
"BIF" shall mean the Bank Insurance Fund administered by
the FDIC.
"Book-Entry Certificates" shall mean certificates
evidencing a beneficial interest in the Investor Certificates, ownership
and transfers of which shall be made through book entries by a Clearing
Agency as described in Section 6.10; provided, that after the occurrence of
a condition whereupon book-entry registration and transfer are no longer
authorized and Definitive Certificates are to be issued to the Certificate
Owners, such certificates shall no longer be "Book- Entry Certificates."
"Business Day" shall mean any day other than a Saturday,
a Sunday or a day on which banking institutions in (a) New York, New York,
(b) Newark, Delaware, (c) with respect to any Series with respect to which
payments to any Certificateholders are to be made outside of the United
States of America, the city or cities in which the Paying Agents for such
Series located outside of the United States of America have their principal
place of business, and (d) with respect to any Series, any additional city
specified in the related Supplement, are authorized or obligated by law or
executive order to be closed.
"Cash Advance Fees" shall have the meaning specified in
the Credit Card Agreement applicable to each Account for cash advance fees
or similar terms.
"Certificate" shall mean any one of the Investor
Certificates of any Series or the Exchangeable Transferor Certificate.
"Certificateholder" or "Holder" shall mean the Person in
whose name a Certificate is registered in the Certificate Register; if
applicable, the holder of any Bearer Certificate or Coupon, as the case may
be; and, if used with respect to the Exchangeable Transferor Certificate,
the Person in whose name the Exchangeable Transferor Certificate is
registered in the Certificate Register or the Person in whose name
ownership of the uncertificated interest in the Transferor Interest is
recorded in the books and records of the Trustee.
"Certificate Interest" shall mean interest payable in
respect of the Investor Certificates of any Series pursuant to Article IV
of the Supplement for such Series.
"Certificate Owner" shall mean, with respect to a
Book-Entry Certificate, the Person who is the beneficial owner of such
Book-Entry Certificate, as may be reflected on the books of the Clearing
Agency, or on the books of a Person maintaining an account with such
Clearing Agency (directly or as an indirect participant, in accordance with
the rules of such Clearing Agency).
"Certificate Principal" shall mean principal payable in
respect of the Investor Certificates of any Series pursuant to Article IV
of this Agreement.
"Certificate Rate" shall mean, with respect to any Series
of Certificates (or, for any Series with more than one class, for each
class of such Series), the percentage (or formula on the basis of which
such rate shall be determined) stated in the related Supplement; provided,
that unless otherwise provided in a Supplement, such rate shall be
calculated on the basis of a 360- day year consisting of twelve 30-day
months.
"Certificate Register" shall mean the register maintained
pursuant to Section 6.03, providing for the registration of the
Certificates and transfers and exchanges thereof.
"Class" shall mean, with respect to any Series, any one
of the classes of Certificates of that Series as specified in the related
Supplement.
"Clearing Agency" shall mean an organization registered
as a "clearing agency" pursuant to Section 17A of the Securities Exchange
Act of 1934, as amended.
"Clearing Agency Participant" shall mean a broker,
dealer, bank, other financial institution or other Person for whom from
time to time a Clearing Agency or Foreign Clearing Agency effects
book-entry transfers and pledges of securities deposited with the Clearing
Agency or Foreign Clearing Agency.
"Clearstream" shall mean Clearstream Banking, societe
anonyme.
"Closing Date" shall mean, with respect to any Series,
the date of issuance of such Series of Certificates, as specified in the
related Supplement.
"Collection Account" shall have the meaning specified in
subsection 4.02(a).
"Collections" shall mean all payments (including
Recoveries of Principal Receivables or Finance Charge Receivables and
Insurance Proceeds) received by the Servicer in respect of the Receivables,
in the form of cash, checks, wire transfers, ATM transfers or other form of
payment in accordance with the Credit Card Agreement in effect from time to
time on any Receivables. A Collection processed on an Account in excess of
the aggregate amount of Receivables in such Account as of the Date of
Processing of such Collection shall be deemed to be a payment in respect of
Principal Receivables to the extent of such excess. Collections with
respect to any Monthly Period shall include the amount of Interchange (if
any) allocable to any Series of Certificates pursuant to any Supplement
with respect to such Monthly Period (to the extent received by the Trust
and deposited into the Finance Charge Account or any Series Account as the
case may be, on the Transfer Date following such Monthly Period), to be
applied as if such Collections were Finance Charge Receivables for all
purposes. Collections with respect to any Monthly Period shall also include
the amount deposited by the Transferor into the Finance Charge Account (or
Series Account if provided in any Supplement) pursuant to Section 2.08.
Collections of Recoveries will be treated as Collections of Principal
Receivables; provided, however, that to the extent the aggregate amount of
Recoveries received with respect to any Monthly Period exceeds the
aggregate amount of Principal Receivables (other than Ineligible
Receivables) in Defaulted Accounts on the day such Account became a
Defaulted Account for each day in such Monthly Period, the amount of such
excess shall be treated as Collections of Finance Charge Receivables.
"Corporate Trust Office" shall mean the principal office
of the Trustee at which at any particular time its corporate trust business
shall be administered, which office at the date of the execution of this
Agreement is located at Xxxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx
00000, Attention: Corporate Trust Department.
"Coupon" shall have the meaning specified in Section
6.01.
"Credit Adjustment" shall have the meaning specified in
subsection 4.03(c).
"Credit Card Agreement" shall mean the Agreement and
Federal Truth in Lending Statement for VISA(R) and MasterCard(R) credit
card accounts between any Obligor and First USA as such agreements may be
amended, modified or otherwise changed from time to time.
"Credit Card Guidelines" shall mean First USA's policies
and procedures relating to the operation of its credit card business,
including, without limitation, the policies and procedures for determining
the creditworthiness of First USA's credit card customers, the extension of
credit to credit card customers, and relating to the maintenance of credit
card accounts and collection of credit card receivables, as such policies
and procedures may be amended from time to time.
"Cut-Off Date" shall mean August 21, 1992.
"Date of Processing" shall mean, with respect to any
transaction, the date on which such transaction is first recorded on the
Servicer's computer master file of VISA(R) and MasterCard(R) accounts
(without regard to the effective date of such recordation).
"Default Amount" shall mean for any Monthly Period, an
amount (which shall not be less than zero) equal to (a) the aggregate
amount of Principal Receivables (other than Ineligible Receivables) in
Defaulted Accounts on the day such Account became a Defaulted Account for
each day in such Monthly Period minus (b) the aggregate amount of
Recoveries received in such Monthly Period.
"Defaulted Account" shall mean each Account with respect
to which, in accordance with the Credit Card Guidelines or the Servicer's
customary and usual servicing procedures for servicing credit card
receivables comparable to the Receivables, the Servicer has charged off the
Receivables in such Account as uncollectible; an Account shall become a
Defaulted Account on the day on which such Receivables are recorded as
charged off as uncollectible on the Servicer's computer master file of
VISA(R) and MasterCard(R) accounts. Notwithstanding any other provision
hereof, any Receivables in a Defaulted Account that are Ineligible
Receivables shall be treated as Ineligible Receivables rather than
Receivables in Defaulted Accounts.
"Definitive Certificate" shall have the meaning specified
in Section 6.10.
"Delaware Act" means the Asset-Backed Securities
Facilitation Act located in Title 6, Chapter 27A of the Delaware Code.
"Depository" shall have the meaning specified in Section
6.10.
"Depository Agreement" shall mean, with respect to each
Series, the agreement among the Transferor, the Trustee and the Clearing
Agency, or as otherwise provided in the related Supplement.
"Determination Date" shall mean, unless otherwise
specified in any Supplement for the related Series, the first Business Day
on or before the eighth calendar day prior to each Distribution Date.
"Discount Receivables" shall mean on any Date of
Processing, the sum of (a) the aggregate Discount Receivables at the end of
the prior Date of Processing plus (b) any new Discount Receivables created
on such Date of Processing minus (c) any Discount Receivable Collections
received on such Date of Processing. Discount Receivables created on any
Date of Processing shall mean the product of the amount of any Principal
Receivables created on such Date of Processing (without giving effect to
the proviso in the definition of Principal Receivables) and the Yield
Factor.
"Discount Receivable Collections" shall mean on any Date
of Processing, the product of (a) a fraction the numerator of which is the
amount of Discount Receivables and the denominator of which is the sum of
the Principal Receivables and the Discount Receivables in each case (for
both numerator and denominator) at the end of the prior Monthly Period and
(b) collections of Principal Receivables on such Date of Processing.
"Distribution Account" shall have the meaning specified
in subsection 4.02(c).
"Distribution Date" shall mean, unless otherwise
specified in any Supplement for the related Series, the fifteenth day of
each month or, if such fifteenth day is not a Business Day, the next
succeeding Business Day.
"Dollars," "$" or "U.S.$" shall mean United States dollars.
"Eligible Account" shall mean, as of the Cut-Off Date
(or, with respect to Additional Accounts as of the relevant Addition
Cut-Off Date), each Account owned by First USA:
(a) which was in existence and maintained with First USA
prior to its selection for inclusion in the Trust;
(b) which is payable in Dollars;
(c) the Obligor on which has provided, as its most recent
billing address, an address which is located in the United States of
America or its territories or possessions or a Military Address;
(d) which First USA has not classified on its electronic
records as an Account with respect to which the related card has been lost
or stolen;
(e) which has not been identified by First USA in its
computer files as being involved in a voluntary or involuntary bankruptcy
proceeding;
(f) which has not been sold or pledged to any other party
and which does not have receivables which, in the case of Accounts
identified on the Cut-Off Date, have been sold or pledged to any other
party or, in the case of Accounts identified on any Addition Cut-Off Date,
at the time of transfer to the Trust are not sold or pledged to any other
party and do not have receivables which are sold or pledged to any other
party, except in accordance with the terms of the Original Pooling and
Servicing Agreement as amended from time to time prior to the Amendment
Closing Date;
(g) which is a VISA(R)or MasterCard(R)revolving credit
card account; and
(h) which First USA has not charged off in its customary
and usual manner for charging off such Accounts as of the Cut-Off Date (or,
with respect to Additional Accounts, as of the relevant Addition Cut-Off
Date).
"Eligible Receivable" shall mean each Receivable:
(a) which has arisen under an Eligible Account (in the
case of Accounts the Receivables in which were conveyed to the Trust on the
Initial Closing Date as of the Cut-Off Date and in the case of Additional
Accounts as of the relevant Addition Cut-Off Date);
(b) which was created in compliance, in all material
respects, with all Requirements of Law applicable to First USA and pursuant
to a Credit Card Agreement which complies, in all material respects, with
all Requirements of Law applicable to First USA;
(c) with respect to which all consents, licenses,
approvals or authorizations of, or registrations or declarations with, any
Governmental Authority required to be obtained, effected or given by First
USA in connection with the creation of such Receivable or the execution,
delivery and performance by First USA of the Credit Card Agreement pursuant
to which such Receivable was created, have been duly obtained, effected or
given and are in full force and effect as of such date of creation;
(d) as to which, as of the Closing Date, or in the case
of Receivables in Additional Accounts as of the relevant Addition Date,
First USA, the Transferor or the Trustee had good and marketable title
thereto, free and clear of all Liens arising under or through First USA,
the Transferor or any of their Affiliates (other than Liens permitted
pursuant to subsection 2.05(b));
(e) which is the legal, valid and binding payment
obligation of the Obligor thereon, enforceable against such Obligor in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws, now or hereafter in effect, affecting the enforcement of
creditors' rights in general and except as such enforceability may be
limited by general principles of equity (whether considered in a suit at
law or in equity); and
(f) which constitutes an "account" under and as defined
in Article 9 of the UCC as then in effect in the applicable jurisdiction.
"Enhancement" shall mean, with respect to any Series, the
cash collateral account or guaranty, letter of credit, guaranteed rate
agreement, maturity guaranty facility, tax protection agreement, interest
rate swap or any other contract or agreement for the benefit of the
Certificateholders of such Series (or Certificateholders of a Class within
such Series) as designated in the applicable Supplement.
"Enhancement Provider" shall mean, with respect to any
Series, the Person, if any, designated as such in the related Supplement.
"ERISA" shall mean the Employee Retirement Income
Security Act of 1974, as amended from time to time.
"Euroclear Operator" shall mean Euroclear Bank,
S.A./N.V., as operator of the Euroclear System.
"Excess Amount Principal Allocation" shall have the
meaning specified in subsection 4.03(f).
"Excess Principal Collections" shall mean, with respect
to a Distribution Date, the aggregate amount for all outstanding Series of
Principal Collections which the related Supplements specify are to be
treated as "Excess Principal Collections" for such Distribution Date.
"Exchange" shall mean either of the procedures described
under Section 6.09.
"Exchangeable Transferor Certificate" shall mean, if the
Transferor elects to evidence its interest in the Transferor Interest in
certificated form pursuant to Section 6.01, a certificate executed by the
Transferor and authenticated by the Trustee, substantially in the form of
Exhibit A and exchangeable as provided in Section 6.09; provided, that at
any time there shall be only one Exchangeable Transferor Certificate;
provided, further, that in any Supplement, "Exchangeable Transferor
Certificate" shall mean either a certificate executed and delivered by the
Transferor and authenticated by the Trustee substantially in the form of
Exhibit A or the uncertificated interest in the Transferor Interest.
"Exchange Date" shall have the meaning, with respect to
any Series issued pursuant to an Exchange, specified in subsection 6.09(b).
"Exchange Notice" shall have the meaning, with respect to
any Series issued pursuant to an Exchange, specified in subsection 6.09(b).
"Extended Trust Termination Date" shall have the meaning
specified in subsection 12.01(a).
"FDIC" shall mean the Federal Deposit Insurance
Corporation.
"Finance Charge Account" shall have the meaning specified
in subsection 4.02(b).
"Finance Charge Receivables" shall mean Receivables
created in respect of the Periodic Finance Charges, Annual Membership Fees,
Cash Advance Fees, Late Fees, overlimit fees, return check fees and similar
fees and charges and Discount Receivables. Finance Charge Receivables with
respect to any Monthly Period shall also include Interchange in an amount
equal to the Interchange Amount (if any) allocable to any Series of
Certificates pursuant to any Supplement with respect to such Monthly Period
(to the extent received by the Trust and deposited into the Finance Charge
Account or any Series Account, as the case may be, on the Transfer Date
following such Monthly Period).
"First USA" shall mean First USA Bank, National
Association, a national banking association or its successor.
"Fitch" shall mean Fitch, Inc., doing business as Fitch
Ratings, or its successor.
"Foreign Clearing Agency" shall mean Clearstream and the
Euroclear Operator.
"Global Certificate" shall have the meaning specified in
Section 6.13.
"Group" shall mean, with respect to any Series, the group
of Series in which the related Supplement specifies such Series is to be
included.
"Governmental Authority" shall mean the United States of
America, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Holder of the Exchangeable Transferor Certificate" or
"holder of the Exchangeable Transferor Certificate" shall mean the Holder
of the Exchangeable Transferor Certificate or the Holder of any
uncertificated interest in the Transferor Interest.
"Ineligible Receivable" shall have the meaning specified
in subsection 2.04(d)(iii).
"Initial Closing Date" shall mean September 24, 1992.
"Initial Invested Amount" shall mean, with respect to any
Series of Certificates, the amount stated in the related Supplement.
"Insolvency Event" shall have the meaning specified in
subsection 9.02(a).
"Insurance Proceeds" shall mean any amounts recovered by
the Servicer pursuant to any credit insurance policies covering any Obligor
with respect to Receivables under such Obligor's Account.
"Interchange" shall mean interchange fees payable to
First USA, in its capacity as credit card issuer, through VISA U.S.A., Inc.
and MasterCard International Incorporated in connection with cardholder
charges for goods and services with respect to the Accounts, as calculated
for a Series pursuant to the related Supplement.
"Interchange Amount" shall mean, through the Monthly
Period ending March 31, 2002, zero and for any Monthly Period thereafter,
an amount equal to the product of (i) 1.3% or such other percentage as may
be specified by the Transferor from time to time provided, that the Rating
Agency Condition shall have been satisfied in connection with such
designation and (ii) the amount of Collections other than Collections of
Periodic Finance Charges, Annual Membership Fees, Cash Advance Fees, Late
Fees, overlimit fees, return check fees and similar fees and other charges
or Recoveries for such Monthly Period.
"Internal Revenue Code" shall mean the Internal Revenue
Code of 1986, as amended from time to time.
"Invested Amount" shall have, with respect to any Series
of Certificates, the meaning stated in the related Supplement.
"Investment Company Act" shall mean the Investment
Company Act of 1940, as amended from time to time.
"Investor Account" shall mean each of the Finance Charge
Account, the Principal Account and the Distribution Account.
"Investor Certificate" shall mean any one of the
certificates (including, without limitation, the Bearer Certificates, the
Registered Certificates or the Global Certificates) executed by the
Transferor and authenticated by the Trustee substantially in the form (or
forms in the case of a Series with multiple classes) of the investor
certificate attached to the related Supplement.
"Investor Certificateholder" shall mean the Holder of
record of an Investor Certificate.
"Investor Default Amount" shall have, with respect to any
Series of Certificates, the meaning stated in the related Supplement.
"Investor Exchange" shall have the meaning specified in
subsection 6.09(b).
"Investor Monthly Servicing Fee" shall have, with respect
to each Series, the meaning specified in Section 3.02.
"Investor Percentage" shall have, with respect to
Principal Receivables, Finance Charge Receivables and Receivables in
Defaulted Accounts, and any Series of Certificates, the meaning stated in
the related Supplement.
"Late Fees" shall have the meaning specified in the
Credit Card Agreement applicable to each Account for late fees or similar
terms.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, participation or equity interest, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority
or other security agreement or preferential arrangement of any kind or
nature whatsoever, including, without limitation, any conditional sale or
other title retention agreement, any financing lease having substantially
the same economic effect as any of the foregoing and the filing of any
financing statement under the UCC (other than any such financing statement
filed for informational purposes only) or comparable law of any
jurisdiction to evidence any of the foregoing; provided, however, that any
security interest or ownership interest of First USA or the Trust in the
Trust Assets shall be deemed not to constitute a Lien.
"Master Trust" shall mean a master trust or other
securitization special purpose entity for which First USA or an Affiliate
acts as transferor or seller or servicer, established pursuant to a Pooling
Agreement.
"Military Address" shall mean any mailing address on any
United States of America armed forces military base of operations,
including APO and FPO addresses.
"Minimum Aggregate Principal Receivables" shall mean,
unless otherwise specified in any Supplement for the related Series, as of
any date of determination, an amount equal to (i) the sum of the numerators
used to calculate the Investor Percentages with respect to
the allocation of Collections of Principal Receivables for each Outstanding
Series on such date minus (ii) the amount then on deposit in the Collection
Account equal to the excess of the Minimum Transferor Interest over the
Transferor Interest retained therein pursuant to subsections 4.03(b) and
(f) and any similar provision in any Supplement.
"Minimum Transferor Interest" shall have the meaning
specified in subsection 2.06(a).
"Monthly Period" shall mean, unless otherwise defined in
any Supplement, the period from and including the first day of a calendar
month to and including the last day of a calendar month.
"Monthly Transferor Servicing Fee" shall have the meaning
specified in Section 3.02.
"Monthly Servicing Fee" shall have the meaning specified
in Section 3.02.
"Moody's" shall mean Xxxxx'x Investors Service, Inc. or
its successor.
"Notice Date" shall have the meaning specified in
subsection 2.06(c)(i).
"Obligor" shall mean, with respect to any Account, the
Person or Persons obligated to make payments with respect to such Account,
including any guarantor thereof.
"Officer's Certificate" shall mean a certificate signed
by any Vice President or more senior officer of the Transferor or Servicer
and delivered to the Trustee.
"Opinion Delivery Date" shall mean March 31, June 30,
September 30 and December 31 of each year; provided, however, that if in
connection with the issuance of a Series of Certificates an Opinion of
Counsel substantially in the form of Exhibit E has been delivered within
the three month period preceding any of such dates then such date shall not
be an "Opinion Delivery Date."
"Opinion of Counsel" shall mean a written opinion of
counsel, who may be counsel for or an employee of the Person providing the
opinion, and who shall be reasonably acceptable to the Trustee.
"Original Pooling and Servicing Agreement" shall have the
meaning specified in the first recital to this Agreement.
"Outstanding Series" shall have the meaning specified in
subsection 4.03(f).
"Paying Agent" shall mean any paying agent appointed
pursuant to Section 6.06 and shall initially be the Trustee.
"Pay Out Event" shall mean, with respect to each Series,
a Trust Pay Out Event or a Series Pay Out Event.
"Periodic Finance Charges" shall have the meaning
specified in the Credit Card Agreement applicable to each Account for
finance charges (due to periodic rate) or any similar term.
"Permitted Activities" shall mean the primary activities
of the Trust, which shall be:
(a) holding Receivables transferred from the Transferor
and other assets of the Trust, including any Enhancement with respect to
any Series and passive derivative financial instruments that pertain to
beneficial interests issued or sold to parties other than the Transferor,
its Affiliates or its agents;
(b) issuing Certificates and other interests in the Trust
Assets;
(c) receiving Collections and making payments on such
Certificates and interests in accordance with the terms of this Agreement
and any Supplement; and
(d) engaging in other activities that are necessary or
incidental to accomplish these limited purposes.
"Permitted Investments" shall mean, unless otherwise
provided in the Supplement with respect to any Series, (a) negotiable
instruments or securities represented by instruments in bearer or
registered form which evidence (i) obligations of or fully guaranteed by
the United States of America; (ii) time deposits, promissory notes, or
certificates of deposit of any depository institution or trust company
incorporated under the laws of the United States of America or any state
thereof and subject to supervision and examination by federal or state
banking or depository institution authorities; provided, however, that at
the time of the Trust's investment or contractual commitment to invest
therein, the certificates of deposit or short-term deposits of such
depository institution or trust company shall have a credit rating from
Moody's and Standard & Poor's of "P-1" and "A-1+," respectively; (iii)
commercial paper having, at the time of the Trust's investment or
contractual commitment to invest therein, a rating from Moody's and
Standard & Poor's of "P-1" and "A-1+," respectively; (iv) bankers
acceptances issued by any depository institution or trust company described
in clause (a)(ii) above; and (v) investments in money market funds rated
"AAA-m" or "AAA-mg" by Standard & Poor's and "P- 1" by Moody's or otherwise
approved in writing by each Rating Agency; (b) demand deposits in the name
of the Trust or the Trustee in any depository institution or trust company
referred to in clause (a) (ii) above; (c) securities not represented by an
instrument that are registered in the name of the Trustee upon books
maintained for that purpose by or on behalf of the issuer thereof and
identified on books maintained for that purpose by the Trustee as held for
the benefit of the Trust or the Certificateholders, and consisting of
shares of an open end diversified investment company which is registered
under the Investment Company Act which (i) invests its assets exclusively
in obligations of or guaranteed by the United States of America or any
instrumentality or agency thereof having in each instance a final maturity
date of less than one year from their date of purchase or other Permitted
Investments, (ii) seeks to maintain a constant net asset value per share,
(iii) has aggregate net assets of not less than $100,000,000 on the date of
purchase of such shares and (iv) each Rating Agency designates in writing
will not result in a withdrawal or downgrading of its then current rating
of any Series rated by it; and (d) any other investment if the Rating
Agency confirms in writing that such investment will not adversely affect
its then current rating of the Investor Certificates.
"Person" shall mean any legal person, including any
individual, corporation, partnership, limited liability company, joint
venture, association, joint-stock company, trust, unincorporated
organization, governmental entity or other entity of similar nature.
"Pooling Agreement" shall mean a pooling and servicing
agreement (including without limitation this Agreement), indenture or other
agreement for the issuance of securities from time to time from a Master
Trust and the servicing of the receivables in such Master Trust, as such
agreement may be amended, restated and supplemented from time to time.
"Principal Account" shall have the meaning specified in
subsection 4.02(b).
"Principal Receivable" shall mean each Receivable other
than (i) Periodic Finance Charges, Annual Membership Fees, Cash Advance
Fees, Late Fees, overlimit fees, return check fees and similar fees and
charges, (ii) Receivables in Defaulted Accounts and (iii) Discount
Receivables. A Receivable shall be deemed to have been created at the end
of the day on the Date of Processing of such Receivable. In calculating the
aggregate amount of Principal Receivables on any day, the amount of
Principal Receivables shall be reduced by the aggregate amount of credit
balances in the Accounts on such day. Any Receivable which the Transferor
is unable to transfer as provided in subsection 2.05(c) shall not be
included in calculating the aggregate amount of Principal Receivables.
"Principal Shortfalls" shall mean, with respect to a
Distribution Date, the aggregate amount of all outstanding Series which the
related Supplements specify are "Principal Shortfalls" for such
Distribution Date.
"Principal Terms" shall have the meaning, with respect to
any Series issued pursuant to an Exchange, specified in subsection 6.09(c).
"Publication Date" shall have the meaning specified in
subsection 9.02(a).
"Qualified Institution" shall have the meaning specified
in subsection 4.02(a)(ii).
"Rating Agency" shall mean, with respect to each Series,
the rating agency or agencies, if any, specified in the related Supplement.
"Rating Agency Condition" shall mean, at any time with
respect to a Series, the written confirmation of the Rating Agency that a
specified event or modification of the terms of such Series will not result
in the withdrawal or downgrade of the rating of the Certificates of any
Series then in effect.
"Reassignment" shall have the meaning specified in
subsection 2.07(b)(ii).
"Reassignment Date" shall have the meaning specified in
subsection 2.04(e).
"Receivable" shall mean any amount owing by the Obligors
including, without limitation, amounts owing for the payment of goods and
services, cash advances, access checks, Annual Membership Fees, Cash
Advance Fees, Periodic Finance Charges, Late Fees, overlimit fees, return
check fees and credit insurance premiums and special fees, if any.
"Record Date" shall mean, with respect to any
Distribution Date, the last Business Day of the preceding Monthly Period.
"Recoveries" shall mean all amounts received by the
Transferor or the Servicer with respect to Receivables in Defaulted
Accounts, including amounts received by the Transferor or the Servicer from
the purchaser or transferee with respect to the sale or other dispositions
of Receivables in Defaulted Accounts and all rights (but not obligations)
under any agreement to sell or transfer such Receivables (including any
rights to payment from any purchaser or transferee in connection with such
sale or other disposition). In the event of any such sale or disposition of
such Receivables, Recoveries shall not include amounts received by the
purchaser or transferee of such Receivables but shall be limited to amounts
received by the Transferor or the Servicer from the purchaser or transferee
and all rights of the Transferor and the Servicer against the purchaser or
transferee, including any right to payment.
"Registered Certificates" shall have the meaning
specified in Section 6.01.
"Removal Date" shall mean the date on which Receivables
in certain designated Removed Accounts will be reassigned by the Trustee to
the Transferor.
"Removal Notice Date" shall mean the day no later than
the fifth Business Day prior to a Removal Date.
"Removed Accounts" shall have the meaning specified in
subsection 2.07(a).
"Requirements of Law" for any Person shall mean the
certificate of incorporation or articles of association and by-laws or
other organizational or governing documents of such Person, and any law,
treaty, rule or regulation, or determination of an arbitrator or
Governmental Authority, in each case applicable to or binding upon such
Person or to which such Person is subject, whether federal, state or local
(including, without limitation, usury laws, the federal Truth in Lending
Act and Regulation Z and Regulation B of the Board of Governors of the
Federal Reserve System).
"Responsible Officer" shall mean any officer within the
Corporate Trust Office (or any successor group of the Trustee), including
any Vice President or any other officer of the Trustee customarily
performing functions similar to those performed by any person who at the
time shall be an above-designated officer and who shall have direct
responsibility for the administration of this Agreement.
"Retired Series" shall have the meaning specified in
subsection 4.03(f).
"Revolving Period" shall have, with respect to each
Series, the meaning specified in the related Supplement.
"SAIF" shall mean the Savings Association Insurance Fund
administered by the FDIC.
"Secured Obligations" shall have the meaning specified in
Section 2.01.
"Securities" shall mean, collectively, the Certificates
and any other securities issued pursuant to any Pooling Agreement.
"Securities Act" shall mean the Securities Act of 1933,
as amended.
"Series" shall mean any series of Investor Certificates,
which may include within any such Series a Class or Classes of Investor
Certificates subordinate to another such Class or Classes of Investor
Certificates.
"Series Account" shall mean any account or accounts
established pursuant to a Supplement for the benefit of such Series.
"Series Pay Out Event" shall have, with respect to any
Series, the meaning specified pursuant to the Supplement for the related
Series.
"Series Servicing Fee Percentage" shall mean, with
respect to any Series, the amount specified in the related Supplement.
"Series Termination Date" shall mean, with respect to any
Series of Certificates, the date stated in the related Supplement.
"Servicer" shall mean initially First USA, and its
permitted successors and assigns and thereafter any Person appointed as
successor as herein provided to service the Receivables.
"Servicer Default" shall have the meaning specified in
Section 10.01.
"Servicing Officer" shall mean any officer of the
Servicer involved in, or responsible for, the administration and servicing
of the Receivables whose name appears on a list of servicing officers
furnished to the Trustee by the Servicer, as such list may from time to
time be amended.
"SFAS 140" shall mean Statement of Financial Accounting
Standards No. 140, Accounting for Transfers and Servicing of Financial
Assets and Extinguishments of Liabilities (or any replacement Financial
Accounting Standards Board statement, or amendment or interpretation
thereof).
"Standard & Poor's" shall mean Standard & Poor's Ratings
Services, or its successor.
"Successor Servicer" shall have the meaning specified in
subsection 10.02(a).
"Supplement" or "Series Supplement" shall mean, with
respect to any Series, a supplement to this Agreement complying with the
terms of Section 6.09 of this Agreement, executed in conjunction with any
issuance of any Series of Certificates (or, in the case of the issuance of
Certificates on the Initial Closing Date, the supplement executed in
connection with the issuance of such Certificates).
"Termination Notice" shall have, with respect to any
Series, the meaning specified in Section 10.01.
"Transfer Agent and Registrar" shall have the meaning
specified in Section 6.03 and shall initially be the Trustee's Corporate
Trust Office.
"Transfer Date" shall mean, with respect to any Series,
the Business Day immediately prior to each Distribution Date.
"Transferor" shall mean First USA.
"Transferor Exchange" shall have the meaning specified in
subsection 6.09(b).
"Transferor Financing Statement" shall have the meaning
specified in Section 2.01.
"Transferor Interest" shall mean, on any date of
determination, the aggregate amount of Principal Receivables at the end of
the day immediately prior to such date of determination, minus the
Aggregate Invested Amount at the end of such day.
"Transferor Percentage" shall mean, on any date of
determination, when used with respect to Principal Receivables, Finance
Charge Receivables and Receivables in Defaulted Accounts, a percentage
equal to 100% minus the Aggregate Investor Percentage with respect to such
categories of Receivables.
"Transferred Account" shall mean (a) an Account with
respect to which a new credit account number has been issued by the
Servicer under circumstances resulting from a lost or stolen credit card or
from the transfer from one affinity group to another affinity group or
otherwise and not requiring standard application and credit evaluation
procedures under the Credit Card Guidelines or (b) an Eligible Account
resulting from a status change including the conversion of an Account that
was a standard account to a premium account or from a premium account to a
standard account, and which in either case can be traced or identified by
reference to or by way of the computer files or microfiche lists delivered
to the Trustee pursuant to Section 2.01 or 2.06 as an account into which an
Account has been transferred.
