Exhibit 4.5
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BANK ONE ISSUANCE TRUST
FORM OF TRANSFER AND SERVICING AGREEMENT
among
FIRST USA BANK, NATIONAL ASSOCIATION,
Transferor, Servicer and Administrator
and
BANK ONE ISSUANCE TRUST,
Issuer
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
Indenture Trustee and Collateral Agent
Dated as of [ ], 2002
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS.......................................................................1
Section 1.02 OTHER DEFINITIONAL PROVISIONS....................................................18
ARTICLE II
CONVEYANCE OF COLLATERAL
Section 2.01 CONVEYANCE OF COLLATERAL.........................................................20
Section 2.02 ACCEPTANCE BY TRUST..............................................................21
Section 2.03 REPRESENTATIONS AND WARRANTIES OF EACH TRANSFEROR RELATING TO SUCH TRANSFEROR... 22
Section 2.04 REPRESENTATIONS AND WARRANTIES OF EACH TRANSFEROR RELATING TO THIS AGREEMENT
AND ANY SERIES SUPPLEMENT AND THE COLLATERAL.....................................24
Section 2.05 TRANSFER OF INELIGIBLE RECEIVABLES AND INELIGIBLE COLLATERAL CERTIFICATES........28
Section 2.06 REASSIGNMENT OF COLLATERAL.......................................................28
Section 2.07 ADDITIONAL TRANSFERORS...........................................................31
Section 2.08 COVENANTS OF EACH TRANSFEROR.....................................................31
Section 2.09 COVENANTS OF EACH TRANSFEROR WITH RESPECT TO ANY APPLICABLE RECEIVABLES
PURCHASE AGREEMENT...............................................................33
Section 2.10 REINVESTMENT IN COLLATERAL.......................................................33
Section 2.11 INCREASES IN THE INVESTED AMOUNT OF AN EXISTING COLLATERAL CERTIFICATE...........34
Section 2.12 ADDITION OF COLLATERAL...........................................................35
Section 2.13 REMOVAL OF ACCOUNTS..............................................................39
Section 2.14 ACCOUNT ALLOCATIONS. ...........................................................40
Section 2.15 DISCOUNT RECEIVABLES.............................................................41
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.01 COLLECTIONS AND ALLOCATIONS......................................................43
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Section 3.02 ALLOCATIONS OF FINANCE CHARGE COLLECTIONS, THE DEFAULT AMOUNT AND THE TRUST
SERVICING FEE....................................................................44
Section 3.03 ALLOCATIONS OF PRINCIPAL COLLECTIONS.............................................44
Section 3.04 ALLOCATIONS OF FINANCE CHARGE COLLECTIONS, THE DEFAULT AMOUNT, THE SERVICING FEE
AND PRINCIPAL COLLECTIONS ALLOCABLE TO THE TRANSFEROR INTEREST OF AN ASSET POOL..44
Section 3.05 TRANSFER OF DEFAULTED ACCOUNTS...................................................46
Section 3.06 ADJUSTMENTS FOR MISCELLANEOUS CREDITS AND FRAUDULENT CHARGES.....................46
Section 3.07 RECOVERIES AND INTERCHANGE.......................................................47
ARTICLE IV
SERVICING OF RECEIVABLES
Section 4.01 ACCEPTANCE OF APPOINTMENT AND OTHER MATTERS RELATING TO THE SERVICER.............48
Section 4.02 SERVICING COMPENSATION...........................................................49
Section 4.03 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE SERVICER........................50
Section 4.04 REPORTS AND RECORDS FOR THE OWNER TRUSTEE, THE INDENTURE TRUSTEE AND THE
APPLICABLE COLLATERAL AGENT......................................................52
Section 4.05 ANNUAL CERTIFICATE OF SERVICER...................................................52
Section 4.06 ANNUAL SERVICING REPORT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS; COPIES OF
REPORTS AVAILABLE................................................................53
Section 4.07 TAX TREATMENT....................................................................54
Section 4.08 NOTICES TO FIRST USA.............................................................54
Section 4.09 REPORTS TO THE COMMISSION........................................................54
ARTICLE V
ADMINISTRATION OF THE TRUST; DUTIES
OF THE ADMINISTRATOR
Section 5.01 APPOINTMENT OF ADMINISTRATOR; DUTIES OF ADMINISTRATOR............................55
Section 5.02 RECORDS..........................................................................60
Section 5.03 COMPENSATION.....................................................................60
Section 5.04 ADDITIONAL INFORMATION TO BE FURNISHED TO ISSUER.................................61
Section 5.05 INDEPENDENCE OF ADMINISTRATOR....................................................61
Section 5.06 NO JOINT VENTURE.................................................................61
Section 5.07 OTHER ACTIVITIES OF ADMINISTRATOR................................................61
Section 5.08 TERMINATION, RESIGNATION AND REMOVAL OF ADMINISTRATOR............................61
Section 5.09 ACTION UPON TERMINATION, RESIGNATION OR REMOVAL..................................62
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ARTICLE VI
OTHER MATTERS RELATING TO EACH TRANSFEROR
Section 6.01 LIABILITY OF EACH TRANSFEROR.....................................................64
Section 6.02 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF, A TRANSFEROR....65
Section 6.03 LIMITATIONS ON LIABILITY OF EACH TRANSFEROR......................................65
ARTICLE VII
OTHER MATTERS RELATING TO THE SERVICER
Section 7.01 LIABILITY OF THE SERVICER........................................................67
Section 7.02 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE OBLIGATIONS OF, THE SERVICER....67
Section 7.03 LIMITATION ON LIABILITY OF THE SERVICER AND OTHERS...............................68
Section 7.04 SERVICER INDEMNIFICATION OF THE TRUST, THE OWNER TRUSTEE AND THE INDENTURE
TRUSTEE..........................................................................68
Section 7.05 RESIGNATION OF THE SERVICER......................................................69
Section 7.06 DELEGATION OF DUTIES.............................................................70
Section 7.07 EXAMINATION OF RECORDS...........................................................70
ARTICLE VIII
ACQUISITION OF TRUST ASSETS
Section 8.01 ACQUISITION OF TRUST ASSETS......................................................71
ARTICLE IX
INSOLVENCY EVENTS
Section 9.01 RIGHTS UPON THE OCCURRENCE OF AN INSOLVENCY EVENT................................72
ARTICLE X
SERVICER DEFAULTS
Section 10.01 SERVICER DEFAULTS................................................................73
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Section 10.02 INDENTURE TRUSTEE TO ACT; APPOINTMENT OF SUCCESSOR...............................75
Section 10.03 NOTIFICATION TO NOTEHOLDERS......................................................77
Section 10.04 WAIVER OF PAST DEFAULTS..........................................................77
ARTICLE XI
TERMINATION
Section 11.01 TERMINATION OF AGREEMENT.........................................................77
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 AMENDMENT; WAIVER OF PAST DEFAULTS...............................................78
Section 12.02 PROTECTION OF RIGHT, TITLE AND INTEREST IN AND TO TRUST ASSETS...................80
Section 12.03 FEES PAYABLE BY THE TRANSFEROR...................................................81
Section 12.04 GOVERNING LAW....................................................................81
Section 12.05 NOTICES; PAYMENTS................................................................81
Section 12.06 SEVERABILITY OF PROVISIONS.......................................................83
Section 12.07 FURTHER ASSURANCES...............................................................83
Section 12.08 NO WAIVER; CUMULATIVE REMEDIES...................................................84
Section 12.09 COUNTERPARTS.....................................................................84
Section 12.10 THIRD-PARTY BENEFICIARIES........................................................84
Section 12.11 ACTIONS BY NOTEHOLDERS...........................................................84
Section 12.12 RULE 144A INFORMATION............................................................84
Section 12.13 MERGER AND INTEGRATION...........................................................85
Section 12.14 HEADINGS.........................................................................85
Section 12.15 LIMITATION OF LIABILITY..........................................................85
Section 12.16 NO PETITION......................................................................85
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EXHIBITS
EXHIBIT A-1 Form of Assignment of Collateral Certificates....................................A-1-1
EXHIBIT A-2 Form of Assignment of Receivables in Additional Accounts.........................A-2-1
EXHIBIT B Form of Reassignment of Receivables in Removed Accounts............................B-1
EXHIBIT C Form of Annual Servicer's Certificate..............................................C-1
EXHIBIT D-1 Form of Opinion of Counsel with Respect to Amendments............................D-1-1
EXHIBIT D-2 Form of Opinion of Counsel with Respect to Accounts..............................D-2-1
EXHIBIT D-3 Provisions to be Included in Annual Opinion of Counsel...........................D-3-1
EXHIBIT E Form of Power of Attorney..........................................................E-1
SCHEDULES
SCHEDULE 1 TO EXHIBIT A-1 List of Collateral Certificates....................................A-1-8
SCHEDULE 1 TO EXHIBIT A-2 List of Accounts...................................................A-2-8
SCHEDULE 1 TO EXHIBIT D-3 List of Accounts...................................................D-3-2
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This
TRANSFER AND SERVICING AGREEMENT among FIRST USA BANK, NATIONAL
ASSOCIATION, a national banking association, as Transferor, Servicer and
Administrator, BANK ONE ISSUANCE TRUST, a statutory business trust organized
under the laws of the State of
Delaware, as Issuer, and ▇▇▇▇▇ FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association, as Indenture
Trustee and Collateral Agent, is made and entered into as of [ ], 2002.
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other parties and the Noteholders to
the extent provided herein, in the Indenture, in any Asset Pool Supplement and
in any Indenture Supplement:
ARTICLE I
DEFINITIONS
Section 1.01 DEFINITIONS. Whenever used in this Agreement, the
following words and phrases shall have the following meanings, and the
definitions of such terms are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such terms.
"ACCOUNT" means each consumer revolving credit card account established
pursuant to a Credit Card Agreement between First USA or an Affiliate and any
Person identified by account number and by the Receivable balance as of each
Addition Cut Off Date in each computer file delivered to the applicable
Collateral Agent, as designee of the Issuer, by the applicable Transferor
pursuant to subsection 2.12(c). 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.
"ACCOUNT ASSIGNMENT" has the meaning specified in subsection
2.12(c)(iv).
"ACCOUNT OWNER" means First USA or any Affiliate which is the issuer of
the credit card relating to an Account pursuant to a Credit Card Agreement.
"ACTION" has the meaning specified in the Indenture.
"ADDITION CUT OFF DATE" means each date as of which Additional Accounts
will be selected to be included as Accounts pursuant to Section 2.12.
"ADDITION DATE" has the meaning specified in subsection 2.12(a)(i).
"ADDITIONAL ACCOUNT" means each additional Eligible Account owned by an
Account Owner and designated for inclusion as an Account pursuant to Section
2.12.
"ADDITIONAL COLLATERAL CERTIFICATE" means each additional Collateral
Certificate designated for inclusion as a Collateral Certificate by the
applicable Transferor to the Trust pursuant to Section 2.12.
"ADDITIONAL TRANSFERORS" has the meaning specified in Section 2.07.
"ADJUSTMENT PAYMENT" has the meaning specified in subsection 3.06(a).
"ADMINISTRATOR" means First USA, in its capacity as Administrator
pursuant to this Agreement, and any successors or assigns.
"ADVERSE EFFECT" has the meaning specified in the Indenture.
"AFFILIATE" has the meaning specified in the Indenture.
"AGGREGATE ADDITION LIMIT" means, with respect to any Asset Pool, the
aggregate number of Additional Accounts that may be designated as belonging to
such Asset Pool without prior satisfaction of the Note Rating Agency Condition,
equal to the aggregate number of Additional Accounts which would either (x) with
respect to any consecutive three-month period, equal 15% of the aggregate number
of Accounts designated for inclusion in such Asset Pool as of the first day of
such three-month period or (y) with respect to any twelve-month period, equal
20% of aggregate number of Accounts as of the first day of such twelve-month
period.
"AGREEMENT" means this
Transfer and Servicing Agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
"ANNUAL MEMBERSHIP FEE" has the meaning specified in the Credit Card
Agreement applicable to each Account for annual membership fees or similar fees.
"APPOINTMENT DAY" has the meaning specified in Section 9.01.
"ASSET POOL" has the meaning specified in the Indenture.
"ASSET POOL SUPPLEMENT" has the meaning specified in the Indenture.
"AUTHORIZED NEWSPAPER" has the meaning specified in the Indenture.
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"AUTHORIZED OFFICER" means, with respect to the Issuer, (a) an
authorized signatory of the Owner Trustee, or (b) the chairman or vice-chairman
of the board of directors, chairman or vice-chairman of the executive committee
of the board of directors, the president, any vice-president, the secretary, any
assistant secretary, the treasurer, or any assistant treasurer, in each case of
the Owner Trustee, or any other officer or employee of the Owner Trustee who is
authorized to act on behalf of the Issuer.
"BANK ACCOUNTS" has the meaning specified in the related Asset Pool
Supplement.
"BEARER NOTES" has the meaning specified in the Indenture.
"BUSINESS DAY" has the meaning specified in the Indenture.
"CASH ADVANCE FEES" has the meaning specified in the Credit Card
Agreement applicable to each Account for cash advance fees or similar fees.
"CERTIFICATE ASSIGNMENT" has the meaning specified in subsection
2.12(c)(v).
"CLASS" has the meaning specified in the Indenture.
"COLLATERAL" has, with respect to any Asset Pool, the meaning specified
in the Granting Clause in the applicable Asset Pool Supplement for such Asset
Pool.
"COLLATERAL AGENT" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement.
"COLLATERAL CERTIFICATE" has the meaning specified in the Indenture.
"COLLATERAL CERTIFICATE PRINCIPAL SHORTFALL PAYMENTS" means amounts
received on each Collateral Certificate in respect of Principal Shortfalls (as
such term is defined in the applicable Series Supplement).
"COLLECTION ACCOUNT" has, with respect to each Asset Pool, the meaning
specified in the applicable Asset Pool Supplement for such Asset Pool.
"COLLECTIONS" means, with respect to any Asset Pool, for any Monthly
Period, the sum of (i) with respect to Receivables designated for inclusion in
such Asset Pool, all payments by or on behalf of Obligors received in respect of
the Receivables, in the form of cash, checks, wire transfers, electronic
transfers, ATM transfers or any other form of payment in accordance with a
Credit Card Agreement in effect from time to time and all other amounts
specified by this Agreement, the Indenture or any Indenture Supplement as
constituting Collections on the
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Receivables and (ii) with respect to any Collateral Certificate designated for
inclusion in such Asset Pool, collections allocable to the holder of such
Collateral Certificate pursuant to the applicable Series Supplement. Collections
of Recoveries will be treated as Collections of Principal Receivables; PROVIDED,
HOWEVER, that to the extent the amount of Recoveries received with respect to
any Monthly Period exceeds the aggregate amount of Principal Receivables (other
than Ineligible Receivables) in Accounts that became Defaulted Accounts during
such Monthly Period, the amount of such excess shall be treated as Collections
of Finance Charge Receivables. Collections, with respect to any Asset Pool, for
any Monthly Period, shall include the Interchange Amount, if any, with respect
to such Asset Pool for such Monthly Period, to be applied as if such amount were
Collections of Finance Charge Receivables for such Monthly Period.
"COMMISSION" means the Securities and Exchange Commission.
"CORPORATE TRUST OFFICE" has the meaning (a) when used in respect of
the Owner Trustee, specified in the Trust Agreement and (b) when used in respect
of the Indenture Trustee, specified in the Indenture.
