EXHIBIT 4.4(a)
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
____________________________________
AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT
Dated as of March 28, 2002
____________________________________
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
sccessor.
"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
eceivables 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. (302)
282-6605), 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. (312)
732-4055), (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: /s/ Xxxxxx X. Renchof
________________________________
Name: Xxxxxx X. Renchof
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ Xxxxxxx X. Xxxxx
________________________________
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
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]