"Trust" shall mean the trust created by this Agreement,
the corpus of which shall consist of the Trust Assets.
"Trust Assets" shall have the meaning specified in
Section 2.01.
"Trust Extension" shall have the meaning specified in
subsection 12.01(a).
"Trust Pay Out Event" shall have, with respect to each
Series, the meaning specified in Section 9.01.
"Trust Termination Date" shall mean the earlier to occur
of (i) unless a Trust Extension shall have occurred, the day after the
Distribution Date with respect to the last remaining outstanding Series
following the date on which funds shall have been deposited in the
Distribution Account or the applicable Series Account for the payment of
Investor Certificateholders of such Series sufficient to pay in full the
Aggregate Invested Amount plus interest accrued at the applicable
Certificate Rate through the end of the related Monthly Period prior to the
Distribution Date with respect to each such Series, (ii) if a Trust
Extension shall have occurred, the Extended Trust Termination Date, and
(iii) August 1, 2032.
"Trustee" shall mean The Bank of New York (Delaware), a
banking corporation organized under the laws of the State of Delaware, and
its successors and any Person resulting from or surviving any consolidation
or merger to which it or its successors may be a party and any successor
trustee appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended
from time to time, as in effect in any specified jurisdiction.
"Unallocated Principal Collections" shall have the
meaning specified in subsection 4.03(f).
"Undivided Interest" shall mean the undivided interest in
the Trust evidenced by an Investor Certificate.
"Yield Factor" shall mean the fixed percentage designated
by the Servicer pursuant to Section 2.08.
Section 1.02 Other Definitional Provisions.
(a) All terms defined in any Supplement or this
Agreement shall have the defined meanings when used in any certificate or
other document made or delivered pursuant hereto unless otherwise defined
therein.
(b) As used herein and in any certificate or
other document made or delivered pursuant hereto or thereto, accounting
terms not defined in Section 1.01, and accounting terms partially defined
in Section 1.01 to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles or
regulatory accounting principles, as applicable. To the extent that the
definitions of accounting terms herein are inconsistent with the meanings
of such terms under generally accepted accounting principles or regulatory
accounting principles, the definitions contained herein shall control. In
the event that the UCC, as in effect on the date hereof is revised, any
reference herein to specific sections of the UCC shall be deemed to be
references to such successor sections.
(c) The agreements, representations and
warranties of First USA in this Agreement and in any Supplement, in each of
its capacities as Transferor and Servicer, shall be deemed to be the
agreements, representations and warranties of First USA solely, in each
such capacity, for so long as First USA acts in each such capacity under
this Agreement.
(d) The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement shall refer to any
Supplement or this Agreement as a whole and not to any particular provision
of this Agreement or any Supplement; and Section, subsection, Schedule and
Exhibit references contained in this Agreement or any Supplement are
references to Sections, subsections, Schedules and Exhibits in or to this
Agreement or any Supplement unless otherwise specified. The monthly
Servicer's certificate, the form of which is attached as Exhibit C to this
Agreement, shall be in substantially the form of Exhibit C, with such
changes as the Servicer may determine to be necessary or desirable;
provided, however, that no such change shall serve to exclude information
required by the Agreement or any Supplement. The Servicer shall, upon
making such determination, deliver to the Trustee and each Rating Agency an
Officer's Certificate to which shall be annexed the form of the related
Exhibit, as so changed. Upon the delivery of such Officer's Certificate to
the Trustee, the related Exhibit, as so changed, shall for all purposes of
this Agreement constitute such Exhibit. The Trustee may conclusively rely
upon such Officer's Certificate in determining whether the related Exhibit,
as changed, conforms to the requirements of this Agreement.
[End of Article I]
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Receivables. The Transferor
does hereby transfer, assign, set-over, and otherwise convey to the Trustee
for the benefit of the Certificateholders, without recourse, all of its
right, title and interest in and to the Receivables now existing and
hereafter created and arising in connection with the Accounts (other than
Receivables in Additional Accounts), all monies due or to become due with
respect thereto (including, without limitation, the right to all Recoveries
and Collections of Finance Charge Receivables and Principal Receivables),
Interchange, all proceeds (including "proceeds" as defined in the UCC as in
effect in the State of Delaware and any other applicable jurisdiction) of
such Receivables and Insurance Proceeds relating to such Receivables. The
property described in the preceding sentence, together with all monies and
the other property credited to the Collection Account, the Principal
Account, the Finance Charge Account and the Distribution Account or any
other Series Account shall constitute the assets of the Trust
(collectively, the "Trust Assets"). The foregoing transfer, assignment,
set-over and conveyance does not constitute and is not intended to result
in a creation or an assumption by the Trust, the Trustee or any Investor
Certificateholder of any obligation of the Transferor, the Servicer or any
other Person in connection with the Accounts or Receivables or any
agreement or instrument relating thereto, including, without limitation,
any obligation to any Obligors, merchant banks, merchants clearance
systems, VISA U.S.A., Inc., MasterCard International Incorporated or any
insurers. The parties hereto intend to treat the foregoing transfer,
assignment, set-over and conveyance as a sale, and not as a secured
borrowing, for accounting purposes.
In connection with such transfer, assignment,
set-over and conveyance, the Transferor agrees (i) to record and file, at
its own expense, a financing statement, including any continuation
statements with respect to such financing statement when applicable (such
financing statement, including any continuation statements with respect
thereto, the "Transferor Financing Statement") with respect to the
Receivables now existing and hereafter created for the transfer of accounts
(as defined in Article 9 of the UCC as in effect in the applicable
jurisdiction) 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 the Receivables to the Trust, (ii) that
such financing statement will name the Transferor, as Transferor, and the
Trustee, as secured party, with respect to the Receivables, and (iii) to
deliver a file-stamped copy of such financing statement or continuation
statement or other evidence of such filing (which may, for purposes of this
Section 2.01, consist of telephone confirmation of such filing) to the
Trustee on or prior to the date of issuance of the Certificates, and in the
case of any continuation statements filed pursuant to this Section 2.01, as
soon as practicable after receipt thereof by the Transferor. The foregoing
transfer, assignment, set-over and conveyance to the Trust shall be made to
the Trustee, on behalf of the Trust, and each reference in this Agreement
to such transfer, assignment, set-over and conveyance shall be construed
accordingly.
To the extent that the Transferor retained any
right, title or interest in the Trust Assets transferred to the Trust
pursuant to the Original Pooling and Servicing Agreement or any Assignment
executed prior to the Amendment Closing Date (other than Receivables in
Removed Accounts), the Transferor does hereby transfer, assign, set-over,
and otherwise convey to the Trustee for the benefit of the
Certificateholders, without recourse, all of its right, title and interest
in and to such Trust Assets.
In connection with such transfer, the Transferor
agrees, at its own expense, on or prior to the Amendment Closing Date, (i)
to annotate and indicate in its computer files that Receivables created in
connection with the Accounts (other than any Additional Accounts) have been
transferred to the Trustee pursuant to this Agreement for the benefit of
the Certificateholders and (ii) to deliver to the Trustee a computer file
or microfiche list containing a true and complete list of all such
Accounts, identified by account number and setting forth the Receivable
balance as of [ ], 2002. Such file or list shall be marked as Schedule 1 to
this Agreement, delivered to the Trustee as confidential and proprietary,
and is hereby incorporated into and made a part of this Agreement. The
Transferor further agrees not to alter the file designation referenced in
clause (i) of this paragraph with respect to any Account during the term of
this Agreement unless and until such Account becomes a Removed Account.
The Transferor hereby grants and transfers to
the Trustee a first priority perfected security interest in all of the
Transferor's right, title and interest in, to and under the Trust Assets,
to secure a loan in an amount equal to the unpaid principal amount of the
Investor Certificates issued hereunder or to be issued pursuant to this
Agreement and the interest accrued at the related certificate rate (the
"Secured Obligations"), and that this Agreement shall constitute a security
agreement under applicable law.
It is the intention of the parties hereto that
all such transfers be subject to, and be treated in accordance with, the
Delaware Act and each of the parties hereto agrees that this Agreement 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 First
USA pursuant to this Agreement shall be deemed to no longer be the
property, assets or rights of First USA. 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.
Pursuant to the request of the Transferor, the
Trustee shall cause Certificates in authorized denominations evidencing the
entire interest in the Trust to be duly authenticated and delivered to or
upon the order of the Transferor pursuant to Section 6.02.
Section 2.02 Acceptance by Trustee.
(a) The Trustee hereby acknowledges its
acceptance, on behalf of the Trust, of all right, title and interest
previously held by the Transferor in and to the Trust Assets, and declares
that it shall maintain such right, title and interest, upon the Trust
herein set forth, for the benefit of all Certificateholders. The Trustee
further acknowledges that, prior to or simultaneously with the execution
and delivery of this Agreement, First USA delivered to the Trustee the
computer file or microfiche list described in Section 2.01.
(b) The Trustee hereby agrees not to disclose to
any Person any of the account numbers or other information contained in the
computer files or microfiche lists delivered to the Trustee by First USA
pursuant to Sections 2.01, 2.06 and 2.07 ("Account Information") except as
is required in connection with the performance of its duties hereunder or
in enforcing the rights of the Certificateholders or to a Successor
Servicer appointed pursuant to Section 10.02, any successor trustee
appointed pursuant to Section 11.08, any co-trustee or separate trustee
appointed pursuant to Section 11.10 or any other Person in connection with
a UCC search or as mandated pursuant to any Requirement of Law applicable
to the Trustee. The Trustee agrees to take such measures as shall be
reasonably requested by First USA to protect and maintain the security and
confidentiality of such information, and, in connection therewith, shall
allow First USA to inspect the Trustee's security and confidentiality
arrangements from time to time during normal business hours. In the event
that the Trustee is required by law to disclose any Account Information,
the Trustee shall provide First USA with prompt written notice, unless such
notice is prohibited by law, of any such request or requirement so that
First USA may request a protective order or other appropriate remedy. The
Trustee shall make best efforts to provide First USA with written notice no
later than five days prior to any disclosure pursuant to this subsection
2.02(b).
(c) The Trustee shall have no power to create,
assume or incur indebtedness or other liabilities in the name of the Trust
other than as contemplated in this Agreement.
Section 2.03 Representations and Warranties of the
Transferor. The Transferor hereby represents and warrants to the Trust as
of the Initial Closing Date and the Amendment Closing Date:
(a) Organization and Good Standing. The
Transferor is an entity duly organized and validly existing in good
standing under the laws of the jurisdiction of its organization and has
full corporate power, authority and legal right to own its properties and
conduct its business as such properties are at present owned and such
business is at present conducted, and to execute, deliver and perform its
obligations under this Agreement and to execute and deliver to the Trustee
the Certificates pursuant hereto.
(b) Due Qualification. The Transferor is duly
qualified to do business and is in good standing (or is exempt from such
requirement) in any state where such qualification is required in order to
conduct its business, and has obtained all necessary licenses and approvals
with respect to the Transferor required under state and federal law;
provided, however, that no representation or warranty is made with respect
to any qualifications, licenses or approvals which the Trustee would have
to obtain to do business in any state in which the Trustee seeks to enforce
any Receivable.
(c) Due Authorization. The execution and
delivery of this Agreement and the execution and delivery to the Trustee of
the Certificates by the Transferor and the consummation of the transactions
provided for in this Agreement have been duly authorized by the Transferor
by all necessary corporate action on its part and this Agreement will
remain, from the time of its execution, an official record of the
Transferor.
(d) No Conflict. The execution and delivery of
this Agreement and the Certificates, the performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof that
are applicable to the Transferor will not 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 Transferor is a party or by which it or any of its
properties are bound.
(e) No Violation. The execution and delivery of
this Agreement and the Certificates, the performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof that
are applicable to the Transferor will not conflict with or violate any
Requirements of Law applicable to the Transferor.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Transferor,
threatened against the Transferor before any Governmental Authority (i)
asserting the invalidity of this Agreement or the Certificates, (ii)
seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this Agreement or the Certificates,
(iii) seeking any determination or ruling that, in the reasonable judgment
of the Transferor, would materially and adversely affect the performance by
the Transferor of its obligations under this Agreement, (iv) seeking any
determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement or the Certificates or (v)
seeking to affect adversely the income tax attributes of the Trust under
the United States federal or any state income tax systems.
(g) All Consents Required. All appraisals,
authorizations, consents, orders or other actions of any Person or of any
Governmental Authority or official required in connection with the
execution and delivery by the Transferor of this Agreement and the
Certificates, the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof by the Transferor, have
been duly obtained, effected or given and are in full force and effect.
For the purposes of the representations and
warranties contained in this Section 2.03 and made by the Transferor on the
Initial Closing Date, "Certificates" shall mean the Certificates issued on
the Initial Closing Date. The representations and warranties set forth in
this Section 2.03 shall survive the transfer and assignment of the
respective Receivables to the Trust, and termination of the rights and
obligations of the Servicer pursuant to Section 10.01. The representations
and warranties set forth in this Section 2.03 made by the Transferor prior
to the Amendment Closing Date shall survive the amendment hereto on the
Amendment Closing Date. The Transferor hereby represents and warrants to
the Trust, with respect to any Series of Certificates, as of its Closing
Date, unless otherwise stated in such Supplement, that the representations
and warranties of the Transferor set forth in Section 2.03, are true and
correct as of such date (for the purposes of such representations and
warranties, "Certificates" shall mean the Certificates issued on the
related Closing Date). Upon discovery by the Transferor, the Servicer or
the Trustee of a breach of any of the foregoing representations and
warranties, the party discovering such breach shall give prompt written
notice to the others.
Section 2.04 Representations and Warranties of the
Transferor Relating to the Agreement and the Receivables.
(a) Binding Obligation; Valid Transfer and
Assignment. The Transferor hereby represents and warrants to the Trust
that, as of the Initial Closing Date and the Amendment Closing Date:
(i) This Agreement constitutes a legal,
valid and binding obligation of the Transferor,
enforceable against the Transferor in accordance with its
terms, except (A) 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 entities such as
the Transferor, and (B) as such enforceability may be
limited by general principles of equity (whether
considered in a suit at law or in equity).
(ii) This Agreement constitutes either
(A) a valid transfer, assignment, set-over and conveyance
to the Trust of all right, title and interest of the
Transferor in and to the Receivables now existing and
hereafter created and arising in connection with the
Accounts (other than Receivables in Additional Accounts),
all proceeds of such Receivables and Insurance Proceeds
relating thereto and such Receivables and all proceeds
thereof and Insurance Proceeds relating thereto will be
held by the Trust free and clear of any Lien of any
Person claiming through or under the Transferor or any of
its Affiliates except for (x) Liens permitted under
subsection 2.05(b), (y) the interest of the Transferor as
Holder of the Exchangeable Transferor Certificate and (z)
the Transferor's right, if any, to interest accruing on,
and investment earnings, if any, in respect of the
Finance Charge Account, the Principal Account or any
Series Account, as provided in this Agreement or the
related Supplement, or (B) a valid transfer for security
in such property to the Trust, which is enforceable with
respect to the existing Receivables (other than
Receivables in Additional Accounts), the proceeds thereof
and Insurance Proceeds relating thereto upon execution
and delivery of this Agreement, and which will be
enforceable with respect to such Receivables hereafter
created, the proceeds thereof and Insurance Proceeds
relating thereto, upon such creation. Upon the filing of
the financing statement described in Section 2.01 and in
the case of the Receivables hereafter created and
proceeds thereof and Insurance Proceeds relating thereto,
upon such creation, the Trust shall have a first priority
perfected security interest (as defined in the UCC as in
effect in the applicable jurisdiction) in such property
(subject to the rules governing proceeds set forth in the
UCC as in effect in the applicable jurisdiction), except
for Liens permitted under subsection 2.05(b). Neither the
Transferor nor any Person claiming through or under the
Transferor shall have any claim to or interest in the
Principal Account, the Finance Charge Account, the
Distribution Account or any Series Account, except for
the Transferor's rights to receive interest accruing on,
and investment earnings, if any, in respect of, the
Finance Charge Account and Principal Account as provided
in this Agreement (or, if applicable, any Series Account
as provided in any Supplement) and, if this Agreement
constitutes the grant of a security interest in such
property, except for the interest of the Transferor in
such property as a debtor for purposes of the UCC as in
effect in the State of Delaware.
(b) Eligibility of Receivables. The Transferor
hereby represents and warrants to the Trust as of the Initial Closing Date,
the Amendment Closing Date and as of each Addition Date, as the case may
be, that:
(i) Each Receivable is an Eligible
Receivable as of the Cut-Off Date, the Addition Date or
the Amendment Closing Date, as applicable.
(ii) Each Receivable then existing has
been conveyed to the Trustee free and clear of any Lien
of any Person claiming through or under the Transferor or
any of its Affiliates (other than Liens permitted under
subsection 2.05(b)) and in compliance, in all material
respects, with all Requirements of Law applicable to the
Transferor.
(iii) With respect to each Receivable
then existing, all consents, licenses, approvals or
authorizations of or registrations or declarations with
any Governmental Authority required to be obtained,
effected or given by the Transferor in connection with
the conveyance of such Receivable to the Trust have been
duly obtained, effected or given and are in full force
and effect.
(iv) On each day on which any new
Receivable is created, the Transferor shall be deemed to
represent and warrant to the Trustee that (A) each
Receivable created on such day is an Eligible Receivable,
(B) each Receivable created on such day has been conveyed
to the Trust in compliance, in all material respects,
with all Requirements of Law applicable to the
Transferor, (C) with respect to each such Receivable, all
consents, licenses, approvals or authorizations of or
registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by
the Transferor in connection with the conveyance of such
Receivable to the Trust have been duly obtained, effected
or given and are in full force and effect and (D) the
representations and warranties set forth in subsection
2.04(a) are true and correct with respect to each
Receivable created on such day as if made on such day.
(v) As of the Amendment Closing Date,
Schedule l to this Agreement, and as of the applicable
Addition Date with respect to Additional Accounts, the
related computer file or microfiche list referred to in
Section 2.06, is an accurate and complete listing in all
material respects of all the Accounts as of [February
28], 2002, or with respect to Additional Accounts, as of
the applicable Addition Date, and the information
contained therein with respect to the identity of such
Accounts and the Receivables existing thereunder is true
and correct in all material respects as of [February 28],
2002 or such applicable Addition Date, as the case may
be.
(c) Notice of Breach. The representations and
warranties set forth in this Section 2.04 shall survive the transfer and
assignment of the respective Receivables to the Trust. Upon discovery by
the Transferor, the Servicer or the Trustee of a breach of any of the
representations and warranties set forth in this Section 2.04, the party
discovering such breach shall give prompt written notice to the other
parties mentioned above. The Transferor agrees to cooperate with the
Servicer and the Trustee in attempting to cure any such breach.
(d) Transfer of Ineligible Receivables.
(i) Automatic Reconveyance. In the
event of a breach with respect to a Receivable of any
representations and warranties set forth in subsection
2.04(b)(ii), or in the event that a Receivable is not an
Eligible Receivable as a result of the failure to satisfy
the conditions set forth in clause (d) of the definition
of Eligible Receivable, and any of the following three
conditions is met: (A) as a result of such breach or
event such Receivable is charged off as uncollectible or
the Trust's rights in, to or under such Receivable or its
proceeds are impaired or the proceeds of such Receivable
are not available for any reason to the Trust free and
clear of any Lien; (B) the Lien upon the subject
Receivable (1) arises in favor of the United States of
America or any State or any agency or instrumentality
thereof and involves taxes or liens arising under Title
IV of ERISA or (2) has been consented to by the
Transferor; or (C) the unsecured short- term debt rating
of First USA is not at least "P-1" by Xxxxx'x and the
Lien upon the subject Receivable ranks prior to the Lien
created pursuant to this Agreement; then, upon the
earlier to occur of the discovery of such breach or event
by the Transferor or the Servicer or receipt by the
Transferor of written notice of such breach or event
given by the Trustee, each such Receivable shall be
automatically reconveyed from the Trust on the terms and
conditions set forth in subsection 2.04(d)(iii).
(ii) Reconveyance After Cure Period. In
the event of a breach of any of the representations and
warranties set forth in subsection 2.04(b) other than a
breach or event as set forth in clause (d)(i) above, and
as a result of such breach the related Account becomes a
Defaulted Account or the Trust's rights in, to or under
the Receivable or its proceeds are impaired or the
proceeds of such Receivable are not available for any
reason to the Trust free and clear of any Lien, then,
upon the expiration of 60 days (or such longer period as
may be agreed to by the Trustee in its sole discretion,
but in no event later than 120 days) from the earlier to
occur of the discovery of any such event by either the
Transferor or the Servicer, or receipt by the Transferor
of written notice of any such event given by the Trustee,
each such Receivable shall be reconveyed from the Trust
on the terms and conditions set forth in subsection
2.04(d)(iii); provided, however, that no such
reconveyance shall be required to be made if, on any day
within such applicable period, such representations and
warranties with respect to such Receivable shall then be
true and correct in all material respects as if such
Receivable had been created on such day.
(iii) Procedures for Reconveyance. When
the provisions of subsection 2.04(d)(i) or (ii) above
require removal of a Receivable, the Transferor shall
accept reassignment of such Receivable (an "Ineligible
Receivable") by directing the Servicer to deduct the
principal balance of each such Ineligible Receivable from
the Principal Receivables in the Trust and to decrease
the Transferor Interest by such amount. On and after the
date of such reconveyance, each Ineligible Receivable
shall be deducted from the aggregate amount of Principal
Receivables used in the calculation of any Investor
Percentage, the Transferor Percentage or the Transferor
Interest. In the event that the exclusion of an
Ineligible Receivable from the calculation of the
Transferor Interest would cause the Transferor Interest
to be reduced below zero or would otherwise not be
permitted by law, the Transferor shall immediately, but
in no event later than 10 Business Days after such event,
make a deposit in the Collection Account (for allocation
as a Principal Receivable) in immediately available funds
prior to the next succeeding Transfer Date in an amount
equal to the amount by which the Transferor Interest
would be reduced below zero. The portion of such deposit
allocated to the Investor Certificates of each Series
shall be distributed to the Investor Certificateholders
of each Series in the manner specified in Article IV, if
applicable, on the Distribution Date relating to the
Monthly Period in which such deposit is made. Upon the
reassignment to the Transferor of an Ineligible
Receivable, the Trust shall automatically and without
further action be deemed to transfer, assign, set-over
and otherwise convey to the Transferor, without recourse,
representation or warranty, all the right, title and
interest of the Trust in and to such Ineligible
Receivable, all monies due or to become due with respect
thereto and all proceeds thereof and Insurance Proceeds
relating thereto allocated to such Ineligible Receivable
pursuant to any Supplement. Such reassigned Ineligible
Receivable shall be treated by the Trust as collected in
full as of the date on which it was transferred and the
Transferor Interest was reduced as set forth in this
clause (iii) of subsection 2.04(d). The Trustee shall
execute such documents and instruments of transfer or
assignment and take other actions as shall reasonably be
requested by the Transferor to evidence the conveyance of
such Ineligible Receivable pursuant to this subsection
2.04(d)(iii) (and any costs or expenses incurred by the
Trustee in connection with such conveyance shall be
reimbursed by the Servicer). The obligation of the
Transferor, set forth in this subsection 2.04(d)(iii), or
the automatic reconveyance of such Receivable from the
Trust, as the case may be, shall constitute the sole
remedy respecting any breach of the representations and
warranties set forth in the above-referenced subsections
with respect to such Receivable available to
Certificateholders or the Trustee on behalf of
Certificateholders.
(iv) Proceeds Held by Servicer. For the
purposes of subsections 2.04(d)(i) and (ii) above,
proceeds of a Receivable shall not be deemed to be
impaired hereunder solely because such proceeds are held
by the Servicer (if the Servicer is the Transferor) for
more than the applicable period under Section 9- 315(d)
of the UCC as in effect in the State of Delaware.
(e) Reassignment of Trust Portfolio. In the
event of a breach of any of the representations and warranties set forth in
subsection 2.04(a), either the Trustee or the Holders of Investor
Certificates evidencing Undivided Interests aggregating more than 50% of
the Aggregate Invested Amount, by notice then given in writing to the
Transferor and the Servicer (and to the Trustee and the Servicer, if given
by the Investor Certificateholders), may direct the Transferor to accept
reassignment of an amount of Principal Receivables (as specified below)
within 60 days of such notice (or within such longer period as may be
specified in such notice), and the Transferor shall be obligated to accept
reassignment of such Principal Receivables on a Distribution Date specified
by the Transferor (such Distribution Date, the "Reassignment Date")
occurring within such applicable period on the terms and conditions set
forth below; provided, however, that no such reassignment shall be required
to be made if, at any time during such applicable period, the
representations and warranties contained in subsection 2.04(a) shall then
be true and correct in all material respects. The Transferor shall deposit
on the Transfer Date preceding the Reassignment Date an amount equal to the
reassignment deposit amount for such Receivables in the Distribution
Account or Series Account, as provided in the related Supplement, for
distribution to the Investor Certificateholders pursuant to Article XII.
The reassignment deposit amount with respect to each Series for such
reassignment, unless otherwise stated in the related Supplement, shall be
equal to (i) the Invested Amount of such Series at the end of the day on
the last day of the Monthly Period preceding the Reassignment Date, less
the amount, if any, previously allocated for payment of principal to such
Certificateholders on the related Distribution Date in the Monthly Period
in which the Reassignment Date occurs, plus (ii) an amount equal to all
interest accrued but unpaid on the Investor Certificates of such Series at
the applicable Certificate Rate through such last day, less the amount, if
any, previously allocated for payment of interest to the Certificateholders
of such Series on the related Distribution Date in the Monthly Period in
which the Reassignment Date occurs. Payment of the reassignment deposit
amount with respect to each Series, and all other amounts in the
Distribution Account or the applicable Series Account in respect of the
preceding Monthly Period shall be considered a prepayment in full of the
Receivables represented by the Investor Certificates. On the Distribution
Date following the Transfer Date on which such amount has been deposited in
full into the Distribution Account or the applicable Series Account, the
Receivables and all monies due or to become due with respect thereto and
all proceeds of the Receivables and Insurance Proceeds relating thereto and
Interchange (if any) allocated to the Receivables pursuant to any
Supplement shall be released to the Transferor after payment of all amounts
otherwise due hereunder on or prior to such dates and the Trustee shall
execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as shall be prepared by
and as are reasonably requested by the Transferor to vest in the
Transferor, or its designee or assignee, all right, title and interest of
the Trust in and to the Receivables, all monies due or to become due with
respect thereto and all proceeds of the Receivables and Insurance Proceeds
relating thereto allocated to the Receivables pursuant to any Supplement
(and any costs or expenses incurred by the Trustee in connection with such
reassignment shall be reimbursed by the Servicer). If the Trustee or the
Investor Certificateholders give notice directing the Transferor to accept
reassignment as provided above, the obligation of the Transferor to accept
reassignment of the Receivables and pay the reassignment deposit amount
pursuant to this subsection 2.04(e) shall constitute the sole remedy
respecting a breach of the representations and warranties contained in
subsection 2.04(a) available to the Investor Certificateholders or the
Trustee on behalf of the Investor Certificateholders.
Section 2.05 Covenants of the Transferor. The Transferor
hereby covenants that:
(a) Receivables to be Accounts. The Transferor
will take no action to cause any Receivable to be evidenced by any
instrument (as defined in the UCC as in effect in the applicable
jurisdiction). Each Receivable shall be payable pursuant to a contract
which does not create a Lien on any goods purchased thereunder. The
Transferor will take no action to cause any Receivable to be anything other
than an "account" (as defined in the UCC as in effect in the applicable
jurisdiction). Each Receivable arises out of the use of a credit or charge
card or information contained on or for use with the card.
(b) Security Interests. Except for the
conveyances hereunder, the Transferor will not sell, pledge, assign or
transfer to any other Person, or grant, create, incur, assume or suffer to
exist any Lien on any Receivable, whether now existing or hereafter
created, or any interest therein; except with respect to the conveyances
hereunder, the Transferor will immediately notify the Trustee of the
existence of any Lien on any Receivable; and the Transferor shall defend
the right, title and interest of the Trust in, to and under the
Receivables, whether now existing or hereafter created, against all claims
of third parties claiming through or under the Transferor; provided,
however, that nothing in this subsection 2.05(b) shall prevent or be deemed
to prohibit the Transferor from suffering to exist upon any of the
Receivables any Liens for municipal or other local taxes if such taxes
shall not at the time be due and payable or if the Transferor shall
currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with
respect thereto.
(c) Account Allocations.
(i) In the event that the Transferor is
unable for any reason to transfer Receivables to the
Trust in accordance with the provisions of this Agreement
(including, without limitation, by reason of the
application of the provisions of Section 9.02 or an order
by any Governmental Authority having regulatory authority
over the Transferor or any court of competent
jurisdiction that the Transferor not transfer any
additional Principal Receivables to the Trust) then, in
any such event, (A) the Transferor agrees to allocate and
pay to the Trust, after the date of such inability, all
Collections with respect to Principal Receivables, and
all amounts which would have constituted Collections with
respect to Principal Receivables but for the Transferor's
inability to transfer such Receivables (up to an
aggregate amount equal to the amount of Principal
Receivables in the Trust on such date); (B) the
Transferor agrees to have such amounts applied as
Collections in accordance with Article IV; and (C) for
only so long as all Collections and all amounts which
would have constituted Collections are allocated and
applied in accordance with clauses (A) and (B) above,
Principal Receivables (and all amounts which would have
constituted Principal Receivables but for the
Transferor's inability to transfer Receivables to the
Trust) that are written off as uncollectible in
accordance with this Agreement shall continue to be
allocated in accordance with Article IV, and all amounts
that would have constituted Principal Receivables but for
the Transferor's inability to transfer Receivables to the
Trust shall be deemed to be Principal Receivables for the
purpose of calculating (i) the applicable Investor
Percentage with respect to any Series and (ii) the
Aggregate Investor Percentage thereunder. If the
Transferor is unable pursuant to any Requirement of Law
to allocate Collections as described above, the
Transferor agrees that it shall in any such event
allocate, after the occurrence of such event, payments on
each Account with respect to the principal balance of
such Account first to the oldest principal balance of
such Account and to have such payments applied as
Collections in accordance with Article IV. The parties
hereto agree that Finance Charge Receivables, whenever
created, accrued in respect of Principal Receivables that
have been conveyed to the Trust, or that would have been
conveyed to the Trust but for the above described
inability to transfer such Receivables, shall continue to
be a part of the Trust notwithstanding any cessation of
the transfer of additional Principal Receivables to the
Trust and Collections with respect thereto shall continue
to be allocated and paid in accordance with Article IV.
(ii) In the event that, pursuant to
subsection 2.04(d), the Transferor accepts reassignment
of an Ineligible Receivable as a result of a breach of
the representations and warranties in subsection 2.04(b)
relating to such Receivable, then, in any such event, the
Transferor agrees to account for payments received with
respect to such Ineligible Receivable separately from its
accounting for Collections on Principal Receivables
retained by the Trust. If payments received from or on
behalf of an Obligor are not specifically applicable
either to an Ineligible Receivable of such Obligor
reassigned to the Transferor or to the Receivables of
such Obligor retained in the Trust, then the Transferor
agrees to allocate payments proportionately based on the
total amount of Principal Receivables of such Obligor
retained in the Trust and the total amount owing by such
Obligor on any Ineligible Receivables reassigned to the
Transferor, and the portion allocable to any Principal
Receivables retained in the Trust shall be treated as
Collections and deposited in accordance with the
provisions of Article IV.