"CREDIT ADJUSTMENT" has the meaning specified in subsection 3.06(a).
"CREDIT CARD AGREEMENT" means, with respect to a consumer revolving
credit card account, the agreement and Federal Truth in Lending Statement for
consumer revolving credit card accounts between the Account Owner and the
Obligor governing the terms and conditions of such account, as such agreements
may be amended, modified or otherwise changed from time to time and as
distributed (including any amendments and revisions thereto) to holders of such
credit card account.
"CREDIT CARD GUIDELINES" means the respective policies and procedures
of the Account Owner, as the case may be, as such policies and procedures may be
amended from time to time, (a) relating to the operation of its credit card
business, which generally are applicable to its portfolio of consumer revolving
credit card accounts and in each case which are consistent with prudent
practice, including, without limitation, the policies and procedures for
determining the creditworthiness of credit card customers and the extension of
credit to credit card customers, and (b) relating to the maintenance of consumer
revolving credit card accounts and collection of credit card receivables.
"DATE OF PROCESSING" means, with respect to any transaction the date on
which such transaction is first recorded on the Servicer's computer file of
accounts (without regard to the effective date of such recordation).
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"DEFAULT AMOUNT" means, with respect to any Asset Pool, for any Monthly
Period, the sum of (1) with respect to Receivables designated for inclusion in
such Asset Pool, an amount (which shall not be less than zero) equal to (a) the
aggregate amount of Principal Receivables (other than Ineligible Receivables) in
Accounts designated for inclusion in such Asset Pool which became Defaulted
Accounts during such Monthly Period on the day each such Account became a
Defaulted Account, MINUS (b) the aggregate amount of Recoveries received in such
Monthly Period (not to exceed the amount set forth in clause (a)) in respect of
Defaulted Accounts in such Asset Pool for such Monthly Period and (2) with
respect to any Collateral Certificate designated for inclusion in such Asset
Pool, the investor default amount or similar amount allocated to the holder of
the Collateral Certificate for such Monthly Period pursuant to the applicable
Series Supplement.
"DEFAULTED ACCOUNT" means 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 consumer revolving credit card 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.
"
DELAWARE ACT" means the Asset-Backed Securities Facilitation Act
located in Title 6, Chapter 27A of the
Delaware Code.
"DERIVATIVE AGREEMENT" has, with respect to any Series, Class or
Tranche of Notes, the meaning specified in the Indenture.
"DERIVATIVE COUNTERPARTY" has the meaning specified in the Indenture.
"DETERMINATION DATE" has the meaning specified in the applicable Asset
Pool Supplement.
"DISCOUNT OPTION DATE" has the meaning specified in subsection 2.15(a)
hereof.
"DISCOUNT RECEIVABLES" means, with respect to any Asset Pool, the Gross
Principal Receivables so designated as such pursuant to the designation formula
as described in subsection 2.15(a). The aggregate amount of Discount Receivables
outstanding on any Date of Processing occurring on or after the Discount Option
Date, shall equal the sum of (a) the aggregate Discount Receivables at the end
of the prior Date of Processing (which amount, prior to the Discount Option
Date, shall be zero) PLUS (b) any new Discount Receivables created on such Date
of
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Processing MINUS (c) any Discount Receivables Collections received on such Date
of Processing. Discount Receivables created on any Date of Processing shall mean
the product of the amount of the Gross Principal Receivables arising in Accounts
on such Date of Processing specified in accordance with subsection 2.15(a) and
the applicable Yield Factor.
"DISCOUNT RECEIVABLES COLLECTIONS" means, with respect to any Asset
Pool, on any Date of Processing occurring in any Monthly Period succeeding the
Monthly Period in which the Discount Option Date occurs, the product of (a) the
Yield Factor and (b) Collections of Gross Principal Receivables outstanding in
such Asset Pool on such Date of Processing.
"DOLLARS," "$" or "U.S. $" means United States dollars.
"EARLY AMORTIZATION EVENT" has the meaning specified in the Indenture,
as supplemented with respect to any Series, Class or Tranche of Notes by the
applicable Indenture Supplement and Terms Document.
"ELIGIBLE ACCOUNT" means a consumer revolving credit card account owned
by an Account Owner which meets the following requirements as of the Addition
Cut Off Date:
(a) is a consumer revolving credit card account in existence
and maintained with an Account Owner;
(b) is payable in Dollars;
(c) has an Obligor who has provided, as his or her most recent
billing address, an address located in the United States or its territories or
possessions or a military address;
(d) has an Obligor who has not been identified by the Servicer
in its computer files as being involved in a voluntary or involuntary bankruptcy
proceeding;
(e) has not been classified by the Servicer as cancelled,
counterfeit, deleted, fraudulent, stolen or lost;
(f) does not have Receivables which are at the time of
transfer sold or pledged to any other party;
(g) which has not been charged-off by the Servicer in its
customary and usual manner for charging-off accounts as of their date of
designation for inclusion in the Trust; and
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(h) has an Obligor who has not been identified by the Servicer
as being deceased.
"ELIGIBLE COLLATERAL CERTIFICATE" means a Collateral Certificate that
has been duly authorized by the applicable Transferor and validly issued by the
applicable Master Trust and is entitled to the benefits of the applicable
Pooling and Servicing Agreement and with respect to which the representations
and warranties made in subsections 2.04(a)(ii), (iii), (iv), (v), (vi) and (vii)
are true and correct in all material respects.
"ELIGIBLE RECEIVABLE" means each Receivable:
(a) which has arisen in an Eligible Account (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 the institution which owned such
Receivable at the time of its creation and pursuant to a Credit Card Agreement
which complies in all material respects with all Requirements of Law applicable
to the applicable Account Owner, as the case may be;
(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 in connection with the
creation of such Receivable or the execution, delivery and performance by the
applicable Account Owner, as the case may be, 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;
(d) as to which at the time of the transfer of such Receivable
to the Trust, the applicable Transferor or the Trust has good and marketable
title thereto, free and clear of all Liens occurring under or through such
applicable Transferor or any of its Affiliates (other than Liens permitted
pursuant to subsection 2.04(a)(v));
(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);
(f) which constitutes an "account" under and as defined in
Article 9 of the UCC; and
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(g) which is not subject to any setoff, right or rescission,
counterclaim, or other defense, including the defense of usury, other than
defenses arising out of applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting the enforcement of creditors'
rights in general.
"ELIGIBLE SERVICER" means First USA or the Indenture Trustee or, if
neither First USA nor the Indenture Trustee is acting as Servicer, an entity
which, at the time of its appointment as Servicer, (a) is servicing a portfolio
of consumer revolving credit card accounts, (b) is legally qualified and has the
capacity to service the Accounts, (c) in the sole determination of the Indenture
Trustee, which determination shall be conclusive and binding, has demonstrated
the ability to service professionally and competently a portfolio of similar
accounts in accordance with high standards of skill and care, (d) is qualified
to use the software that is then being used to service the Accounts or obtains
the right to use or has its own software which is adequate to perform its duties
under this Agreement and (e) has a net worth of at least $50,000,000 as of the
end of its most recent fiscal quarter.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"EVENT OF DEFAULT" has the meaning specified in the Indenture.
"EXCESS FUNDING ACCOUNT" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"FINANCE CHARGE COLLECTIONS" means, with respect to any Asset Pool, for
any Monthly Period, the sum of (a) with respect to Receivables designated for
inclusion in such Asset Pool, all Collections received by the Servicer on behalf
of the Issuer of Finance Charge Receivables (including Discount Receivables
Collections and Recoveries received for such Monthly Period to the extent such
Recoveries are deemed Finance Charge Collections under the definition of
"Collections" above), (b) with respect to any Collateral Certificate designated
for inclusion in such Asset Pool, collections of finance charge receivables
allocable to the holder of the Collateral Certificate for such Monthly Period
pursuant to the applicable Series Supplement and (c) any amounts received by the
Issuer which are designated as Finance Charge Collections pursuant to any Asset
Pool Supplement or Indenture Supplement for such Monthly Period. Finance Charge
Collections with respect to any Monthly Period shall include the Interchange
Amount (if any) paid to the Trust with respect to such Asset Pool with respect
to such Monthly Period (to the extent received by the Trust and deposited into
the applicable Collection Account on the First Note Transfer Date following such
Monthly Period).
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"FINANCE CHARGE RECEIVABLES" means 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.
"FIRST NOTE TRANSFER DATE" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"FIRST USA" means First USA Bank, National Association, a national
banking association, and its successors and permitted assigns.
"
FIRST USA CREDIT CARD MASTER TRUST POOLING AND SERVICING AGREEMENT"
means the Pooling and Servicing Agreement for the
First USA Credit Card Master
Trust as amended and supplemented, including by the Series 2002-CC Supplement
thereto.
"FITCH" means Fitch, Inc. or any successor thereto.
"GOVERNMENTAL AUTHORITY" means 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.
"GROSS PRINCIPAL RECEIVABLES" means Receivables other than (i) Periodic
Finance Charges, Annual Membership Fees, Cash Advance Fees, Late Fees, Overlimit
Fees, return check fees and similar fees and other charges and (ii) Receivables
in Defaulted Accounts.
"INCREASE DATE" has the meaning specified in subsection 2.12(a)(i).
"INDENTURE" means the Indenture, dated as of [ ], 2002, between the
Issuer and the Indenture Trustee, as the same may be amended, supplemented or
otherwise modified from time to time.
"INDENTURE SUPPLEMENT" has the meaning specified in the Indenture.
"INDENTURE TRUSTEE" means ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, in its capacity as trustee under the Indenture, its successors in
interest and any successor indenture trustee under the Indenture.
"INELIGIBLE COLLATERAL CERTIFICATE" has the meaning specified in
subsection 2.05(c).
"INELIGIBLE RECEIVABLES" has the meaning specified in
subsection 2.05(c).
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"INITIAL COLLATERAL CERTIFICATE" means the First USA Collateral
Certificate issued pursuant to the
First USA Credit Card Master Trust Pooling
and Servicing Agreement and the related Series 2002-CC Supplement thereto.
"INITIAL ISSUANCE DATE" means [ ], 2002, the date the certificate
evidencing the beneficial interest of the beneficiary in the Trust is delivered
by the Trust to First USA pursuant to the Trust Agreement.
"INSOLVENCY EVENT" has the meaning specified in Section 9.01.
"INSURANCE PROCEEDS" means 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" means interchange fees payable to the Servicer with
respect to the Accounts by the Account Owner, in its capacity as credit card
issuer, through bankcard associations or other similar organizations.
"INTERCHANGE AMOUNT" means, with respect to any Asset Pool for any
Monthly Period, an amount determined by the Account Owner, in its sole
discretion, to be reasonably representative of the amount of Interchange
generated by the Receivables arising in the Accounts of such Account Owner.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended from time to time.
"INVESTED AMOUNT" has, with respect to any Collateral Certificate, the
meaning specified in the applicable Series Supplement for such Collateral
Certificate.
"INVESTOR CERTIFICATE" has the meaning specified in the applicable
Pooling and Servicing Agreement.
"ISSUANCE DATE" means the Initial Issuance Date and each date
thereafter on which a Series, Class or Tranche of Notes is issued pursuant to
the Indenture.
"ISSUER" means the Trust.
"ISSUER TAX OPINION" has the meaning specified in the Indenture.
10
"LATE FEES" has the meaning specified in the Credit Card Agreement
applicable to each Account for late fees or similar fees.
"LIEN" means 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.
"MASTER TRUST" has the meaning specified in the Indenture.
"MASTER TRUST SERVICER" means the entity responsible for the servicing
obligations under the applicable Pooling and Servicing Agreement.
"MASTER TRUST TRANSFEROR" means the entity acting as transferor under
the applicable Pooling and Servicing Agreement.
"MASTER TRUST TRUSTEE" means the entity acting as trustee under the
applicable Pooling and Servicing Agreement.
"MINIMUM POOL BALANCE" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement for such Asset Pool.
"MONTHLY NOTEHOLDERS' STATEMENT" has the meaning specified in the
Indenture.
"MONTHLY PERIOD" has the meaning specified in the Indenture.
"MONTHLY SERVICER'S CERTIFICATE" means the certificate delivered by the
Servicer as described in subsection 4.04(b).
"MOODY'S" means ▇▇▇▇▇'▇ Investors Service, Inc., or its successor.
"NOMINAL LIQUIDATION AMOUNT" has, with respect to any Series, Class or
Tranche of Notes, the meaning specified in the applicable Indenture Supplement
for such Series, Class or Tranche of Notes.
11
"NOMINAL LIQUIDATION AMOUNT DEFICIT" has, with respect to any Series,
Class or Tranche of Notes, the meaning specified in the applicable Indenture
Supplement for such Series, Class or Tranche of Notes.
"NOTE" or "NOTES" has the meaning specified in the Indenture.
"NOTE OWNER" has the meaning specified in the Indenture.
"NOTE RATING AGENCY" has the meaning specified in the Indenture.
"NOTE RATING AGENCY CONDITION" means, at any time with respect to any
Series, Class or Tranche of Notes, the written confirmation of the Note Rating
Agency that a specified event or modification of the terms of such Series, Class
or Tranche will not result in the withdrawal or downgrade by such Note Rating
Agency of the rating of the Notes of any Series, Class or Tranche then in
effect.
"NOTE REGISTER" has the meaning specified in the Indenture.
"NOTE REGISTRAR" has the meaning specified in the Indenture.
"NOTE TRANSFER DATE" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement for such Asset Pool.
"NOTEHOLDER" or "HOLDER" has the meaning specified in the Indenture.
"NOTEHOLDER PERCENTAGE" means, for any Series of Notes, with respect to
Principal Collections, Finance Charge Collections, the Default Amount and the
Servicing Fee of any Asset Pool, the percentage stated in the applicable
Indenture Supplement for such Series of Notes.
"NOTICE DATE" has the meaning specified in subsection 2.12(c)(i).
"NOTICES" has the meaning specified in subsection 12.05(a).
"OBLIGOR" means, with respect to any Account, the Person or Persons
obligated to make payments with respect to such Account, including any guarantor
thereof, but excluding any merchant.
"OFFICER'S CERTIFICATE" means a certificate signed by the Owner
Trustee, the Administrator or the Servicer and delivered to the Indenture
Trustee or the applicable Collateral Agent or a certificate signed by the
applicable Transferor and delivered to the Owner Trustee, the Indenture
12
Trustee or the applicable Collateral Agent. Wherever this Agreement requires
that an Officer's Certificate be signed also by an accountant or other expert,
such accountant or other expert (except as otherwise expressly provided in this
Agreement) may be an employee of the Owner Trustee, the Administrator or the
Servicer.
"OPINION OF COUNSEL" means a written opinion of counsel acceptable to
the Owner Trustee and the Indenture Trustee, who may, without limitation, and
except as otherwise expressly provided in this Agreement, be an employee of or
of counsel to the Issuer, the Servicer or any of their Affiliates.
"OUTSTANDING" has the meaning specified in the Indenture.
"OVERLIMIT FEES" has the meaning specified in the Credit Card Agreement
applicable to each Account for overlimit fees or similar fees if such fees are
provided for with respect to such Account.
"OWNER TRUSTEE" means Wilmington Trust Company, not in its individual
capacity, but solely as owner trustee under the Trust Agreement, its successors
in interest and any successor owner trustee under the Trust Agreement.
"PAYING AGENT" has the meaning specified in the Indenture.
"PAYMENT DATE" has the meaning specified in the Indenture.