(d) Credit Card Agreements and Account
Guidelines. The Transferor shall comply with and perform its obligations
under the Credit Card Agreements relating to the Accounts and the Credit
Card Guidelines and all applicable rules and regulations of VISA U.S.A.,
Inc. and MasterCard International Incorporated except insofar as any
failure to comply or perform would not materially and adversely affect the
rights of the Trust or the Certificateholders hereunder or under the
Certificates. The Transferor may change the terms and provisions of the
Credit Card Agreements or the Credit Card Guidelines in any respect
(including, without limitation, the reduction of the required minimum
monthly payment, the calculation of the amount, or the timing, of charge
offs and the Periodic Finance Charges and other fees to be assessed
thereon) only if such change (i) would not, in the reasonable belief of the
Transferor, cause a Pay Out Event to occur, and (ii) is made applicable to
the comparable segment of the revolving credit card accounts owned and
serviced by the Transferor which have characteristics the same as, or
substantially similar to, the Accounts that are the subject of such change,
except as otherwise restricted by an endorsement, sponsorship, or other
agreement between the Transferor and an unrelated third party or by the
terms of the Credit Card Agreements.
(e) Delivery of Collections. The Transferor
agrees to pay to the Servicer all payments received by the Transferor in
respect of the Receivables as soon as practicable after receipt thereof by
the Transferor.
(f) Conveyance of Accounts. The Transferor
covenants and agrees that it will not convey, assign, exchange or otherwise
transfer the Accounts to any Person prior to the earlier of the termination
of this Agreement pursuant to Article XII; provided, however, that the
Transferor shall not be prohibited hereby from conveying, assigning,
exchanging or otherwise transferring the Accounts in connection with a
transaction complying with the provision of Section 7.02.
(g) Change in State of Location. In the event
that the state of organization of the Transferor changes from the State of
Delaware or the Transferor changes its corporate form, the Transferor shall
promptly notify the Trustee in writing of any such change.
Section 2.06 Addition of Accounts.
(a) Required Additions. If, (i) during any
period of 30 consecutive days, the Transferor Interest averaged over that
period is less than 4% (or such higher percentage as may be specified in
any Supplement, such percentage the "Minimum Transferor Interest") of the
Average Principal Receivables, the Transferor shall designate Additional
Accounts to be included as Accounts in a sufficient amount such that the
average of the Transferor Interest as a percentage of the Average Principal
Receivables for such 30-day period, computed by assuming that the amount of
the Average Principal Receivables of such Additional Accounts shall be
deemed to be outstanding in the Trust during each day of such 30-day
period, is at least equal to the Minimum Transferor Interest, or (ii) on
any Record Date the aggregate amount of Principal Receivables is less than
the Minimum Aggregate Principal Receivables, the Transferor shall designate
Additional Accounts to be included as Accounts in a sufficient amount such
that the aggregate amount of Principal Receivables will be equal to or
greater than the Minimum Aggregate Principal Receivables. Receivables from
such Additional Accounts shall be transferred to the Trust on or before the
tenth Business Day following such thirty-day period or Record Date, as the
case may be.
(b) Permitted Additions. In addition to its
obligation under subsection 2.06(a), the Transferor may, but shall not be
obligated to, designate from time to time Additional Accounts to be
included as Accounts.
(c) Conditions to Additions. The Transferor
agrees that any such transfer of Receivables from Additional Accounts under
subsection 2.06(a) or 2.06(b) shall satisfy the following conditions (to
the extent provided below):
(i) on or before the fifth Business Day
prior to the Addition Date with respect to additions
pursuant to subsection 2.06(a) and on or before the tenth
Business Day prior to the Addition Date with respect to
additions pursuant to subsection 2.06(b) (the "Notice
Date"), the Transferor shall give the Trustee, each
Rating Agency and the Servicer written notice that such
Additional Accounts will be included, which notice shall
specify the approximate aggregate amount of the
Receivables to be transferred;
(ii) on or before the Addition Date,
the Transferor shall have delivered to the Trustee a
written assignment (including an acceptance by the
Trustee on behalf of the Trust for the benefit of the
Investor Certificateholders) in substantially the form of
Exhibit B (the "Assignment") and the Transferor shall
have indicated in its computer files that the Receivables
created in connection with the Additional Accounts have
been transferred to the Trustee and, within five Business
Days thereafter, the Transferor shall have delivered to
the Trustee a computer file or microfiche list 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
Addition Cut-Off Date, which computer file or microfiche
list shall be as of the date of such Assignment
incorporated into and made a part of such Assignment and
this Agreement;
(iii) the Transferor shall represent
and warrant that (x) each Additional Account is, as of
the Addition Cut-Off Date, an Eligible Account, and each
Receivable in such Additional Account, is, as of the
Addition Cut-Off Date, an Eligible Receivable, (y) no
selection procedures believed by the Transferor to be
materially adverse to the interests of the Investor
Certificateholders were utilized in selecting the
Additional Accounts from the available Eligible Accounts
from the Bank Portfolio, and (z) as of the Addition Date,
the Transferor is not insolvent;
(iv) the Transferor shall represent and
warrant that, as of the Addition Date, the Assignment
constitutes either (x) a valid transfer and assignment to
the Trust of all right, title and interest of the
Transferor in and to the Receivables then existing and
thereafter created in the Additional Accounts, and all
proceeds (as defined in the UCC as in effect in the
applicable jurisdiction) of such Receivables and
Insurance Proceeds relating thereto and such Receivables
and all proceeds thereof and Insurance Proceeds relating
thereto will be held by the Trustee free and clear of any
Lien of any Person claiming through or under the
Transferor or any of its Affiliates, except for (i) Liens
permitted under subsection 2.05(b), (ii) the interest of
the Transferor as Holder of the Exchangeable Transferor
Certificate and (iii) the Transferor's right to receive
interest accruing on, and investment earnings in respect
of, the Finance Charge Account and the Principal Account,
or any Series Account as provided in this Agreement and
any related Supplement or (y) a valid transfer for
security (under the UCC as in effect in the applicable
jurisdiction) in such property to the Trustee, which is
enforceable with respect to then existing Receivables of
the Additional Accounts, the proceeds (as defined in the
UCC as in effect in the applicable jurisdiction) thereof
and Insurance Proceeds relating thereto upon the
conveyance of such Receivables to the Trustee, and which
will be enforceable with respect to the Receivables
thereafter created in respect of Additional Accounts
conveyed on such Addition Date, the proceeds (as defined
in the UCC as in effect in the applicable jurisdiction)
thereof and Insurance Proceeds relating thereto upon such
creation; and (z) upon the filing of a financing
statement as described in Section 2.01 with respect to
such Receivables thereafter created in such Additional
Accounts and the proceeds (as defined in the UCC as in
effect in the applicable jurisdiction) thereof, and
Insurance Proceeds relating thereto, upon such creation,
the Trustee shall have a first priority perfected
security interest (as defined in the UCC as in effect in
the applicable jurisdiction) in such property (subject to
the rules governing proceeds set forth in the UCC as in
effect in the applicable jurisdiction), except for Liens
permitted under subsection 2.05(b);
(v) the Transferor shall deliver an
Officer's Certificate substantially in the form of
Schedule 2 to Exhibit B to the Trustee;
(vi) on or before the Opinion Delivery
Date, the Transferor shall deliver to the Trustee (with a
copy to each Rating Agency) an Opinion of Counsel with
respect to the Receivables arising in Accounts included
as Additional Accounts during the preceding three month
period substantially in the form of Exhibit E; and
(vii) if (x) with respect to any
three-month period or with respect to any twelve-month
period, the aggregate number of Accounts designated to
have their Receivables added to the Trust shall exceed
the applicable Aggregate Addition Limit or (y) the
Accounts designated to have their Receivables added to
the Trust were not originated by the Transferor, the
Transferor shall have received notice from Standard &
Poor's, Xxxxx'x and Fitch that the inclusion pursuant to
subsection 2.06(b) of accounts as Additional Accounts in
excess of the applicable Aggregate Addition Limit or not
originated by the Transferor will not result in the
reduction or withdrawal of its then existing rating of
any Series of Investor Certificates then issued and
outstanding and shall have delivered such notice to the
Trustee.
Section 2.07 Removal of Accounts.
(a) Subject to the conditions set forth below,
the Transferor may, but shall not be obligated to, designate Receivables
from Accounts for deletion and removal ("Removed Accounts") from the Trust.
On or before the fifth Business Day (the "Removal Notice Date") prior to
the date on which the designated Removed Accounts will be reassigned by the
Trustee to the Transferor (the "Removal Date"), the Transferor shall give
the Trustee and the Servicer written notice that the Receivables from such
Removed Accounts are to be reassigned to the Transferor.
(b) The Transferor shall be permitted to
designate and require reassignment to it of the Receivables from Removed
Accounts only upon satisfaction of the following conditions:
(i) The removal of any Receivables of
any Removed Accounts on any Removal Date shall not, in
the reasonable belief of the Transferor, cause a Pay Out
Event to occur or the Transferor Interest to be an amount
less than zero;
(ii) on or prior to the Removal Date,
the Transferor shall have delivered to the Trustee for
execution a written assignment in substantially the form
of Exhibit G (the "Reassignment") and, within five
Business Days thereafter, or as otherwise agreed upon
between the Transferor and the Trustee, the Transferor
shall have delivered to the Trustee a computer file or
microfiche list containing a true and complete list of
all Removed Accounts identified by account number and the
aggregate amount of the Receivables in such Removed
Accounts as of the Removal Date, which computer file or
microfiche list shall as of the Removal Date modify and
amend and be made a part of this Agreement;
(iii) the Transferor shall represent
and warrant that (x) no selection procedures believed by
the Transferor to be materially adverse to the interests
of the Certificateholders were utilized in selecting the
Removed Accounts to be removed from the Trust and (y) (I)
a random selection procedure was used by the Transferor
in selecting the Removed Accounts and only one such
removal of randomly selected Accounts shall occur in the
then current Monthly Period, (II) 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 Accounts subject to such
arrangement, upon such cancellation or non-renewal and
the third party has exercised such repurchase right or
(III) the Removed Accounts were selected using another
method that will not preclude transfers of Receivables to
the Trust from being accounted for as sales under
generally accepted accounting principles or prevent the
Trust from continuing to qualify as a qualifying special
purpose entity in accordance with SFAS 140 and the
Transferor shall have delivered to the Trustee and each
Enhancement Provider an Officer's Certificate, dated the
Removal Date, to that effect;
(iv) on or before the tenth Business
Day prior to the Removal Date, each Rating Agency shall
have received notice of such proposed removal of the
Receivables of such Accounts and the Transferor shall
have received notice prior to the Removal Date from such
Rating Agency that such proposed removal will not result
in a downgrade or withdrawal of its then current rating
of any outstanding Series of the Investor Certificates;
and
(v) the Transferor shall have delivered
to the Trustee an Officer's Certificate confirming the
items set forth in clauses (i) through (iv) above. The
Trustee 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
Trustee shall execute and deliver the Reassignment to the Transferor, and
the Receivables from the Removed Accounts shall no longer constitute a part
of the Trust.
Section 2.08 Discount Receivables. (a) The Transferor
shall designate a fixed percentage (the "Yield Factor") of all Receivables
outstanding on any date of determination, other than Periodic Finance
Charges, Annual Membership Fees, Cash Advance Fees, Late Fees, overlimit
fees, return check fees and similar fees and other charges and Receivables
in Defaulted Accounts, to be treated as Finance Charge Receivables
("Discount Receivables"). The Yield Factor initially and through March 31,
2002 shall equal 1.3% and on and after April 1, 2002 shall equal zero or
such other percentage as may be determined pursuant to subclause (c)
hereof; provided, however, for purposes of determining the Investor
Percentages and Transferor Percentages for the April 2002 Monthly Period,
the Yield Factor as of March 31, 2002 shall be deemed to be equal to zero.
(b) The Transferor, in accordance with Section
4.03, shall (i) deposit, or cause to be deposited, into the Collection
Account in immediately available funds an amount equal to the product of
(a) the Aggregate Investor Percentages for all Series with respect to
Finance Charge Receivables and (b) the aggregate amount of the Discount
Receivable Collections processed on such day and (ii) pay to the Holder of
the Exchangeable Transferor Certificate an amount equal to the product of
(a) the Transferor Percentage and (b) the aggregate amount of such Discount
Receivable Collections. The deposit made by the Transferor into the
Collection Account under the preceding sentence shall be considered a
payment of such Discount Receivables and shall be applied as Finance Charge
Receivables in accordance with Article IV.
(c) The Transferor shall have the option to
increase or decrease the Yield Factor to an amount not greater than 4%. The
Transferor shall provide to the Servicer, the Trustee, any Enhancement
Provider and the Rating Agency 30 days' prior written notice of such
designation, and such designation shall become effective on the date
designated therein (i) unless such designation in the reasonable belief of
the Transferor would cause a Pay Out Event to occur, or an event which,
with notice or the lapse of time or both, would constitute a Pay Out Event
and (ii) only if each Rating Agency shall have delivered a letter to the
Transferor and the Trustee confirming that its then current rating of the
Investor Certificates of any Series then outstanding will not be reduced or
withdrawn as a result of such designation.
[End of Article II]
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.01 Acceptance of Appointment and Other Matters
Relating to the Servicer.
(a) First USA agrees to act as the Servicer
under this Agreement. The Investor Certificateholders of each Series by
their acceptance of the related Certificates consent to First USA acting as
Servicer.
(b) The Servicer shall service and administer
the Receivables and shall collect payments due under the Receivables in
accordance with its customary and usual servicing procedures for servicing
credit card receivables comparable to the Receivables and in accordance
with the Credit Card Guidelines and shall have full power and authority,
acting alone or through any party properly designated by it hereunder, to
do any and all things in connection with such servicing and administration
which it may deem necessary or desirable. Without limiting the generality
of the foregoing and subject to Section 10.01, the Servicer is hereby
authorized and empowered (i) to make withdrawals from the Collection
Account as set forth in this Agreement, (ii) unless such power and
authority is revoked by the Trustee on account of the occurrence of a
Servicer Default pursuant to Section 10.01, to instruct the Trustee to make
withdrawals and payments, from the Finance Charge Account, the Principal
Account and any Series Account, in accordance with such instructions as set
forth in this Agreement, (iii) unless such power and authority is revoked
by the Trustee on account of the occurrence of a Servicer Default pursuant
to Section 10.01, to instruct the Trustee in writing, as set forth in this
Agreement, (iv) to execute and deliver, on behalf of the Trust for the
benefit of the Certificateholders, any and all instruments of satisfaction
or cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivables and (v) to make any filings,
reports, notices, applications, registrations with, and to seek any
consents or authorizations from the Securities and Exchange Commission and
any state securities authority on behalf of the Trust as may be necessary
or advisable to comply with any federal or state securities or reporting
requirements. The Trustee agrees that it shall promptly follow the
instructions of the Servicer to withdraw funds from the Principal Account,
the Finance Charge Account or any Series Account and to take any action
required under any Enhancement at such time as required under this
Agreement. The Trustee shall execute at the Servicer's written request such
documents prepared by the Transferor and acceptable to the Trustee as may
be necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder.
(c) In the event that the Transferor is unable
for any reason to transfer Receivables to the Trust in accordance with the
provisions of this Agreement (including, without limitation, by reason of
the application of the provisions of Section 9.02 or the order of any
federal governmental agency having regulatory authority over the Transferor
or any court of competent jurisdiction that the Transferor not transfer any
additional Principal Receivables to the Trust) then, in any such event, (A)
the Servicer agrees to allocate, after such date, all Collections with
respect to Principal Receivables, and all amounts which would have
constituted Collections with respect to Principal Receivables but for the
Transferor's inability to transfer such Receivables (up to an aggregate
amount equal to the aggregate amount of Principal Receivables in the Trust
as of such date) in accordance with subsection 2.05(c); (B) the Servicer
agrees to apply such amounts as Collections in accordance with Article IV;
and (C) for only so long as all Collections and all amounts which would
have constituted Collections are allocated and applied in accordance with
clauses (A) and (B) above, Principal Receivables and all amounts which
would have constituted Principal Receivables but for the Transferor's
inability to transfer Receivables to the Trust that are written off as
uncollectible in accordance with this Agreement shall continue to be
allocated in accordance with Article IV and all amounts which would have
constituted Principal Receivables but for the Transferor's inability to
transfer Receivables to the Trust shall be deemed to be Principal
Receivables for the purpose of calculating the applicable Investor
Percentage thereunder. If the Servicer is unable pursuant to any
Requirement of Law to allocate payments on the Accounts as described above,
the Servicer agrees that it shall in any such event allocate, after the
occurrence of such event, payments on each Account with respect to the
principal balance of such Account first to the oldest principal balance of
such Account and to have such payments applied as Collections in accordance
with Article IV. The parties hereto agree that Finance Charge Receivables,
whenever created, accrued in respect of Principal Receivables which have
been conveyed to the Trust, or which would have been conveyed to the Trust
but for the above described inability to transfer such Receivables, shall
continue to be a part of the Trust notwithstanding any cessation of the
transfer of additional Principal Receivables to the Trust and Collections
with respect thereto shall continue to be allocated and paid in accordance
with Article IV.
(d) In the event that pursuant to subsection
2.04(d), the Transferor accepts reassignment of an Ineligible Receivable as
a result of a breach of the representations and warranties in subsection
2.04(b) relating to such Receivable, then, in any such event, the Servicer
agrees to account for payments received with respect to such Ineligible
Receivable separately from its accounting for Collections on Principal
Receivables retained by the Trust. If payments received from or on behalf
of an Obligor are not specifically applicable either to an Ineligible
Receivable of such Obligor reassigned to the Transferor or to Receivables
of such Obligor retained in the Trust, then the Servicer agrees to allocate
payments proportionately based on the total amount of Principal Receivables
of such Obligor retained in the Trust and the total amount owing by such
Obligor on any Ineligible Receivables purchased by the Transferor, and the
portion allocable to any Principal Receivables retained in the Trust shall
be treated as Collections and deposited in accordance with the provisions
of Article IV.
(e) The Servicer shall not be obligated to use
separate servicing procedures, offices, employees or accounts for servicing
the Receivables from the procedures, offices, employees and accounts used
by the Servicer in connection with servicing other credit card receivables.
(f) The Servicer shall maintain fidelity bond
coverage insuring against losses through wrongdoing of its officers and
employees who are involved in the servicing of credit card receivables
covering such actions and in such amounts as the Servicer believes to be
reasonable from time to time.
Section 3.02 Servicing Compensation. As compensation for
its servicing activities hereunder and reimbursement for its expenses as
set forth in the immediately following paragraph, the Servicer shall be
entitled to receive a monthly servicing fee in respect of any Monthly
Period prior to the termination of the Trust pursuant to Section 12.01
(with respect to each Monthly Period, the "Monthly Servicing Fee"). The
share of the Monthly Servicing Fee allocable to each Series of Investor
Certificateholders with respect to any Monthly Period (or portion thereof)
shall be payable on the related Transfer Date and, with respect to each
Series (unless otherwise provided in the related Supplement), shall be
equal to one-twelfth of the product of (A) the applicable Series Servicing
Fee Percentage per annum and (B) the Invested Amount of such Series as of
the last day of the Monthly Period preceding such Transfer Date (the
"Investor Monthly Servicing Fee") and shall be paid to the Servicer
pursuant to Article IV. The servicing fee payable by the Holder of the
Exchangeable Transferor Certificate shall be equal to the product of
one-twelfth of the product of (A) the Transferor Interest and (B) the
weighted average of the Series Servicing Fee Percentages with respect to
each Series of Investor Certificates then outstanding (the "Monthly
Transferor Servicing Fee"). The Monthly Servicing Fee shall equal the sum
of (x) the aggregate amount of Investor Monthly Servicing Fees with respect
to each Series then outstanding and (y) the Monthly Transferor Servicing
Fee. The Investor Monthly Servicing Fee with respect to any Series is
payable in arrears on the related Transfer Date (unless otherwise provided
in the related Supplement) and the Monthly Transferor Servicing Fee is
payable in arrears no later than the last Transfer Date with respect to any
Series occurring in a Monthly Period. The Monthly Transferor Servicing Fee
and, unless otherwise provided in a Supplement, each Investor Monthly
Servicing Fee, shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
The Servicer's expenses include the amounts due
to the Trustee pursuant to Section 11.05 and the reasonable fees and
disbursements of independent public accountants and all other expenses
incurred by the Servicer in connection with its activities hereunder;
provided, that the Servicer shall not be liable for any liabilities, costs
or expenses of the Trust, the Investor Certificateholders or the
Certificate Owners arising under any tax law, including without limitation
any federal, state or local income or franchise taxes or any other tax
imposed on or measured by income (or any interest or penalties with respect
thereto or arising from a failure to comply therewith). The Servicer shall
be required to pay such expenses for its own account and shall not be
entitled to any payment therefor other than the Monthly Servicing Fee.
Section 3.03 Representations and Warranties of the
Servicer. First USA, as initial Servicer, hereby makes, and any Successor
Servicer by its appointment hereunder shall make, the following
representations and warranties on which the Trustee has relied in accepting
the Receivables in trust and in authenticating the Certificates issued on
the Initial Closing Date:
(a) Organization and Good Standing. The Servicer
is a national banking association duly organized and validly existing in
good standing under the laws of the United States of America and has full
corporate power, authority and legal right to own its properties and
conduct its credit card business as such properties are at present owned
and such business is at present conducted, and to execute, deliver and
perform its obligations under this Agreement.
(b) Due Qualification. The Servicer is not
required to qualify nor register as a foreign corporation in any state in
order to service the Receivables as required by this Agreement and has
obtained all licenses and approvals necessary in order to so service the
Receivables as required under federal law. If the Servicer shall be
required by any Requirement of Law to so qualify or register or obtain such
license or approval, then it shall do so.
(c) Due Authorization. The execution, delivery,
and performance of this Agreement have been duly authorized by the Servicer
by all necessary corporate action on the part of the Servicer and this
Agreement will remain, from the time of its execution, an official record
of the Servicer.
(d) Binding Obligation. This Agreement
constitutes a legal, valid and binding obligation of the Servicer,
enforceable in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws now or hereafter in effect, affecting the enforcement of
creditors' rights in general and the rights of creditors of national
banking associations.
(e) No Violation. The execution and delivery of
this Agreement by the Servicer, and the performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof
applicable to the Servicer, will not conflict with, violate, result in any
breach of any of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a default under, any
Requirement of Law applicable to the Servicer or any indenture, contract,
agreement, mortgage, deed of trust or other instrument to which the
Servicer is a party or by which it is bound.
(f) No Proceedings. There are no proceedings or
investigations pending or, to the best knowledge of the Servicer,
threatened against the Servicer before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality
seeking to prevent the issuance of the Certificates or the consummation of
any of the transactions contemplated by this Agreement, seeking any
determination or ruling that, in the reasonable judgment of the Servicer,
would materially and adversely affect the performance by the Servicer of
its obligations under this Agreement, or seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement.
(g) Compliance with Requirements of Law. The
Servicer shall duly satisfy all obligations on its part to be fulfilled
under or in connection with each Receivable and the related Account, will
maintain in effect all qualifications required under Requirements of Law in
order to service properly each Receivable and the related Account and will
comply in all material respects with all other Requirements of Law in
connection with servicing each Receivable and the related Account the
failure to comply with which would have a material adverse effect on the
Certificateholders or any Enhancement Provider.
(h) Protection of Certificateholders' Rights.
The Servicer shall take no action which, nor omit to take any action the
omission of which, would impair the rights of Certificateholders in any
Receivable or the related Account or the rights of any Enhancement
Provider, nor shall it reschedule, revise or defer payments due on any
Receivable except in accordance with the Credit Card Guidelines.
(i) All Consents. All authorizations, consents,
order or approvals of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by the
Servicer in connection with the execution and delivery of this Agreement by
the Servicer and the performance of the transactions contemplated by this
Agreement by the Servicer, have been duly obtained, effected or given and
are in full force and effect.
(j) Rescission or Cancellation. The Servicer
shall not permit any rescission or cancellation of any Receivable except as
ordered by a court of competent jurisdiction or other Governmental
Authority or in accordance with the normal operating procedures of the
Servicer.
(k) Receivables Not To Be Evidenced by
Promissory Notes. Except in connection with its enforcement or collection
of an Account, the Servicer will take no action to cause any Receivable to
be evidenced by an instrument or chattel paper (as defined in the UCC as in
effect in the State of Delaware).
Section 3.04 Reports and Records for the Trustee.
(a) Daily Reports. On each Business Day, the
Servicer, with prior notice, shall prepare and make available at the office
of the Servicer for inspection by the Trustee a record setting forth (i)
the aggregate amount of Collections processed by the Servicer on the
preceding Business Day and (ii) the aggregate amount of Receivables as of
the close of business on the preceding Business Day.
(b) Monthly Servicer's Certificate. Unless
otherwise stated in the related Supplement with respect to any Series, on
each Determination Date the Servicer shall forward, as provided in Section
13.05, to the Trustee, the Paying Agent, any Enhancement Provider and each
Rating Agency, a certificate of a Servicing Officer in the form of Exhibit
C (which includes the Schedule thereto specified as such in each
Supplement) setting forth (i) the aggregate amount of Collections processed
during the preceding Monthly Period, (ii) the aggregate amount of the
applicable Investor Percentage of Collections of Principal Receivables
processed by the Servicer pursuant to Article IV during the preceding
Monthly Period with respect to each Series then outstanding, (iii) the
aggregate amount of the applicable Investor Percentage of Collections of
Finance Charge Receivables processed by the Servicer pursuant to Article IV
during the preceding Monthly Period with respect to each Series then
outstanding, (iv) the aggregate amount of Principal Receivables outstanding
as of the end of the last day of the preceding Monthly Period, (v) the
balance on deposit in the Finance Charge Account and the Principal Account
or any Series Account applicable to any Series then outstanding on such
Determination Date with respect to Collections processed by the Servicer
during the preceding Monthly Period, (vi) the aggregate amount, if any, of
withdrawals, drawings or payments under any Enhancement, if any, for each
Series then outstanding required to be made with respect to the previous
Monthly Period in the manner provided in the related Supplement, (vii) the
sum of all amounts payable to the Investor Certificateholders of each
Series on the succeeding Distribution Date in respect of Certificate
Principal and Certificate Interest and (viii) such other matters as are set
forth in Exhibit C.
Section 3.05 Annual Servicer's Certificate. Within four
months after the end of each fiscal year of the Servicer, the Servicer will
deliver, as provided in Section 13.05, to the Trustee, any Enhancement
Provider and the Rating Agency, an Officer's Certificate substantially in
the form of Exhibit D stating that (a) a review of the activities of the
Servicer during the prior twelve-month period and of its performance under
this Agreement was made under the supervision of the officer signing such
certificate, (b) to the best of such officer's knowledge, based on such
review, the Servicer has fully performed all its obligations under this
Agreement throughout such period, or, if there has been a default in the
performance of any such obligation, specifying each such default known to
such officer and the nature and status thereof and (c) the report required
to be delivered to the Servicer by the independent certified public
accountants pursuant to subsection 3.06(b) of this Agreement has been
delivered to the Servicer, and such report contains no exceptions, except
for such exceptions as the independent certified public accountants believe
to be immaterial and such other exceptions as may be set forth in such
report and listed in such Officer's Certificate. A copy of such certificate
may be obtained by any Investor Certificateholder by a request in writing
to the Trustee addressed to the Corporate Trust Office.
Section 3.06 Annual Independent Accountants' Servicing
Report.
(a) Within four months after the end of each
fiscal year of the Servicer, the Servicer shall cause a firm of nationally
recognized independent public accountants (who may also render other
services to the Servicer or the Transferor) to furnish a report to the
Trustee, any Enhancement Provider and the Rating Agency, to the effect that
such firm has examined the assertion of the Servicer that it has maintained
effective internal control over the servicing of Accounts under this
Agreement and has completed such examination in accordance with standards
established by the American Institute of Certified Public Accountants and
that, on the basis of such examination, such firm is of the opinion
(assuming the accuracy of any reports generated by the Servicer's third
party agents) that such assertion is fairly stated in all material
respects. A copy of such report may be obtained by any Investor
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
(b) Within four months after the end of each
fiscal year of the Servicer, the Servicer shall cause a firm of nationally
recognized independent certified public accountants (who may also render
other services to the Servicer or the Transferor) to furnish a report to
the Servicer to the effect that they have compared the mathematical
calculations of each amount set forth in the monthly certificates forwarded
by the Servicer pursuant to subsection 3.04(b) during the period covered by
such report (which shall be each fiscal year of the Servicer) with the
Servicer's computer reports which were the source of such amounts and that
on the basis of such comparison, such amounts are in agreement, except for
such exceptions as they believe to be immaterial and such other exceptions
as shall be set forth in such report.
Section 3.07 Tax Treatment. The Transferor has structured
this Agreement and, unless otherwise specified in the related Supplement
with respect to any Class of Investor Certificates, the Investor
Certificates with the intention that the Investor Certificates will qualify
under applicable federal, state, local and foreign tax law as indebtedness.
Unless otherwise specified in the related Supplement with respect to any
Class of Investor Certificates, the Transferor, the Servicer, the Holder of
the Exchangeable Transferor Certificate, each Investor Certificateholder,
and each Certificate Owner, agree to treat and to take no action
inconsistent with the treatment of the Investor Certificates (or beneficial
interest therein) as indebtedness for purposes of federal, state, local and
foreign income or franchise taxes and any other tax imposed on or measured
by income. Unless otherwise specified in the related Supplement with
respect to any Class of Investor Certificates, each Investor
Certificateholder, by its acceptance of its Certificate, and the Holder of
the Exchangeable Transferor Certificate, by acquisition of its interest in
the Transferor Interest, and each Certificate Owner, by acquisition of a
beneficial interest in a Certificate, agree to be bound by the provisions
of this Section 3.07. Unless otherwise specified in the related Supplement
with respect to any Class of Investor Certificates, each Certificateholder
agrees that it will cause any Certificate Owner acquiring an interest in a
Certificate through it to comply with this Agreement as to treatment as
indebtedness under applicable tax law, as described in this Section 3.07.
Furthermore, the Trustee shall treat the Trust as a security device only,
and shall not file tax returns or obtain an employer identification number
on behalf of the Trust.
Section 3.08 Notices to the Transferor. Any Successor
Servicer appointed pursuant to Section 10.02 shall deliver or make
available to the Transferor each certificate and report required to be
prepared, forwarded or delivered thereafter pursuant to Sections 3.04, 3.05
and 3.06.
[End of Article III]
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.01 Rights of Certificateholders. Each Series of
Investor Certificates shall represent Undivided Interests in the Trust,
including the benefits of any Enhancement issued with respect to such
Series and the right to receive the Collections and other amounts at the
times and in the amounts specified in this Article IV to be deposited in
the Investor Accounts or to be paid to the Investor Certificateholders of
such Series; provided, however, that the aggregate interest represented by
such Certificates at any time in the Principal Receivables shall not exceed
an amount equal to the Invested Amount at such time. The Exchangeable
Transferor Certificate or, as the case may be, the uncertificated interest
in the Transferor Interest shall represent the remaining undivided interest
in the Trust, including the right to receive the Collections and other
amounts at the times and in the amounts specified in this Article IV to be
paid to the Holder of the Exchangeable Transferor Certificate; provided,
however, that if the Transferor elects to have its interest in the
Transferor Interest be uncertificated as provided in Section 6.01, then
such uncertificated interest shall represent the Transferor Interest;
provided, further, that the aggregate interest represented by such
Exchangeable Transferor Certificate in the Principal Receivables or, as the
case may be, the aggregate uncertificated interest of the Transferor in the
Principal Receivables, shall not exceed the Transferor Interest at any time
and such Exchangeable Transferor Certificate or, as the case may be, such
uncertificated interest shall not represent any interest in the Investor
Accounts, except as provided in this Agreement, or the benefits of any
Enhancement issued with respect to any Series.