"PAYMENT INSTRUCTION" has the meaning specified in the Indenture.
"PERIODIC FINANCE CHARGES" has the meaning specified in the Credit Card
Agreement applicable to each Account for finance charges (due to periodic rate)
or any similar term.
"PERSON" has the meaning specified in the Indenture.
"POOLING AND SERVICING AGREEMENT" has the meaning specified in the
Indenture.
"POOL BALANCE" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement for such Asset Pool.
"PRINCIPAL COLLECTIONS" means, with respect to any Asset Pool, for any
Monthly Period, the sum of (1) with respect to Receivables designated for
inclusion in such Asset Pool, all Collections other than those designated as
Finance Charge Collections on Accounts designated for such Monthly Period and
(2) with respect to any Collateral Certificate designated for
13
inclusion in such Asset Pool, all collections of principal receivables,
including Collateral Certificate Principal Shortfall Payments, allocable to the
holder of such Collateral Certificate for such Monthly Period pursuant to the
applicable Series Supplement.
"PRINCIPAL RECEIVABLES" means Gross Principal Receivables MINUS
Discount Receivables. In calculating the aggregate amount of Principal
Receivables for any Monthly Period, the amount of Principal Receivables shall be
reduced by the aggregate amount of credit balances in the Accounts on the last
day of such Monthly Period. Any Principal Receivables which a Transferor is
unable to transfer as provided in Section 2.14 or 9.01 shall not be included in
calculating the amount of Principal Receivables.
"REASSIGNMENT" has the meaning specified in subsection 2.13(b)(iii).
"REASSIGNMENT AMOUNT" means, with respect to the Receivables or a
particular Collateral Certificate designated for inclusion in any Asset Pool,
subject to reassignment pursuant to Section 2.06, for any First Note Transfer
Date, unless otherwise provided in the related Asset Pool Supplement, the sum of
(a)(i) an amount equal to the outstanding principal balance of such Receivables
designated for inclusion in such Asset Pool or (ii) the Invested Amount of such
Collateral Certificate designated for inclusion in such Asset Pool PLUS (b)
accrued and unpaid interest, determined based upon a weighted average interest
rate, through such Payment Date, on Notes secured by the related Asset Pool with
an outstanding principal amount equal to the applicable amount specified in
clause (a).
"RECEIVABLES" means 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 similar fees and
charges, if any.
"RECEIVABLES PURCHASE AGREEMENT" means any receivables purchase
agreement entered into between a special purpose entity and the applicable
Account Owner for the sale of receivables to the special purpose entity if such
special purpose entity either transfers Receivables or a Collateral Certificate
secured by such receivables to the Issuer.
"RECOVERIES" means, with respect to any Asset Pool, all net amounts
received, including Insurance Proceeds, by the Servicer with respect to
Receivables in Defaulted Accounts, including amounts received by the Servicer
from the purchaser or transferee with respect to the sale or other disposition
of Receivables in Defaulted Accounts.
"RECORD DATE" has the meaning specified in the Indenture.
14
"REGISTERED NOTE" has the meaning specified in the Indenture.
"REGISTERED NOTEHOLDER" has the meaning specified in the Indenture.
"REINVESTMENT AMOUNT" means, with respect to any Asset Pool for any
Monthly Period, an amount which shall not be less than zero, equal to (A) the
sum of (i) the Principal Collections for such Asset Pool for such Monthly
Period, PLUS (ii) the Finance Charge Collections for such Asset Pool and similar
amounts applied with respect to the Default Amount for all Notes secured by such
Asset Pool and the Nominal Liquidation Amount Deficit for all Series of Notes
secured by such Asset Pool for such Monthly Period, PLUS (iii) any other amounts
specified in the related Asset Pool Supplement, MINUS (B) the sum of (i) the
aggregate Targeted Principal Deposit Amount for all Notes secured by such Asset
Pool for each Note Transfer Date related to such Monthly Period PLUS (ii) the
amount of Principal Collections reallocated to pay any portion of the Targeted
Interest Deposit Amount and any portion of the Noteholder's share of the
Servicing Fee for Notes secured by such Asset Pool for such Monthly Period.
"RELATED AGREEMENTS" means, with respect to any Series, Class or
Tranche of Notes, collectively, the Indenture, any applicable Indenture
Supplement, any applicable Asset Pool Supplement, any applicable Terms Document
and the Trust Agreement.
"REMOVAL DATE" has the meaning specified in subsection 2.13(a).
"REMOVAL NOTICE DATE" has the meaning specified in subsection 2.13(a).
"REMOVED ACCOUNTS" has the meaning specified in subsection 2.13(a).
"REQUIRED TRANSFEROR AMOUNT" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"REQUIREMENTS OF LAW" means, for any Person, the certificate of
incorporation or articles of association and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or regulation, or
determination of an arbitrator or Governmental Authority, whether federal, state
or local (including usury laws, the Federal Truth in Lending Act and Regulation
B and Regulation Z of the Board of Governors of the Federal Reserve System).
"SECURITIES ACT" means the Securities Act of 1933, as amended from time
to time.
"SERIES" has the meaning specified in the Indenture.
"SERIES SUPPLEMENT" has the meaning specified in the Indenture.
15
"SERIES 2002-CC SUPPLEMENT" means the supplement to the
First USA
Credit Card Master Trust Pooling and Servicing Agreement, whereby First USA, as
transferor, has authorized the issuance and authentication by the Master Trust
Trustee to First USA of one or more Investor Certificates.
"SERVICE TRANSFER" has the meaning specified in Section 10.01.
"SERVICER" means First USA, in its capacity as Servicer pursuant to
this Agreement, and, after any Service Transfer, the Successor Servicer.
"SERVICER DEFAULT" has the meaning specified in Section 10.01.
"SERVICER RATING EVENT" means the Servicer's failure to maintain a
short-term credit rating of at least "A-1" by Standard & Poor's and "P-1" by
Moody's and, if rated by Fitch, at least "F1" by Fitch (or such other rating
below "A-1" or "P-1," or to the extent rated by Fitch, "F1," as the case may be,
which is acceptable to the applicable Note Rating Agency).
"SERVICING FEE" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement for such Asset Pool.
"SFAS 140" means 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" means Standard & Poor's Ratings Services, or its
successor.
"SUB-ACCOUNT" has the meaning specified in the Indenture.
"SUCCESSOR SERVICER" has the meaning specified in subsection 10.02(a).
"SUPPLEMENTAL BANK ACCOUNT" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"SUPPLEMENTAL CREDIT ENHANCEMENT" means any Supplemental Credit
Enhancement Agreement or Supplemental Liquidity Agreement entered into between
the Issuer and the applicable Supplemental Credit Enhancement Provider or
Supplemental Liquidity Provider.
"SUPPLEMENTAL CREDIT ENHANCEMENT AGREEMENT" has the meaning specified
in the Indenture.
16
"SUPPLEMENTAL CREDIT ENHANCEMENT PROVIDER" has the meaning specified in
the Indenture.
"SUPPLEMENTAL LIQUIDITY AGREEMENT" has the meaning specified in the
Indenture.
"SUPPLEMENTAL LIQUIDITY PROVIDER" has the meaning specified in the
Indenture.
"TARGETED INTEREST DEPOSIT AMOUNT" has, with respect to any Series,
Class or Tranche of Notes, the meaning specified in the applicable Indenture
Supplement for such Series, Class or Tranche of Notes.
"TARGETED PRINCIPAL DEPOSIT AMOUNT" has, with respect to any Series,
Class or Tranche of Notes, the meaning specified in the applicable Indenture
Supplement for such Series, Class or Tranche of Notes.
"TERMINATION NOTICE" has the meaning specified in Section 10.01.
"TERMS DOCUMENT" has the meaning specified in the Indenture.
"TRANCHE" has the meaning specified in the Indenture.
"TRANSACTION DOCUMENT" means the Trust Agreement, the applicable Series
Supplement, the applicable Asset Pool Supplement, the Indenture or the related
Indenture Supplement, as applicable.
"TRANSFER AGENT" has the meaning specified in the Indenture.
"TRANSFER RESTRICTION EVENT" has the meaning specified in Section 2.14.
"TRANSFEROR" means (a) First USA or its successor under this Agreement
and (b) any Additional Transferor or Transferors. References to "each
Transferor" shall refer to each entity mentioned in the preceding sentence and
references to "the Transferor" shall refer to all of such entities.
"TRANSFEROR AMOUNT" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement for such Asset Pool.
"TRANSFEROR CERTIFICATE" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
17
"TRANSFEROR INTEREST" means, with respect to any Asset Pool, the
interest in such Asset Pool not represented by issued and Outstanding Notes
secured by that Asset Pool.
"TRANSFEROR PERCENTAGE" means, with respect to any Asset Pool for any
Monthly Period, the percentage in such Asset Pool not represented by the
aggregate of the Noteholder Percentage for all Series secured by such Asset
Pool.
"TRANSFERRED ACCOUNT" means (a) an Account with respect to which a new
credit account number has been issued by the Account Owner 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 the case of (a) or (b), can be
traced or identified by reference to or by way of the computer files delivered
to the applicable Collateral Agent, as designee of the Issuer, as an account
into which an Account has been transferred.
"TRUST" means the Bank One Issuance Trust.
"TRUST AGREEMENT" means the Trust Agreement relating to the Trust,
dated as of [ ], 2002, between the Transferor and the Owner Trustee, as the
same may be amended, supplemented or otherwise modified from time to time.
"TRUST ASSETS" has the meaning specified in Section 2.01.
"TRUST SERVICING FEE" has the meaning specified in Section 4.02.
"TRUST TERMINATION DATE" means [ ].
"UCC" means the Uniform Commercial Code, as amended from time to time,
as in effect in the relevant jurisdiction.
"YIELD FACTOR" has the meaning specified in subsection 2.15(a).
Section 1.02 OTHER DEFINITIONAL PROVISIONS.
(a) The terms defined in this Article have the meanings
assigned to them in this Article, and, along with any other term defined in any
Section of this Agreement, include the plural as well as the singular.
18
(b) With respect to any Series, all terms used herein and not
otherwise defined herein shall have meanings ascribed to them in the applicable
Transaction Document.
(c) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(d) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
otherwise defined in this Agreement or in any such certificate or other
document, and accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to any computation
required or permitted hereunder means such accounting principles as are
generally accepted in the United States of America at the date of such
computation.
(e) The agreements, representations and warranties of First
USA in this Agreement in each of its capacities as Transferor, Servicer and
Administrator 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.
(f) Any reference to each Rating Agency shall only apply to
any specific rating agency if such rating agency is then rating any Outstanding
Series, Class or Tranche of Notes.
(g) Unless otherwise specified, references to any amount as on
deposit or outstanding on any particular date shall mean such amount at the
close of business on such day.
(h) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; references to any
subsection, Section, Schedule or Exhibit are references to subsections,
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" means "including without limitation."
[END OF ARTICLE I]
19
ARTICLE II
CONVEYANCE OF COLLATERAL
Section 2.01 CONVEYANCE OF COLLATERAL. By execution of this
Agreement, the Transferor does hereby transfer, assign, set-over and otherwise
convey to the Trust, without recourse except as provided herein, all its right,
title and interest in, to and under the Initial Collateral Certificate. The
property of the Trust shall initially consist of the Initial Collateral
Certificate and on and after each applicable Addition Date, each Additional
Collateral Certificate and all Receivables arising in each Additional Account,
together with all monies and other property credited to the Bank Accounts
established pursuant to each Asset Pool Supplement and Indenture Supplement, the
rights of the Trust under this Agreement and the Trust Agreement and the
property conveyed to the Trust under any Asset Pool Supplement and any Series
Supplement (the "TRUST ASSETS").
Each Transferor shall be under no obligation whatsoever to
file any financing or continuation statements or to make any other filing under
the UCC in connection with the transfer and assignment of a Collateral
Certificate.
Each Transferor further agrees, at its own expense, on or
prior to (x) the Initial Issuance Date, in the case of the Initial Collateral
Certificate and (y) the applicable Addition Date, in the case of Additional
Collateral Certificates and Additional Accounts with respect to such Transferor,
(a) to indicate in the appropriate official records or computer files that
Collateral Certificates or Receivables created in connection with the Accounts
have been designated for inclusion in a particular Asset Pool in the Trust
pursuant to this Agreement and (b) to deliver to the applicable Collateral
Agent, as designee of the Issuer, one or more computer files containing a true
and complete list of all such Additional Accounts specifying for each such
Additional Account, the applicable Addition Date for such Additional Accounts.
In addition, such computer file or list shall, in connection with each
Additional Account, include its account number, the aggregate Receivables
outstanding in such Additional Account and state to which Asset Pool such
Additional Account belongs. Each such official record, as supplemented, from
time to time, to reflect Additional Collateral Certificates and removed
Collateral Certificates shall be marked as Schedule 1 to this Agreement, and
each such computer file or list, as supplemented, from time to time, to reflect
Additional Accounts and Removed Accounts, shall be marked as Schedule 2 to this
Agreement and is hereby incorporated into and made a part of this Agreement.
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
20
hereby agrees that any property, assets or rights purported to be transferred,
in whole or in part, by the Transferor pursuant to this Agreement shall be
deemed to no longer be the property, assets or rights of the Transferor. 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.
To the extent that any Transferor retains any interest in the Initial
Collateral Certificate, Additional Collateral Certificates or the Receivables,
it is the intention of the parties hereto that this Agreement shall constitute a
security agreement under applicable law, and therefor such Transferor hereby
grants to the Trust a first priority perfected security interest in all of such
Transferor's right, title and interest, in, to and under the Initial Collateral
Certificate, any Additional Collateral Certificates, the Receivables and the
other Trust Assets conveyed by such Transferor, and all money, accounts, general
intangibles, chattel paper, instruments, documents, goods, investment property,
deposit accounts, certificates of deposit, letters of
credit,letter-of-credit-rights and advices of credit consisting of, arising from
or related to the Trust Assets, and all proceeds thereof, to secure a loan in an
amount equal to the unpaid principal amount of the Notes issued pursuant to the
Indenture and the applicable Indenture Supplement and interest accrued with
respect thereto.
Section 2.02 ACCEPTANCE BY TRUST.
(a) The Trust hereby acknowledges its acceptance of all right,
title and interest to the property, now existing and hereafter created, conveyed
to the Trust pursuant to Section 2.01. The Trust further acknowledges that,
prior to or simultaneously with the execution and delivery of this Agreement,
the Transferor delivered to the applicable Collateral Agent, as designee of the
Issuer, Schedule 1 identifying the Initial Collateral Certificate. The
applicable Collateral Agent shall forward a copy of Schedule 1 to the Owner
Trustee who shall maintain a copy of Schedule 1, as delivered from time to time,
at its Corporate Trust Office.
(b) The Trust hereby designates to the Servicer the right to
receive all payments to be made to the Trust hereunder.
(c) The Owner Trustee and the Trust each hereby agrees (and
the Indenture Trustee and each applicable Collateral Agent shall, pursuant to
the Indenture or applicable Asset Pool Supplement, agree) not to disclose to any
Person the identity of any of the account numbers or other information contained
in the computer files marked as Schedule 2 and delivered to the applicable
Collateral Agent, as designee of the Issuer, from time to time, except (i) to a
Successor Servicer or as required by a Requirement of Law applicable to the
Owner Trustee, (ii) in connection with the performance of the Owner Trustee's or
the Trust's duties hereunder, (iii) to the Indenture Trustee in connection with
its duties in enforcing the rights of Noteholders, (iv) to
21
the applicable Collateral Agent in connection with its duties under the
applicable Asset Pool Supplement or (v) to bona fide creditors or potential
creditors of any Account Owner, the Administrator or any Transferor for the
limited purpose of enabling any such creditor to identify applicable Receivables
or Accounts subject to this Agreement. The Owner Trustee and the Trust each
agrees to take such measures as shall be reasonably requested by any Transferor
to protect and maintain the security and confidentiality of such information
and, in connection therewith, shall allow each Transferor or its duly authorized
representatives to inspect the Owner Trustee's security and confidentiality
arrangements as they specifically relate to the administration of the Trust from
time to time during normal business hours upon prior written notice. The Owner
Trustee and the Trust shall provide the applicable Transferor with notice five
Business Days prior to disclosure of any information of the type described in
this subsection 2.02(c).
Section 2.03 REPRESENTATIONS AND WARRANTIES OF EACH TRANSFEROR
RELATING TO SUCH TRANSFEROR. Each Transferor hereby severally represents and
warrants to the Trust (and agrees that the Owner Trustee, the Indenture Trustee
and the applicable Collateral Agent may conclusively rely on each such
representation and warranty in accepting the Receivables and Collateral
Certificates in trust, in authenticating the Notes and each as a secured party)
as of each Issuance Date, each Increase Date and each Addition Date (but only if
it was a Transferor on such date and only if it was a party to the applicable
Related Agreement on such date) that:
(a) ORGANIZATION AND GOOD STANDING. Such Transferor is an
entity, duly organized and validly existing in good standing under the laws of
the jurisdiction of its organization or incorporation and has, in all material
respects, full 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, the applicable Receivables Purchase Agreement, if any, and
each applicable Series Supplement.
(b) DUE QUALIFICATION. Such Transferor is duly qualified to do
business and is in good standing (or is exempt from such requirement) in any
state required in order to conduct business, and has obtained all necessary
licenses and approvals with respect to such Transferor required under federal
law; PROVIDED, HOWEVER, that no representation or warranty is made with respect
to any qualifications, licenses or approvals which the Indenture Trustee, the
Owner Trustee or the applicable Collateral Agent would have to obtain to do
business in any state in which the Indenture Trustee or the Owner Trustee seeks
to enforce any Collateral Certificate or any Receivable.
(c) DUE AUTHORIZATION. The execution and delivery of this
Agreement, the applicable Receivables Purchase Agreement, if any, and each
applicable Series Supplement by such Transferor and the order to the Indenture
Trustee to have the Notes authenticated and
22
delivered and the consummation by such Transferor of the transactions provided
for in this Agreement, the applicable Receivables Purchase Agreement, if any,
and each applicable Series Supplement have been duly authorized by such
Transferor by all necessary corporate action on the part of such Transferor and
this Agreement will remain, from the time of its execution, an official record
of such Transferor.
(d) NO CONFLICT. The execution and delivery by such Transferor
of this Agreement, the applicable Receivables Purchase Agreement, if any, and
each applicable Series Supplement, and the performance of the transactions
contemplated by this Agreement, the applicable Receivables Purchase Agreement,
if any, and each applicable Series Supplement and the fulfillment of the terms
hereof and thereof applicable to such 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 such Transferor is a party or by which it or its properties are bound.
(e) NO PROCEEDINGS. There are no proceedings or
investigations, pending or, to the best knowledge of such Transferor, threatened
against such Transferor before any Governmental Authority (i) asserting the
invalidity of this Agreement, the applicable Receivables Purchase Agreement, if
any, or any applicable Series Supplement, (ii) seeking to prevent the
consummation of any of the transactions contemplated by this Agreement, the
applicable Receivables Purchase Agreement, if any, or any applicable Series
Supplement, (iii) seeking any determination or ruling that, in the reasonable
judgment of such Transferor, would materially and adversely affect the
performance by such Transferor of its obligations under this Agreement, the
applicable Receivables Purchase Agreement, if any, or any applicable Series
Supplement, (iv) seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement, the
applicable Receivables Purchase Agreement, if any, or any applicable Series
Supplement or (v) seeking to affect adversely the income tax attributes of the
Trust under the United States federal or any state income tax systems.
(f) ALL CONSENTS. All appraisals, authorizations, consents,
orders or other actions of any Person or of any Governmental Authority required
in connection with the execution and delivery by such Transferor of this
Agreement, the applicable Receivables Purchase Agreement, if any, and each
applicable Series Supplement and the performance of the transactions
contemplated by this Agreement, the applicable Receivables Purchase Agreement,
if any, and each applicable Series Supplement by such Transferor have been duly
obtained, effected or given and are in full force and effect.
(g) NO VIOLATION. The execution and delivery of this
Agreement, the applicable Receivables Purchase Agreement, if any, and each
applicable Series Supplement, the
23
performance of the transactions contemplated by this Agreement, the applicable
Receivables Purchase Agreement, if any, and each applicable Series Supplement
and the fulfillment of the terms hereof and thereof will not conflict with or
violate any Requirements of Law applicable to such Transferor.
Section 2.04 REPRESENTATIONS AND WARRANTIES OF EACH TRANSFEROR
RELATING TO THIS AGREEMENT AND ANY SERIES SUPPLEMENT AND THE COLLATERAL.
(a) REPRESENTATIONS AND WARRANTIES ON EACH ISSUANCE DATE, EACH
INCREASE DATE AND EACH ADDITION DATE. Each Transferor hereby severally
represents and warrants to the Trust that:
(i) on each day on which any new Receivable is
created, this Agreement and the applicable Receivables Purchase
Agreement, if any, and on each Addition Date with respect to Additional
Accounts, this Agreement, the applicable Receivables Purchase
Agreement, if any, and the related Account Assignment, each constitutes
a legal, valid and binding obligation of such Transferor enforceable
against such Transferor in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally from time to time in effect or general principles of
equity;
(ii) on each Issuance Date, this Agreement, the
applicable Receivables Purchase Agreement, if any, the applicable
Pooling and Servicing Agreement and the applicable Series Supplement,
each constitutes a legal, valid and binding obligation of such
Transferor enforceable against such Transferor in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally from time to time in effect
or general principles of equity;
(iii) on each Increase Date, this Agreement, the
applicable Pooling and Servicing Agreement and the applicable Series
Supplement and on each Addition Date with respect to Collateral
Certificates, this Agreement, the applicable Pooling and Servicing
Agreement, the applicable Series Supplement and the related Certificate
Assignment, each constitutes a legal, valid and binding obligation of
such Transferor enforceable against such Transferor in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally from time to time in effect
or general principles of equity;
24
(iv) as of the Initial Issuance Date, with respect to
the Initial Collateral Certificate, as of the related Addition Cut Off
Date with respect to Additional Accounts (and the Receivables arising
therein) and as of the Addition Date with respect to an Additional
Collateral Certificate, the portion of Schedule 1 or Schedule 2, as
applicable, to this Agreement under such Transferor's name, as
supplemented to such date, is an accurate and complete listing or
identification, as applicable, in all material respects of (A) with
respect to Schedule 2, the Additional Accounts the Receivables in which
were transferred by such Transferor as of such Addition Cut Off Date or
(B) with respect to Schedule 1, the Initial Collateral Certificate
which was transferred by such Transferor as of the Initial Issuance
Date and each Additional Collateral Certificate transferred thereafter
that remains outstanding, including any Additional Collateral
Certificate transferred as of an Addition Date, and the information
contained therein with respect to the identity of such Accounts and the
Receivables existing thereunder as of such Addition Cut Off Date or
with respect to the identity of such Collateral Certificate as of the
Initial Issuance Date or such Addition Date, is, in each case, true and
correct in all material respects;
(v) as of (A) each day on which any new Receivable is
created, (B) the Initial Issuance Date, with respect to the Initial
Collateral Certificate, (C) each Addition Cut Off Date with respect to
Additional Accounts (and the Receivables arising therein), (D) each
Addition Date with respect to Additional Collateral Certificates and
(E) each Increase Date with respect to an increase in an existing
Collateral Certificate, such Transferor owns and has good marketable
title to such Receivable, Initial Collateral Certificate or Additional
Collateral Certificate, as applicable, free and clear of any Lien
(other than any Lien for municipal or other local taxes if such taxes
are not then due and payable or if such Transferor is then contesting
the validity thereof in good faith by appropriate proceedings and has
set aside on its books and records adequate reserves with respect
thereto), claim or incumbrance of any Person and such Receivable,
Initial Collateral Certificate or Additional Collateral Certificate, or
such increase in the Invested Amount of an existing Collateral
Certificate, as applicable, is conveyed to the Trust by such Transferor
in compliance, in all material respects, with all Requirements of Law
applicable to such Transferor;
(vi) as of (A) each day on which any new Receivable
is created, (B) the Initial Issuance Date, with respect to the Initial
Collateral Certificate, (C) each Addition Cut Off Date with respect to
Additional Accounts (and the Receivables arising therein), (D) each
Addition Date with respect to an Additional Collateral Certificate and
(E) each Increase Date with respect to an increase in an existing
Collateral Certificate, all authorizations, consents, orders or
approvals of or registrations or declarations with any Govern mental
Authority required to be obtained, effected or given by such Transferor
in
25
connection with the conveyance by such Transferor of such Receivables
or Additional Collateral Certificate or the increase of the Invested
Amount of any Collateral Certificate previously conveyed to the Trust
have been duly obtained, effected or given and are in full force and
effect;
(vii) as of (A) the Initial Issuance Date, with
respect to the Initial Collateral Certificate, (B) each Addition Cut
Off Date with respect to Additional Accounts (and the Receivables
arising therein), (C) each Addition Date with respect to an Additional
Collateral Certificate and (D) each Increase Date with respect to an
increase in an existing Collateral Certificate, this Agreement
constitutes a valid sale, transfer and assignment to the Trust of all
right, title and interest of such Transferor in the Initial Collateral
Certificate, any Receivables existing on and after an Addition Date,
any Additional Collateral Certificate or any increased amount of an
existing Collateral Certificate, as applicable, transferred to the
Trust by such Transferor and the proceeds thereof and Interchange and
Recoveries identified as relating to the Receivables transferred to
the Trust by such Transferor or, if this Agreement or, in the case of
an Additional Collateral Certificate or Additional Accounts, the
related Certificate Assignment or Account Assignment, as applicable,
does not constitute a sale of such property, it creates a valid and
continuing security interest (as defined in the applicable UCC) in such
property in favor of the Trust, which security interest is prior to all
other Liens, and is enforceable as such against creditors of and
purchasers from such Transferor. Other than the security interest
granted to the Trust pursuant to this Agreement, such Transferor has
not pledged, assigned, sold, granted a security interest in, or
otherwise conveyed such property. Such Transferor has not authorized
the filing of and is not aware of any financing statements against such
Transferor that include a description of collateral covering such
property other than any financing statement relating to the security
interest granted to the Trust hereunder or that has been terminated.
Such Transferor is not aware of any judgment of tax lien filings
against such Transferor. With respect to Collateral Certificates and
increases thereof, upon delivery to the applicable Collateral Agent, as
designee of the Issuer, the Trust shall have a first priority perfected
security or ownership interest in such property and proceeds. With
respect to Receivables, upon the filing of the financing statements
and, in the case of Receivables hereafter created and the proceeds
thereof, upon the creation thereof, the Trust shall have a first
priority perfected security or ownership interest in such property and
proceeds;
(viii) as of the Initial Issuance Date, with respect
to the Initial Collateral Certificate, each Increase Date, with respect
to an increase in an existing Collateral Certificate, and each Addition
Date, with respect to an Additional Collateral Certificate, such
Initial Collateral Certificate, such existing Collateral Certificate or
such Additional Collateral Certificate, as applicable, constitutes a
"certificated security" within the
26
meaning of the applicable UCC, all original and executed copies of
each certificate that constitutes or evidences such Initial Collateral
Certificate, such existing Collateral Certificate or such Additional
Collateral Certificate, as applicable, has been delivered to the
Trust, the applicable Transferor has received a written
acknowledgement from the Collateral Agent that the Collateral Agent is
holding such certificate that constitutes such Initial Collateral
Certificate, such existing Collateral Certificate or such Additional
Collateral Certificate, as applicable, solely on behalf and for the
benefit of the Noteholders of the applicable Asset Pool, the Indenture
Trustee, in its individual capacity, and the Collateral Agent, in its
individual capacity, the certificate that constitutes or evidences
such Initial Collateral Certificate, such existing Collateral
Certificate or such Additional Collateral Certificate, as applicable,
has no marks or notations indicating that it has been pledged,
assigned or otherwise conveyed to any Person other than the Trust or
the Collateral Agent and, with respect to any such Additional
Collateral Certificate, such Additional Collateral Certificate is an
Eligible Collateral Certificate;
(ix) on the applicable Addition Cut Off Date, each
related Additional Account is an Eligible Account;
(x) on the applicable Addition Cut Off Date, each
Receivable contained in the related Additional Accounts to be conveyed
to the Trust by such Transferor on the applicable Addition Date is an
Eligible Receivable and constitutes an "account" within the meaning of
the applicable UCC;
(xi) as of the date of the creation of any new
Receivable transferred to the Trust by such Transferor, such Receivable
is an Eligible Receivable and constitutes an "account" within the
meaning of the applicable UCC;
(xii) on the applicable Addition Cut Off Date, no
selection procedures believed by such Transferor to be materially
adverse to the interests of the Noteholders have been used in selecting
such Additional Accounts; and
(xiii) on the Initial Issuance Date and on each
applicable Increase Date, the Collateral Certificate which is to have
its Invested Amount increased is an Eligible Collateral Certificate and
constitutes a "certificated security" within the meaning of the
applicable UCC.
(b) NOTICE OF BREACH. The representations and warranties set
forth in Section 2.03 and this Section 2.04 shall survive the transfers and
assignments of the Collateral Certificates and the Receivables to the Trust,
the pledge of the Collateral Certificates and the Receivables to the Collateral
Agent pursuant to the Asset Pool Supplement, and the issuance of
27
the Notes. Upon discovery by any Transferor, the Servicer, the Indenture
Trustee, the applicable Collateral Agent or the Owner Trustee of a breach of any
of the representations and warranties set forth in Section 2.03 or this Section
2.04, the party discovering such breach shall give prompt written notice to the
other parties following such discovery.
Section 2.05 TRANSFER OF INELIGIBLE RECEIVABLES AND INELIGIBLE
COLLATERAL CERTIFICATES.
(a) AUTOMATIC REMOVAL. With respect to Receivables or
Collateral Certificates, in the event that (x)(1) any representation or
warranty contained in subsection 2.04(a)(v) is not true and correct in any
material respect as of the date specified therein, or in the event that a
Receivable is not an Eligible Receivable or a Collateral Certificate is not an
Eligible Collateral Certificate, and (2) any of the following two 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 Collateral Certificate
or Receivable or its proceeds are impaired or the proceeds of such Collateral
Certificate or Receivable are not available for any reason to the Trust free and
clear of any Lien; or (B) the Lien upon the subject Receivable or Collateral
Certificate (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 applicable Transferor or
(y) with respect to Receivables, the applicable Transferor has taken an action
which causes a Receivable to be deemed to be an Ineligible Receivable in
accordance with subsection 2.08(a); then, upon the earlier to occur of the
discovery of such breach or event by the applicable Transferor or the Servicer
or receipt by the Transferor who conveyed such Receivable or Collateral
Certificate of written notice of such breach or event given by the Indenture
Trustee, the applicable Collateral Agent or the Owner Trustee, then the
applicable Transferor shall accept reassignment of all applicable Receivables or
of the applicable Collateral Certificate on the terms and conditions set forth
in paragraph (c) below.