Section 4.02 Establishment of Accounts.
(a) The Collection Account. The Servicer, for
the benefit of the Certificateholders, shall establish in the name of the
Trustee, on behalf of the Trust, a non- interest bearing segregated account
(the "Collection Account") bearing a designation clearly indicating that
the funds deposited therein are held in trust for the benefit of the
Certificateholders, and shall cause such Collection Account to be
established and maintained, (i) in a segregated trust account with the
corporate trust department of a depository institution or trust company
(which may include the Trustee or an Affiliate of the Servicer) organized
under the laws of the United States of America or any one of the states
thereof or the District of Columbia and with deposit insurance provided by
BIF or SAIF which at all times maintains a long-term deposit rating of at
least "Baa3" by Moody's and having corporate trust powers and acting as
trustee for funds deposited therein; provided, however, that such account
need not be maintained as a segregated trust account with the corporate
trust department of such institution if at all times the certificates of
deposit, short-term deposits or commercial paper or the long-term unsecured
debt obligations (other than such obligation whose rating is based on
collateral or on the credit of a Person other than such institution or
trust company) of such depository institution or trust company shall have a
credit rating from Moody's and Standard & Poor's of "P-1" and "A- 1+,"
respectively, in the case of the certificates of deposit, short-term
deposits or commercial paper, or a rating from Moody's of at least "Aa2"
and from Standard & Poor's of "AAA" in the case of the long-term unsecured
debt obligations, or (ii) with a depository institution, which may include
the Trustee, which is acceptable to the Rating Agency (a "Qualified
Institution"); provided, further, that upon the insolvency of the Servicer,
the Collection Account shall not be permitted to be maintained with the
Servicer. The Collection Account shall be under the "control" (within the
meaning of Sections 8-106 and 9-104 of the UCC as in effect in the
applicable jurisdiction) of the Trustee. Pursuant to authority granted to
it pursuant to subsection 3.01(b), the Servicer shall have the revocable
power to withdraw funds from the Collection Account for the purposes of
carrying out its duties hereunder.
(b) The Finance Charge and Principal Accounts.
The Trustee, for the benefit of the Investor Certificateholders, shall
establish and maintain with the Trustee in the name of the Trustee two
segregated trust accounts (the "Finance Charge Account" and the "Principal
Account," respectively), bearing a designation clearly indicating that the
funds therein are held for the benefit of the Investor Certificateholders.
The Trustee shall possess all right, title and interest in all funds on
deposit from time to time in the Finance Charge Account and the Principal
Account and in all proceeds thereof. The Finance Charge Account and the
Principal Account shall be under the sole dominion and "control" (within
the meaning of Sections 8-106 and 9-104 of the UCC as in effect in the
applicable jurisdiction) of the Trustee for the benefit of the Investor
Certificateholders. Pursuant to authority granted to it hereunder, the
Servicer shall have the revocable power to instruct the Trustee to withdraw
funds from the Finance Charge Account and Principal Account for the purpose
of carrying out the Servicer's or the Trustee's duties hereunder. The
Trustee at all times shall maintain accurate records reflecting each
transaction in the Principal Account and the Finance Charge Account and
that funds held therein shall at all times be held in trust for the benefit
of the Investor Certificateholders.
(c) The Distribution Account. The Trustee, for
the benefit of the Investor Certificateholders, shall cause to be
established and maintained in the name of the Trustee, with an office or
branch of a Qualified Institution (other than the Transferor), a non-
interest bearing segregated demand deposit account (the "Distribution
Account") bearing a designation clearly indicating that the funds deposited
therein are held in trust for the benefit of the Investor
Certificateholders. The Trustee shall possess all right, title and interest
in all funds on deposit from time to time in the Distribution Account and
in all proceeds thereof. The Distribution Account shall be under the sole
dominion and "control" (within the meaning of Sections 8-106 and 9-104 of
the UCC as in effect in the applicable jurisdiction) of the Trustee for the
benefit of the Investor Certificateholders.
(d) Administration of the Investor Accounts.
Funds on deposit in the Principal Account and the Finance Charge Account
shall at all times be invested in Permitted Investments. Any such
investment shall mature and such funds shall be available for withdrawal on
or prior to the Transfer Date following the Record Date occurring in the
Monthly Period in which such funds were processed for collection. The
Trustee shall maintain for the benefit of the Investor Certificateholders
possession of the negotiable instruments or securities evidencing the
Permitted Investments described in clause (a) of the definition thereof
from the time of purchase thereof until the time of sale or maturity;
provided, that no such investment shall be disposed of prior to its
maturity date. At the end of each month, all interest and earnings (net of
losses and investment expenses) on funds on deposit in the Principal
Account and the Finance Charge Account shall be deposited by the Trustee in
a separate deposit account with a Qualified Institution in the name of the
Servicer, or a Person designated in writing by the Servicer, which shall
not constitute a part of the Trust, or shall otherwise be turned over by
the Trustee to the Servicer not less frequently than monthly. Subject to
the restrictions set forth above, the Servicer, or a Person designated in
writing by the Servicer, of which the Trustee shall have received written
notification thereof, shall have the authority to instruct the Trustee with
respect to the investment of funds on deposit in the Principal Account and
the Finance Charge Account. For purposes of determining the availability of
funds or the balances in the Finance Charge Account and the Principal
Account for any reason under this Agreement, all investment earnings on
such funds shall be deemed not to be available or on deposit.
Section 4.03 Collections and Allocations.
(a) Collections. Except as provided below, the
Servicer shall deposit all Collections in the Collection Account as
promptly as possible after the Date of Processing of such Collections, but
in no event later than the second Business Day following such Date of
Processing. Immediately upon the occurrence of the insolvency of the
Servicer and thereafter, the Servicer shall deposit all Collections into
the Collection Account which shall be established and maintained with a
Qualified Institution other than the Servicer in accordance with subsection
4.02(a), and in no such event shall the Servicer deposit any Collections
thereafter into any account established, held or maintained with the
Servicer.
The Servicer shall allocate such amounts to each
Series of Investor Certificates and to the Holder of the Exchangeable
Transferor Certificate in accordance with this Article IV and shall
withdraw the required amounts from the Collection Account or pay such
amounts to the Holder of the Exchangeable Transferor Certificate in
accordance with this Article IV, in both cases as modified by any
Supplement. The Servicer shall make such deposits or payments on the date
indicated therein by wire transfer or as otherwise provided in the
Supplement for any Series of Certificates with respect to such Series.
Notwithstanding anything in this Agreement to
the contrary, for so long as, and only so long as, First USA shall remain
the Servicer hereunder, and (a) (i) the Servicer provides to the Trustee a
letter of credit or other form of Enhancement covering the risk of
collection of the Servicer, and (ii) the Transferor shall not have received
a notice from any Rating Agency that such a letter of credit or other form
of Enhancement would result in the lowering of such Rating Agency's
then-existing rating of the Investor Certificates, or (b) the Servicer
shall have and maintain a certificate of deposit or short-term deposit
rating of "P-1" by Moody's and of "A-1" by Standard & Poor's and deposit
insurance provided by BIF or SAIF, the Servicer need not deposit
Collections into the Collection Account, the Principal Account, the Finance
Charge Account or any Series Account, as provided in any Supplement, or
make payments to the Holder of the Exchangeable Transferor Certificate, as
provided in Article IV, but may make such deposits, payments and
withdrawals on each Transfer Date in an amount equal to the net amount of
such deposits, payments and withdrawals which would have been made but for
the provisions of this paragraph.
(b) Allocations for the Exchangeable Transferor
Certificate. Throughout the existence of the Trust, unless otherwise stated
in any Supplement, the Servicer shall allocate to the Holder of the
Exchangeable Transferor Certificate an amount equal to the product of (A)
the Transferor Percentage and (B) the aggregate amount of such Collections
allocated to Principal Receivables and Finance Charge Receivables,
respectively, in respect of each Monthly Period; provided, however, that
amounts payable to the Holder of the Exchangeable Transferor Certificate
pursuant to this clause (b) shall instead be deposited in the Collection
Account to the extent that the Transferor Interest is less than the Minimum
Transferor Interest. Notwithstanding anything in this Agreement to the
contrary, unless otherwise stated in any Supplement, the Servicer need not
deposit this amount or any other amounts so allocated to the Exchangeable
Transferor Certificate pursuant to any Supplement into the Collection
Account and shall pay, or be deemed to pay, such amounts as collected to
the Holder of the Exchangeable Transferor Certificate.
(c) Adjustments for Miscellaneous Credits and
Fraudulent Charges. The Servicer shall be obligated to reduce on a net
basis each Monthly Period the aggregate amount of Principal Receivables
used to calculate the Transferor Interest as provided in this subsection
4.03(c) (a "Credit Adjustment") with respect to any 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 the calculation of the Transferor Interest would
cause the Transferor Interest to be an amount less than zero, the
Transferor shall make a deposit, no later than the Business Day following
the Date of Processing of such Credit Adjustment, in the Principal Account
(for allocation as a Principal Receivable pursuant to Article IV) in
immediately available funds in an amount equal to the amount by which such
Credit Adjustment exceeds the Transferor Interest on such Date of
Processing (each such deposit, an "Adjustment Payment").
(d) Reconveyance of Receivables in Defaulted
Accounts. Unless otherwise provided in any Supplement, in consideration of
receiving Recoveries as provided in Section 4.03(g) hereof, on the date on
which an Account becomes a Defaulted Account, the Trust shall automatically
and without further action or consideration be deemed to transfer, set
over, and otherwise convey to the Transferor, without recourse,
representation or warranty, all the right, title and interest of the Trust
in and to the Receivables in such Defaulted Account, all monies due or to
become due with respect thereto, all proceeds thereof allocable to the
Trust with respect to such Receivables, excluding Recoveries relating
thereto, which shall remain an asset of the Trust.
(e) Allocation for Series. On each Determination
Date, Collections for the preceding Monthly Period shall be allocated to
each Series as follows. Each Series' allocable share of such Collections in
respect of Finance Charge Receivables, Principal Receivables and Principal
Receivables in Defaulted Accounts, respectively, shall be determined by
multiplying the aggregate amount of such Collections by such Investor
Percentage with respect to such type of Receivables and such Monthly
Period. Adjustment Payments and Unallocated Principal Collections shall be
allocated on each Determination Date to each Series in the same manner as
Collections of Principal Receivables. The Servicer shall, prior to the
close of business on the day any Collections are deposited in the
Collection Account, withdraw the required amounts from the Collection
Account and deposit such amounts into the Principal Account or the Finance
Charge Account or pay such amounts to the Holder of the Exchangeable
Transferor Certificate in accordance with the provisions of Article IV.
(f) Unallocated Principal Collections. If,
pursuant to any provisions of Article IV, Collections allocated to
Principal Receivables with respect to any Series would cause such Series (a
"Retired Series") to be paid in full or if, pursuant to such provisions,
Collections of Principal Receivables are allocated to the Holder of the
Exchangeable Transferor Certificate and the Transferor Interest is equal to
or less than the Minimum Transferor Interest or the payment of such amount
to the Transferor would cause the Transferor Interest to be equal to or
less than the Minimum Transferor Interest (any such Collections being
referred to as "Allocated Collections") or any Adjustment Payment is made,
any Collections of Principal Receivables allocated to a Retired Series in
excess of the amount required to pay such Series in full, or to the
Transferor Interest if the Transferor Interest is or would be caused to be
less than the Minimum Transferor Interest or any Adjustment Payment
("Unallocated Principal Collections") shall be retained in the Collection
Account. If on any Business Day following a Business Day on which
Unallocated Principal Collections were retained in the Collection Account
the Transferor Interest is greater than the Minimum Transferor Interest,
such Unallocated Principal Collections may be released to the Holder of the
Exchangeable Transferor Certificate. On each Transfer Date with respect to
each Series in the Monthly Period succeeding the Monthly Period in which
Unallocated Principal Collections were retained in the Collection Account,
such Unallocated Principal Collections shall be reallocated to outstanding
Series (any such allocation, an "Excess Amount Principal Allocation," and
any such Series, an "Outstanding Series"). Any Excess Amount Principal
Allocation shall be performed assuming that (a) the character of
Unallocated Principal Collections as Principal Receivables shall not be
altered, (b) the Investor Percentages with respect to any Outstanding
Series shall be recalculated assuming that the Retired Series has been
retired and that only the Outstanding Series are outstanding, (c) Allocated
Collections have been paid to the Retiring Series, (d) if the payment of
Allocated Collections as described above causes a Pay Out Event to occur,
Unallocated Principal Collections shall be allocated as if such Pay Out
Event has occurred and (e) the Unallocated Principal Collections available
on any Transfer Date with respect to any Series shall be applied as if they
were available on the last Business Day of the preceding Monthly Period. On
each Transfer Date immediately preceding each Distribution Date related to
the Amortization Period for any Series, Unallocated Principal Collections
will be deposited in the Principal Account for such Series to the extent of
the lesser of (x) the Principal Shortfall on the last Business Day of the
preceding Monthly Period for such Series and (y) the aggregate amount of
Unallocated Principal Collections retained in the Collection Account on
such day. If more than one Series is in its Amortization Period,
Unallocated Principal Collections retained in the Collection Account shall
be allocated to each outstanding Series pro rata based on the Principal
Shortfall, if any, for each such Series on the last Business Day of the
preceding Monthly Period, and then, at the option of the Transferor, any
remainder may be applied as principal with respect to any Series of
variable funding certificates. The Servicer shall pay any remaining
Unallocated Principal Collections on such Transfer Date to the Transferor;
provided, that if the Transferor Interest as determined on such Business
Day does not exceed the Minimum Transferor Interest, then such remaining
Unallocated Principal Collections shall be deposited in the Collection
Account in an amount equal to the lesser of (i) the remaining Unallocated
Principal Collections and (ii) the excess of the Minimum Transferor
Interest over the Transferor Interest on such Business Day.
(g) Recoveries. On or prior to the earliest
Determination Date in each Monthly Period, the Transferor shall notify the
Servicer of the amount of Recoveries to be included as Collections with
respect to the preceding Monthly Period. On the earliest Transfer Date in
each Monthly Period, the Transferor shall pay to the Servicer and the
Servicer shall deposit into the Collection Account, the amount of
Recoveries to be so included as 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 Principal
Account or the Finance Charge Account for the benefit of any Series
pursuant to the provisions of Article IV of this Agreement or any Series
Supplement and any such amount that is not so deposited shall be paid to
the Transferor.
(h) Interchange. On or prior to the earliest
Determination Date in each Monthly Period, First USA shall notify the
Servicer of the Interchange Amount, if any, which is required to be
included as Finance Charge Collections with respect the preceding Monthly
Period. On the earliest Transfer Date in each Monthly Period, First USA
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 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
Finance Charge Account for the benefit of any Series pursuant to the
provisions of Article IV of this Agreement or any Series Supplement and any
such amount that is not so deposited shall be paid to the Transferor.
[THE REMAINDER OF ARTICLE IV IS RESERVED AND SHALL BE
SPECIFIED IN ANY SUPPLEMENT WITH RESPECT TO ANY SERIES]
[End of Article IV]
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL BE SPECIFIED
IN ANY SUPPLEMENT WITH RESPECT TO ANY SERIES]
[End of Article V]
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. Subject to Sections 6.10
and 6.13, the Investor Certificates of each Series and any Class thereof
may be issued in bearer form (the "Bearer Certificates") with attached
interest coupons and a special coupon (collectively, the "Coupons") or in
fully registered form (the "Registered Certificates"), and shall be
substantially in the form of the exhibits with respect thereto attached to
the related Supplement. The Transferor may elect at any time, by written
notice to the Trustee, to have its interest in the Transferor Interest be
(i) an uncertificated interest or (ii) evidenced by an Exchangeable
Transferor Certificate in certificated form. If the Transferor elects to
have its interest in the Exchangeable Transferor Interest be
uncertificated, it shall deliver to the Trustee for cancellation any
Exchangeable Transferor Certificate previously issued. If the Transferor
elects to have its interest in the Transferor Interest be evidenced by an
Exchangeable Transferor Certificate in certificated form, the Exchangeable
Transferor Certificate shall be issued pursuant hereto or to Section 6.09
or Section 6.10, substantially in the form of Exhibit A and shall upon
issue be executed and delivered by the Transferor to the Trustee for
authentication and redelivery as provided in Sections 2.01 and 6.02. The
Investor Certificates shall, upon issue pursuant hereto or to Section 6.09
or Section 6.10, be executed and delivered by the Transferor to the Trustee
for authentication and redelivery as provided in Section 2.01 and Section
6.02. Any Investor Certificate shall be issuable in a minimum denomination
of $1,000 Undivided Interest and integral multiples thereof, unless
otherwise specified in any Supplement, and shall be issued upon original
issuance in an original principal amount equal to the Initial Invested
Amount. The Exchangeable Transferor Certificate, if applicable, shall be
issued as a single certificate. Each Certificate shall be executed by
manual or facsimile signature on behalf of the Transferor by its President
or any Vice President. Certificates bearing the manual or facsimile
signature of the individual who was, at the time when such signature was
affixed, authorized to sign on behalf of the Transferor or the Trustee
shall not be rendered invalid, notwithstanding that such individual has
ceased to be so authorized prior to the authentication and delivery of such
Certificates or does not hold such office at the date of such Certificates.
No Certificate shall be entitled to any benefit under this Agreement, or be
valid for any purpose, unless there appears on such Certificate a
certificate of authentication substantially in the form provided for
herein, executed by or on behalf of the Trustee by the manual signature of
a duly authorized signatory, and such certificate upon any Certificate
shall be conclusive evidence, and the only evidence, that such Certificate
has been duly authenticated and delivered hereunder. All Certificates shall
be dated the date of their authentication except Bearer Certificates which
shall be dated the applicable Issuance Date as provided in the related
Supplement.
Section 6.02 Authentication of Certificates.
Contemporaneously with the initial assignment and transfer of the
Receivables, whether now existing or hereafter created (other than
Receivables in Additional Accounts) and the other components to the Trust,
the Trustee shall authenticate and deliver the initial Series of Investor
Certificates, upon the written order of the Transferor, to the underwriters
for the sale of the Book-Entry Certificates evidenced by such Investor
Certificates, and against payment to the Transferor of the Initial Invested
Amount (net of any purchase or underwriting discount). Upon the receipt of
such payment and the issuance of the Investor Certificates, such Investor
Certificates shall be fully paid and non-assessable. If the Transferor
elects to have its interest in the Transferor Interest be evidenced by an
Exchangeable Transferor Certificate in certificate form, the Trustee shall
authenticate and deliver the Exchangeable Transferor Certificate to the
Transferor simultaneously with its delivery to the Transferor of the
initial Series of Investor Certificates. Upon an Exchange as provided in
Section 6.09 and the satisfaction of certain other conditions specified
therein, the Trustee shall authenticate and deliver the Investor
Certificates of additional Series (with the designation provided in the
related Supplement), upon the order of the Transferor, to the persons
designated in such Supplement. Upon the order of the Transferor, the
Certificates of any Series shall be duly authenticated by or on behalf of
the Trustee, in authorized denominations equal to (in the aggregate) the
Initial Invested Amount of such Series of Investor Certificates. If
specified in the related Supplement for any Series, the Trustee shall
authenticate and deliver outside the United States of America the Global
Certificate that is issued upon original issuance thereof, upon the written
order of the Transferor, to the Depository against payment of the purchase
price therefor. If specified in the related Supplement for any Series, the
Trustee shall authenticate Book-Entry Certificates that are issued upon
original issuance thereof, upon the written order of the Transferor, to a
Clearing Agency or its nominee as provided in Section 6.10 against payment
of the purchase price thereof.
Section 6.03 Registration of Transfer and Exchange
of Certificates.
(a) The Trustee shall cause to be kept at the
office or agency to be maintained by a transfer agent and registrar (the
"Transfer Agent and Registrar"), in accordance with the provisions of
Section 11.16, a register (the "Certificate Register") in which, subject to
such reasonable regulations as it may prescribe, the Transfer Agent and
Registrar shall provide for the registration of the Investor Certificates
of each Series (unless otherwise provided in the related Supplement) and of
transfers and exchanges of the Investor Certificates as herein provided.
The Trustee is hereby initially appointed Transfer Agent and Registrar for
the purposes of registering the Investor Certificates and transfers and
exchanges of the Investor Certificates as herein provided. If any form of
Investor Certificate is issued as a Global Certificate, the Trustee may, or
if and so long as any Series of Investor Certificates are listed on the
Luxembourg Stock Exchange and such exchange shall so require, the Trustee
shall appoint a co-transfer agent and co-registrar in Luxembourg or another
European city. Any reference in this Agreement to the Transfer Agent and
Registrar shall include any co-transfer agent and co-registrar unless the
context otherwise requires. The Trustee shall be permitted to resign as
Transfer Agent and Registrar upon 30 days' written notice to the Servicer.
In the event that the Trustee shall no longer be the Transfer Agent and
Registrar, the Transferor shall appoint a successor Transfer Agent and
Registrar.
Upon surrender for registration of transfer of
any Certificate at any office or agency of the Transfer Agent and
Registrar, the Transferor shall execute, subject to the provisions of
subsection 6.03(c), and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new
Certificates in authorized denominations of like aggregate Undivided
Interests; provided, that the provisions of this paragraph shall not apply
to Bearer Certificates.
At the option of an Investor Certificateholder,
Investor Certificates may be exchanged for other Investor Certificates of
the same Series in authorized denominations of like aggregate Undivided
Interests, upon surrender of the Investor Certificates to be exchanged at
any such office or agency. At the option of any Holder of Registered
Certificates, Registered Certificates may be exchanged for other Registered
Certificates of the same Series in authorized denominations of like
aggregate Undivided Interests in the Trust, upon surrender of the
Registered Certificates to be exchanged at any office or agency of the
Transfer Agent and Registrar maintained for such purpose. At the option of
a Holder of a Bearer Certificate, subject to applicable laws and
regulations (including without limitation, the Bearer Rules), Bearer
Certificates may be exchanged for other Bearer Certificates or Registered
Certificates of the same Series in authorized denominations of like
aggregate Undivided Interests in the Trust, in the manner specified in the
Supplement for such Series, upon surrender of the Bearer Certificates to be
exchanged at an office or agency of the Transfer Agent and Registrar
located outside the United States of America. Each Bearer Certificate
surrendered pursuant to this Section 6.03 shall have attached thereto (or
be accompanied by) all unmatured Coupons, provided that any Bearer
Certificate so surrendered after the close of business on the Record Date
preceding the relevant Distribution Date after the related Series
Termination Date need not have attached the Coupons relating to such
Distribution Date.
Whenever any Investor Certificates of any Series
are so surrendered for exchange, the Transferor shall execute, and the
Trustee shall authenticate and (unless the Transfer Agent and Registrar is
different from the Trustee, in which case the Transfer Agent and Registrar
shall) deliver, the Investor Certificates of such Series which the
Certificateholder making the exchange is entitled to receive. Every
Investor Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in a
form satisfactory to the Trustee and the Transfer Agent and Registrar duly
executed by the Certificateholder thereof or his attorney-in-fact duly
authorized in writing.
The preceding provisions of this Section 6.03
notwithstanding, the Trustee or the Transfer Agent and Registrar, as the
case may be, shall not be required to register the transfer of or exchange
any Investor Certificate of any Series for a period of 15 days preceding
the due date for any payment with respect to the Investor Certificates of
such Series.
Unless otherwise provided in the related
Supplement, no service charge shall be made for any registration of
transfer or exchange of Certificates, but the Transfer Agent and Registrar
may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any transfer or
exchange of Certificates.
All Investor Certificates (together with any
Coupons attached to Bearer Certificates) surrendered for registration of
transfer and exchange shall be canceled by the Transfer Agent and Registrar
and disposed of in a manner satisfactory to the Trustee. The Trustee shall
cancel and destroy the Global Certificate upon its exchange in full for
Definitive Certificates and shall deliver a certificate of destruction to
the Transferor. Such certificate shall also state that a certificate or
certificates of each Foreign Clearing Agency to the effect referred to in
Section 6.13 was received with respect to each portion of the Global
Certificate exchanged for Definitive Certificates.
The Transferor shall execute and deliver to the
Trustee or the Transfer Agent and Registrar, as applicable, Bearer
Certificates and Registered Certificates in such amounts and at such times
as are necessary to enable the Trustee to fulfill its responsibilities
under this Agreement and the Certificates.
(b) Except as provided in Section 6.09 or 7.02
or in any Supplement, in no event shall the Exchangeable Transferor
Certificate or any interest therein or, as the case may be, the
uncertificated interest in the Transferor Interest or any interest therein,
be transferred, sold, exchanged, pledged, participated or otherwise
assigned hereunder, in whole or in part, unless the Transferor shall have
consented in writing to such transfer and unless the Trustee shall have
received (x) an Opinion of Counsel that such transfer (i) does not
adversely affect the conclusions reached in any of the federal income tax
opinions dated the applicable Closing Date issued in connection with the
original issuance of any Series of Investor Certificates and (ii) will not
cause the Trust to be deemed to be an association or "publicly traded
partnership" (within the meaning of Section 7704(b) of the Internal Revenue
Code) taxable as a corporation and (y) with respect to any such transfer,
sale, exchange, pledge, participation or assignment to an entity which is
not an Affiliate of the Transferor, confirmation in writing from each
Rating Agency that such transfer will not result in a lowering or
withdrawal of its then-existing rating of any Series of Investor
Certificates. The Transferor shall give each Rating Agency notice of any
such transfer, sale, exchange, pledge, participation or assignment to an
Affiliate of the Transferor.
(c) Unless otherwise provided in the related
Supplement, registration of transfer of Registered Certificates containing
a legend relating to the restrictions on transfer of such Registered
Certificates (which legend shall be set forth in the Supplement relating to
such Investor Certificates) shall be effected only if the conditions set
forth in such related Supplement are satisfied.
Whenever a Registered Certificate containing the
legend set forth in the related Supplement is presented to the Transfer
Agent and Registrar for registration of transfer, the Transfer Agent and
Registrar shall promptly seek instructions from the Servicer regarding such
transfer. The Transfer Agent and Registrar and the Trustee shall be
entitled to receive written instructions signed by a Servicing Officer
prior to registering any such transfer or authenticating new Registered
Certificates, as the case may be. The Servicer hereby agrees to indemnify
the Transfer Agent and Registrar and the Trustee and to hold each of them
harmless against any loss, liability or expense incurred without negligence
or bad faith on their part arising out of or in connection with actions
taken or omitted by them in reliance on any such written instructions
furnished pursuant to this subsection 6.03(c).
(d) The Transfer Agent and Registrar will
maintain an office or offices or an agency or agencies where Investor
Certificates of such Series may be surrendered for registration of transfer
or exchange.
Section 6.04 Mutilated, Destroyed, Lost or Stolen
Certificates. If (a) any mutilated Certificate (together, in the case of
Bearer Certificates, with all unmatured Coupons, if any, appertaining
thereto) is surrendered to the Transfer Agent and Registrar, or the
Transfer Agent and Registrar receives evidence to its satisfaction of the
destruction, loss or theft of any Certificate and (b) there is delivered to
the Transfer Agent and Registrar and the Trustee such security or indemnity
as may be required by them to save each of them harmless, then, in the
absence of notice to the Trustee that such Certificate has been acquired by
a protected purchaser, the Transferor shall execute and the Trustee shall
authenticate and (unless the Transfer Agent and Registrar is different from
the Trustee, in which case the Transfer Agent and Registrar shall) deliver
(in compliance with applicable law), in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and aggregate Undivided Interest. In connection with the issuance of
any new Certificate under this Section 6.04, the Trustee or the Transfer
Agent and Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee and the Transfer Agent and Registrar) connected therewith. Any
duplicate Certificate issued pursuant to this Section 6.04 shall constitute
complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 6.05 Persons Deemed Owners. Prior to due
presentation of a Certificate for registration of transfer, the Trustee,
the Paying Agent, the Transfer Agent and Registrar and any agent of any of
them may treat the Person in whose name any Certificate is registered as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Article V (as described in any Supplement) and for all other
purposes whatsoever, and none of the Trustee, the Paying Agent, the
Transfer Agent and Registrar or any agent of any of them shall be affected
by any notice to the contrary; provided, however, that in determining
whether the holders of Investor Certificates evidencing the requisite
Undivided Interests have given any request, demand, authorization,
direction, notice, consent or waiver hereunder, Investor Certificates owned
by the Transferor, the Servicer or any Affiliate thereof shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Investor
Certificates which a Responsible Officer in the Corporate Trust Office of
the Trustee knows to be so owned shall be so disregarded. Investor
Certificates so owned that have been pledged in good faith shall not be
disregarded as outstanding, if the pledgee establishes to the satisfaction
of the Trustee the pledgee's right so to act with respect to such Investor
Certificates and that the pledgee is not the Transferor, the Servicer or an
Affiliate thereof.
In the case of a Bearer Certificate, the
Trustee, the Paying Agent, the Transfer Agent and Registrar and any agent
of any of them may treat the holder of a Bearer Certificate or Coupon as
the owner of such Bearer Certificate or Coupon for the purpose of receiving
distributions pursuant to Article IV and Article XII and for all other
purposes whatsoever, and none of the Trustee, the Paying Agent, the
Transfer Agent and Registrar or any agent of any of them shall be affected
by any notice to the contrary. Certificates so owned which have been
pledged in good faith shall not be disregarded and may be regarded as
outstanding, if the pledgee establishes to the satisfaction of the Trustee
the pledgee's right so to act with respect to such Investor Certificates
and that the pledgee is not the Transferor, the Servicer or an Affiliate
thereof.
Section 6.06 Appointment of Paying Agent.
(a) The Paying Agent shall make distributions to
Investor Certificateholders from the appropriate account or accounts
maintained for the benefit of Certificateholders as specified in this
Agreement or the related Supplement for any Series pursuant to Articles IV
and V hereof. Any Paying Agent shall have the revocable power to withdraw
funds from such appropriate account or accounts for the purpose of making
distributions referred to above. The Trustee (or the Servicer if the
Trustee is the Paying Agent) may revoke such power and remove the Paying
Agent, if the Trustee (or the Servicer if the Trustee is the Paying Agent)
determines in its sole discretion that the Paying Agent shall have failed
to perform its obligations under this Agreement in any material respect or
for other good cause. The Trustee (or the Servicer if the Trustee is the
Paying Agent) shall notify Xxxxx'x of the removal of any Paying Agent. The
Paying Agent, unless the Supplement with respect to any Series states
otherwise, shall initially be the Trustee. If any form of Investor
Certificate is issued as a Global Certificate, or if and so long as any
Series of Investor Certificates are listed on the Luxembourg Stock Exchange
and the Trustee shall have received written notice that such exchange shall
so require, the Trustee shall appoint a co-paying agent in Luxembourg or
another European city. The Trustee shall be permitted to resign as Paying
Agent upon 30 days' written notice to the Servicer. In the event that the
Trustee shall no longer be the Paying Agent, the Transferor shall appoint a
successor to act as Paying Agent (which shall be a bank or trust company).