(b) REMOVAL AFTER CURE PERIOD. In the event any representation
or warranty contained in subsection 2.04(a)(iv), (vi), (viii), (ix), (x), (xi),
(xii) or (xiii) is not true and correct in any material respect as of the date
specified therein with respect to (x) any Collateral Certificate and such
breach has a material adverse effect on such Collateral Certificate or (y) any
Receivable or the related Account and such breach has a material and adverse
effect on such Receivable, then, unless cured within 60 days (or such longer
period, not in excess of 120 days, as may be agreed to by the Indenture Trustee,
the applicable Collateral Agent and the Servicer) after the earlier to occur of
the discovery thereof by the Transferor who conveyed such Collateral Certificate
or Receivable to the Trust or receipt by such Transferor of written notice
thereof given by the Owner Trustee, the Indenture Trustee, the applicable
Collateral Agent or the Servicer, then such Transferor shall accept reassignment
of the Ineligible Collateral Certificate or of the
28
Ineligible Receivable, as the case may be, on the terms and conditions set forth
in paragraph (c) below.
(c) PROCEDURES FOR REMOVAL. When the provisions of subsection
2.05(a) or (b) above require (i) removal of a Collateral Certificate, the
applicable Collateral Agent shall deliver such Collateral Certificate (such
Collateral Certificate, an "INELIGIBLE COLLATERAL CERTIFICATE") to the
applicable Transferor with a valid assignment in the name of such Transferor for
cancellation by such Transferor and directing the Servicer to deduct the
Invested Amount of each such Ineligible Collateral Certificate from the Pool
Balance for the applicable Asset Pool and to decrease the Transferor Amount of
such Asset Pool by the Invested Amount of such Ineligible Collateral Certificate
or (ii) removal of a Receivable, the applicable Transferor shall accept
reassignment of such Receivable (each such Receivable, an "INELIGIBLE
RECEIVABLE") by directing the Servicer to deduct the principal balance of each
such Ineligible Receivable from the Pool Balance for the applicable Asset Pool
and to decrease the Transferor Amount of such Asset Pool by the principal
balance of such Ineligible Receivable. On and after the date of such removal,
the Invested Amount of each Ineligible Collateral Certificate and the principal
balance of each Ineligible Receivable shall be deducted from the Pool Balance
and Transferor Amount for the applicable Asset Pool. In the event that the
exclusion of an Ineligible Collateral Certificate or an Ineligible Receivable
from the calculation of the Transferor Amount for an Asset Pool would cause the
Transferor Amount for such Asset Pool to be reduced below the Required
Transferor Amount for such Asset Pool or the Pool Balance for such Asset Pool to
be reduced below the Minimum Pool Balance for such Asset Pool or would otherwise
not be permitted by law, the Transferor who conveyed such Ineligible Collateral
Certificate or Ineligible Receivable shall immediately, but in no event later
than 10 Business Days after such event, make a deposit in the Excess Funding
Account for that Asset Pool in immediately available funds in an amount equal to
the amount by which (x) the Transferor Amount for that Asset Pool would be
reduced below the Required Transferor Amount for that Asset Pool or (y) the Pool
Balance for that Asset Pool would be reduced below the Minimum Pool Balance for
that Asset Pool.
Upon reassignment of any Ineligible Collateral Certificate or
Ineligible Receivable, the Trust shall automatically and without further action
be deemed to transfer, assign, set-over and otherwise convey to the applicable
Transferor or its designee, without recourse, representation or warranty, all
the right, title and interest of the Trust in and to such Ineligible Collateral
Certificate or Ineligible Receivable, all Interchange and Recoveries related to
any such Receivable, all monies and amounts due or to become due and all
proceeds thereof and such reassigned Ineligible Collateral Certificate or
Ineligible Receivable shall be treated by the Trust as collected in full as of
the date on which it was transferred. The obligation of each Transferor to
accept reassignment of any Ineligible Collateral Certificate or Ineligible
Receivable conveyed to the Trust by such Transferor, and to make the deposits,
if any, required to be made to the applicable Excess Funding Account as provided
in this Section, shall constitute the sole
29
remedy respecting the event giving rise to such obligation available to the
Trust or the Noteholders (or the Indenture Trustee or the applicable Collateral
Agent on behalf of the Noteholders). The Trust shall execute such documents and
instruments of transfer or assignment and take such other actions as shall
reasonably be requested and provided by the applicable Transferor to effect the
conveyance of such Ineligible Collateral Certificate or Ineligible Receivable
pursuant to this subsection 2.05(c), but only upon receipt of an Officer's
Certificate from such Transferor that states that all conditions set forth in
this Section 2.05 have been satisfied.
Section 2.06 REASSIGNMENT OF COLLATERAL. In the event any
representation or warranty of a Transferor set forth in subsection 2.03(a) or
(c) or subsection 2.04(a)(i), (ii), (iii) or (vii) is not true and correct in
any material respect and such breach has a material adverse effect on the
Receivables designated for inclusion in an Asset Pool or a particular Collateral
Certificate transferred to the Trust by such Transferor or the availability of
the proceeds thereof to the Trust then, either the Owner Trustee, the Indenture
Trustee, the applicable Collateral Agent or the Holders of Notes secured by the
applicable Asset Pool evidencing more than 66 2/3% of the aggregate unpaid
principal amount of all Outstanding Notes secured by the applicable Asset Pool,
by notice then given to the applicable Transferor, the Administrator and the
Servicer (and to the Owner Trustee, the Indenture Trustee and the applicable
Collateral Agent, if given by the Noteholders), may direct such Transferor to
accept a reassignment of the Receivables designated for inclusion in such Asset
Pool and/or any such Collateral Certificate conveyed to the Trust by such
Transferor and designated for inclusion in such Asset Pool, pursuant to this
Agreement, the applicable Receivables Purchase Agreement, if any, the applicable
Series Supplement, the applicable Account Assignment or the applicable
Certificate Assignment, if such breach and any material adverse effect caused by
such breach is not cured within 60 days of such notice (or within such longer
period as may be specified in such notice), and upon those conditions such
Transferor shall be obligated to accept such reassignment on the terms set forth
below; PROVIDED, HOWEVER, that a Transferor shall only be required to accept
reassignment of Receivables or Collateral Certificates transferred under an
agreement with respect to which the relevant representation and warranty was
deemed to be breached; and PROVIDED, FURTHER, the affected Receivables and the
affected Collateral Certificates will not be reassigned to such Transferor if,
on any day during such applicable period the relevant representation and
warranty shall be true and correct in all material respects as if made on such
day. The applicable Transferor shall deposit the portion of the Reassignment
Amount attributable to the applicable Notes in the Collection Account to be
treated (i) in connection with amounts determined under clause (a) of the
definition of "Reassignment Amount," as Principal Collections for each Series of
Notes and (ii) in connection with the amounts determined under clause (b) of the
definition of "Reassignment Amount," as Finance Charge Collections for each
Series of Notes, in either case, in immediately available funds not later than
1:00 p.m., New York City time, on the First Note
30
Transfer Date following the Monthly Period in which such reassignment obligation
arises, in payment for such reassignment.
If the Owner Trustee, the Indenture Trustee, the applicable
Collateral Agent or the Noteholders give notice directing the applicable
Transferor to accept a reassignment of any Receivables or any Collateral
Certificate as provided above, the obligation of such Transferor to accept such
reassignment pursuant to this Section 2.06 and to make the deposit required to
be made to the Collection Account for each Series of Notes as provided in this
Section 2.06 shall constitute the sole remedy respecting an event of the type
specified above in this Section 2.06 available to the Noteholders (or the
Indenture Trustee or any Collateral Agent on behalf of the Noteholders). Upon
reassignment of the affected Receivables and any affected Collateral Certificate
on the First Note Transfer Date following the Monthly Period in which such
obligation arises, the Trust shall automatically and without further action be
deemed to transfer, assign, set-over and otherwise convey to the applicable
Transferor, without recourse, representation or warranty, all the right, title
and interest of the Trust in and to the affected Receivables and affected
Collateral Certificates, all Interchange and Recoveries allocable to the Trust
with respect thereto, and all monies and amounts due or to become due with
respect thereto and all proceeds of the Receivables and Insurance Proceeds
relating thereto allocated to the Receivables (and any costs or expenses
incurred by the Indenture Trustee in connection with such reassignment shall be
reimbursed by the Servicer). The Trust shall execute such documents and
instruments of transfer or assignment and take such other actions as shall
reasonably be requested by the applicable Transferor to effect the conveyance of
such property pursuant to this Section.
Section 2.07 ADDITIONAL TRANSFERORS. The Transferor may
designate Affiliates of the Transferor to be included as Transferors
("ADDITIONAL TRANSFERORS") under this Agreement in an amendment hereto pursuant
to subsection 12.01(a) and, in connection with such designation, the Transferor
shall surrender the Transferor Certificate for the applicable Asset Pool to the
Owner Trustee in exchange for a newly issued Transferor Certificate for such
Asset Pool modified to reflect such Additional Transferor's interest in the
Transferor Interest of such Asset Pool; PROVIDED, HOWEVER, that each Additional
Transferor shall agree in such amendment hereto to assume all of the duties and
obligations of the Transferor hereunder; and PROVIDED, FURTHER, that prior to
any such designation and exchange (i) the Owner Trustee shall have received an
Issuer Tax Opinion and (ii) the Note Rating Agency Condition shall have been
satisfied.
Section 2.08 COVENANTS OF EACH TRANSFEROR. Each Transferor
hereby severally covenants that:
(a) RECEIVABLES NOT TO BE EVIDENCED BY PROMISSORY NOTES.
Except in connection with its enforcement or collection of an Account, such
Transferor will take no action
31
to cause any Receivable conveyed by it to the Trust to be evidenced by any
instrument (as defined in the UCC) and if any such Receivable is so evidenced it
shall be deemed to be an Ineligible Receivable in accordance with subsection
2.05(a) and shall be reassigned to such Transferor in accordance with subsection
2.05(c). Each Receivable shall be payable pursuant to a contract which does not
create a Lien on any goods purchased thereunder. Each Transferor will take no
action to cause any Receivable to be anything other than an "account" (as
defined in the UCC).
(b) SECURITY INTERESTS. Except for the conveyances hereunder,
such 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
or Collateral Certificate conveyed by it to the Trust, whether now existing or
hereafter created, or any interest therein; such Transferor will immediately
notify the Indenture Trustee, the applicable Collateral Agent and the Owner
Trustee of the existence of any Lien on any Receivable or Collateral
Certificate; and such Transferor shall defend the right, title and interest of
the Trust, the Indenture Trustee and the applicable Collateral Agent in, to and
under the Receivables and any Collateral Certificate, whether now existing or
hereafter created, against all claims of third parties claiming through or under
such Transferor; PROVIDED, HOWEVER, that nothing in this subsection 2.08(b)
shall prevent or be deemed to prohibit such 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 such 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) TRANSFEROR INTEREST. Except for the conveyances hereunder,
in connection with any transaction permitted by subsection 6.02(a)(i) and as
provided in Section 2.07 of this Agreement, such Transferor agrees not to
transfer, sell, assign, exchange or otherwise convey or pledge, hypothecate or
otherwise grant a security interest in the Transferor Interest of any Asset Pool
or any Transferor Certificate for any Asset Pool and any such attempted
transfer, assignment, exchange, conveyance, pledge, hypothecation, grant or
sale shall be void, unless the Owner Trustee shall have received an Issuer Tax
Opinion.
(d) DELIVERY OF COLLECTIONS. In the event that such Transferor
receives Collections, such Transferor agrees to pay the Servicer all such
Collections as soon as practicable after receipt thereof.
(e) NOTICE OF LIENS. Such Transferor shall notify the Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent promptly
after becoming aware of any Lien on any Receivable or Collateral Certificate
conveyed by it to the Trust other than the conveyances hereunder and under the
applicable Receivables Purchase Agreement, if any, the
32
applicable Pooling and Servicing Agreement, the applicable Series Supplement,
the Indenture and the applicable Asset Pool Supplement.
(f) CREDIT CARD AGREEMENTS AND GUIDELINES. Each Transferor
that is an Account Owner covenants that it 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 the
applicable credit card company except insofar as any failure to comply or
perform would not materially and adversely affect the rights of the Trust or the
Noteholders; PROVIDED, HOWEVER, the applicable Transferor may change the terms
and provisions of the applicable Credit Card Agreements or the applicable Credit
Card Guidelines in any respect (including 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 such applicable
Transferor, cause an Early Amortization Event or Event of Default to occur, and
(ii) is made applicable to any comparable segment of the consumer revolving
credit card accounts owned by such applicable 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 such applicable Transferor and an
unrelated third party or by the terms of the Credit Card Agreements.
Section 2.09 COVENANTS OF EACH TRANSFEROR WITH RESPECT TO ANY
APPLICABLE RECEIVABLES PURCHASE AGREEMENT. Each Transferor, if such Transferor
is a party to a Receivables Purchase Agreement, in its capacity as purchaser of
Receivables from any Account Owner pursuant to any such Receivables Purchase
Agreement, hereby covenants that such Transferor will at all times enforce the
covenants and agreements of any Account Owner in such Receivables Purchase
Agreement, including covenants that the Account Owner shall at all times enforce
the covenants and agreements of it, as the case may be, in any Receivables
Purchase Agreement.
Section 2.10 REINVESTMENT IN COLLATERAL.
(a) On each First Note Transfer Date, the Reinvestment Amount
for the immediately preceding Monthly Period for each Asset Pool, as specified
in the applicable Asset Pool Supplement, shall be applied for each such Asset
Pool in the following order of priority:
(i) if the Collateral designated for inclusion in
such Asset Pool includes one or more Collateral Certificates, the
Servicer, on behalf of the Issuer, shall specify the amount of the
Reinvestment Amount for such Asset Pool to be applied in order to
increase the Invested Amount of each such Collateral Certificate
previously designated as part of the Collateral of such Asset Pool,
which amount shall be determined by the
33
Servicer, on behalf of the Issuer, in its own discretion, and no such
reinvestment shall be required; PROVIDED, HOWEVER, that, subject to the
restrictions specified in subsection 2.11(c), the Servicer, on behalf
of the Issuer, shall be required to increase the Invested Amount of an
existing Collateral Certificate if Collateral is required to be added
pursuant to subsection 2.12(a) and the applicable Transferor elects to
increase the Invested Amount of one or more Collateral Certificates as
specified in such subsection (so long as the applicable Series
Supplement allows such reinvestment and the transferor or seller for
the related Master Trust agrees to such reinvestment); and
(ii) the remainder of such amounts shall be paid to
the holder of the Transferor Certificate for such Asset Pool; PROVIDED,
HOWEVER, that if the Transferor Amount for such Asset Pool for the
prior Monthly Period did not equal or exceed the Required Transferor
Amount for such Asset Pool for such prior Monthly Period or the Pool
Balance for such Asset Pool for the prior Monthly Period did not equal
or exceed the Minimum Pool Balance for such Asset Pool for such prior
Monthly Period (after application of the Reinvestment Amount, if any,
pursuant to this Section), such amount shall be deposited by the
Servicer in the Excess Funding Account for such Asset Pool.
(b) Each Receivable designated for inclusion in an Asset
Pool shall be transferred to the Trust pursuant to this Agreement and, pursuant
to the Indenture, as supplemented by the applicable Asset Pool Supplement,
pledged to secure the Notes of such Asset Pool on the day that such Receivable
arises.
Section 2.11 INCREASES IN THE INVESTED AMOUNT OF AN EXISTING
COLLATERAL CERTIFICATE.
(a) In addition to the increases described in Section 2.10
above, the Invested Amount of any existing Collateral Certificate designated for
inclusion in an Asset Pool may be increased by the Issuer and the applicable
Transferor on any Business Day in connection with:
(i) the issuance of an additional Series, Class or
Tranche of Notes secured by such Asset Pool; or
(ii) the increase of the Transferor Amount for such
Asset Pool.
(b) In connection with any increase in the Invested Amount
of an existing Collateral Certificate, such increase shall either be funded from
the proceeds of the issuance of an additional Series, Class or Tranche of Notes
or funded by the applicable Transferor (which funding may be in cash or through
an increase in the Transferor Interest for such Asset Pool).
34
(c) Notwithstanding any other provision of this Agreement,
with respect to any Monthly Period, the Invested Amount of an existing
Collateral Certificate shall not be increased, including increases pursuant to
Section 2.10 and this Section 2.11, if (i) an Early Amortization Event shall
have occurred with respect to any Notes as a result of a failure to add
Collateral to the Trust for inclusion in a specified Asset Pool or a failure to
increase the Invested Amount of an existing Collateral Certificate at a time
when the Pool Balance for such Asset Pool for the prior Monthly Period is less
than the Minimum Pool Balance for such Asset Pool for such prior Monthly Period
and (ii) increasing the Invested Amount of or reinvesting in an existing
Collateral Certificate would result in a reduction in the allocation percentage
applicable for principal collections for such existing Collateral Certificate.
Section 2.12 ADDITION OF COLLATERAL.
(a) REQUIRED ADDITIONS.
(i) REQUIRED ADDITIONS. If, (A) as determined on any
Determination Date, the Transferor Amount for an Asset Pool for the
prior Monthly Period is less than the Required Transferor Amount for
such Asset Pool for such prior Monthly Period, the applicable
Transferor shall (1) designate Receivables in additional Accounts to be
transferred to the Trust (each, an "ADDITIONAL ACCOUNT") for
designation pursuant to the applicable Asset Pool Supplement,
(2) designate one or more additional Collateral Certificates to be
transferred to the Trust (each, an "ADDITIONAL COLLATERAL CERTIFICATE")
for designation pursuant to the applicable Asset Pool Supplement or (3)
increase the Invested Amount of one or more existing Collateral
Certificates pursuant to Section 2.10 or Section 2.11 in a sufficient
amount such that, after giving effect to such addition or increase, the
Transferor Amount for such Asset Pool for the prior Monthly Period
would have been at least equal to the Required Transferor Amount for
such Asset Pool for such prior Monthly Period, or (B) as determined on
any Determination Date, the Pool Balance for such Asset Pool for the
prior Monthly Period is less than the Minimum Pool Balance for such
Asset Pool for such prior Monthly Period, the applicable Transferor
shall (1) designate Receivables in Additional Accounts to be
transferred to the Trust for designation pursuant to the applicable
Asset Pool Supplement, (2) designate one or more Additional Collateral
Certificates to be transferred to the Trust for designation pursuant to
the applicable Asset Pool Supplement or (3) increase the Invested
Amount of one or more existing Collateral Certificates pursuant to
Section 2.10 or Section 2.11 in a sufficient amount such that, after
giving effect to such addition or increase, the Pool Balance for the
applicable Asset Pool would have been at least equal to the Minimum
Pool Balance for such Asset Pool for the prior Monthly Period;
PROVIDED, HOWEVER, that in the event of a Servicer Rating Event, the
Transferor Amount and the Pool Balance for an Asset Pool
35
will be determined on a daily basis in accordance with a method to be
determined by the Servicer, subject to satisfaction of the Note Rating
Agency Condition.
Any increase in the Invested Amount of one or more existing Collateral
Certificates shall occur and/or designation of Receivables in any
Additional Accounts and/or any Additional Collateral Certificates to
be transferred to the Trust for designation to a particular Asset Pool
shall be transferred to the Trust and designated for inclusion in such
Asset Pool on or before the thirtieth Business Day following such
Determination Date (such date, in connection with the addition of
Additional Accounts or Additional Collateral Certificates, the
"ADDITION DATE" and in connection with the increase of an existing
Collateral Certificate, the "INCREASE DATE"); PROVIDED, HOWEVER, that
in the event of a Servicer Rating Event, any such Addition Date or
Increase Date shall be on or before the tenth Business Date following
such Determination Date. The failure of the applicable Transferor to
increase the Pool Balance or the Transferor Amount for the applicable
Asset Pool as provided in this clause (i) solely as a result of the
unavailability to the applicable Transferor of a sufficient amount of
Additional Accounts and/or Additional Collateral Certificates and/or
the inability to increase the Invested Amount of one or more existing
Collateral Certificates shall not constitute a breach of this
Agreement; PROVIDED that any such failure which has not been timely
cured may nevertheless result in the occurrence of an Early
Amortization Event.
(ii) Any Additional Accounts or Additional Collateral
Certificates designated to be included as Trust Assets pursuant to
clause (i) above may only be so included if the applicable conditions
specified in subsection (c) below have been satisfied.
(b) PERMITTED ADDITIONS.
(i) In addition to its obligation under subsection
2.12(a), each Transferor may, but shall not be obligated to, subject to
the conditions in paragraph (c) below, (x) designate from time to time
Receivables in Additional Accounts to be included as Trust Assets,
and/or Additional Collateral Certificates to be included as Trust
Assets and (y) increase the Invested Amount of an existing Collateral
Certificate. Such additional Collateral shall be transferred to the
Issuer on the Addition Date or Increase Date, as applicable.
(ii) On any Business Day, consideration in the form
of cash will be applied or an increase in the Transferor Interest will
be effected in connection with any increase in the Trust Assets
pursuant to Section 2.10 or 2.11 or this Section 2.12, as applicable.
36
(c) CONDITIONS TO ADDITIONS. On each Addition Date with
respect to any Additional Accounts and/or Additional Collateral Certificates,
the applicable Receivables in Additional Accounts (and such Additional Accounts
shall be deemed to be Accounts for purposes of this Agreement) or the applicable
Additional Collateral Certificates existing as of the close of business on the
applicable Addition Date shall be designated as additional Trust Assets, subject
to the satisfaction of the following conditions (which shall not apply with
respect to any increase in the Invested Amount of any existing Collateral
Certificate except as specified in clause (i) below):
(i) on or before the third Business Day prior to the
Addition Date or Increase Date with respect to additions or increases
pursuant to subsection 2.12(a) and on or before the fifth Business Day
prior to the Addition Date with respect to additions pursuant to
subsection 2.12(b) (the "NOTICE DATE"), the applicable Transferor shall
have delivered to the Owner Trustee, the Indenture Trustee, the
Servicer, the applicable Collateral Agent and each Note Rating Agency
written notice (unless such notice requirement is otherwise waived)
that the Additional Accounts and/or Additional Collateral Certificates
will be included in the Trust or an increased Invested Amount of an
existing Collateral Certificate will be included in the Trust Assets
(the latter notice requirement shall only apply to increases made
pursuant to subsection 2.12(a); PROVIDED, HOWEVER, that notice shall be
delivered to the applicable Collateral Agent in connection with any
increase in the Invested Amount of an existing Collateral Certificate),
which notice shall specify, as applicable, (x) the approximate
aggregate amount of the Principal Receivables to be pledged, (y) the
Invested Amount of the Collateral Certificates to be pledged or (z) the
amount by which the Invested Amount of an existing Collateral
Certificate is to be increased, as well as the applicable Addition Date
or Increase Date and, in connection with the Additional Accounts, the
Addition Cut Off Date;
(ii) as of the applicable Addition Cut Off Date, each
Additional Account is an Eligible Account;
(iii) as of the applicable Addition Date, each
Additional Collateral Certificate is an Eligible Collateral
Certificate;
(iv) on or before the Addition Date with respect to
Additional Accounts and the Receivables arising thereunder, the
applicable Transferor shall have delivered to the applicable Collateral
Agent, as designee of the Issuer, and the Servicer a written assignment
in substantially the form of Exhibit A-2 (the "ACCOUNT ASSIGNMENT") and
the applicable Transferor shall have delivered to the applicable
Collateral Agent, as designee of the Issuer, a computer file containing
a true and complete list of all Additional
37
Accounts, identified by account number and the aggregate amount of the
Receivables in each Additional Account as of the Addition Cut Off Date,
and stating to which Asset Pool such Additional Accounts belong, which
computer file shall be as of the date of such Account Assignment,
incorporated into and made a part of such Account Assignment and this
Agreement;
(v) on or before the Addition Date with respect to
Additional Collateral Certificates, the applicable Transferor shall
have delivered to the applicable Collateral Agent, as designee of the
Issuer, a written assignment in substantially the form of Exhibit A-1
(the "CERTIFICATE ASSIGNMENT") and each Collateral Certificate shall be
registered in the name of the applicable Collateral Agent, as designee
of the Issuer;
(vi) as of each of the Addition Cut Off Date and the
Addition Date, no Insolvency Event with respect to the Account Owner,
as applicable, or such Transferor shall have occurred nor shall the
transfer to the Trust of the Receivables arising in the Additional
Accounts or of the Additional Collateral Certificate have been made in
contemplation of the occurrence thereof;
(vii) the acquisition by the Trust of the Receivables
arising in the Additional Accounts or of the Additional Collateral
Certificate shall not, in the reasonable belief of the applicable
Transferor, result in an Adverse Effect;
(viii) if, with respect to any three-month period or
with respect to any twelve-month period, the aggregate number of
Additional Accounts designated to have their Receivables added to the
Trust and designated for inclusion in any Asset Pool, shall exceed the
applicable Aggregate Addition Limit for such Asset Pool, the applicable
Transferor shall have received notice from each Note Rating Agency that
the inclusion pursuant to subsection 2.12(b) of such Additional
Accounts in excess of the applicable Aggregate Addition Limit will not
result in the reduction or withdrawal of its then existing rating of
any Series, Class or Tranche of Notes then issued and Outstanding and
shall have delivered such notice to the applicable Collateral Agent, as
designee of the Issuer;
(ix) if so notified by any Note Rating Agency on or
before the second Business Day prior to the Addition Date with respect
to additions of Additional Collateral Certificates pursuant to
subsection 2.12(a) or on or before the fourth Business Day prior to the
Addition Date with respect to additions of Additional Collateral
Certificates pursuant to subsection 2.12(b) that such Note Rating
Agency has elected to impose a Note Rating Agency Condition with
respect to the addition of an Additional Collateral Certificate, the
applicable Transferor shall have received notice from such Note Rating
38
Agency on or prior to the applicable Addition Date that the Note Rating
Agency Condition shall have been satisfied with respect to such Note
Rating Agency and the Transferor shall have delivered such notice to
the applicable Collateral Agent, as designee of the Issuer; and
(x) such Transferor shall have delivered to the
applicable Collateral Agent, as designee of the Issuer, an Officer's
Certificate, dated the Addition Date, confirming, to the extent
applicable, the items set forth in clauses (ii) through (ix) above.
Section 2.13 REMOVAL OF ACCOUNTS. (a) Subject to the
conditions set forth below, each Transferor may, but shall not be obligated to,
designate Receivables for removal from the Trust (the "REMOVED ACCOUNTS"). On or
before the fifth Business Day (the "REMOVAL NOTICE DATE") prior to the date on
which the Receivables from the designated Removed Accounts will be reassigned to
the applicable Transferor (the "REMOVAL DATE"), the Issuer shall give the Owner
Trustee, the Indenture Trustee, the Servicer, the applicable Collateral Agent
and each Note Rating Agency written notice that the Receivables from such
Removed Accounts are to be reassigned to the applicable Transferor.
(b) The applicable Transferor shall be permitted to designate
and require reassignment to it of Receivables from Removed Accounts only upon
satisfaction of the following conditions:
(i) all of the requirements for the removal of
Accounts under the applicable Asset Pool Supplement have been
satisfied;
(ii) the removal of any Receivable of any Removed
Accounts on any Removal Date shall not, in the reasonable belief of the
applicable Transferor, cause, with respect to the Asset Pool in which
such Receivables had been designated for inclusion, an Adverse Effect
or the Transferor Amount for such Asset Pool to be less than the
Required Transferor Amount for that Asset Pool or the Pool Balance for
that Asset Pool to be less than the Minimum Pool Balance for such
Monthly Period in which such removal occurs;
(iii) on or prior to the Removal Date, the applicable
Transferor shall have delivered to the applicable Collateral Agent, as
designee of the Issuer, for execution, a written assignment in
substantially the form of Exhibit B (the "REASSIGNMENT") and, within
five Business Days thereafter, or as otherwise agreed upon between the
applicable Transferor and the Owner Trustee, the applicable Transferor
shall have delivered to the applicable Collateral Agent, as designee of
the Issuer, a computer file containing a true and complete list of all
Removed Accounts identified by account number and the aggregate amount
of Receivables outstanding in each Removed Account as of the
39
Removal Date, and stating from which Asset Pool such Accounts are to
be removed, which computer file shall as of the Removal Date modify
and amend and be made a part of this Agreement;
(iv) the Servicer shall represent and warrant that
(x) a random selection procedure was used by the Servicer in selecting
the Removed Accounts and only one such removal of randomly selected
Accounts shall occur in the then current Monthly Period, (y) the
Removed Accounts arose pursuant to an affinity, private-label,
agent-bank, co-branding or other arrangement with a third party that
has been cancelled by such third party or has expired without renewal
and which by its terms permits the third party to repurchase the
Removed Accounts subject to such arrangement, upon such cancellation or
non-renewal and the third party has exercised such repurchase right or
(z) the Removed Accounts were selected using another method that will
not preclude transfers from being accounted for as sales under
generally accepted accounting principles or prevent the applicable
Transferor from continuing to qualify as a qualifying special purpose
entity in accordance with SFAS No. 140 (or any relevant replacement
statement);
(v) on or before the tenth Business Day prior to the
Removal Date, each Note Rating Agency shall have received notice from
the Servicer of such proposed removal of the Receivables of such
Accounts and, if such removal is pursuant to sub clause (iv)(y) or (z)
above, the Note Rating Agency Condition shall have been satisfied; and
(vi) the applicable Transferor shall have delivered
to the applicable Collateral Agent, as designee of the Issuer, an
Officer's Certificate confirming the items set forth in clauses (i)
through (v) above. The Owner Trustee, the Indenture Trustee and the
applicable Collateral Agent may each 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 applicable
Collateral Agent, as designee of the Issuer, shall execute and deliver the
Reassignment to such Transferor, and the Receivables from the Removed Accounts
shall no longer constitute a part of the Collateral.