The provisions of Sections 11.01, 11.02 and 11.03 shall apply to the
Trustee also in its role as Paying Agent, for so long as the Trustee shall
act as Paying Agent. Any reference in this Agreement to the Paying Agent
shall include any co-paying agent unless the context requires otherwise.
Any costs or expenses incurred by the Trustee in connection with the
appointment of a co-paying agent or successor paying agent shall be
reimbursed by the Servicer.
If specified in the related Supplement for any
Series, so long as the Investor Certificates of such Series are
outstanding, the Transferor shall maintain a co-paying agent in New York
City (for Registered Certificates only) or any other city designated in
such Supplement which, if and so long as any Series of Investor
Certificates is listed on the Luxembourg Stock Exchange or other stock
exchange and such exchange so requires, shall be in Luxembourg or the
location required by such other stock exchange.
(b) The Trustee shall cause the Paying Agent
(other than itself) to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee that such Paying Agent
will hold all sums, if any, held by it for payment to the
Certificateholders in trust for the benefit of the Certificateholders
entitled thereto until such sums shall be paid to such Certificateholders
and shall agree, and if the Trustee is the Paying Agent it hereby agrees,
that it shall comply with all requirements of the Internal Revenue Code
regarding the withholding by the Trustee of payments in respect of federal
income taxes due from Certificate Owners.
Section 6.07 Access to List of Certificateholders' Names
and Addresses. The Trustee will furnish or cause to be furnished by the
Transfer Agent and Registrar to the Servicer or the Paying Agent, within
five Business Days after receipt by the Trustee of a request therefor from
the Servicer or the Paying Agent, respectively, in writing, a list in such
form as the Servicer or the Paying Agent may reasonably require, of the
names and addresses of the Investor Certificateholders as of the most
recent Record Date for payment of distributions to Investor
Certificateholders. Unless otherwise provided in the related Supplement,
holders of Investor Certificates evidencing Undivided Interests aggregating
not less than 10% of the Invested Amount of the Investor Certificates of
any Series (the "Applicants") may apply in writing to the Trustee, and if
such application states that the Applicants desire to communicate with
other Investor Certificateholders of any Series with respect to their
rights under this Agreement or under the Investor Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee, after having been adequately indemnified by
such Applicants for its costs and expenses, shall afford or shall cause the
Transfer Agent and Registrar to afford such Applicants access during normal
business hours to the most recent list of Certificateholders held by the
Trustee and shall give the Servicer notice that such request has been made,
within five Business Days after the receipt of such application. Such list
shall be as of a date no more than 45 days prior to the date of receipt of
such Applicants' request. Every Certificateholder, by receiving and holding
a Certificate, agrees with the Trustee that neither the Trustee, the
Transfer Agent and Registrar, nor any of their respective agents shall be
held accountable by reason of the disclosure of any such information as to
the names and addresses of the Certificateholders hereunder, regardless of
the source from which such information was obtained.
Section 6.08 Authenticating Agent.
(a) The Trustee may appoint one or more
authenticating agents with respect to the Certificates which shall be
authorized to act on behalf of the Trustee in authenticating the
Certificates in connection with the issuance, delivery, registration of
transfer, exchange or repayment of the Certificates. Whenever reference is
made in this Agreement to the authentication of Certificates by the Trustee
or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an
authenticating agent and a certificate of authentication executed on behalf
of the Trustee by an authenticating agent. Each authenticating agent must
be acceptable to the Transferor.
(b) Any institution succeeding to the corporate
agency business of an authenticating agent shall continue to be an
authenticating agent without the execution or filing of any paper or any
further act on the part of the Trustee or such authenticating agent.
(c) An authenticating agent may at any time
resign by giving written notice of resignation to the Trustee and to the
Transferor. The Trustee may at any time terminate the agency of an
authenticating agent by giving notice of termination to such authenticating
agent and to the Transferor. Upon receiving such a notice of resignation or
upon such a termination, or in case at any time an authenticating agent
shall cease to be acceptable to the Trustee or the Transferor, the Trustee
promptly may appoint a successor authenticating agent. Any successor
authenticating agent upon acceptance of its appointment hereunder shall
become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an authenticating
agent. No successor authenticating agent shall be appointed unless
acceptable to the Trustee and the Transferor.
(d) The Trustee agrees to pay each
authenticating agent from time to time reasonable compensation for its
services under this Section 6.08, and the Trustee shall be entitled to be
reimbursed and the Servicer shall reimburse the Trustee for such reasonable
payments actually made, subject to the provisions of Section 11.05.
(e) The provisions of Sections 11.01, 11.02 and
11.03 shall be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this
Section 6.08, the Certificates may have endorsed thereon, in lieu of the
Trustee's certificate of authentication, an alternate certificate of
authentication in substantially the following form:
This is one of the certificates described in the
Amended and Restated Pooling and Servicing Agreement.
____________________________________
as Authenticating Agent
for the Trustee,
By:_________________________________
Authorized Officer
Section 6.09 Tender of Exchangeable Transferor Certificate.
(a) Upon any Exchange, the Trustee shall issue to the
Holder of the Exchangeable Transferor Certificate under Section 6.01, for
execution and redelivery to the Trustee for authentication under Section
6.02, one or more new Series of Investor Certificates. Each Investor
Certificate of any such Series of Investor Certificates shall be
substantially in the form specified in the related Supplement and shall
bear, upon its face, the designation for such Series to which it belongs,
as selected by the Transferor. Except as specified in any Supplement for a
related Series, all Investor Certificates of any Series shall rank pari
passu and be equally and ratably entitled as provided herein to the
benefits hereof (except that the Enhancement provided for any Series shall
not be available for any other Series) without preference, priority or
distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Agreement
and the related Supplement.
(b) The Holder of the Exchangeable Transferor Certificate
may tender the Exchangeable Transferor Certificate to the Trustee in
exchange for (i) one or more newly issued Series of Investor Certificates
and (ii) if there is a currently existing Exchangeable Transferor
Certificate, upon presentation of such Exchangeable Transferor Certificate
to the Trustee for cancellation, a new Exchangeable Transferor Certificate
in certificated form dated the Exchange Date (any such tender, a
"Transferor Exchange"). In addition, to the extent permitted for any Series
of Investor Certificates as specified in the related Supplement, the
Investor Certificateholders of such Series may tender their Investor
Certificates and, if there is a currently existing Exchangeable Transferor
Certificate in certificated form, the Holder of the Exchangeable Transferor
Certificate may tender the Exchangeable Transferor Certificate to the
Trustee pursuant to the terms and conditions set forth in such Supplement
in exchange for (i) one or more newly issued Series of Investor
Certificates and (ii) upon presentation of such Exchangeable Transferor
Certificate to the Trustee for cancellation, a new Exchangeable Transferor
Certificate in certificated form dated the Exchange Date (an "Investor
Exchange"). The Transferor Exchange and Investor Exchange are referred to
collectively herein as an "Exchange." The Holder of the Exchangeable
Transferor Certificate may perform an Exchange by notifying the Trustee, in
writing at least five days in advance (an "Exchange Notice") of the date
upon which the Exchange is to occur (an "Exchange Date"). Any Exchange
Notice shall state the designation of any Series to be issued on the
Exchange Date and, with respect to each such Series: (a) its Initial
Invested Amount (or the method for calculating such Initial Invested
Amount), which at any time may not be greater than the current principal
amount of the Exchangeable Transferor Certificate at such time (or in the
case of an Investor Exchange, the sum of the Invested Amount of the Series
of Investor Certificates to be exchanged plus the current principal amount
of the Exchangeable Transferor Certificate), (b) its Certificate Rate (or
the method for allocating interest payments or other cash flows to such
Series), if any, and (c) the Enhancement Provider, if any, with respect to
such Series. On the Exchange Date, the Trustee shall authenticate and
deliver any such Series of Investor Certificates only upon delivery to it
of the following: (a) a Supplement satisfying the criteria set forth in
subsection 6.09(c) executed by the Transferor and specifying the Principal
Terms of such Series, (b) the applicable Enhancement, if any, (c) the
agreement, if any, pursuant to which the Enhancement Provider agrees to
provide the Enhancement, if any, (d) an Opinion of Counsel to the effect
that, unless otherwise specified in the related Supplement, the newly
issued Series of Investor Certificates will be treated as debt for Federal
income tax purposes and that the issuance of the newly issued Series of
Investor Certificates will not adversely affect the Federal income tax
characterization of the Holder of any outstanding Series of Investor
Certificates or any Certificate Owner, (e) written confirmation from each
Rating Agency that the Exchange will not result in such Rating Agency's
reducing or withdrawing its rating on any then outstanding Series as to
which it is a Rating Agency, (f) an Officer's Certificate signed by a Vice
President (or any more senior officer) of the Transferor, that on the
Exchange Date (i) the Transferor, after giving effect to the Exchange,
would not be required to add Additional Accounts pursuant to subsection
2.06(a) and (ii) after giving effect to such Exchange, the Transferor
Interest would be at least equal to the Minimum Transferor Interest, and
(g) the existing Exchangeable Transferor Certificate, if any, or applicable
Investor Certificates, as the case may be. Upon satisfaction of such
conditions, the Trustee shall cancel the existing Exchangeable Transferor
Certificate, if any, or applicable Investor Certificates, as the case may
be, and issue, as provided above, such Series of Investor Certificates and,
if any such Exchangeable Transferor Certificate shall have been cancelled,
a new Exchangeable Transferor Certificate, dated the Exchange Date. There
is no limit to the number of Exchanges that may be performed under this
Agreement.
(c) In conjunction with an Exchange, the parties hereto
shall execute a Supplement, which shall specify the relevant terms with
respect to any newly issued Series of Investor Certificates, which may
include without limitation: (i) its name or designation, (ii) an Initial
Invested Amount or the method of calculating the Initial Invested Amount,
(iii) the Certificate Rate (or formula for the determination thereof), (iv)
the Closing Date, (v) the rating agency or agencies rating such Series,
(vi) the name of the Clearing Agency, if any, (vii) the rights of the
Holder of the Exchangeable Transferor Certificate that have been
transferred to the Holders of such Series pursuant to such Exchange
(including any rights to allocations of Collections of Finance Charge
Receivables and Principal Receivables), (viii) the interest payment date or
dates and the date or dates from which interest shall accrue, (ix) the
method of allocating Collections with respect to Principal Receivables for
such Series and, if applicable, with respect to other Series and the method
by which the principal amount of Investor Certificates of such Series shall
amortize or accrete and the method for allocating Collections with respect
to Finance Charge Receivables and Receivables in Defaulted Accounts, (x)
the names of any accounts to be used by such Series and the terms governing
the operation of any such account, (xi) the Series Servicing Fee
Percentage, (xii) the Minimum Transferor Interest, (xiii) the Series
Termination Date, (xiv) the terms of any Enhancement with respect to such
Series, (xv) the Enhancement Provider, if applicable, (xvi) the base rate
applicable to such Series, (xvii) the terms on which the Certificates of
such Series may be repurchased or remarketed to other investors, (xviii)
any deposit into any account provided for such Series, (xix) the number of
Classes of such Series, and if more than one Class, the rights and
priorities of each such Class, (xx) whether Interchange or other fees will
be included in the funds available to be paid for such Series, (xxi) the
priority of any Series with respect to any other Series, (xxii) the rights,
if any, of the holders of the Exchangeable Transferor Certificates that
have been transferred to the holders of such Series, (xxiii) the Minimum
Aggregate Principal Receivables, (xxiv) whether such Series will be part of
a Group, and (xxv) any other relevant terms of such Series (including
whether or not such Series will be pledged as collateral for an issuance of
any other securities, including commercial paper) (all such terms, the
"Principal Terms" of such Series). The terms of such Supplement may modify
or amend the terms of this Agreement solely as applied to such new Series.
If on the date of the issuance of such series there is issued and
outstanding one or more Series of Investor Certificates and no Series of
Investor Certificates is currently rated by a Rating Agency, then as a
condition to such Exchange a nationally recognized investment banking firm
or commercial bank shall also deliver to the Trustee an officer's
certificate stating, in substance, that the Exchange will not have an
adverse effect on the timing or distribution of payments to such other
Series of Investor Certificates then issued and outstanding.
Section 6.10 Book-Entry Certificates. Unless otherwise provided in
any related Supplement, the Investor Certificates, upon original issuance,
shall be issued in the form of typewritten Certificates representing the
Book-Entry Certificates, to be delivered to the depository specified in
such Supplement (the "Depository") which shall be the Clearing Agency or
Foreign Clearing Agency, by or on behalf of such Series. The Investor
Certificates of each Series shall, unless otherwise provided in the related
Supplement, initially be registered on the Certificate Register in the name
of the nominee of the Clearing Agency or Foreign Clearing Agency. No
Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in the related Series of Investor
Certificates, except as provided in Section 6.12. Unless and until
definitive, fully registered Investor Certificates of any Series
("Definitive Certificates") have been issued to Certificate Owners pursuant
to Section 6.12:
(i) the provisions of this Section 6.10 shall be
in full force and effect with respect to each such Series;
(ii) the Transferor, the Servicer, the Paying
Agent, the Transfer Agent and Registrar and the Trustee may deal
with the Clearing Agency and the Clearing Agency Participants for
all purposes (including the making of distributions on the
Investor Certificates of each such Series) as the authorized
representatives of the Certificate Owners;
(iii) to the extent that the provisions of this
Section 6.10 conflict with any other provisions of this Agreement,
the provisions of this Section 6.10 shall control with respect to
each such Series; and
(iv) the rights of Certificate Owners of each
such Series shall be exercised only through the Clearing Agency or
Foreign Clearing Agency and the applicable Clearing Agency
Participants and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency
or Foreign Clearing Agency and/or the Clearing Agency
Participants. Pursuant to the Depository Agreement applicable to a
Series, unless and until Definitive Certificates of such Series
are issued pursuant to Section 6.12, the initial Clearing Agency
will make book-entry transfers among the Clearing Agency
Participants and receive and transmit distributions of principal
and interest on the Investor Certificates to such Clearing Agency
Participants.
Section 6.11 Notices to Clearing Agency. Whenever notice or other
communication to the Certificateholders is required under this Agreement,
unless and until Definitive Certificates shall have been issued to
Certificate Owners pursuant to Section 6.12, the Trustee shall give all
such notices and communications specified herein to be given to Holders of
the Investor Certificates to the Clearing Agency or Foreign Clearing Agency
for distribution to Holders of Investor Certificates.
Section 6.12 Definitive Certificates. If (i) (A) the Transferor
advises the Trustee in writing that the Clearing Agency or Foreign Clearing
Agency is no longer willing or able to discharge properly its
responsibilities under the applicable Depository Agreement, and (B) the
Transferor is unable to locate a qualified successor, (ii) the Transferor,
at its option, advises the Trustee in writing that it elects to terminate
the book-entry system through the Clearing Agency or Foreign Clearing
Agency with respect to any Series of Certificates or (iii) after the
occurrence of a Servicer Default, Certificate Owners of a Series
representing beneficial interests aggregating not less than 50% of the
Invested Amount of such Series advise the Trustee and the applicable
Clearing Agency or Foreign Clearing Agency through the applicable Clearing
Agency Participants in writing that the continuation of a book-entry system
through the applicable Clearing Agency or Foreign Clearing Agency is no
longer in the best interests of the Certificate Owners, the Trustee shall
notify all Certificate Owners of such Series, through the applicable
Clearing Agency Participants, of the occurrence of any such event and of
the availability of Definitive Certificates to Certificate Owners of such
Series requesting the same. Upon surrender to the Trustee of the Investor
Certificates of such Series by the applicable Clearing Agency or Foreign
Clearing Agency, accompanied by registration instructions from the
applicable Clearing Agency or Foreign Clearing Agency for registration, the
Trustee shall issue the Definitive Certificates of such Series. Neither the
Transferor nor the Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates
of such Series all references herein to obligations imposed upon or to be
performed by the applicable Clearing Agency or Foreign Clearing Agency
shall be deemed to be imposed upon and performed by the Trustee, to the
extent applicable with respect to such Definitive Certificates, and the
Trustee shall recognize the Holders of the Definitive Certificates of such
Series as Certificateholders of such Series hereunder.
Section 6.13 Global Certificate; Euro-Certificate Exchange Date.
If specified in the related Supplement for any Series, the Investor
Certificates may be initially issued in the form of a single temporary
Global Certificate (the "Global Certificate") in bearer form, without
interest coupons, in the denomination of the Initial Invested Amount and
substantially in the form attached to the related Supplement. Unless
otherwise specified in the related Supplement, the provisions of this
Section 6.13 shall apply to such Global Certificate. The Global Certificate
will be authenticated by the Trustee upon the same conditions, in
substantially the same manner and with the same effect as the Definitive
Certificates. The Global Certificate may be exchanged in the manner
described in the related Supplement for Registered or Bearer Certificates
in definitive form.
Section 6.14 Meetings of Certificateholders. To the extent
provided by the Supplement for any Series issued in whole or in part in
Bearer Certificates, the Servicer or the Trustee may at any time call a
meeting of the Certificateholders of such Series, to be held at such time
and at such place as the Servicer or the Trustee, as the case may be, shall
determine, for the purpose of approving a modification of or amendment to,
or obtaining a waiver of, any covenant or condition set forth in this
Agreement with respect to such Series or in the Certificates of such
Series, subject to Section 13.01 of this Agreement.
[End of Article VI]
ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
Section 7.01 Liability of the Transferor. The Transferor shall be
liable in accordance herewith to the extent of the obligations specifically
undertaken by the Transferor.
Section 7.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Transferor.
(a) The Transferor shall not consolidate with or merge
into any other entity or convey or transfer its properties and assets
substantially (except pursuant to the transactions contemplated herein with
respect to the Receivables) as an entirety to any Person, unless:
(i) the entity formed by such consolidation or
into which the Transferor is merged or the Person which acquires
by conveyance or transfer the properties and assets of the
Transferor substantially as an entirety shall be, if the
Transferor is not the surviving entity, organized and existing
under the laws of the United States of America or any state or the
District of Columbia, and shall be a national banking association,
state banking corporation or other entity which is not subject to
the bankruptcy laws of the United States of America, or a special
purpose entity whose powers and activities are limited and, if
such Transferor is not the surviving entity, shall expressly
assume, by an agreement supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the
performance of every covenant and obligation of the Transferor, as
applicable hereunder and shall benefit from all the rights granted
to the Transferor, as applicable hereunder. To the extent that any
right, covenant or obligation of the Transferor, as applicable
hereunder, is inapplicable to the successor entity, such successor
entity shall be subject to such covenant or obligation, or benefit
from such right, as would apply, to the extent practicable, to
such successor entity. In furtherance hereof, in applying this
Section 7.02 to a successor entity, Section 9.02 hereof shall be
applied by reference to events of bankruptcy, liquidation,
receivership or conservatorship applicable to such successor
entity as shall be set forth in the Officer's Certificate
described in subsection 7.02(a)(ii);
(ii) the Transferor shall have delivered to the
Trustee an Officer's Certificate signed by a Vice President (or
any more senior officer) of the Transferor stating that such
consolidation, merger, conveyance or transfer and such
supplemental agreement comply with this Section 7.02 and that all
conditions precedent herein provided for relating to such
transaction have been complied with and an Opinion of Counsel that
such supplemental agreement is legal, valid and binding; and
(iii) the Transferor shall have delivered notice
to the Rating Agency of such consolidation, merger, conveyance or
transfer.
(b) The obligations of the Transferor hereunder shall not
be assignable nor shall any Person succeed to the obligations of the
Transferor hereunder except for mergers, consolidations, assumptions or
transfers in accordance with the provisions of the foregoing paragraph.
Section 7.03 Limitation on Liability. The officers, employees or
agents of the Transferor shall not be under any liability to the Trust, the
Trustee, the Certificateholders, any Enhancement Provider or any other
Person hereunder or pursuant to any document delivered hereunder, it being
expressly understood that all such liability is expressly waived and
released as a condition of, and as consideration for, the execution of this
Agreement and any Supplement and the issuance of the Certificates;
provided, however, that this provision shall not protect the officers,
employees, or agents of the Transferor against any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or gross
negligence in the performance of duties or by reason of reckless disregard
of obligations and duties hereunder. The Transferor shall not be under any
liability to the Trust, the Trustee, the Certificateholders, any
Enhancement Provider or any other Person for any action taken or for
refraining from the taking of any action in its capacity as Transferor
pursuant to this Agreement or any Supplement whether arising from express
or implied duties under this Agreement or any Supplement; provided,
however, that this provision shall not protect the Transferor against any
liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or
by reason of reckless disregard of obligations and duties hereunder. The
Transferor and any officer, employee or agent may rely in good faith on any
document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder.
Section 7.04 Liabilities. By entering into this Agreement, the
Transferor agrees to be liable, directly to the injured party, for the
entire amount of any losses, claims, damages or liabilities (other than
those incurred by an Investor Certificateholder as a result of defaults in
payment of the Receivables) arising out of or based on the arrangement
created by this Agreement and the actions of the Servicer taken pursuant
hereto as though this Agreement created a partnership under the New York
Uniform Partnership Act in which the Transferor is a partner. The
Transferor agrees to pay, indemnify and hold harmless each Investor
Certificateholder against and from any and all such losses, claims, damages
and liabilities except to the extent that they arise from any action by
such Investor Certificateholder. In the event of a service transfer, the
Successor Servicer will indemnify and hold harmless the Transferor against
and from any losses, claims, damages and liabilities of the Transferor as
described in this Section arising from the actions or omissions of such
Successor Servicer.
[End of Article VII]
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
Section 8.01 Liability of the Servicer. The Servicer shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer in such capacity herein.
Section 8.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer. The Servicer shall not consolidate with or
merge into any other corporation or convey or transfer its properties and
assets substantially as an entirety to any Person, unless:
(i) the corporation formed by such consolidation
or into which the Servicer is merged or the Person which acquires
by conveyance or transfer the properties and assets of the
Servicer substantially as an entirety shall be a corporation
organized and existing under the laws of the United States of
America or any state or the District of Columbia, and shall be a
state or national banking association or other entity which is not
subject to the bankruptcy laws of the United States of America or
shall be a special purpose entity whose powers and activities are
limited and, if the Servicer is not the surviving entity, shall
expressly assume, by an agreement supplemental hereto, executed
and delivered to the Trustee in form satisfactory to the Trustee,
the performance of every covenant and obligation of the Servicer
hereunder (to the extent that any right, covenant or obligation of
the Servicer, as applicable hereunder, is inapplicable to the
successor entity, such successor entity shall be subject to such
covenant or obligation, or benefit from such right, as would
apply, to the extent practicable, to such successor entity);
(ii) the Servicer shall have delivered to the
Trustee an Officer's Certificate that such consolidation, merger,
conveyance or transfer and such supplemental agreement comply with
this Section 8.02 and that all conditions precedent herein
provided for relating to such transaction have been complied with
and an Opinion of Counsel that such supplemental agreement is
legal, valid and binding with respect to the Servicer; and
(iii) the Servicer shall have delivered notice
to the Rating Agency of such consolidation, merger, conveyance or
transfer.
Section 8.03 Limitation on Liability of the Servicer and Others.
The directors, officers, employees or agents of the Servicer shall not be
under any liability to the Trust, the Trustee, the Certificateholders, any
Enhancement Provider or any other Person hereunder or pursuant to any
document delivered hereunder, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement and any Supplement and
the issuance of the Certificates; provided, however, that this provision
shall not protect the directors, officers, employees and agents of the
Servicer against any liability which would otherwise be imposed by reason
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties
hereunder. Except as provided in Section 8.04 with respect to the Trust and
the Trustee, its officers, directors, employees and agents, the Servicer
shall not be under any liability to the Trust, the Trustee, its officers,
directors, employees and agents, the Certificateholders or any other Person
for any action taken or for refraining from the taking of any action in its
capacity as Servicer pursuant to this Agreement or any Supplement;
provided, however, that this provision shall not protect the Servicer
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or
by reason of its reckless disregard of its obligations and duties hereunder
or under any Supplement. The Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties to service the Receivables in
accordance with this Agreement which in its reasonable opinion may involve
it in any expense or liability.
Section 8.04 Servicer Indemnification of the Trust and the
Trustee. The Servicer shall indemnify and hold harmless the Trust, the
Investor Certificateholders and the Trustee, its officers, directors,
employees and agents, from and against any reasonable loss, liability,
expense, damage or injury suffered or sustained by reason of any acts or
omissions or alleged acts or omissions of the Servicer with respect to
activities of the Trust or the Trustee pursuant to this Agreement or any
Supplement, or by reason of the acceptance of this Trust by the Trustee,
the issuance by the Trust of the Certificates, any Servicer Default, any
termination of the rights and obligations of the Servicer including, but
not limited to, any judgment, award, settlement, reasonable attorneys' fees
and other costs or expenses incurred in connection with the defense of any
actual or threatened action, proceeding or claim; provided, however, that
the Servicer shall not indemnify the Trustee or the Investor
Certificateholders if such acts, omissions or alleged acts or omissions
constitute or are caused by fraud, negligence, or willful misconduct by the
Trustee; provided further, that the Servicer shall not indemnify the Trust,
the Investor Certificateholders or the Certificate Owners for any
liabilities, costs or expenses of the Trust with respect to any action
taken by the Trustee at the request of the Investor Certificateholders;
provided further, that the Servicer shall not indemnify the Trust, the
Investor Certificateholders or the Certificate Owners as to any losses,
claims or damages incurred by any of them in their capacities as investors,
including without limitation losses incurred as a result of Defaulted
Accounts or Receivables which are written off as uncollectible; and
provided further, that the Servicer shall not indemnify the Trust, the
Investor Certificateholders or the Certificate Owners for any liabilities,
costs or expenses of the Trust, the Investor Certificateholders or the
Certificate Owners arising under any tax law, including without limitation,
any federal, state, local or foreign income or franchise taxes or any other
tax imposed on or measured by income (or any interest or penalties with
respect thereto or arising from a failure to comply therewith) required to
be paid by the Trust, the Investor Certificateholders or the Certificate
Owners in connection herewith to any taxing authority. Any such
indemnification shall not be payable from the assets of the Trust. The
provisions of this indemnity shall run directly to and be enforceable by an
injured party subject to the limitations hereof and shall survive the
resignation or removal of the Servicer, the resignation or removal of the
Trustee and/or the termination of the Trust.
Section 8.05 The Servicer Not to Resign. The Servicer shall not
resign from the obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action
which the Servicer could take to make the performance of its duties
hereunder permissible under applicable law. Any such determination
permitting the resignation of the Servicer shall be evidenced as to clause
(i) above by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until the Trustee or a Successor
Servicer shall have assumed the responsibilities and obligations of the
Servicer in accordance with Section 10.02 hereof. If the Trustee is unable
within 120 days of the date of such determination to appoint a Successor
Servicer, the Trustee shall serve as Successor Servicer hereunder (but
shall have continued authority to appoint another Person as Successor
Servicer).
Section 8.06 Access to Certain Documentation and Information
Regarding the Receivables. The Servicer shall provide to the Trustee access
to the documentation regarding the Accounts and the Receivables in such
cases where the Trustee is required in connection with the enforcement of
the rights of the Investor Certificateholders, or by applicable statutes or
regulations, to review such documentation, such access being afforded
without charge but only (i) upon reasonable request, (ii) during normal
business hours, (iii) subject to the Servicer's normal security and
confidentiality procedures and (iv) at offices designated by the Servicer.
Nothing in this Section 8.06 shall derogate from the obligation of the
Transferor, the Trustee or the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors and the
failure of the Servicer to provide access as provided in this Section 8.06
as a result of such obligations shall not constitute a breach of this
Section 8.06.
Section 8.07 Delegation of Duties. It is understood and agreed by
the parties hereto that the Servicer may delegate certain of its duties
hereunder to First Data Resources, Inc., a Delaware corporation. In the
ordinary course of business, the Servicer may at any time delegate any
duties hereunder to any Person who agrees to conduct such duties in
accordance with the Credit Card Guidelines. Any such delegations shall not
relieve the Servicer of its liability and responsibility with respect to
such duties, and shall not constitute a resignation within the meaning of
Section 8.05 hereof. If any such delegation is to a party other than First
Data Resources, Inc., notification thereof shall be given to each Rating
Agency.
Section 8.08 Examination of Records. The Servicer shall clearly
and unambiguously identify each Account (including any Additional Account
designated pursuant to Section 2.06) in its computer or other records to
reflect that the Receivables arising in such Account have been conveyed to
the Trust pursuant to this Agreement. The Servicer shall, prior to the sale
or transfer to a third party of any receivable held in its custody, examine
its computer and other records to determine that such receivable is not a
Receivable.
[End of Article VIII]
ARTICLE IX
PAY OUT EVENTS
Section 9.01 Pay Out Events. If any one of the following events
(each, a "Trust Pay Out Event") shall occur:
(a) The Transferor shall consent to the appointment of a
bankruptcy trustee or conservator or receiver or liquidator in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings of or relating to all or substantially
all of its property, or a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises for the
appointment of a bankruptcy trustee or conservator or receiver or
liquidator in any bankruptcy, insolvency, readjustment of debt, marshalling
of assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Transferor;
or the Transferor shall admit in writing its inability to pay its debts
generally as they become due, file a petition under any applicable
bankruptcy, insolvency or reorganization statute, make an assignment for
the benefit of its creditors or voluntarily suspend payment of its
obligations; or the Transferor shall become unable for any reason to
transfer Receivables to the Trust in accordance with the provisions of this
Agreement; or
(b) The Trust shall become subject to regulation by the
Securities and Exchange Commission as an "investment company" within the
meaning of the Investment Company Act;
then a Pay Out Event with respect to all Series of Certificates shall occur
without any notice or other action on the part of the Trustee or the
Investor Certificateholders immediately upon the occurrence of such event.
Section 9.02 Additional Rights Upon the Occurrence of Certain Events.
(a) If the Transferor shall consent to the appointment of
a conservator or receiver or liquidator for the winding-up or liquidation
of its affairs, or a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator for the winding-up or liquidation of
its affairs shall have been entered against the Transferor (an "Insolvency
Event"), the Transferor shall on the day of such Insolvency Event (the
"Appointment Day") immediately cease to transfer Principal Receivables to
the Transferor and shall promptly give notice to the Trustee of such
Insolvency Event. Notwithstanding any cessation of the transfer to the
Trust of additional Principal Receivables, Finance Charge Receivables,
whenever created, accrued in respect of Principal Receivables which have
been transferred to the Trust shall continue to be a part of the Trust, and
Collections with respect thereto shall continue to be allocated and paid in
accordance with Article IV. For so long as any Series issued prior to the
Amendment Closing Date remains outstanding, within 15 days of the
Appointment Day, the Trustee shall (i) publish a notice in an Authorized
Newspaper that an Insolvency Event has occurred and that the Trustee
intends to sell, dispose of or otherwise liquidate the Receivables in a
commercially reasonable manner and (ii) send written notice to the Investor
Certificateholders describing the provisions of this Section 9.02 and
requesting instructions from such Holders, which notice shall request each
Investor Certificateholder to advise the Trustee in writing that it elects
one of the following options: (A) the Investor Certificateholder wishes the
Trustee to instruct the Servicer not to sell, dispose of or otherwise
liquidate the Receivables, or (B) the Investor Certificateholder wishes the
Trustee to instruct the Servicer to sell, dispose of or otherwise liquidate
the Receivables and to instruct the Servicer to reconstitute the Trust upon
the same terms and conditions set forth herein, or (C) the Investor
Certificateholder refuses to advise the Trustee as to the specific action
the Trustee shall instruct the Servicer to take. If after 60 days from the
day notice pursuant to clause (i) above is first published (the
"Publication Date"), the Trustee shall not have received written
instructions of Holders of Investor Certificates representing Undivided
Interests aggregating in excess of 50% of the related Invested Amount of
each Series (or in the case of a series having more than one class of
investor certificates, each class of such series) to the effect that the
Trustee shall not instruct the Servicer to sell, dispose of, or otherwise
liquidate the Receivables and to instruct the Servicer to reconstitute the
Trust upon the same terms and conditions as set forth herein, the Trustee
shall instruct the Servicer to proceed to sell, dispose of, or otherwise
liquidate the Receivables in a commercially reasonable manner and on
commercially reasonable terms, which shall include the solicitation of
competitive bids and the Servicer shall proceed to consummate the sale,
liquidation or disposition of the Receivables as provided above with the
highest bidder for the Receivables. If, however, with respect to the
portion of the Receivables allocable to any outstanding Series, the Holders
of more than 50% of the principal amount of each class of such Series
instruct the Trustee not to sell the portion of the Receivables allocable
to such Series, the Trust shall continue with respect to such Series
pursuant to the terms of the Agreement and the related Supplement. None of
the Transferor, any Affiliate of the Transferor or any agent of the
Transferor shall be permitted to purchase such Receivables in such case.
The portion of the Receivables allocable to any Series shall be equal to
the sum of (1) the product of (A) the Transferor Percentage, (B) the
aggregate outstanding Principal Receivables and (C) a fraction, the
numerator of which is the related Investor Percentage of Collections of
Finance Charge Receivables and the denominator of which is the sum of all
Investor Percentages with respect to Collections of Finance Charge
Receivables for all Series outstanding and (2) the Invested Amount of such
Series. The Trustee may obtain a prior determination from any such
bankruptcy trustee, conservator, receiver or liquidator that the terms and
manner of any proposed sale, disposition or liquidation are commercially
reasonable. The provisions of Sections 9.01 and 9.02 shall not be deemed to
be mutually exclusive.
(b) The proceeds from the sale, disposition or
liquidation of the Receivables pursuant to subsection 9.02(a) above shall
be treated as Collections on the Receivables and shall be allocated and
deposited in accordance with the provisions of Article IV; provided,
however that the proceeds from any such sale, disposition or liquidation of
Receivables with respect to a Series but not all of the outstanding Series
shall be applied solely to make payments to such Series; provided further,
that the Trustee shall determine conclusively in its sole discretion the
amount of such proceeds which are allocable to Finance Charge Receivables
and the amount of such proceeds which are allocable to Principal
Receivables. Unless the Trustee receives written instructions from Investor
Certificateholders of one or more Series to continue the Trust with respect
to such Series as provided in subsection 9.02(a) above, on the day
following the last Distribution Date in the Monthly Period during which
such proceeds are distributed to the Investor Certificateholders of each
Series, the Trust shall terminate.
(c) The Trustee may appoint an agent or agents to assist
with its responsibilities pursuant to this Article IX with respect to
competitive bids.
(d) The foregoing subsections 9.02(a), (b) and (c) shall
no longer apply on and after the day following the Distribution Date on
which the Aggregate Invested Amount plus interest accrued at the applicable
Certificate Rate through the day prior to such Distribution Date has been
paid in full with respect to the last remaining Series that was outstanding
prior to the Amendment Closing Date.
[End of Article IX]
ARTICLE X
SERVICER DEFAULTS
Section 10.01 Servicer Defaults. If any one of the following
events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment,
transfer or deposit or to give instructions or notice to the Trustee
pursuant to Article IV or to instruct the Trustee to make any required
drawing, withdrawal, or payment under any Enhancement on or before the date
occurring five Business Days after the date such payment, transfer,
deposit, withdrawal or drawing or such instruction or notice is required to
be made or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe
or perform in any respect any other covenants or agreements of the Servicer
set forth in this Agreement, which has a material adverse effect on the
Investor Certificateholders of any Series and which continues unremedied
for a period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee, or to the Servicer and the Trustee by the Holders
of Investor Certificates evidencing Undivided Interests aggregating not
less than 50% of the Invested Amount of any Series adversely affected
thereby and continues to materially adversely affect such Investor
Certificateholders for such period; or the Servicer shall delegate its
duties under this Agreement, except as permitted by Section 8.07;
(c) any representation, warranty or certification made by
the Servicer in this Agreement or in any certificate delivered pursuant to
this Agreement shall prove to have been incorrect when made, which has a
material adverse effect on the Investor Certificateholders of any Series
and which continues to be incorrect in any material respect for a period of
60 days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the
Trustee, or to the Servicer and the Trustee by the Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 50%
of the Invested Amount of any Series adversely affected thereby and
continues to materially adversely affect such Investor Certificateholders
for such period; or
(d) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Servicer or of or relating to all or substantially all of
its property, or a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against the Servicer, and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or the Servicer shall
admit in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make any assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations;
then, so long as such Servicer Default shall not have been remedied, either
the Trustee, or the Holders of Investor Certificates evidencing Undivided
Interests aggregating more than 50% of the Aggregate Invested Amount, by
notice then given in writing to the Servicer (and to the Trustee if given
by the Investor Certificateholders) (a "Termination Notice"), may terminate
all of the rights and obligations of the Servicer as Servicer under this
Agreement. After receipt by the Servicer of such Termination Notice, and on
the date that a Successor Servicer shall have been appointed by the Trustee
pursuant to Section 10.02, all authority and power of the Servicer under
this Agreement shall pass to and be vested in a Successor Servicer; and,
without limitation, the Trustee is hereby authorized and empowered (upon
the failure of the Servicer to cooperate) to execute and deliver, on behalf
of the Servicer, as attorney-in-fact or otherwise, all documents and other
instruments upon the failure of the Servicer to execute or deliver such
documents or instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer of
servicing rights and obligations. The Servicer agrees to cooperate with the
Trustee and such Successor Servicer in effecting the termination of the
responsibilities and rights of the Servicer to conduct servicing hereunder
including, without limitation, the transfer to such Successor Servicer of
all authority of the Servicer to service the Receivables provided for under
this Agreement, including, without limitation, all authority over all
Collections which shall on the date of transfer be held by the Servicer for
deposit, or which have been deposited by the Servicer, in the Collection
Account, the Finance Charge Account or the Principal Account, and any
Series Account, or which shall thereafter be received with respect to the
Receivables, and in assisting the Successor Servicer and in enforcing all
rights to Insurance Proceeds and Interchange (if any) applicable to the
Trust. The Servicer shall promptly transfer its electronic records or
electronic copies thereof relating to the Receivables to the Successor
Servicer in such electronic form as the Successor Servicer may reasonably
request and shall promptly transfer to the Successor Servicer all other
records, correspondence and documents necessary for the continued servicing
of the Receivables in the manner and at such times as the Successor
Servicer shall reasonably request. To the extent that compliance with this
Section 10.01 shall require the Servicer to disclose to the Successor
Servicer information of any kind which the Servicer reasonably deems to be
confidential, the Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as the Servicer shall
deem necessary to protect its interests. The Servicer shall, on the date of
any servicing transfer, transfer all of its rights and obligations under
the Enhancement with respect to any Series to the Successor Servicer.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in subsection 10.01(a) for a period of 10 Business
Days or under subsection 10.01(b) or (c) for a period of 60 Business Days,
shall not constitute a Servicer Default if such delay or failure could not
be prevented by the exercise of reasonable diligence by the Servicer and
such delay or failure was caused by an act of God or the public enemy, acts
of declared or undeclared war, public disorder, rebellion, riot or
sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes,
earthquakes, nuclear disasters or meltdowns, floods, power outages or
similar causes. The preceding sentence shall not relieve the Servicer from
using its best efforts to perform its obligations in a timely manner in
accordance with the terms of this Agreement and the Servicer shall provide
the Trustee, any Enhancement Provider, the Transferor and the Holders of
Investor Certificates with an Officer's Certificate giving prompt notice of
such failure or delay by it, together with a description of the cause of
such failure or delay and its efforts so to perform its obligations.
Section 10.02 Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Servicer of a
Termination Notice pursuant to Section 10.01, the Servicer shall continue
to perform all servicing functions under this Agreement until the date
specified in the Termination Notice or otherwise specified by the Trustee
in writing or, if no such date is specified in such Termination Notice, or
otherwise specified by the Trustee, until a date mutually agreed upon by
the Servicer and Trustee. The Trustee shall notify each Rating Agency of
such removal of the Servicer. The Trustee shall, as promptly as possible
after the giving of a Termination Notice appoint a successor servicer (the
"Successor Servicer"), and such Successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Trustee.
The Trustee may obtain bids from any potential successor Servicer. If the
Trustee is unable to obtain any bids from any potential successor Servicer
and the Servicer delivers an Officer's Certificate to the effect that it
cannot in good faith cure the Servicer Default which gave rise to a
transfer of servicing, and if the Trustee is legally unable to act as
Successor Servicer, then the Trustee shall notify each Enhancement Provider
of the proposed sale of the Receivables and shall provide each such
Enhancement Provider an opportunity to bid on the Receivables. None of the
Transferor, any Affiliate of the Transferor or any agent of the Transferor
shall be permitted to purchase such Receivables in such case. The proceeds
of such sale shall be deposited in the Distribution Account or any Series
Account, as provided in the related Supplement, for distribution to the
Investor Certificateholders of each Outstanding Series pursuant to Section
12.03 of this Agreement. In the event that a Successor Servicer has not
been appointed and has not accepted its appointment at the time when the
Servicer ceases to act as Servicer, the Trustee without further action
shall automatically be appointed the Successor Servicer (but shall have
continued authority to appoint another Person as Successor Servicer).
Notwithstanding the above, the Trustee shall, if it is legally unable to
act, petition a court of competent jurisdiction to appoint any established
financial institution having, in the case of an entity that is subject to
risk-based capital adequacy requirements, risk-based capital of at least
$50,000,000 or, in the case of an entity that is not subject to risk-based
capital requirements, having a net worth of not less than $50,000,000 and
whose regular business includes the servicing of VISA(R) or MasterCard(R)
credit card receivables as the Successor Servicer hereunder.
(b) Upon its appointment, the Successor Servicer shall be
the successor in all respects to the Servicer with respect to servicing
functions under this Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof, and all references in this
Agreement to the Servicer shall be deemed to refer to the Successor
Servicer. Any Successor Servicer, by its acceptance of its appointment,
will automatically agree to be bound by the terms and provisions of each
Enhancement.
(c) In connection with such appointment and assumption,
the Trustee shall be entitled to such compensation, or may make such
arrangements for the compensation of the Successor Servicer out of
Collections, as it and such Successor Servicer shall agree; provided,
however, that no such compensation shall be in excess of the Monthly
Servicing Fee permitted to the Servicer pursuant to Section 3.02. The
Transferor agrees that if the Servicer is terminated hereunder, it will
agree to deposit a portion of the Collections in respect of Finance Charge
Receivables that it is entitled to receive pursuant to Article IV to pay
its share of the compensation of the Successor Servicer.
(d) All authority and power granted to the Successor
Servicer under this Agreement shall automatically cease and terminate upon
termination of the Trust pursuant to Section 12.01 and shall pass to and be
vested in the Transferor or its designee and, without limitation, the
Transferor is hereby authorized and empowered to execute and deliver, on
behalf of the Successor Servicer, as attorney-in-fact or otherwise, all
documents and other instruments, and to do and accomplish all other acts or
things necessary or appropriate to effect the purposes of such transfer of
servicing rights. The Successor Servicer agrees to cooperate with the
Transferor (or its designee) in effecting the termination of the
responsibilities and rights of the Successor Servicer to conduct servicing
on the Receivables. The Successor Servicer shall transfer its electronic
records relating to the Receivables to the Transferor (or its designee) in
such electronic form as the Transferor (or such designee) may reasonably
request and shall transfer all other records, correspondence and documents
to the Transferor (or its designee) in the manner and at such times as the
Transferor (or such designee) shall reasonably request. To the extent that
compliance with this Section 10.02 shall require the Successor Servicer to
disclose to the Transferor (or its designee) information of any kind which
the Successor Servicer deems to be confidential, the Transferor (or such
designee) shall be required to enter into such customary licensing and
confidentiality agreements as the Successor Servicer shall deem necessary
to protect its interests.
Section 10.03 Notification to Certificateholders. Within two
Business Days after the Servicer becomes aware of any Servicer Default, the
Servicer shall give prompt written notice thereof to the Trustee and any
Enhancement Provider and the Trustee shall give notice to the Investor
Certificateholders at their respective addresses appearing in the
Certificate Register. Upon any termination or appointment of a Successor
Servicer pursuant to this Article X, the Trustee shall give prompt written
notice thereof to Investor Certificateholders at their respective addresses
appearing in the Certificate Register.
Section 10.04 Waiver of Past Defaults. The Holders of Investor
Certificates evidencing Undivided Interests aggregating more than 662/3% of
the Invested Amount of each Series adversely affected by any default by the
Servicer or Transferor may, on behalf of all Certificateholders of such
Series, waive any default by the Servicer or Transferor in the performance
of its obligations hereunder and its consequences, except a default in the
failure to make any required deposits or payments of interest or principal
relating to such Series pursuant to Article IV which default does not
result from the failure of the Paying Agent to perform its obligations to
make any required deposits or payments of interest and principal in
accordance with Article IV. Upon any such waiver of a past default, such
default shall cease to exist, and any default arising therefrom shall be
deemed to have been remedied for every purpose of this Agreement. No such
waiver shall extend to any subsequent or other default or impair any right
consequent thereon except to the extent expressly so waived.
[End of Article X]
ARTICLE XI
THE TRUSTEE
Section 11.01 Duties of Trustee.
(a) The Trustee, prior to the occurrence of any Servicer
Default and after the curing of all Servicer Defaults which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If a Responsible Officer has
received written notice that a Servicer Default has occurred (and such
Servicer Default has not been cured or waived), the Trustee shall exercise
such of the rights and powers vested in it by this Agreement, and use the
same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs; provided, however, that if the Trustee shall assume the duties of
the Servicer pursuant to Section 8.05 or 10.02, the Trustee in performing
such duties shall use the degree of skill and attention customarily
exercised by a Servicer with respect to comparable receivables that it
services for itself or others.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement, shall examine them
to determine whether they substantially conform to the requirements of this
Agreement.
(c) Subject to subsection 11.01(a), no provision of this
Agreement shall be construed to relieve the Trustee from liability for its
own negligent action, its own negligent failure to act or its own
misconduct; provided, however, that:
(i) the Trustee shall not be personally liable
for an error of judgment made in good faith by a Responsible
Officer or Responsible Officers of the Trustee, unless it shall be
proved that the Trustee was negligent in ascertaining the
pertinent facts;
(ii) the Trustee shall not be personally liable
with respect to any action taken, suffered or omitted to be taken
by it in good faith in accordance with the direction of the
Holders of Investor Certificates evidencing Undivided Interests
aggregating more than 50% of the Invested Amount of any Series
relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee with respect to
such Series, or exercising any trust or power conferred upon the
Trustee with respect to such Series, under this Agreement; and
(iii) the Trustee shall not be charged with
knowledge of any failure by the Servicer referred to in clauses
(a) and (b) of Section 10.01 or of any breach by the Servicer
contemplated by clause (c) of Section 10.01 or any Pay Out Event
unless a Responsible Officer of the Trustee obtains actual
knowledge of such failure, breach or Pay Out Event or the Trustee
receives written notice of such failure, breach or Pay Out Event
from the Servicer or any Holders of Investor Certificates
evidencing Undivided Interests aggregating not less than 10% of
the Invested Amount of any Series adversely affected thereby.
(d) The Trustee shall not be required to expend or risk
its own funds or otherwise incur financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if there is reasonable ground for believing that the repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it, and none of the provisions contained in this
Agreement shall in any event require the Trustee to perform, or be
responsible for the manner of performance of, any of the obligations of the
Servicer under this Agreement except during such time, if any, as the
Trustee shall be the successor to, and be vested with the rights, duties,
powers and privileges of, the Servicer in accordance with the terms of this
Agreement.
(e) Except for actions expressly authorized by this
Agreement, the Trustee shall take no action reasonably likely to impair the
interests of the Trust in any Receivable now existing or hereafter created
or to impair the value of any Receivable now existing or hereafter created.
(f) Except as provided in this subsection 11.01(f), the
Trustee shall have no power to vary the corpus of the Trust including,
without limitation, the power to (i) accept any substitute obligation for a
Receivable initially assigned to the Trust under Section 2.01 or 2.06
hereof, (ii) add any other investment, obligation or security to the Trust,
except for an addition permitted under Section 2.06 or (iii) withdraw from
the Trust any Receivables, except for a withdrawal permitted under Sections
2.07, 9.02, 10.02, 12.01 or 12.02 or subsections 2.04(d), 2.04(e) or
Article IV.
(g) In the event that the Paying Agent or the Transfer
Agent and Registrar shall fail to perform any obligation, duty or agreement
in the manner or on the day required to be performed by the Paying Agent or
the Transfer Agent and Registrar, as the case may be, under this Agreement,
the Trustee shall be obligated promptly upon its knowledge thereof by a
Responsible Officer of the Trustee to perform such obligation, duty or
agreement in the manner so required.
(h) If the Transferor has agreed to transfer any of its
credit card receivables (other than the Receivables) to another Person,
upon the written request of the Transferor, the Trustee will enter into
such intercreditor agreements with the transferee of such receivables as
are customary and necessary to identify separately the rights, if any, of
the Trust and such other Person in the Transferor's credit card
receivables; provided, that the Trust shall not be required to enter into
any intercreditor agreement which could adversely affect the interests of
the Certificateholders or the Trustee and, upon the request of the Trustee,
the Transferor will deliver an Opinion of Counsel on any matters relating
to such intercreditor agreement, reasonably requested by the Trustee.
Section 11.02 Certain Matters Affecting the Trustee. Except as
otherwise provided in
Section 11.01:
(a) the Trustee may rely on and shall be protected in
acting on, or in refraining from acting in accord with, any assignment of
Receivables in Additional Accounts, the initial report, the monthly
Servicer's certificate, the annual Servicer's certificate, the monthly
payment instructions and notification to the Trustee, the monthly
Certificateholders' statement, any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented to it pursuant to this Agreement by the proper party or parties;
(b) the Trustee may consult with counsel, and any Opinion
of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good
faith and in accordance with such Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement or any
Enhancement, or to institute, conduct or defend any litigation hereunder or
in relation hereto, at the request, order or direction of any of the
Certificateholders or any Enhancement Provider, pursuant to the provisions
of this Agreement, unless such Certificateholders or Enhancement Provider
shall have offered to the Trustee reasonable security or indemnity against
the costs, expenses and liabilities which may be incurred therein or
thereby; nothing contained herein shall, however, relieve the Trustee of
the obligations, upon the occurrence of any Servicer Default (which has not
been cured or waived), to exercise such of the rights and powers vested in
it by this Agreement and any Enhancement, and to use the same degree of
care and skill in its exercise as a prudent person would exercise or use
under the circumstances in the conduct of his own affairs;
(d) the Trustee shall not be personally liable for any
action taken, suffered or omitted by it in good faith and believed by it to
be authorized or within the discretion or rights or powers conferred upon
it by this Agreement;
(e) the Trustee shall not be bound to make any
investigation into the facts of matters stated in any assignment of
Receivables in Additional Accounts, the initial report, the monthly
Servicer's certificate, the annual Servicer's certificate, the monthly
payment instructions and notification to the Trustee, the monthly
Certificateholders' statement, any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Invested Amount of any Series which could be adversely
affected if the Trustee does not perform such acts;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent,
attorney or custodian appointed with due care by it hereunder;
(g) except as may be required by subsection 11.01(a), the
Trustee shall not be required to make any initial or periodic examination
of any documents or records related to the Receivables or the Accounts for
the purpose of establishing the presence or absence of defects, the
compliance by the Transferor with its representations and warranties or for
any other purpose; and
(h) whenever in the administration of this Agreement the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate.
Section 11.03 Trustee Not Liable for Recitals in Certificates. The
Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates (other than the certificate of
authentication on the Certificates). Except as set forth in Section 11.15,
the Trustee makes no representations as to the validity or sufficiency of
this Agreement or of the Certificates (other than the certificate of
authentication on the Certificates) or of any Receivable or related
document. The Trustee shall not be accountable for the use or application
by the Transferor of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the
Transferor in respect of the Receivables or deposited in or withdrawn from
the Collection Account, the Principal Account or the Finance Charge
Account, or any Series Account or other accounts now or hereafter
established to effectuate the transactions contemplated herein and in
accordance with the terms hereof.
Section 11.04 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Investor Certificates with the same rights as it would have if it were not
the Trustee.
Section 11.05 The Servicer to Pay Trustee's Fees and Expenses. The
Servicer covenants and agrees to pay to the Trustee from time to time, and
the Trustee shall be entitled to receive, reasonable compensation (which
shall not be limited by any provision of law in regard to the compensation
of a trustee of an express trust) for all services rendered by the Trustee
in the execution of the Trust hereby created and in the exercise and
performance of any of the powers and duties hereunder of the Trustee, and,
subject to Section 8.04, the Servicer will pay or reimburse the Trustee
(without reimbursement from any Investor Account, any Series Account or
otherwise) upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any of the
provisions of this Agreement (including the reasonable fees and expenses of
its agents and counsel) except any such expense, disbursement or advance as
may arise from its own negligence or bad faith and except as provided in
the following sentence. If the Trustee is appointed Successor Servicer
pursuant to Section 10.02, the provisions of this Section 11.05 shall not
apply to expenses, disbursements and advances made or incurred by the
Trustee in its capacity as Successor Servicer (which shall be covered out
of the Monthly Servicing Fee).
The obligations of the Servicer under this Section 11.05
shall survive the termination of the Trust and the resignation or removal
of the Trustee.
Section 11.06 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation organized and doing business
under the laws of the United States of America or any state thereof
authorized under such laws to exercise corporate trust powers, having a
long-term unsecured debt rating of at least "Baa3" by Xxxxx'x and "BBB-" by
Standard & Poor's having, in the case of an entity that is subject to
risk-based capital adequacy requirements, risk-based capital of at least
$50,000,000 or, in the case of an entity that is not subject to risk-based
capital adequacy requirements, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or
state authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section
11.06, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section
11.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 11.07.
Section 11.07 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign and be discharged
from the Trust hereby created by giving written notice thereof to the
Servicer. Upon receiving such notice of resignation, the Servicer shall
promptly appoint a successor trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Trustee
and one copy to the successor trustee. If no successor trustee shall have
been so appointed and have accepted such appointment within 30 days after
the giving of such notice of resignation, the resigning Trustee may
petition any court of competent jurisdiction for the appointment of a
successor trustee.
(b) If at any time the Trustee shall cease to be eligible
in accordance with the provisions of Section 11.06 hereof and shall fail to
resign after written request therefor by the Transferor, or if at any time
the Trustee shall be legally unable to act, or shall be adjudged as
bankrupt or insolvent, or a receiver of the Trustee or of its property
shall be appointed, or any public officer shall take charge or control of
the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation, then the Transferor may, but
shall not be required to, remove the Trustee and promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee.
(c) Any resignation or removal of the Trustee and
appointment of a successor trustee pursuant to any of the provisions of
this Section 11.07 shall not become effective until acceptance of
appointment by the successor trustee as provided in Section 11.08 hereof
and any liability of the Trustee arising hereunder shall survive such
appointment of a successor trustee.
Section 11.08 Successor Trustee.
(a) Any successor trustee appointed as provided in
Section 11.07 hereof shall execute, acknowledge and deliver to the
Transferor and to its predecessor Trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee shall become effective and such successor trustee,
without any further act, deed or conveyance, shall become fully vested with
all the rights, powers, duties and obligations of its predecessor
hereunder, with the like effect as if originally named as Trustee herein.
The predecessor Trustee shall deliver to the successor trustee all
documents and statements held by it hereunder, and the Transferor and the
predecessor Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting
and confirming in the successor trustee all such rights, powers, duties and
obligations.
(b) No successor trustee shall accept appointment as
provided in this Section 11.08 unless at the time of such acceptance such
successor trustee shall be eligible under the provisions of Section 11.06
hereof.
(c) Upon acceptance of appointment by a successor trustee
as provided in this Section 11.08, such successor trustee shall mail notice
of such succession hereunder to all Certificateholders at their addresses
as shown in the Certificate Register.
Section 11.09 Merger or Consolidation of Trustee. Any Person into
which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be
eligible under the provisions of Section 11.06 hereof, without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 11.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this
Agreement, at any time, for the purpose of meeting any legal requirements
of any jurisdiction in which any part of the Trust may at the time be
located, the Trustee shall have the power and may execute and deliver all
instruments to appoint one or more Persons to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, of all or any part
of the Trust, and to vest in such Person or Persons, in such capacity and
for the benefit of the Certificateholders, such title to the trust, or any
part thereof, and, subject to the other provisions of this Section 11.10,
such powers, duties, obligations, rights and trusts as the Trustee may
consider necessary or desirable. No co-trustee or separate trustee
hereunder shall be required to meet the terms of eligibility as a successor
trustee under Section 11.06 and no notice to Certificateholders of the
appointment of any co-trustee or separate trustee shall be required under
Section 11.08 hereof.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) all rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or
imposed upon and exercised or performed by the Trustee and such
separate trustee or co-trustee jointly (it being understood that
such separate trustee or co-trustee is not authorized to act
separately without the Trustee joining in such act), except to the
extent that under any laws of any jurisdiction in which any
particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer hereunder), the Trustee
shall be incompetent or unqualified to perform such act or acts,
in which event such rights, powers, duties and obligations
(including the holding of title to the Trust or any portion
thereof in any such jurisdiction) shall be exercised and performed
singly by such separate trustee or co-trustee, but solely at the
direction of the Trustee;
(ii) no trustee hereunder shall be personally
liable by reason of any act or omission of any other trustee
hereunder; and
(iii) the Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate
trustees and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article XI. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect to this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
Section 11.11 Tax Returns. In the event the Trust shall be
required to file tax returns, the Servicer shall at its expense prepare or
cause to be prepared any tax returns required to be filed by the Trust and,
to the extent possible, shall remit such returns to the Trustee for
signature at least five days before such returns are due to be filed. The
Trustee is hereby authorized to sign any such return on behalf of the
Trust. The Servicer shall prepare or shall cause to be prepared all tax
information required by law to be distributed to Certificateholders and
shall deliver such information to the Trustee at least five days prior to
the date it is required by law to be distributed to Certificateholders. The
Trustee, upon request, will furnish the Servicer with all such information
known to the Trustee as may be reasonably required in connection with the
preparation of all tax returns of the Trust and shall, upon request,
execute such return. In no event shall the Trustee or the Servicer be
liable for any liabilities, costs or expenses of the Trust, the Investor
Certificateholders or the Certificate Owners arising under any tax law,
including without limitation federal, state, local or foreign income or
excise taxes or any other tax imposed on or measured by income (or any
interest or penalty with respect thereto or arising from a failure to
comply therewith).
Section 11.12 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action end claims under this Agreement or any
Series of Certificates may be prosecuted and enforced by the Trustee
without the possession of any of the Certificates or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by
the Trustee shall be brought in its own name as trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of any Series of
Certificateholders in respect of which such judgment has been obtained.
Section 11.13 Suits for Enforcement. If a Servicer Default shall
occur and be continuing, the Trustee, in its discretion may, subject to the
provisions of Section 10.01, proceed to protect and enforce its rights and
the rights of any Series of Certificateholders under this Agreement by a
suit, action or proceeding in equity or at law or otherwise, whether for
the specific performance of any covenant or agreement contained in this
Agreement or in aid of the execution of any power granted in this Agreement
or for the enforcement of any other legal, equitable or other remedy as the
Trustee, being advised by counsel, shall deem most effectual to protect and
enforce any of the rights of the Trustee or any Series of
Certificateholders.
Section 11.14 Rights of Certificateholders to Direct Trustee.
Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Aggregate Invested Amount (or, with respect to any
remedy, trust or power that does not relate to all Series, 50% of the
aggregate Invested Amount of the Investor Certificates of all Series to
which such remedy, trust or power relates) shall have the right to direct
the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that, subject to Section 11.01, the Trustee
shall have the right to decline to follow any such direction if the Trustee
being advised by counsel determines that the action so directed may not
lawfully be taken, or if the Trustee in good faith shall, by a Responsible
Officer or Responsible Officers of the Trustee, determine that the
proceedings so directed would be illegal or involve it in personal
liability or be unduly prejudicial to the rights of Certificateholders not
parties to such direction; and provided further that nothing in this
Agreement shall impair the right of the Trustee to take any action deemed
proper by the Trustee and which is not inconsistent with such direction of
such Holders of Investor Certificates.
Section 11.15 Representations and Warranties of Trustee. The
Trustee represents and warrants that:
(i) the Trustee is a Delaware chartered banking
corporation organized, existing and authorized to engage in the
business of banking under the laws of the United States of
America;
(ii) the Trustee has full power, authority and
right to execute, deliver and perform this Agreement, and has
taken all necessary action to authorize the execution, delivery
and performance by it of this Agreement; and
(iii) this Agreement has been duly executed and
delivered by the Trustee.
Section 11.16 Maintenance of Office or Agency. The Trustee will
maintain at its expense an office or offices, or agency or agencies, where
notices and demands to or upon the Trustee in respect of the Certificates
and this Agreement may be served. The Trustee initially appoints its
Corporate Trust Office as its office for such purposes. The Trustee will
give prompt written notice to the Servicer and to Certificateholders (or in
the case of Holders of Bearer Certificates, in the manner provided for in
the related Supplement) of any change in the location of the Certificate
Register or any such office or agency.
[End of Article XI]
ARTICLE XII
TERMINATION
Section 12.01 Termination of Trust.
(a) The respective obligations and responsibilities of
the Transferor, the Servicer and the Trustee created hereby (other than the
obligation of the Trustee to make payments to Certificateholders as
hereinafter set forth) shall terminate, except with respect to the duties
described in Section 8.04 and 11.05 and subsection 2.04(c) and 12.03(b), on
the Trust Termination Date; provided, however, that the Trust shall not
terminate on the date specified in clause (i) of the definition of "Trust
Termination Date" if each of the Servicer and the Holder of the
Exchangeable Transferor Certificate notify the Trustee in writing, not
later than five Business Days preceding such date, that they desire that
the Trust not terminate on such date, which notice (such notice, a "Trust
Extension") shall specify the date on which the Trust shall terminate (such
date, the "Extended Trust Termination Date"); provided, however, that the
Extended Trust Termination Date shall be not later than August 1, 2032. The
Servicer and the Holder of the Exchangeable Transferor Certificate may, on
any date following the Trust Extension, so long as no Series of
Certificates is outstanding, deliver a notice in writing to the Trustee
changing the Extended Trust Termination Date.
(b) In the event that (i) the Trust has not terminated by
the last Distribution Date occurring in the second month preceding the
Trust Termination Date, and (ii) the Invested Amount of any Series (after
giving effect to all transfers, withdrawals, deposits and drawings to occur
on such date and the payment of principal on any Series of Certificates to
be made on the related Distribution Date during such month pursuant to
Article IV) would be greater than zero, the Servicer shall sell within 30
days after such Transfer Date all the Receivables. The Servicer shall
notify each Enhancement Provider of the proposed sale of the Receivables
and shall provide each Enhancement Provider an opportunity to bid on the
Receivables. None of the Transferor, any Affiliate of the Transferor or any
agent of the Transferor shall be permitted to purchase such Receivables in
such case. The proceeds of any such sale shall be treated as Collections on
the Receivables and shall be allocated and deposited in accordance with
Article IV; provided, however, that the Trustee shall determine
conclusively in its sole discretion the amount of such proceeds which are
allocable to Finance Charge Receivables and the amount of such proceeds
which are allocable to Principal Receivables. During such thirty-day
period, the Servicer shall continue to collect payments on the Receivables
and allocate and deposit such payments in accordance with the provisions of
Article IV.