Section 2.14 ACCOUNT ALLOCATIONS. In the event that any
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 9.01 or any order of
any Governmental Authority (a "TRANSFER RESTRICTION EVENT")), then, in any such
event, (a) such Transferor and the Servicer agree (except as prohibited by any
such order) to allocate and pay to the Trust, after the date of such inability,
all Collections, including
40
Collections of Principal Receivables and Finance Charge Receivables transferred
to the Trust prior to the occurrence of such event, and all amounts which would
have constituted Collections with respect to Principal Receivables and Finance
Charge Receivables but for such Transferor's inability to transfer such
Receivables (up to the lesser of the amount of such insufficiency or an
aggregate amount equal to the amount of Principal Receivables and Finance Charge
Receivables in the Trust on such date transferred to the Trust by such
Transferor), (b) such Transferor and the Servicer agree that such amounts will
be applied as Collections in accordance with the terms of the applicable Asset
Pool Supplement and the terms of each Indenture Supplement and (c) for only so
long as the allocation and application of all Collections and all amounts that
would have constituted Collections are made in accordance with clauses (a) and
(b) above, Principal Receivables and Finance Charge Receivables (and all amounts
which would have constituted Principal Receivables and Finance Charge
Receivables but for such Transferor's inability to transfer Receivables to the
Trust) which are charged off as uncollectible in accordance with this Agreement
shall continue to be allocated in accordance with the terms of the applicable
Asset Pool Supplement and each Indenture Supplement and all amounts that would
have constituted Principal Receivables but for such Transferor's inability to
transfer Receivables to the Trust shall be deemed to be Principal Receivables
for the purpose of calculating the applicable Noteholder Percentage with respect
to Principal Receivables with respect to any Series, Class or Tranche secured by
the Receivables designated for inclusion in any Asset Pool. For the purpose of
the immediately preceding sentence, such Transferor and the Servicer shall treat
the first received Collections with respect to the Accounts as allocable to the
Trust until the Trust shall have been allocated and paid Collections in an
amount equal to the aggregate amount of Principal Receivables in the Trust as
of the date of the occurrence of such event. If such Transferor and the Servicer
are unable pursuant to any Requirements of Law to allocate Collections as
described above, such Transferor and the Servicer agree that, after the
occurrence of such event, payments on each Account with respect to the principal
balance of such Account shall be allocated first to the oldest principal balance
of such Account and shall have such payments applied as Collections in
accordance with the terms of the applicable Asset Pool Supplement and each
Indenture Supplement. The parties hereto agree that Finance Charge Receivables,
whenever created, accrued in respect of Principal Receivables which 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 the terms of the applicable
Asset Pool Supplement and each Indenture Supplement.
Section 2.15 DISCOUNT RECEIVABLES.
(a) The Transferor shall have the option to designate at any
time and from time to time a fixed percentage or percentages, which may be a
fixed percentage or a variable percentage
41
based on a formula (the "YIELD FACTOR"), currently zero, of all or any specified
portion of Gross Principal Receivables outstanding that have been designated for
inclusion in a specified Asset Pool on any date of determination and
subsequently created to be treated as Discount Receivables and included as
Finance Charge Receivables. Subject to the conditions specified below, the
Transferor may, without notice to or the consent of any Noteholder whose notes
are secured by a specified Asset Pool, from time to time, increase, reduce or
eliminate the Yield Factor on or after such initial date of determination and
any other specified date (each, a "DISCOUNT OPTION DATE"). The Transferor shall
provide 30 days prior written notice of any such change in a Yield Factor with
respect to a specified Asset Pool and the related Discount Option Date to the
Servicer, the Owner Trustee, the Indenture Trustee, the applicable Collateral
Agent and any Note Rating Agency and such change in the Yield Factor shall
become effective on such Discount Option Date unless such designation in the
reasonable belief of the Transferor would cause an Early Amortization Event or
Event of Default with respect to any Series, Class or Tranche to occur, or an
event which, with notice or lapse of time or both, would constitute an Early
Amortization Event or Event of Default with respect to any Series, Class or
Tranche. In addition, on each Discount Option Date after a change in Yield
Factor, the Transferor shall apply the new Yield Factor to all or the portion of
the Gross Principal Receivables outstanding that have been designated for
inclusion in a specified Asset Pool which are to be treated as Discount
Receivables.
(b) After the Discount Option Date, Discount Receivables
Collections with respect to Receivables designated for inclusion in an Asset
Pool shall be treated as Finance Charge Collections to be allocated to such
Asset Pool.
[END OF ARTICLE II]
42
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.01 COLLECTIONS AND ALLOCATIONS.
The Servicer (or, if the authority of the Servicer has been
revoked pursuant to Section 10.01 hereof, or, if a Successor Servicer has been
appointed, the Successor Servicer) shall receive from time to time funds from
each Transferor in respect of Receivables and from each applicable Master Trust
with respect to the Collateral Certificates pledged to the Trust. Upon receipt
of any funds in respect of a Collateral Certificate or Receivables, unless
otherwise specified herein, the Servicer shall deposit such amounts in the
Collection Account for the Asset Pool in which such Collateral Certificate or
Receivables have been designated for inclusion, which amounts shall be applied
by the applicable Collateral Agent, on behalf of the Indenture Trustee, for such
Asset Pool pursuant to the Asset Pool Supplement for such Asset Pool. Except as
otherwise provided below, the Servicer shall deposit Collections with respect to
Receivables into the Collection Account for the applicable Asset Pool as
promptly as possible after the Date of Processing of such Collections, but in no
event later than the second Business Day following the Date of Processing and
shall deposit Collections received with respect to Collateral Certificates with
respect to any Monthly Period into the Collection Account for the applicable
Asset Pool no later than the First Note Transfer Date for the applicable Asset
Pool in the next succeeding Monthly Period. In the event of the insolvency of
the Servicer, then, immediately upon the occurrence of such event and
thereafter, the Servicer shall deposit all Collections into the Collection
Account for each applicable Asset Pool and in no such event shall the Servicer
deposit any Collections thereafter into any account established, held or
maintained with the Servicer.
For as long as First USA remains the Servicer hereunder and
(i) no Servicer Rating Event shall have occurred and be continuing or (ii) First
USA obtains a guarantee or letter of credit covering risk of collection with
respect to its deposit and payment obligations under this Agreement (in form and
substance satisfactory to each Note Rating Agency) from a guarantor having a
short-term credit rating of at least "A-1" from Standard & Poor's or "P-1" from
▇▇▇▇▇'▇ or "F1" from Fitch (or such other rating below "A-1" or "P-1," or to the
extent rated by Fitch, "F1," as the case may be, which is acceptable to such
Note Rating Agency), or (iii) the Note Rating Agency Condition will have been
satisfied despite the Servicer's inability to satisfy the rating requirement
specified in clause (i) or (ii) above, or (iv) for five Business Days following
any reduction of any such rating or failure to satisfy the conditions specified
in clause (i) or (ii) above, the Servicer need not make daily deposits of
Collections into the Collection Account as provided in the preceding paragraph,
but may make deposits in an amount equal to the net
43
amount of such deposits and payments which would have been made with respect to
Notes to receive payments on the related Payment Dates had the conditions of
this sentence not applied, in the Collection Account in immediately available
funds not later than 1:00 p.m., New York City time, on each applicable Note
Transfer Date following the Monthly Period with respect to which such deposit
relates. To the extent that, in accordance with this Section 3.01, the Servicer
has retained amounts which would otherwise be required to be deposited into a
Collection Account or any Supplemental Bank Account with respect to any Monthly
Period, the Servicer shall be required to deposit such amounts in the applicable
Collection Account or such applicable Supplemental Bank Account on the related
Note Transfer Date to the extent necessary to make required distributions on the
related Payment Date for such Asset Pool.
Section 3.02 ALLOCATIONS OF FINANCE CHARGE COLLECTIONS, THE
DEFAULT AMOUNT AND THE TRUST SERVICING FEE.
(a) With respect to each Monthly Period, the Servicer shall
allocate to each Asset Pool an amount equal to the Finance Charge Collections
from the Trust Assets identified in the applicable Asset Pool Supplement to be
included in the Collateral for such Asset Pool for such Monthly Period.
(b) With respect to each Monthly Period, the Servicer shall
allocate to each Asset Pool an amount equal to the Default Amount with respect
to the Trust Assets identified in the applicable Asset Pool Supplement to be
included in the Collateral for such Asset Pool for such Monthly Period.
(c) With respect to each Monthly Period, the Servicer shall
allocate to each Asset Pool an amount equal to the Servicing Fee for that Asset
Pool with respect to such Monthly Period.
Section 3.03 ALLOCATIONS OF PRINCIPAL COLLECTIONS. With
respect to each Monthly Period, the Servicer shall allocate to each Asset Pool
an amount equal to the Principal Collections from the Trust Assets identified
in the applicable Asset Pool Supplement to be included in the Collateral for
such Asset Pool for such Monthly Period.
Section 3.04 ALLOCATIONS OF FINANCE CHARGE COLLECTIONS, THE
DEFAULT AMOUNT, THE SERVICING FEE AND PRINCIPAL COLLECTIONS ALLOCABLE TO THE
TRANSFEROR INTEREST OF AN ASSET POOL.
(a) With respect to each Monthly Period, unless otherwise
stated in any Indenture Supplement, the Servicer shall allocate to the holder of
the Transferor Interest for an Asset Pool an amount equal to the product of (i)
the Transferor Percentage for that Asset Pool
44
with respect to such Monthly Period and (ii) the Finance Charge Collections
allocable to that Asset Pool with respect to such Monthly Period. If so
specified in any Indenture Supplement, such amounts may be applied to cover
certain shortfalls in the amount of investment earnings on investments of funds
in certain Supplemental Bank Accounts.
(b) With respect to each Monthly Period, the Servicer shall
allocate to the holder of the Transferor Interest for an Asset Pool an amount
equal to the product of (i) the Transferor Percentage for that Asset Pool with
respect to such Monthly Period and (ii) the Default Amount allocable to that
Asset Pool with respect to such Monthly Period.
(c) With respect to each Monthly Period, the Servicer shall
allocate to the holder of the Transferor Interest for an Asset Pool an amount
equal to the product of (i) the Transferor Percentage for that Asset Pool with
respect to such Monthly Period and (ii) the Servicing Fee for that Asset Pool
with respect to such Monthly Period.
(d) With respect to each Monthly Period, unless otherwise
stated in any Asset Pool Supplement or any Indenture Supplement, the Servicer
shall allocate to the holder of the Transferor Interest for an Asset Pool an
amount equal to the product of (i) the Transferor Percentage for that Asset Pool
with respect to such Monthly Period and (ii) the Principal Collections allocable
to that Asset Pool with respect to such Monthly Period; PROVIDED, HOWEVER, that
amounts payable to the holder of the Transferor Interest for an Asset Pool
pursuant to this subsection 3.04(d) shall instead be deposited in the Excess
Funding Account for such Asset Pool to the extent that (i) the Transferor Amount
for such Asset Pool is, or as a result of such payment would become, less than
the Required Transferor Amount for such Asset Pool or (ii) the Pool Balance for
such Asset Pool is, or as a result of such payment would become, less than the
Minimum Pool Balance for such Asset Pool.
(e) To the extent there is more than one Transferor for an
Asset Pool, the Asset Pool Supplement for that Asset Pool shall describe the
distribution among the various Transferors of Collections, the Default Amount
and the Trust Servicing Fee allocated to the Transferor Interest for that Asset
Pool.
(f) Notwithstanding anything in this Agreement to the
contrary, unless otherwise specified in the Indenture, any applicable Asset Pool
Supplement or any applicable Indenture Supplement, the Servicer need not deposit
any amount allocated to be paid to any Transferor pursuant to this Agreement,
the Indenture, any applicable Asset Pool Supplement or any applicable Indenture
Supplement into the Collection Account or any Supplemental Bank Account, but
shall pay such amounts as collected to the applicable Transferor.
45
Section 3.05 TRANSFER OF DEFAULTED ACCOUNTS. Unless otherwise
provided in any Series Supplement, in consideration of receiving Recoveries as
provided in subsection 3.07(a), 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
applicable 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 a Trust Asset.
Section 3.06 ADJUSTMENTS FOR MISCELLANEOUS CREDITS AND
FRAUDULENT CHARGES.
(a) The Servicer shall be obligated to reduce on a net basis
for each Monthly Period the aggregate amount of Principal Receivables (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 (x) the calculation of the Transferor Amount for the applicable
Asset Pool would cause the Transferor Amount for such Asset Pool to be an amount
less than the Required Transferor Amount for such Asset Pool or (y) the
calculation of the Pool Balance for such Asset Pool would cause the Pool Balance
for such Asset Pool to be an amount less than the Minimum Pool Balance for such
Asset Pool, the applicable Transferor shall make a deposit, no later than (a)
the First Note Transfer Date following the Monthly Period with respect to which
such Credit Adjustment occurs or (b) in the event of a Servicer Rating Event, 10
Business Days after the inclusion of the Credit Adjustment that caused the
Transferor Amount for such Asset Pool to be less than the Required Transferor
Amount for such Asset Pool or the Pool Balance for such Asset Pool to be less
than the Minimum Pool Balance for the such Asset Pool, into the Excess Funding
Account in immediately available funds in an amount equal to the greater of the
amount by which (i) the Transferor Amount for the applicable Asset Pool would be
less than the Required Transferor Amount or (ii) the Pool Balance for the
applicable Asset Pool would be an amount less than the Minimum Pool Balance for
such Asset Pool, due to Credit Adjustments with respect to Receivables conveyed
by such Transferor (each such deposit, an "ADJUSTMENT PAYMENT").
(b) If (i) the Servicer makes a deposit into the Collection
Account in respect of a Collection of a Receivable and such Collection was
received by the Servicer in the form of a check which is not honored for any
reason or (ii) the Servicer makes a mistake with respect to the amount of any
Collection and deposits an amount that is less than or more than the actual
amount
46
of such Collection, the Servicer shall appropriately adjust the amount
subsequently deposited into the Collection Account to reflect such dishonored
check or mistake. Any Receivable in respect of which a dishonored check is
received shall be deemed not to have been paid. Notwithstanding the first two
sentences of this paragraph, adjustments made pursuant to this Section 3.06
shall not require any change in any report previously delivered pursuant to
subsection 4.04(a).
Section 3.07 RECOVERIES AND INTERCHANGE.
(a) RECOVERIES. On or prior to the second Business Day
following the end of each Monthly Period, the Transferor shall notify the
Servicer of the amount of Recoveries to be included as Collections for each
Asset Pool with respect to the preceding Monthly Period. On the First Note
Transfer Date following the applicable Monthly Period, the Transferor shall pay
to the Servicer and the Servicer shall deposit into the Collection Account for
each Asset Pool, in immediately available funds, the amount of Recoveries to be
so included as Collections for that Asset Pool with respect to the preceding
Monthly Period; PROVIDED, HOWEVER, that such deposit need be made only to the
extent that such funds are required to be retained in the applicable Bank
Accounts for the benefit of any Series, Class or Tranche of Notes for that Asset
Pool pursuant to the provisions of this Article III of this Agreement, any
applicable Asset Pool Supplement or any applicable Indenture Supplement provided
that any such amount that is not so deposited shall be paid to the applicable
Transferor.
(b) INTERCHANGE. On or prior to the second Business Day
following the end of each Monthly Period, each Account Owner shall notify the
Servicer of the Interchange Amount, if any, which is required to be included as
Finance Charge Collections with respect to the preceding Monthly Period. On the
First Note Transfer Date following the applicable Monthly Period, each Account
Owner shall pay to the Servicer and the Servicer shall deposit into the
Collection Account, in immediately available funds, the Interchange Amount to be
so included as Finance Charge Collections with respect to the preceding Monthly
Period; PROVIDED, HOWEVER, that such deposit need be made only to the extent
that such funds are required to be retained in the applicable Bank Accounts for
the benefit of any Series, Class or Tranche of Notes pursuant to the provisions
of this Article III of this Agreement, any applicable Asset Pool Supplement or
any applicable Indenture Supplement and any such amount that is not so deposited
shall be paid to the applicable Transferor.