(c) All principal or interest with respect to any Series
of Investor Certificates shall be due and payable no later than the Series
Termination Date with respect to such Series. Unless otherwise provided in
a Supplement, in the event that the Invested Amount of any Series
of Certificates is greater than zero on its Series Termination Date, after
giving effect to all transfers, withdrawals, deposits and drawings to occur
on such date and the payment of principal to be made on such Series on such
date, the Trustee will sell or cause to be sold, and pay the proceeds to
all Certificateholders of such Series pro rata in final payment of all
principal of and accrued interest on such Series of Certificates, an amount
of Principal Receivables and the related Finance Charge Receivables (or
interests therein) up to 110% of the Invested Amount of such Series at the
close of business on such date (but not more than an amount of Receivables
equal to the sum of (1) the product of (A) the Transferor Percentage, (B)
the aggregate outstanding Principal Receivables and (C) a fraction the
numerator of which is the related Investor Percentage of Collections of
Finance Charge Receivables and the denominator of which is the sum of all
Investor Percentages with respect to Collections of Finance Charge
Receivables of all Series outstanding and (2) the Invested Amount of such
Series). The Trustee shall notify each Enhancement Provider of the proposed
sale of such Receivables and shall provide each Enhancement Provider an
opportunity to bid on such Receivables. None of the Transferor, any
Affiliate of the Transferor or any agent of the Transferor shall be
permitted to purchase such Receivables in such case. Any proceeds of such
sale in excess of such principal and interest paid shall be paid to the
Holder of the Exchangeable Transferor Certificate. Upon such Series
Termination Date with respect to the applicable Series of Certificates,
final payment of all amounts allocable to any Investor Certificates of such
Series shall be made in the manner provided in Section 12.03.
Section 12.02 Optional Purchase.
(a) If so provided in any Supplement, the Transferor (so
long as the Transferor is the Servicer or an Affiliate of the Servicer)
may, but shall not be obligated to, cause a final distribution to be made
in respect of the related Series of Certificates on a Distribution Date
specified in such Supplement by depositing into the Distribution Account or
the applicable Series Account, not later than the Transfer Date preceding
such Distribution Date, for application in accordance with Section 12.03,
the amount specified in such Supplement; provided, however that if the
short-term deposits or long-term unsecured debt obligations of the
Transferor (or, if neither such deposits nor such obligations of the
Transferor are rated by Xxxxx'x, then the short-term deposits or long-term
unsecured debt obligations of the holding company of the Transferor so long
as such holding company is BANK ONE CORPORATION) are not rated at the time
of such purchase of Receivables at least "P-3" or "Baa-3," respectively, by
Xxxxx'x, no such event shall occur unless the Transferor shall deliver an
Opinion of Counsel or an Officer's Certificate reasonably acceptable to the
Trustee that such deposit into the Distribution Account or any Series
Account as provided in the related Supplement would not constitute a
fraudulent conveyance of the Transferor.
(b) The amount deposited pursuant to subsection 12.02(a)
shall be paid to the Investor Certificateholders of the related Series
pursuant to Section 12.03 on the related Distribution Date following the
date of such deposit. All Certificates of a Series which are purchased by
the Transferor pursuant to subsection 12.02(a) shall be delivered by the
Transferor upon such purchase to, and be canceled by, the Transfer Agent
and Registrar and be disposed of in a manner satisfactory to the Trustee
and the Transferor. The Invested Amount of each Series which is purchased
by the Transferor pursuant to subsection 12.02(a) shall, for the purposes
of the definition of "Transferor Interest," be deemed to be equal to zero
on the Distribution Date following the making of the deposit, and the
Transferor Interest shall thereupon be deemed to have been increased by the
Invested Amount of such Series.
Section 12.03 Final Payment with Respect to any Series.
(a) Written notice of any termination, specifying the
Distribution Date upon which the Investor Certificateholders of any Series
may surrender their Certificates for payment of the final distribution with
respect to such Series and cancellation, shall be given (subject to at
least two Business Days' prior notice from the Servicer to the Trustee) by
the Trustee to Investor Certificateholders of such Series mailed not later
than the fifth day of the month of such final distribution (or in the
manner provided by the Supplement relating to such Series) specifying (i)
the Distribution Date (which shall be the Distribution Date in the month
(x) in which the deposit is made pursuant to subsection 2.04(e), 9.02(a),
10.02(a), or subsection 12.02(a) of the Agreement or such other section as
may be specified in the related Supplement, or (y) in which the related
Series Termination Date occurs) upon which final payment of such Investor
Certificates will be made upon presentation and surrender of such Investor
Certificates at the office or offices therein designated (which, in the
case of Bearer Certificates, shall be outside the United States of
America), (ii) the amount of any such final payment and (iii) that the
Record Date otherwise applicable to such Distribution Date is not
applicable, payments being made only upon presentation and surrender of the
Investor Certificates at the office or offices therein specified. The
Servicer's notice to the Trustee in accordance with the preceding sentence
shall be accompanied by an Officers' Certificate setting forth the
information specified in Article V of this Agreement covering the period
during the then current calendar year through the date of such notice and
setting forth the date of such final distribution. The Trustee shall give
such notice to the Transfer Agent and Registrar and the Paying Agent at the
time such notice is given to such Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant
to subsection 12.01(a) or the occurrence of the Series Termination Date
with respect to any Series, all funds then on deposit in the Finance Charge
Account, the Principal Account, the Distribution Account or any Series
Account applicable to the related Series shall continue to be held in trust
for the benefit of the Certificateholders of the related Series and the
Paying Agent or the Trustee shall pay such funds to the Certificateholders
of the related Series upon surrender of their Certificates (which
surrenders and payments, in the case of Bearer Certificates, shall be made
only outside the United States of America). In the event that all of the
Investor Certificateholders of any Series shall not surrender their
Certificates for cancellation within six months after the date specified in
the above-mentioned written notice, the Trustee shall give a second written
notice (or, in the case of Bearer Certificates, publication notice) to the
remaining Investor Certificateholders of such Series upon receipt of the
appropriate records from the Transfer Agent and Registrar to surrender
their Certificates for cancellation and receive the final distribution with
respect thereto. If within one and one half years after the second notice
with respect to a Series, all the Investor Certificates of such Series
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps or may appoint an agent to take appropriate steps, to
contact the remaining Investor Certificateholders of such Series concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the funds in the Distribution Account or any Series Account held for the
benefit of such Investor Certificateholders. The Trustee and the Paying
Agent shall pay to the Transferor upon request any monies held by them for
the payment of principal or interest which remains unclaimed for two years.
After payment to the Transferor, Investor Certificateholders entitled to
the money must look to the Transferor for payment as general creditors
unless an applicable abandoned property law designates another Person.
(c) All Certificates surrendered for payment of the final
distribution with respect to such Certificates and cancellation shall be
canceled by the Transfer Agent and Registrar and be disposed of in a manner
satisfactory to the Trustee and the Transferor.
Section 12.04 Termination Rights of Holder of Exchangeable
Transferor Certificate. Upon the termination of the Trust pursuant to
Section 12.01, and after payment of all amounts due hereunder on or prior
to such termination and, if there is a currently existing Exchangeable
Transferor Certificate, the surrender of the Exchangeable Transferor
Certificate, the Trustee shall execute a written reconveyance substantially
in the form of Exhibit H pursuant to which it shall reconvey to the Holder
of the Exchangeable Transferor Certificate (without recourse,
representation or warranty) all right, title and interest of the Trust in
the Receivables, whether then existing or thereafter created, all moneys
due or to become due with respect thereto (including all accrued interest
theretofore posted as Finance Charge Receivables) and all proceeds thereof
and Insurance Proceeds relating thereto and Interchange (if any) allocable
to the Trust pursuant to any Supplement, except for amounts held by the
Trustee pursuant to subsection 12.03(b). The Trustee shall execute and
deliver such instruments of transfer and assignment, in each case without
recourse, as shall be reasonably requested by the Holder of the
Exchangeable Transferor Certificate to vest in such Holder all right, title
and interest which the Trust had in the Receivables (and any costs or
expenses incurred by the Trustee in connection with such reconveyances
shall be reimbursed by the Servicer).
[End of Article XII]
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment.
(a) This Agreement or any Supplement may be amended in
writing from time to time by the Servicer, the Transferor and the Trustee,
without the consent of any of Certificateholders; provided, that such
action shall not, (i) as evidenced by an Opinion of Counsel for the
Transferor addressed and delivered to the Trustee, adversely affect in any
material respect the interests of any Investor Certificateholder or (ii) as
evidenced by an Officer's Certificate from the Transferor, significantly
change the Permitted Activities of the Trust; provided further, that each
Rating Agency shall have notified the Transferor, the Servicer and the
Trustee in writing that such action will not result in a reduction or
withdrawal of the rating of any outstanding Series or Class to which it is
a Rating Agency and provided, further, that the Trustee may, but shall not
be obligated to, enter into any such amendment which materially affects the
Trustee's rights, duties or immunities under this Agreement or otherwise.
(b) This Agreement or any Supplement may also be amended
in writing from time to time by the Servicer, the Transferor and the
Trustee (x) with the consent of the Holders of Investor Certificates
evidencing Undivided Interests aggregating not less than 662/3% of the
Invested Amount of each outstanding Series adversely affected by such
amendment for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or any
Supplement or modifying in any manner the rights of Investor
Certificateholders of any Series then issued and outstanding or (y) with
the consent of the Holders of Investor Certificates evidencing Undivided
Interests aggregating more than 50% of the Invested Amount of each
outstanding Series for the purpose of significantly changing the Permitted
Activities of the Trust if such amendment shall not, as evidenced by an
Officer's Certificate, adversely affect in any material respect the
interests of any Investor Certificateholder; provided, however, that no
such amendment shall (i) reduce in any manner the amount of, or delay the
timing of, distributions which are required to be made on any Investor
Certificates of such Series without the consent of each Investor
Certificateholders of such Series, (ii) change the definition of or the
manner of calculating the Invested Amount, the Investor Percentage or the
Investor Default Amount of such Series without the consent of each Investor
Certificateholder of such Series or (iii) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of each
Investor Certificateholder of all Series adversely affected. The Trustee
may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's rights, duties or immunities under this Agreement or
otherwise.
(c) Notwithstanding anything in this Section 13.01 to the
contrary, the Series Supplement with respect to any Series may be amended
on the items and in accordance with the procedures provided in such Series
Supplement.
(d) Promptly after the execution of any such amendment
(other than an amendment pursuant to paragraph (a)), the Trustee shall
furnish notification of the substance of such amendment to each Investor
Certificateholder of each Series adversely affected and 10 Business Days
prior to the proposed effective date for such amendment the Trustee shall
furnish notification of the substance of such amendment to each Rating
Agency providing a rating for such Series.
(e) It shall not be necessary for the consent of Investor
Certificateholders under this Section 13.01 to approve the particular form
of any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Investor
Certificateholders shall be subject to such reasonable requirements as the
Trustee may prescribe.
(f) Any Series Supplement executed and delivered pursuant
to Section 6.09 and any amendments regarding the addition to or removal of
Receivables from the Trust as provided in Sections 2.06 and 2.07, executed
in accordance with the provisions hereof, shall not be considered
amendments to this Agreement for the purpose of subsections 13.01(a) and
(b).
(g) In connection with any amendment, the Trustee may
request an Opinion of Counsel from the Transferor or Servicer to the effect
that the amendment complies with all requirements of this Agreement.
Section 13.02 Protection of Right, Title and Interest to Trust.
(a) The Servicer shall cause this Agreement, all
amendments hereto and/or all financing statements and continuation
statements and any other necessary documents covering the
Certificateholders and the Trustee's right, title and interest to the Trust
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 Certificateholders or the Trustee, as the case may be,
hereunder to all property comprising the Trust. The Servicer shall deliver
to the Trustee file-stamped copies of, or filing receipts for, any document
recorded, registered or filed as provided above, as soon as available
following such recording, registration or filing. The Transferor shall
cooperate fully with the Servicer in connection with the obligations set
forth above and will execute any and all documents reasonably required to
fulfill the intent of this subsection 13.02(a).
(b) Within 30 days after the Transferor makes any change
in its name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph (a)
above materially misleading within the meaning of Section 9- 506 of the UCC
as in effect in the State of Delaware, the Transferor shall give the
Trustee notice of any such change and shall file such financing statements
or amendments as may be necessary to continue the perfection of the Trust's
security interest in the Receivables and the proceeds thereof.
(c) Each of the Transferor and the Servicer will give the
Trustee prompt written notice of any change in the jurisdiction in which it
is located (as such location is determined pursuant to Section 9-307 of the
UCC) and whether, as a result of such relocation, the applicable provisions
of the UCC would require the filing of any amendment of any previously
filed financing or continuation statement or of any new financing statement
and shall file such financing statements or amendments as may be necessary
to continue the perfection of the Trust's security interest in the
Receivables and the proceeds thereof. Each of the Transferor and the
Servicer will at all times maintain each office from which it services
Receivables and its principal executive office within the United States of
America.
(d) The Transferor will deliver to the Trustee: (i) upon
each date that any Additional Accounts are to be included in the Accounts
pursuant to Section 2.06, an Opinion of Counsel substantially in the form
of Exhibit E; and (ii) on or before March 31 of each year, beginning with
March 31, 1992, an Opinion of Counsel, substantially in the form of Exhibit
F.
Section 13.03 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Investor
Certificateholder shall not operate to terminate this Agreement or the
Trust, nor shall such death or incapacity entitle such Certificateholder's
legal representatives or heirs to claim an accounting or to take any action
or commence any proceeding in any court for a partition or winding up of
the Trust, nor otherwise affect the rights, obligations and liabilities of
the parties hereto or any of them.
(b) No Investor Certificateholder shall have any right to
vote (except with respect to the Investor Certificateholders as provided in
Section 13.01 hereof) or in any manner otherwise control the operation and
management of the Trust, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as members of an association; nor shall any Investor
Certificateholder be under any liability to any third person by reason of
any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue
of any provisions of this Agreement to institute any suit, action or
proceeding in equity or at law upon or under or with respect to this
Agreement, unless such Certificateholder previously shall have given
written notice to the Trustee, and unless the Holders of Certificates
evidencing Undivided Interests aggregating more than 50% of the Invested
Amount of any Series which may be adversely affected but for the
institution of such suit, action or proceeding, shall have made written
request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee
such reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee, for 60 days
after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding;
it being understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that
no one or more Certificateholders shall have the right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the
Certificateholders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Certificateholder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section 13.03, each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 13.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 13.05 Notices. All demands, notices, instructions,
directions and communications under this Agreement shall be in writing and
shall be deemed to have been duly given if personally delivered at, mailed
by registered mail, return receipt requested, or sent by facsimile
transmission (i) in the case of the Transferor or the Servicer, to 000
Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxx,
(facsimile no. (000) 000-0000), with a copy to First USA Bank, National
Association, 0000 Xxx Xxxxxx 00xx Xxxxx, Xxxxxx, Xxxxx 00000, Attention:
Gavra Flood, (facsimile no. (000) 000-0000) and to BANK ONE CORPORATION, 1
Bank Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx, Attention: Xxxxxx
Xxxxxxx, (facsimile no. (000) 000-0000), and with a copy to BANK ONE
CORPORATION, 1 Bank Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx,
Attention: Xxxxx Xxxxxxxxxxx, (facsimile no. (000) 000-0000), (ii) in the
case of the Trustee, to the Corporate Trust Office, (iii) in the case of
the Enhancement Provider for a particular Series, the address, if any,
specified in the Supplement relating to such Series and (iv) in the case of
the Rating Agency for a particular Series, the address, if any, specified
in the Supplement relating to such Series; or, as to each party, at such
other address or facsimile number as shall be designated by such party in a
written notice to each other party. Unless otherwise provided with respect
to any Series in the related Supplement any notice required or permitted to
be mailed to a Certificateholder shall be given by first class mail,
postage prepaid, at the address of such Certificateholder as shown in the
Certificate Register, or with respect to any notice required or permitted
to be made to the Holders of Bearer Certificates, by publication in the
manner provided in the related Supplement. If and so long as any Series or
Class is listed on the Luxembourg Stock Exchange and such exchange shall so
require, any notice to Investor Certificateholders shall be published in an
authorized newspaper of general circulation in Luxembourg within the time
period prescribed in this Agreement. Any notice so mailed within the time
prescribed in this Agreement shall be conclusively presumed to have been
duly given, whether or not the Certificateholder receives such notice.
Section 13.06 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or rights of the Certificateholders
thereof.
Section 13.07 Assignment. Notwithstanding anything to the contrary
contained herein, except as provided in Section 8.02, this Agreement may
not be assigned by the Servicer without the prior consent of Holders of
Investor Certificates evidencing Undivided Interests aggregating not less
than 66 2/3% of the Invested Amount of each Series on a Series by Series
basis.
Section 13.08 Certificates Non-Assessable and Fully Paid. It is
the intention of the parties to this Agreement that the Certificateholders
shall not be personally liable for obligations of the Trust, that the
Undivided Interests represented by the Certificates shall be non-assessable
for any losses or expenses of the Trust or for any reason whatsoever, and
that Certificates upon authentication thereof by the Trustee pursuant to
Sections 2.01 and 6.02 are and shall be deemed fully paid.
Section 13.09 Further Assurances. The Transferor and the Servicer
agree to do and perform, from time to time, any and all acts and to execute
any and all further instruments required or reasonably requested by the
Trustee more fully to effect the purposes of this Agreement, including,
without limitation, the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
Section 13.10 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee, any
Enhancement Provider or the Investor Certificateholders, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights, remedies, powers
and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
Section 13.11 Counterparts. This Agreement may be executed in two
or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall
constitute one and the same instrument.
Section 13.12 Third-Party Beneficiaries. This Agreement will inure
to the benefit of and be binding upon the parties hereto, the
Certificateholders and, to the extent provided in the related Supplement,
to the Enhancement Provider named therein, and their respective successors
and permitted assigns. Except as otherwise provided in this Article XIII,
no other Person will have any right or obligation hereunder.
Section 13.13 Actions by Certificateholders.
(a) Wherever in this Agreement a provision is made that
an action may be taken or a notice, demand or instruction given by Investor
Certificateholders, such action, notice or instruction may be taken or
given by any Investor Certificateholder, unless such provision requires a
specific percentage of Investor Certificateholders.
(b) Any request, demand, authorization, direction,
notice, consent, waiver or other act by a Certificateholder shall bind such
Certificateholder and every subsequent holder of such Certificate issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done or omitted to be done by the
Trustee or the Servicer in reliance thereon, whether or not notation of
such action is made upon such Certificate.
Section 13.14 Rule 144A Information. For so long as any of the
Investor Certificates of any Series or any Class are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
each of the Transferor, the Servicer, the Trustee and the Enhancement
Provider for such Series agree to cooperate with each other to provide to
any Investor Certificateholders of such Series or Class and to any
prospective purchaser of Certificates designated by such an Investor
Certificateholder upon the request of such Investor Certificateholder or
prospective purchaser, any information required to be provided to such
holder or prospective purchaser to satisfy the condition set forth in Rule
144A(d)(4) under the Securities Act.
Section 13.15 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding
of the parties relating to the subject matter hereof, and all prior
understandings, written or oral, are superseded by this Agreement. This
Agreement may not be modified, amended, waived or supplemented except as
provided herein.
Section 13.16 Heading. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
Section 13.17 Characterization of the Trust. For purposes of SFAS
140, the parties hereto intend that the Trust shall be treated as a
"qualifying special purpose entity" as such term is used in SFAS 140 and
any successor rule thereto and its permitted activities shall be limited in
accordance with paragraph 35 thereof.
If the transfer of the Receivables to the Trustee is
characterized as a loan to the Transferor secured by Receivables, the
Transferor, in such circumstances, agrees that it does not have the right
to prepay such loan prior to the maturity date thereof under any
circumstances and does hereby irrevocably waive and relinquish such right.
Section 13.18 Nonpetition Covenants. Notwithstanding any prior
termination of this Agreement, the parties hereto shall not, prior to the
date that is one year and one day from the date on which there are no
Securities outstanding, with respect to the Transferor or the Trust
acquiesce, petition or otherwise invoke or cause the Transferor or the
Trust to invoke the process of any court or government authority for the
purpose of commencing or sustaining a case against the Transferor or the
Trust under any federal or state bankruptcy, insolvency or similar law, or
appointing a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of the Transferor or the Trust or
any substantial part of its property, or ordering the winding up or
liquidation of the affairs of the Transferor or the Trust.
[End of Article XIII]
IN WITNESS WHEREOF, the Transferor, the Servicer and the
Trustee have caused this Agreement to be duly executed by their respective
officers as of the day and year first above written.
FIRST USA BANK, NATIONAL
ASSOCIATION, as Transferor
and Servicer
By:________________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By:________________________________
Name:
Title:
Exhibit A
----------
[FORM OF EXCHANGEABLE TRANSFEROR CERTIFICATE]
No.______ One Unit
FIRST USA CREDIT CARD MASTER TRUST
ASSET BACKED CERTIFICATE
THIS CERTIFICATE WAS ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY BE SOLD
ONLY PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE ACT OR AN
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE ACT. IN ADDITION, THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO RESTRICTIONS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. A COPY OF THE POOLING
AND SERVICING AGREEMENT WILL BE FURNISHED TO THE HOLDER OF THIS CERTIFICATE
BY THE TRUSTEE UPON WRITTEN REQUEST.
This Certificate represents an
Undivided Interest in the
First USA Credit Card Master Trust
Evidencing an Undivided Interest in a trust, the corpus of which consists
of a portfolio of VISA(R) and MasterCard(R) credit card receivables
generated or acquired by First USA Bank, National Association and other
assets and interests constituting the Trust under the Pooling and Servicing
Agreement described below.
(Not an interest in or a recourse obligation of First USA Bank,
National Association or any Affiliate thereof.)
This certifies that FIRST USA BANK, NATIONAL ASSOCIATION
(the "Holder") is the registered owner of an undivided interest in a trust
(the "Trust"), the corpus of which consists of a portfolio of receivables
(the "Receivables") now existing or hereafter created under selected
VISA(R) and MasterCard(R) credit card accounts (the "Accounts") of First
USA Bank, National Association (the "Transferor"), a national banking
association organized under the laws of the United States, all monies due
in payment of the Receivables, all proceeds of such Receivables and
Insurance Proceeds relating to the Receivables, and the other assets and
interests constituting the Trust pursuant to the Amended and Restated
Pooling and Servicing Agreement, dated as of [ ], 2002, as the same may be
further amended, supplemented or otherwise modified, including as
supplemented by any Supplement relating to a Series of Investor
Certificates (the "Pooling and Servicing Agreement"), by and between First
USA Bank, National Association, as Transferor and Servicer, and The Bank of
New York (Delaware), as Trustee (the "Trustee"), a summary of certain of
the pertinent provisions of which is set forth hereinbelow.
To the extent not defined herein, the capitalized terms
used herein have the meanings assigned in the Pooling and Servicing
Agreement. This Certificate is issued under and is subject to the terms,
provisions and conditions of the Pooling and Servicing Agreement, to which
Pooling and Servicing Agreement, as amended from time to time, the Holder
by virtue of the acceptance hereof assents and by which the Holder is
bound.
This Certificate has not been registered or qualified
under the Securities Act of 1933, as amended, or any state securities law.
No sale, transfer or other disposition of this Certificate shall be
permitted other than in accordance with the provisions of Sections 6.03,
6.09 or 7.02 of the Pooling and Servicing Agreement.
The Receivables consist of Principal Receivables which
arise generally from the purchase of goods and services and of amounts
advanced to cardholders as cash advances, and of Finance Charge Receivables
which arise generally from Periodic Finance Charges and other fees and
charges, as more fully specified in the Pooling and Servicing Agreement.
This Certificate is the Exchangeable Transferor
Certificate (the "Certificate"), which represents an Undivided Interest in
the Trust, including the right to receive the Collections and other amounts
at the times and in the amounts specified in the Pooling and Servicing
Agreement to be paid to the Holder of the Exchangeable Transferor
Certificate. The aggregate interest represented by this Certificate at any
time in the Principal Receivables in the Trust shall not exceed the
Transferor Interest at such time. In addition to this Certificate, one or
more Series of Investor Certificates will be issued to investors pursuant
to the Pooling and Servicing Agreement, each of which will represent an
Undivided Interest in the Trust. This Certificate shall not represent any
interest in the Investor Accounts, any Series Accounts or any Enhancement,
except to the extent provided in the Pooling and Servicing Agreement. The
Transferor Interest on any date of determination will be an amount equal to
the aggregate amount of Principal Receivables at the end of the day
immediately prior to such date of determination minus the Aggregate
Invested Amount at the end of such day.
The Servicer shall deposit all Collections in the
Collection Account as promptly as possible after the Date of Processing of
such Collections, but in no event later than the second Business Day
following such Date of Processing (except as provided below and except as
provided in any Supplement to the Pooling and Servicing Agreement). Unless
otherwise stated in any Supplement, throughout the existence of the Trust,
the Servicer shall allocate to the Holder of this Certificate an amount
equal to the product of (A) the Transferor Percentage and (B) the aggregate
amount of such Collections allocated to Principal Receivables and Finance
Charge Receivables, respectively, in respect of each Monthly Period.
Notwithstanding the first sentence of this paragraph, the Servicer need not
deposit this amount or any other amounts so allocated to this Certificate
pursuant to the Pooling and Servicing Agreement into the Collection Account
and shall pay, or be deemed to pay, such amounts as collected to the Holder
of this Certificate.
First USA Bank, National Association, as Servicer, is
entitled to receive as servicing compensation a monthly servicing fee. The
portion of the servicing fee which will be allocable to the Holder of this
Certificate pursuant to the Pooling and Servicing Agreement will be payable
by the Holder of this Certificate and neither the Trust nor the Trustee or
the Investor Certificateholders will have any obligation to pay such
portion of the servicing fee.
This Certificate does not represent a recourse obligation
of, or any interest in, the Transferor or the Servicer, and neither this
Certificate, any Investor Certificates nor the Accounts or Receivables are
insured or guaranteed by the Federal Deposit Insurance Corporation or any
other governmental agency. This Certificate is limited in right of payment
to certain Collections respecting the Receivables, all as more specifically
set forth hereinabove and in the Pooling and Servicing Agreement.
Upon the termination of the Trust pursuant to Section
12.01 of the Pooling and Servicing Agreement, the Trustee shall assign and
convey to the Holder of this Certificate (without recourse, representation
or warranty) all right, title and interest of the Trust in the Receivables,
whether then existing or thereafter created, and all proceeds thereof and
Insurance Proceeds relating thereto. The Trustee shall execute and deliver
such instruments of transfer and assignment, in each case without recourse,
as shall be reasonably requested by the Holder of this Certificate to vest
in such Holder all right, title and interest which the Trustee had in the
Receivables.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this
Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, First USA Bank, National Association
has caused this Certificate to be duly executed on this day of , .
FIRST USA BANK, NATIONAL ASSOCIATION
By:_________________________________
Name:
Title:
CERTIFICATE OF AUTHENTICATION
This is the Exchangeable Transferor Certificate referred
to in the within- mentioned Pooling and Servicing Agreement.
THE BANK OF NEW YORK (DELAWARE),
as Authenticating Agent
By:________________________________
Name:
Title:
Date: _____ __, ____
Exhibit B
---------
[FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS]
ASSIGNMENT No. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS,
dated as of ________ __, ____ by and between FIRST USA BANK, NATIONAL
ASSOCIATION, a national banking association organized under the laws of the
United States (the "Bank"), and THE BANK OF NEW YORK (DELAWARE), in its
capacity as trustee of the First USA Credit Card Master Trust (the "Trust")
under the Pooling and Servicing Agreement referred to below (in such
capacity, the "Trustee"), and acknowledged by FIRST USA BANK, NATIONAL
ASSOCIATION, a national banking association organized under the laws of the
United States of America, in its capacity as servicer under the Pooling and
Servicing Agreement referred to below (in such capacity, the "Servicer").
W I T N E S S E T H:
WHEREAS, pursuant to subsection 2.06(a) or subsection
2.06(b) of the Amended and Restated Pooling and Servicing Agreement, dated
as of [ ], 2002, by and between the Bank, as Transferor and Servicer, and
the Trustee (hereinafter as such agreement may have been, or may from time
to time be, amended, supplemented or otherwise modified, the "Pooling and
Servicing Agreement"), the Bank wishes to designate Additional Accounts of
the Bank to be included as Accounts and to convey hereby the Receivables of
the Additional Accounts to be conveyed by the Bank, whether now existing or
hereafter created, to the Trust as part of the corpus of the Trust (as each
such term is defined in the Pooling and Servicing Agreement); and
WHEREAS, the Trustee is willing to accept such
designation and conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Bank and the Trustee hereby agree as
follows:
(1) Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings when
used herein, unless otherwise defined herein.
"Addition Cut-Off Date" shall mean, with respect
to the Additional Accounts, _______ ___, ____.
"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 fifth Business Day prior to the
Addition Date with respect to additions pursuant to subsection
2.06(a) of the Pooling and Servicing Agreement and the tenth
Business Day prior to the Addition Date with respect to additions
pursuant to subsection 2.06(b) of the Pooling and Servicing
Agreement).
(2) Designation of Additional Accounts. The Bank shall
deliver to the Trustee not later than five Business Days after the Addition
Date, a computer file or microfiche list 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 Account, such accounts being
identified by account number and by the amount of Receivables in such
accounts 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
Agreement and, as of the Addition Date, shall be incorporated into and made
a part of this Assignment.
(3) Conveyance of Receivables. (A) The Bank does hereby
transfer, assign, set-over and otherwise convey to the Trust for the
benefit of the Certificateholders, without recourse on and after the
Addition Date, all right, title and interest of the Bank in and to the
Receivables now existing and hereafter created in the Additional Accounts
designated hereby, all monies due or to become due with respect thereto
(including all Finance Charge Receivables) and all proceeds of such
Receivables.
(B) In connection with such transfers, the Bank
has executed, recorded and filed on _______________ __, 2002 in
the office of the Secretary of State of the State of Delaware a
financing statement naming "First USA Bank, National Association"
as debtor and "The Bank of New York (Delaware), as trustee of
First USA Credit Card Master Trust" as secured party,
acknowledgment number __________, identifying as collateral all
Receivables now existing and hereafter created in any Accounts,
which financing statement covers the Receivables now existing and
hereafter created in the Additional Accounts listed on Schedule 1
hereto, meeting the requirements of applicable Delaware law and
such filing has not been amended or terminated. The Bank has
delivered a file stamped copy of such UCC-1 financing statement to
the Trustee prior to the date of this Assignment.
(C) In connection with such transfers, the Bank
further agrees, at its own expense, on or prior to the date of
this Assignment, to indicate in its computer files that
Receivables created in connection with the Additional Accounts
designated hereby have been transferred to the Trust pursuant to
this Assignment for the benefit of the Certificateholders.
(D) It is the intention of the parties hereto
that all transfers of Receivables to the Trust 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 Bank pursuant to this
Assignment shall be deemed to no longer by the property, assets or
rights of the Bank. 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.
(4) Acceptance by Trustee. The Trustee hereby
acknowledges its acceptance on behalf of the Trust for the benefit of the
Certificateholders of all right, title and interest previously held by the
Bank in and to the Receivables in the Additional Accounts now existing and
hereafter created, and declares that it shall maintain such right, title
and interest, upon the trust herein set forth, for the benefit of all
Certificateholders.
(5) Representations and Warranties of the Bank. The Bank
hereby represents and warrants to the Trustee on behalf of the Trust as of
the Addition Date:
(A) Legal, Valid and Binding Obligation. This
Assignment constitutes a legal, valid and binding obligation of
the Bank enforceable against the Bank in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement
of creditors' rights in general and the rights of creditors of
national banking associations and except as such enforceability
may be limited by general principles of equity (whether considered
in a suit at law or in equity).
(B) Eligibility of Accounts and Receivables.
Each Additional Account designated hereby was, as of the related
Addition Cut-Off Date, an Eligible Account, and each Receivable in
such Additional Account was, as of the related Addition Cut-Off
Date, an Eligible Receivable.
(C) Selection Procedures. No selection
procedures believed by the Bank to be materially adverse to the
interests of the Investor Certificateholders were utilized in
selecting the Additional Accounts designated hereby from the
available Eligible Accounts in the Bank Portfolio.
(D) Insolvency. The Bank is not insolvent and,
after giving effect to the conveyance set forth in Section 3 of
this Assignment, will not be insolvent.
(E) Security Interest. This Assignment
constitutes either (i) a valid transfer and assignment to the
Trust of all right, title and interest of the Bank in and to
Receivables now existing and hereafter created in the Additional
Accounts designated on Schedule 1 hereto and all proceeds (as
defined in the UCC as in effect in the State of Delaware) of such
Receivables, and such Receivables and any proceeds thereof will be
held by the Trust free and clear of any Lien of any Person
claiming through or under the Bank or any of its Affiliates except
for (x) Liens permitted under subsection 2.05(b) of the Pooling
and Servicing Agreement, (y) the interest of the Holder of the
Exchangeable Transferor Certificate and (z) the Bank's right to
receive interest accruing on, and investment earnings in respect
of, the Finance Charge Account and the Principal Account or any
Series Account as provided in the Pooling and Servicing Agreement
and any Supplement; or (ii) a transfer for security of all of the
Bank's right, title and interest in such property to the Trust,
which is enforceable with respect to the existing Receivables of
the Additional Accounts designated hereby and the proceeds (as
defined in the UCC as in effect in the State of Delaware) thereof
upon the conveyance of such Receivables to the Trust, and which
will be enforceable with respect to the Receivables thereafter
created in respect of Additional Accounts designated hereby and
the proceeds (as defined in the UCC as in effect in the State of
Delaware) thereof, upon such creation; and (iii) if this
Assignment constitutes a transfer for security to the Trust in
such property, the conveyance in Section 3(a) is effective to
assign to the Trust a first priority perfected security interest
in all of the Bank's right, title and interest in the existing
Receivables of the Additional Accounts designated hereby and in
the case of Receivables of such Additional Accounts hereafter
created and the proceeds (as defined in the UCC as in effect in
the State of Delaware) thereof, upon such creation, the Trust
shall have a first priority perfected security interest in all of
the Bank's right, title and interest in such property (subject to
Section 9-306 of the UCC as in effect in the State of Delaware),
except for Liens permitted under subsection 2.05(b) of the Pooling
and Servicing Agreement.
(6) Conditions Precedent. The acceptance by the Trustee
set forth in Section 4 and the amendment of the Pooling and Servicing
Agreement set forth in Section 7 are subject to the satisfaction, on or
prior to the Addition Date, of the following conditions precedent:
(A) Officer's Certificate. The Bank shall have
delivered to the Trustee a certificate of a Vice President or more
senior officer substantially in the form of Schedule 2 hereto,
certifying that (i) all requirements set forth in Section 2.06 of
the Pooling and Servicing Agreement for designating Additional
Accounts and conveying the Principal Receivables of such Accounts,
whether now existing or hereafter created, have been satisfied and
(ii) each of the representations and warranties made by the Bank
in Section 5 is true and correct as of the Addition Date. The
Trustee 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.
(B) Additional Information. The Bank shall have
delivered to the Trustee such information as was reasonably
requested by the Trustee to satisfy itself as to the accuracy of
the representation and warranty set forth in subsection 5(D) of
this Assignment.
(7) Amendment of the Pooling and Servicing Agreement. The
Pooling and Servicing Agreement is hereby amended to provide that all
references therein to the "Pooling and Servicing Agreement," to "this
Agreement" and "herein" shall be deemed from and after the Addition Date to
be a dual reference to the Pooling and Servicing Agreement as supplemented
by this Assignment and all references therein to Additional Accounts shall
be deemed to include all accounts listed on Schedule 1 hereto. Except as
expressly amended hereby, all of the representations, warranties, terms,
covenants and conditions of the Pooling and Servicing Agreement shall
remain unamended and shall continue to be, and shall remain, in full force
and effect in accordance with its terms and except as expressly provided
herein shall not constitute or be deemed to constitute a waiver of
compliance with or a consent to noncompliance with any term or provision of
the Pooling and Servicing Agreement.
(8) Counterparts. This Assignment may be executed in two
or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall
constitute one and the same instrument.
(9) Governing Law. THIS ASSIGNMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE, WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS.
(10) Removal Upon Breach. In the event of a breach of any
of the warranties set forth in subsection 5(B) other than a breach
or event set forth in subsection 2.04(d)(i) of the Pooling and
Servicing Agreement, if as a result of such breach the related
Account becomes a Defaulted Account or the Trust's rights in, to
or under any Receivable arising in such Account or its proceeds
are impaired or the proceeds of such Receivable are not available
for any reason to the Trust free and clear of any Lien, then upon
the expiration of 60 days (or such longer period as may be agreed
to by the Trustee in its sole discretion, but in no event later
than 120 days) from the earlier to occur of the discovery of any
such event by either the Transferor or the Servicer, or receipt by
the Transferor or the Servicer, of written notice of any such
event given by the Trustee, each such Receivable shall be removed
from the Trust on the terms and conditions set forth in subsection
2.04(d)(iii) of the Pooling and Servicing Agreement as though such
Receivable were removed pursuant to subsection 2.04(d)(ii) of the
Pooling and Servicing Agreement; provided, however, that no such
removal shall be required to be made if, on any day within such
applicable period, such representations and warranties with
respect to such Receivable shall then be true and correct in all
material respects as if such Receivable had been created on such
day.
IN WITNESS WHEREOF, the undersigned have caused this
Assignment of Receivables in Additional Accounts to be duly executed and
delivered by their respective duly authorized officers on the day and year
first above written.
FIRST USA BANK, NATIONAL ASSOCIATION,
By:__________________________________
Name:
Title:
THE BANK OF NEW YORK
(DELAWARE), as Trustee
of First USA Credit
Card Master Trust
By:__________________________________
Name:
Title:
acknowledged by:
FIRST USA BANK, NATIONAL ASSOCIATION
as Servicer
By: _____________________________
Name:
Title:
Schedule 1
to Assignment of
Receivables in
Additional Accounts
ADDITIONAL ACCOUNTS
-------------------
[Delivered to the Trustee]
Schedule 2
to Assignment of
Receivables in
Additional Accounts
First USA Bank, National Association
First USA Credit Card Master Trust
Officer's Certificate
____________________, a duly authorized officer of First
USA Bank, National Association, a national banking association (the
"Bank"), hereby certifies and acknowledges on behalf of the Bank that to
the best of [her/his] knowledge the following statements are true on
, (the "Addition Date"), and acknowledges on behalf of the Bank that
this Officer's Certificate will be relied upon by The Bank of New York
(Delaware), as Trustee (the "Trustee") of the First USA Credit Card Master
Trust in connection with the Trustee entering into Assignment No. of
Receivables in Additional Accounts, dated as of the related Addition Date
(the "Assignment"), by and between the Bank and the Trustee, in connection
with the Amended and Restated Pooling and Servicing Agreement, dated as of
[ ], 2002 (as heretofore supplemented and amended, the "Pooling and
Servicing Agreement"), by and between the Bank, as Transferor and Servicer,
and the Trustee. The undersigned hereby certifies and acknowledges on
behalf of the Bank that:
(a) Delivery of Assignment. On or prior to the Addition
Date, (i) the Bank has delivered to the Trustee the Assignment (including
an acceptance by the Trustee on behalf of the Trust for the benefit of the
Investor Certificateholders), (ii) the Bank has indicated in its computer
files that the Receivables created in connection with the Additional
Accounts have been transferred to the Trust and (iii) within five Business
Days after the Addition Date, the Bank shall deliver to the Trustee a
computer file or microfiche list 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 or microfiche list shall be as of the
date of such Assignment, incorporated into and made a part of such
Assignment and the Pooling and Servicing Agreement.
(b) Legal, Valid and Binding Obligation. The Assignment
constitutes a legal, valid and binding obligation of the Bank, enforceable
against the Bank in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and 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) Eligibility of Accounts. Each Additional Account
designated pursuant to the Assignment was, as of the related Addition
Cut-Off Date, an Eligible Account, and each Receivable in such Additional
Account was, as of the related Addition Cut-Off Date, an Eligible
Receivable.
(d) Selection Procedures. No selection procedures
believed by the Bank to be materially adverse to the interests of the
Investor Certificateholders were utilized in selecting the Additional
Accounts designated pursuant to the Assignment from the available Eligible
Accounts in the Bank Portfolio.
(e) Insolvency. The Bank is not insolvent and, after
giving effect to the conveyance set forth in Section 3 of the Assignment,
will not be insolvent.
(f) Security Interest. The Assignment constitutes either
(i) a valid transfer and assignment to the Trust of all right, title and
interest of the Bank in and to such Receivables now existing and hereafter
created, and all proceeds (as defined in the UCC as in effect in the State
of Delaware) of such Receivables, and such Receivables and any proceeds
thereof will be held by the Trust free and clear of any Lien of any Person
claiming through or under the Bank or any of its Affiliates except for (x)
Liens permitted under subsection 2.05(b) of the Pooling and Servicing
Agreement, (y) the interest of the Bank as holder of the Exchangeable
Transferor Certificate and (z) the Bank's right to receive interest
accruing on, and investment earnings in respect of, the Finance Charge
Account and the Principal Account or any Series Account as provided in the
Pooling and Servicing Agreement and any Supplement; or (ii) a transfer for
security of such property to the Trust, which is enforceable with respect
to the existing Receivables of the Additional Accounts designated on
Schedule 1 to the Assignment, the proceeds (as defined in the UCC as in
effect in the State of Delaware) thereof, upon the conveyance of such
Receivables to the Trust, and which will be enforceable with respect to the
Receivables thereafter created in respect of Additional Accounts designated
on Schedule 1 to the Assignment and the proceeds (as defined in the UCC as
in effect in the State of Delaware) thereof, upon such creation; and (iii)
if the Assignment constitutes a transfer for security by the Bank to the
Trust in such property, the conveyance in Section 3(a) of the Assignment is
effective to assign to the Trust a first priority perfected security
interest in all of the Bank's right, title and interest in the existing
Receivables of the Additional Accounts designated on Schedule 1 to the
Assignment and in the case of Receivables of such Additional Accounts
thereafter created and the proceeds (as defined in the UCC as in effect in
the State of Delaware) thereof, upon such creation the Trust shall have a
first priority perfected security interest in such property (subject to
Section 9-306 of the UCC as in effect in the State of Delaware), except for
Liens permitted under subsection 2.05(b) of the Pooling and Servicing
Agreement.
(g) Requirements of Pooling and Servicing Agreement. All
requirements set forth in Section 2.06 of the Pooling and Servicing
Agreement for designating Additional Accounts and conveying the Principal
Receivables of such 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 Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this
_____ day of ________ ____.
FIRST USA BANK, NATIONAL
ASSOCIATION
By:_______________________
Name:
Title:
Exhibit C
---------
[FORM OF MONTHLY SERVICER'S CERTIFICATE]
FIRST USA BANK, NATIONAL ASSOCIATION
----------------------------------
FIRST USA CREDIT CARD MASTER TRUST
-----------------------------------
The undersigned, a duly authorized representative of First USA Bank,
National Association (the "Bank"), as Servicer pursuant to the Amended and
Restated Pooling and Servicing Agreement, dated as of _____, 2002 (the
"Pooling and Servicing Agreement"), among the Bank, as Transferor and
Servicer, and The Bank of New York (Delaware), as Trustee, does hereby
certify as follows:
1. Capitalized terms used but not defined in this
Certificate have their respective meanings set forth in the Pooling and
Servicing Agreement; provided, that the "preceding Monthly Period" shall
mean the Monthly Period immediately preceding the calendar month in which
this Certificate is delivered. This Certificate is delivered pursuant to
subsection 3.04(b) of the Pooling and Servicing Agreement. References
herein to certain sections and subsections are references to the respective
sections and subsections of the Pooling and Servicing Agreement.
2. The Bank is Servicer under the Pooling and Servicing
Agreement.
3. The undersigned is a Servicing Officer.
4. The date of this Certificate is a Determination Date
under the Pooling and Servicing Agreement.
5. The aggregate amount of Collections
processed during the preceding Monthly Period was equal to.........
$-------
6. The aggregate amount of Principal
Receivables processed as of the end of the last day of the
preceding Monthly Period was equal to..............................
$-------
7. The Aggregate Investor Percentage of
Collections of Finance Charge Receivables processed by the
Servicer during the preceding Monthly Period was equal to..........
$-------
8. The Aggregate Investor Percentage of
Collections of Principal Receivables processed by the Servicer
during the current month is equal to...............................
$-------
9. The aggregate amount of Interchange to
be deposited in the Finance Charge Account on the Transfer
Date of the current month is equal to..............................
$-------
10. To the knowledge of the undersigned,
there are no Liens on any Receivables in the Trust except as
described below:
[If applicable, insert "None."]
IN WITNESS WHEREOF, the undersigned has duly executed
and delivered this certificate this ___ day of ________, ____.
FIRST USA BANK, NATIONAL
ASSOCIATION,
as Servicer
By:___________________________
Name:
Title:
Schedule To Monthly
Servicer's Certificate*
-----------------------
FIRST USA BANK, NATIONAL ASSOCIATION
----------------------------------
FIRST USA CREDIT CARD MASTER TRUST
----------------------------------
* A separate schedule is to be attached for each Series, with
appropriate changes and additions to reflect the specifics of the
related Series Supplement
Exhibit D
---------
[FORM OF ANNUAL SERVICER'S CERTIFICATE]
FIRST USA BANK, NATIONAL ASSOCIATION
----------------------------------
FIRST USA CREDIT CARD MASTER TRUST
----------------------------------
The undersigned, a duly authorized representative of
First USA Bank, National Association (the "Bank"), as Servicer pursuant to
the Amended and Restated Pooling and Servicing Agreement, dated as of
________, 2002 (the "Pooling and Servicing Agreement") among the Bank, as
Transferor and Servicer, and The Bank of New York (Delaware), as trustee
(the "Trustee") does hereby certify that:
1. The Bank is Servicer under the Pooling and
Servicing Agreement.
2. The undersigned is duly authorized pursuant to the
Pooling and Servicing Agreement to execute and deliver this Certificate to the
Trustee.
3. This Certificate is delivered pursuant to
Section 3.05 of the Pooling and Servicing Agreement.
4. A review of the activities of the Servicer during
the period from _____________ to and including ____________ (the "Review
Period") was conducted under my supervision.
5. Based on such review, the Servicer has, to the best of
my knowledge, fully performed all its obligations under the Pooling and
Servicing Agreement throughout the Review Period and no default in the
performance of such obligations has occurred or is continuing except as set
forth in paragraph 6 below.
6. The following is a description of each default in the
performance of the Servicer's obligations under the provisions of the
Pooling and Servicing Agreement, including each Supplement, known to me to
have been made during the Review Period, which sets forth in detail (i) the
nature of each such default, (ii) the action taken by the Servicer, if any,
to remedy each such default and (iii) the current status of each such
default:
[If applicable, insert "None."]
7. The report required to be delivered to the Servicer by
the independent certified public accountants pursuant to subsection 3.06(b)
of the Pooling and Servicing Agreement has been delivered to the Servicer,
and such report contains no exceptions, except for such exceptions as the
independent certified public accountants believe to be immaterial and as
set forth in paragraph 8 below.
8. The following is each exception set forth in the
report required to be delivered to the Servicer by the independent
certified public accountants pursuant to subsection 3.06(b) of the Pooling
and Servicing Agreement:
[If applicable, insert "None."]
IN WITNESS WHEREOF, the undersigned has duly executed
this Certificate this ___ day of ________, ____.
FIRST USA BANK, NATIONAL ASSOCIATION
By: ________________________________
Name:
Title:
Exhibit E
---------
[FORM OF OPINION OF COUNSEL REGARDING ADDITIONAL ACCOUNTS]
The opinion set forth below, which is to be delivered
pursuant to subsection 2.06(c)(vi) of the Amended and Restated Pooling and
Servicing Agreement, may be subject to certain qualifications, assumptions,
limitations and exceptions taken or made in the opinion of counsel
delivered on the Closing Date with respect to similar matters.
The provisions of the applicable Assignment and the
Pooling and Servicing Agreement are effective to create, in favor of the
Trustee, a valid security interest (as such term is defined in the UCC as
in effect in the State of Delaware) in all of the Transferor's right, title
and interest in and to that portion of the Receivables which constitutes
accounts under the Delaware UCC and proceeds thereof which security
interest if characterized as a transfer for security will secure all
Secured Obligations and which security interest if characterized as a sale
of accounts will constitute a valid sale of all of the Transferor's right,
title and interest in and to the Receivables and the proceeds thereof.
[The Transferor Financing Statement having been filed in
the appropriate filing office][Assumes one filing at Amendment Closing
Date. See 2.01 and Exhibit B (Assignment)] and Assignment No. ___ having
been executed and delivered by the parties thereto, under the UCC as in
effect in the State of Delaware, the security interest referred to in the
preceding paragraph hereof in favor of the Trustee in the Receivables and
proceeds thereof has been perfected, and no other security interest of any
other creditor of the Transferor will be equal or prior to the security
interest of the Trustee in such Receivables and the proceeds thereof.
Exhibit F
---------
[FORM OF ANNUAL OPINION OF COUNSEL]
The opinion set forth below, which is to be delivered
pursuant to subsection 13.02(d)(ii) of the Amended and Restated Pooling and
Servicing Agreement, may be subject to certain qualifications, assumptions,
limitations and exceptions taken or made in the opinion of counsel
delivered on the Closing Date with respect to similar matters.
No filing or other action, other than such filing or
action described in such opinion, is necessary from the date of such
opinion through March 31 of the following year to continue the perfected
status of the interest of the Trust in the collateral described in the
financing statements referred to in such opinion.
Exhibit G
---------
[FORM OF REASSIGNMENT OF RECEIVABLES]
REASSIGNMENT NO. __ OF RECEIVABLES, dated as of ________
__, ____, by and between FIRST USA BANK, NATIONAL ASSOCIATION, a national
banking association organized under the laws of the United States of
America (the "Bank"), and THE BANK OF NEW YORK (DELAWARE), a banking
corporation organized under the laws of the State of Delaware (the
"Trustee"), pursuant to the Pooling and Servicing Agreement referred to
below.
W I T N E S S E T H:
WHEREAS, pursuant to the Amended and Restated Pooling and
Servicing Agreement, dated as of [ ], 2002, among the Bank, as Transferor
and Servicer, and the Trustee (hereinafter as such agreement may have been,
or may from time to time be, amended, supplemented or otherwise modified,
the "Pooling and Servicing Agreement"), and as indicated in the notice
dated , from the Bank to the Trustee (the "Notice"), the Bank wishes to
remove all Receivables from certain designated Accounts of the Bank
specified on Schedule 1-A hereto (the "Removed Accounts") and to cause the
Trustee to reconvey hereby the Receivables of such Removed Accounts,
whether now existing or hereafter created, from the Trust to the Bank (as
each such term is defined in the Pooling and Servicing Agreement), as more
fully described herein; and
WHEREAS, the Trustee is willing to accept such
designation and to reconvey the Receivables in the Removed Accounts subject
to the terms and conditions hereof.
NOW THEREFORE, the Bank and the Trustee hereby agree as
follows:
1. Defined Terms. All terms defined in the Pooling
and Servicing Agreement and used herein shall have such defined meanings when
used herein, unless otherwise defined herein.
"Removal Date" shall mean, with respect to the Removed
Accounts designated hereby, ____________, ____.
"Removal Notice Date" shall mean, with respect to the
Removed Accounts designated hereby, , (which shall be a date on or prior to
the fifth Business Day prior to the Removal Date).
2. Designation of Removed Accounts. The Bank shall
deliver to the Trustee, not later than five Business Days after the Removal
Date, a computer file or microfiche list containing a true and complete
list of each VISA(R) and MasterCard(R) account which as of the Removal Date
shall be deemed to be a Removed Account, such accounts being identified by
account number and by the aggregate amount of Receivables in such accounts
as of the close of business on the Removal Notice Date. The Removed
Accounts shall be identified on Schedule 1-A to this Reassignment and shall
be incorporated into and made a part of this Reassignment as of the Removal
Date.
3. Conveyance of Receivables. The Trustee does hereby
reconvey to the Bank, without recourse on and after the Removal Date, all
right, title and interest of the Trust in and to the Receivables now
existing and hereafter created in the Removed Accounts identified on
Schedule 1-A hereto, all monies due or to become due with respect thereto
(including all Finance Charge Receivables) and all proceeds (as defined in
the UCC as in effect in the applicable jurisdiction) of such Receivables.
4. Representations and Warranties of the Bank. The Bank
hereby represents and warrants to the Trustee on behalf of the Trust as of
the Removal Date:
(a) Legal, Valid and Binding Obligation. This
Reassignment constitutes a legal, valid and binding obligation of
the Bank enforceable against the Bank in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect affecting the enforcement
of creditors' rights in general and the rights of creditors of
national banking associations and except as such enforceability
may be limited by general principles of equity (whether considered
in a suit at law or in equity).
(b) Selection Procedures. No selection
procedures believed by the Bank to be materially adverse to the
interests of the Certificateholders were utilized in selecting the
Removed Accounts to be removed from the Trust and either (I) a
random selection procedure was used by the Bank in selecting the
Removed Accounts and only one such removal of randomly selected
Accounts shall occur in the then current Monthly Period, (II) 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 Accounts subject to such arrangement, upon such
cancellation or non- renewal and the third party has exercised
such repurchase right or (III) the Removed Accounts were selected
using another method that will not preclude transfers of
Receivables to the Trust from being accounted for as sales under
generally accepted accounting principles or prevent the Trust from
continuing to qualify as a qualifying special purpose entity in
accordance with SFAS 140.
5. Representations and Warranties of the Trustee. Since
the date of the transfer by the Bank under the Pooling and Servicing
Agreement, the Trustee has not sold, transferred or encumbered any
Receivable in any Removed Account or any interest therein.
6. Conditions Precedent. The amendment of the Pooling and
Servicing Agreement set forth in Section 7 hereof is subject to the
satisfaction, on or prior to the Removal Date, of the following condition
precedent:
The Bank shall have delivered to the Trustee an
Officer's Certificate in the form of Schedule 2-A to this
Reassignment certifying that (i) as of the Removal Date, all
requirements set forth in Section 2.07 of the Pooling and
Servicing Agreement for designating Removed Accounts and
reconveying the Receivables of such Removed Accounts, whether now
existing or hereafter created, have been satisfied, and (ii) each
of the representations and warranties made by the Bank in Section
4 hereof is true and correct as of the Removal Date. The Trustee
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.
7. Amendment of the Pooling and Servicing Agreement. The
Pooling and Servicing Agreement is hereby amended to provide that all
references therein to the "Pooling and Servicing Agreement," to "this
Agreement" and "herein" shall be deemed from and after the Removal Date to
be a dual reference to the Pooling and Servicing Agreement as supplemented
by this Reassignment. Except as expressly amended hereby, all of the
representations, warranties, terms, covenants and conditions of the Pooling
and Servicing Agreement shall remain unamended and shall continue to be,
and shall remain, in full force and effect in accordance with its terms and
except as expressly provided herein shall not constitute or be deemed to
constitute a waiver of compliance with or a consent to non-compliance with
any term or provision of the Pooling and Servicing Agreement.
8. Counterparts. This Reassignment may be executed in
multiple counterparts, and by different parties on separate counterparts,
each of which shall be an original, but all of which together shall
constitute one and the same instrument.
9. Governing Law. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS.
IN WITNESS WHEREOF, the undersigned have caused this
Reassignment of Receivables to be duly executed and delivered by their
respective duly authorized officers on the day and year first above
written.
FIRST USA BANK, NATIONAL ASSOCIATION,
By:__________________________________
Name:
Title:
THE BANK OF NEW YORK (DELAWARE),
as Trustee of First USA Credit
Card Master Trust
By:___________________________________
Name:
Title:
Schedule 1-A
to Reassignment
of Receivables
---------------
REMOVED ACCOUNTS
----------------
Schedule 2-A
to Reassignment
of Receivables
First USA Bank, National Association
First USA Credit Card Master Trust
Officer's Certificate
____________________, a duly authorized officer of First
USA Bank, National Association, a national banking association (the
"Bank"), hereby certifies and acknowledges on behalf of the Bank that to
the best of [her/his] knowledge the following statements are true on
, (the "Removal Date"), and acknowledges on behalf of the Bank that
this Officer's Certificate will be relied upon by The Bank of New York
(Delaware), as Trustee (the "Trustee") of the First USA Credit Card Master
Trust in connection with the Trustee entering into Reassignment No. of
Receivables in Additional Accounts, dated as of the related Addition Date
(the "Reassignment"), among the Bank, as Transferor and Servicer (the
"Servicer"), and the Trustee, in connection with the Amended and Restated
Pooling and Servicing Agreement, dated as of [ ], 2002 (as heretofore
supplemented and amended, the "Pooling and Servicing Agreement"), by and
among the Bank, as Transferor and Servicer, and the Trustee. The
undersigned hereby certifies and acknowledges on behalf of the Bank that:
(a) The removal of the Receivables of such Removed
Accounts as of the Removal Date shall not, in the reasonable belief of the
Bank, cause a Pay Out Event to occur.
(b) On or prior to the Removal Date, the Bank has
delivered to the Trustee, for execution, the Reassignment (including an
acceptance by the Trustee on behalf of the Trust for the benefit of the
Investor Certificateholders) and within five Business Days after the
Removal Date, the Bank shall deliver to the Trustee a microfiche list as of
, with respect to the Removed Accounts identified on Schedule 1-A,
containing a true and complete list of such Removed Accounts identified by
account number and the aggregate amount of the Receivables in such Removed
Accounts incorporated into and made a part of such Reassignment and the
Pooling and Servicing Agreement.
(c) The Reassignment constitutes a legal, valid and
binding obligation of the Bank enforceable against the Bank in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereafter in effect affecting the enforcement of creditors' rights
in general and 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).
(d) No selection procedures believed by the Bank to be
materially adverse to the interests of the Certificateholders were utilized
in selecting the Removed Accounts to be removed from the Trust and either
(I) a random selection procedure was used by the Bank in selecting the
Removed Accounts and only one such removal of randomly selected Accounts
shall occur in the then current Monthly Period, (II) 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 Accounts subject to such arrangement, upon
such cancellation or non-renewal and the third party has exercised such
repurchase right or (III) the Removed Accounts were selected using another
method that will not preclude transfers of Receivables to the Trust from
being accounted for as sales under generally accepted accounting principles
or prevent the Trust from continuing to qualify as a qualifying special
purpose entity in accordance with SFAS 140.
(e) After giving effect to the removal of such Removed
Accounts, the Transferor Interest shall not be less than the Minimum
Transferor Interest and the amount of Principal Receivables in the Trust
shall not be less than the Minimum Aggregate Principal Receivables.
(f) On or before the fifth Business Day prior to the
Removal Date, the Bank gave the Trustee and the Servicer written notice
that the Receivables from the Removed Accounts are to be reassigned to the
Bank or its designee, specifying the date for removal of the Removed
Accounts.
(g) All requirements set forth in Section 2.07 of the
Pooling and Servicing Agreement for designating Removed Accounts and
conveying the Principal Receivables of such 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 Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of the
_______ day of ________, ____.
FIRST USA BANK, NATIONAL ASSOCIATION,
as Transferor
By:__________________________________
Name:
Title:
Exhibit H
---------
[FORM OF RECONVEYANCE OF RECEIVABLES]
RECONVEYANCE of RECEIVABLES, dated as of _______ __, by
and between FIRST USA BANK, NATIONAL ASSOCIATION, a national banking
association organized under the laws of the United States of America (the
"Transferor"), and THE BANK OF NEW YORK (DELAWARE), a banking corporation
organized under the laws of the State of Delaware (the "Trustee"), pursuant
to the Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Transferor and the Trustee are parties to
the Amended and Restated Pooling and Servicing Agreement, dated as of [ ],
2002 (hereinafter as such agreement may have been, or may from time to time
be, amended, supplemented or otherwise modified, the "Pooling and Servicing
Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement,
the Transferor wishes to cause the Trustee to reconvey all of the
Receivables and proceeds thereof, whether now existing or hereafter
created, from the Trust to the Transferor pursuant to the terms of Section
12.04 of the Pooling and Servicing Agreement upon termination of the Trust
pursuant to subsection 12.01(a) of the Pooling and Servicing Agreement (as
each such term is defined in the Pooling and Servicing Agreement); and
WHEREAS, the Trustee is willing to reconvey the
Receivables subject to the terms and conditions hereof;
NOW THEREFORE, the Transferor and the Trustee hereby
agree as follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings when
used herein, unless otherwise defined herein.
"Reconveyance Date" shall mean __________, ____.
2. Return of Lists of Accounts. The Trustee shall deliver
to the Transferor, not later than three Business Days after the
Reconveyance Date, each and every computer file or microfiche list of
Accounts delivered to the Trustee pursuant to the terms of the Pooling and
Servicing Agreement.
3. Conveyance of Receivables. (a) The Trustee does hereby
reconvey to the Transferor, without recourse, on and after the Reconveyance
Date, all right, title and interest of the Trust in and to each and every
Receivable now existing and hereafter created in the Accounts, all monies
due or to become due with respect thereto (including all Finance Charge
Receivables, all proceeds (as defined in Section 9-306 of the UCC as in
effect in the applicable jurisdiction) of such Receivables, except for
amounts, if any, held by the Trustee pursuant to subsection 12.03(b) of the
Pooling and Servicing Agreement.
(b) In connection with such transfer, the
Trustee agrees to execute and deliver to the Transferor on or
prior to the date of this Reconveyance, such UCC termination
statements as the Transferor may reasonably request, evidencing
the transfer of the Receivables from the Trust to the Transferor
and the release by the Trust of its lien on the Receivables.
4. Counterparts. This Reconveyance may be executed in two
or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which together shall
constitute one and the same instrument.
5. Governing Law. THIS RECONVEYANCE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS.
IN WITNESS WHEREOF, the undersigned have caused this
Reconveyance of Receivables to be duly executed and delivered by their
respective duly authorized officers on the day and year first above
written.
FIRST USA BANK, NATIONAL ASSOCIATION,
as Transferor
By___________________________________
Title:
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By____________________________________
Title:
Schedule 1
----------
LIST OF ACCOUNTS
Delivered to Trustee only
[Deemed Incorporated]