[END OF ARTICLE III]
47
ARTICLE IV
SERVICING
OF RECEIVABLES
Section 4.01 ACCEPTANCE OF APPOINTMENT AND OTHER MATTERS
RELATING TO THE SERVICER.
(a) First USA agrees to act as the Servicer under this
Agreement.
(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.
The Servicer shall service and administer the Collateral Certificates and shall
collect payments due under the Collateral Certificates in accordance with the
terms and provisions of each such Collateral Certificate. The Servicer 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 unless such power is revoked by the
Indenture Trustee on account of the occurrence of a Servicer Default pursuant to
Section 10.01, (i) to instruct the applicable Collateral Agent, the Indenture
Trustee or the Owner Trustee to make allocations, withdrawals and payments to or
from the Collection Account, the Excess Funding Account and any Supplemental
Bank Account or Sub-Account as set forth in this Agreement, the Indenture, the
applicable Asset Pool Supplement or any Indenture Supplement, (ii) to take any
action required or permitted under any Supplemental Credit Enhancement or
Derivative Agreement, as set forth in this Agreement, the applicable Asset Pool
Supplement, the Indenture or any Indenture Supplement, (iii) to instruct the
applicable Collateral Agent, the Indenture Trustee or the Owner Trustee in
writing, as set forth in this Agreement, (iv) to execute and deliver, on behalf
of the Trust 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 or the Collateral Certificates and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable Requirements of Law, to commence enforcement
proceedings with respect to such Receivables, (v) to execute and deliver, on
behalf of the Trust, any and all instruments deemed necessary or appropriate by
it to take any action or fulfill any obligation with respect to the Collateral
Certificates and (vi) to make any filings, reports, notices, applications,
registrations with, and to seek any consents or authorizations from the
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. Each of the Collateral Agents, the Indenture Trustee and
the Owner Trustee agree that it shall promptly
48
follow the instructions of the Servicer to withdraw funds from the applicable
Bank Account and to take any action required under any Supplemental Credit
Enhancement or Derivative Agreement at such time as required under this
Agreement, the applicable Asset Pool Supplement, the Indenture or any Indenture
Supplement. Each of the Collateral Agents, the Indenture Trustee and the Owner
Trustee shall execute at the Servicer's written request such documents prepared
by any Transferor and acceptable to the applicable Collateral Agent or the
Indenture Trustee, as may be necessary or appropriate to enable the Servicer to
carry out its servicing and administrative duties hereunder.
(c) The Servicer shall not, and no Successor Servicer shall,
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 or such Successor Servicer, as the case may
be, in connection with servicing other credit card receivables.
(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Accounts and Receivables in accordance with the
Credit Card Agreements relating to the Accounts and the Credit Card Guidelines
and all applicable rules and regulations of the applicable credit card company,
except insofar as any failure to so comply or perform would not materially and
adversely affect the Trust or the Noteholders.
(e) The Servicer shall, on and after such time as Receivables
are included as Trust Assets, pay out of its own funds, without reimbursement,
all expenses incurred in connection with the Trust and the servicing activities
hereunder including expenses related to enforcement of the Collateral
Certificates and the Receivables. Prior to the inclusion of Receivables as Trust
Assets, such expenses shall be paid by each Transferor in accordance with
Section 12.03.
(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 accounts covering such actions and in
such amounts as the Servicer believes to be reason able from time to time.
Section 4.02 SERVICING COMPENSATION. As compensation for its
servicing activities hereunder and under each Asset Pool Supplement and as
reimbursement for any expense incurred by it in connection therewith, the
Servicer shall be entitled to receive a servicing fee (the "TRUST SERVICING
FEE") with respect to each Monthly Period prior to the termination of the Trust
pursuant to Article VIII of the Trust Agreement, payable monthly on the related
Payment Date. For each Monthly Period, the Trust Servicing Fee shall be equal to
the sum of the Servicing Fees for each Asset Pool for such Monthly Period. The
Issuer, as holder of each Collateral Certificate, agrees to pay the portion of
the Trust Servicing Fee owed to each
49
Master Trust Servicer as servicer of the Receivables underlying such Collateral
Certificate; PROVIDED, HOWEVER, in no event shall the Owner Trustee (as such or
in its individual capacity), the Indenture Trustee, the Administrator, any
Collateral Agent or the Noteholders of any Series be liable for the share of the
Trust Servicing Fee with respect to any Monthly Period to be paid by the holder
of any Collateral Certificates.
Section 4.03 REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE
SERVICER. First USA, as initial Servicer, hereby makes, and any Successor
Servicer by its appointment hereunder shall make, with respect to itself, on
each Issuance Date, each Addition Date and each Increase Date (and on the date
of any such appointment), the following representations, warranties and
covenants on which the Trust, the Owner Trustee, the applicable Collateral Agent
and the Indenture Trustee shall be deemed to have relied in accepting each
Collateral Certificate, any increase in an existing Collateral Certificate and
each Receivable in trust and in entering into the Indenture and the applicable
Asset Pool Supplement:
(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 and has full corporate power, authority and legal
right to own its properties and conduct its credit card business as such
properties are presently owned and such business is presently 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 and the other agreements and instruments executed
or to be executed by the Servicer as contemplated hereby, have been duly
authorized by the Servicer by all necessary 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 such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights in general and the rights of creditors of national banking
associations.
50
(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 Governmental Authority seeking to prevent 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 an Adverse
Effect.
(h) NO RESCISSION OR CANCELLATION. The Servicer shall not
permit any rescission or cancellation of any Collateral Certificate or 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.
(i) PROTECTION OF RIGHTS. The Servicer shall take no action
which, nor omit to take any action the omission of which, would impair the
rights of the Trust, the applicable Collateral Agent, the Indenture Trustee or
the Noteholders in any Collateral Certificate or any Receivable or the related
Account, if any, nor shall it reschedule, revise or defer payments due on any
Receivable except in accordance with the Credit Card Guidelines.
(j) 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 any
instrument (as defined in the UCC as in effect in the State of
Delaware) and if
any Receivable is so evidenced it shall be reassigned or assigned to the
Servicer as provided in this Section.
51
(k) ALL CONSENTS. All authorizations, consents, orders 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.
Section 4.04 REPORTS AND RECORDS FOR THE OWNER TRUSTEE, THE
INDENTURE TRUSTEE AND THE APPLICABLE COLLATERAL AGENT.
(a) DAILY RECORDS. On each Business Day, the Servicer shall
prepare or cause to be made available at the office of the Servicer for
inspection by the Owner Trustee, the Indenture Trustee and the applicable
Collateral Agent upon request a record setting forth (i) the aggregate amount of
Collections processed by the Servicer on the second preceding Business Day, (ii)
if the Trust Assets include Receivables, the aggregate amount of Receivables as
of the close of business on the second preceding Business Day in the Accounts
and (iii) the Invested Amount of each Collateral Certificate as of the close of
business on the second preceding Business Day.
(b) MONTHLY SERVICER'S CERTIFICATE. Unless otherwise stated in
the related Asset Pool Supplement, on each Determination Date, the Servicer
shall, with respect to each outstanding Series, deliver to the Owner Trustee,
the Indenture Trustee, the applicable Collateral Agent and each Note Rating
Agency a certificate of an Authorized Officer in substantially the form set
forth in the related Asset Pool Supplement.
Section 4.05 ANNUAL CERTIFICATE OF SERVICER. Within four
months after the end of each fiscal year of the Servicer beginning with the end
of fiscal year 2002, the Servicer will deliver to the Owner Trustee, the
Indenture Trustee, the applicable Collateral Agent and each Note Rating Agency,
an Officer's Certificate substantially in the form of Exhibit C 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, the Indenture, the Asset Pool Supplements and
the Indenture Supplements 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 4.06(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
52
copy of such certificate may be obtained by any Noteholder or Note Owner by a
request in writing to the Owner Trustee addressed to the Corporate Trust Office.
Section 4.06 ANNUAL SERVICING REPORT OF INDEPENDENT CERTIFIED
PUBLIC ACCOUNTANTS; COPIES OF REPORTS AVAILABLE.
(a) Within four months after the end of each fiscal year of
the Servicer beginning with the end of fiscal year 2002, if Receivables were
included in the Trust Assets during the preceding year, the Servicer shall cause
a firm of nationally recognized independent public accountants (who may also
render other services to the Servicer or any Transferor) to furnish a report to
the Indenture Trustee, the Owner Trustee, the applicable Collateral Agent and
each Note 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.
(b) Within four months after the end of each fiscal year of
the Servicer beginning with the end of fiscal year 2002, the Servicer shall
cause a firm of nationally recognized independent public accountants (who may
also render other services to the Servicer or the applicable Transferor) to
furnish a report to the Indenture Trustee, the Owner Trustee, the applicable
Collateral Agent and the Servicer to the effect that they have applied certain
procedures agreed upon with the Servicer to compare the mathematical
calculations of each amount set forth in the Servicer's certificates delivered
pursuant to subsection 4.04(b) during the period covered by such report with the
Servicer's computer reports that were the source of such amounts and that on the
basis of such agreed-upon procedures and comparison, such accountants are of the
opinion that such amounts are in agreement, except for such exceptions as they
believe to be immaterial and such other exceptions as shall be set forth in such
statement. Such report shall set forth the agreed-upon procedures performed.
(c) A copy of each certificate and report provided pursuant to
subsection 4.04(b), Section 4.05 or subsection 4.06(a) may be obtained by any
Noteholder or Note Owner by a request in writing to the Owner Trustee addressed
to the Corporate Trust Office.
(d) In the event such independent public accountants require
the Indenture Trustee to agree to the procedures to be performed by such firm in
any of the reports required to be prepared pursuant to this Section 4.06, the
Servicer shall direct the Indenture Trustee in writing to so agree; it being
understood and agreed that the Indenture Trustee will deliver such letter of
agreement in conclusive reliance upon the direction of the Servicer, and the
Indenture
53
Trustee has not made any independent inquiry or investigation as to,
and shall have no obligation or liability in respect of, the sufficiency,
validity or correctness of such procedures.
Section 4.07 TAX TREATMENT. Unless otherwise specified in the
Indenture or an Indenture Supplement with respect to a particular Series, Class
or Tranche, each Transferor has entered into this Agreement, and the Notes will
be issued, with the intention that, for federal, state and local income and
franchise tax purposes, (i) the Notes of each Series, Class or Tranche which are
characterized as indebtedness at the time of their issuance will qualify as
indebtedness secured by the Trust Assets and (ii) the Trust shall not be treated
as an association or publicly traded partnership taxable as a corporation. Each
Transferor, by entering into this Agreement, and each Noteholder, by the
acceptance of any such Note (and each Note Owner, by its acceptance of an
interest in the applicable Note), agree to treat such Note for federal, state
and local income and franchise tax purposes as indebtedness of the Transferor.
Each Holder of such Note agrees that it will cause any Note Owner acquiring an
interest in a Note through it to comply with this Agreement as to treatment as
indebtedness under applicable tax law, as described in this Section 4.07. The
parties hereto agree that they shall not cause or permit the making, as
applicable, of any election under Treasury Regulation Section 301.7701-3 whereby
the Trust or any portion thereof would be treated as a corporation for federal
income tax purposes and, except as required by Section 7.15 of the Indenture,
shall not file tax returns or obtain any federal employer identification number
for the Trust but shall treat the Trust as a security device for federal income
tax purposes. The provisions of this Agreement shall be construed in furtherance
of the foregoing intended tax treatment.
Section 4.08 NOTICES TO FIRST USA. In the event that First USA
is no longer acting as Servicer, any Successor Servicer shall deliver or make
available to First USA each certificate and report required to be provided
thereafter pursuant to subsection 4.04(b) and Sections 4.05 and subsections
4.06(a) and (b).
Section 4.09 REPORTS TO THE COMMISSION. The Servicer shall, on
behalf of the Trust, cause to be filed with the Commission any periodic reports
required to be filed under the provisions of the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission thereunder.
The applicable Transferor shall, at its own expense, cooperate in any reasonable
request of the Servicer in connection with such filings.
[END OF ARTICLE IV]
54
ARTICLE V
ADMINISTRATION OF THE TRUST; DUTIES
OF THE ADMINISTRATOR
Section 5.01 APPOINTMENT OF ADMINISTRATOR; DUTIES OF
ADMINISTRATOR.
(a) The Issuer hereby appoints First USA to act as initial
administrator (the "ADMINISTRATOR"), subject to Section 5.08.
(b) DUTIES OF ADMINISTRATOR WITH RESPECT TO THE RELATED
AGREEMENTS. The Administrator shall consult with the Owner Trustee regarding the
duties of the Issuer and the Owner Trustee under the Related Agreements. The
Administrator shall monitor the performance of the Issuer and shall advise the
Owner Trustee when action is necessary to comply with the Issuer's or the Owner
Trustee's duties under the Related Agreements. The Administrator shall prepare
for execution by the Issuer or the Owner Trustee or shall cause the preparation
by other appropriate Persons of all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the Issuer or
the Owner Trustee to prepare, file or deliver pursuant to any Related Agreement.
In furtherance of the foregoing, the Administrator shall take all appropriate
action that it is the duty of the Issuer or the Owner Trustee to take pursuant
to the Indenture, any Indenture Supplement and any Asset Pool Supplement
including, such of the foregoing as are required with respect to the following
matters under the Indenture, any Indenture Supplement and any Asset Pool
Supplement (parenthetical references are to Articles or Sections of the
Indenture):
(A) the duty to cause the Note Register to be kept, and
notifying the Indenture Trustee of any appointment of a new Note
Registrar and the location, or change in location, of the Note
Registrar (subsection 3.05(a));
(B) preparing or obtaining the documents, legal opinions and
instruments required for execution, authentication and delivery of the
Notes, and delivery of the same to the Indenture Trustee for
authentication (Sections 3.03, 3.04 and 3.10), providing for the
replacement of mutilated, destroyed, lost or stolen Notes (Section
3.06), providing for the exchange or transfer of Notes (Section 3.05)
and, to the extent set forth in the related Indenture Supplement,
notifying each Note Rating Agency in writing of the issuance of any
Tranche, Class or Series of Notes;
(C) directing the Collateral Agent with respect to the
investment of funds in the Bank Accounts (Section 4.03);
55
(D) preparing or obtaining the documents, legal opinions and
instruments required to be delivered to the Indenture Trustee with
respect to the satisfaction and discharge of the Indenture (subsection
5.01(c)) and preparing the documents necessary for the Indenture
Trustee to acknowledge the same (subsection 5.01(a));
(E) on the resignation or removal of any Indenture Trustee,
appointing a successor Indenture Trustee (subsection 7.10(e)) and
giving written notice of such resignation or removal and appointment to
each Noteholder (subsection 7.10(f));
(F) preparing or causing to be prepared tax returns for the
Issuer (if required) and the reporting information for the Noteholders
(Section 7.15);
(G) preparing on behalf of the Issuer written instructions
regarding any action proposed to be taken or omitted by the Indenture
Trustee upon the Indenture Trustee's application therefor (Section
7.18);
(H) furnishing to the Indenture Trustee a list of the names
and addresses of the Registered Noteholders not more than 15 days after
each Record Date or at such other times as the Indenture Trustee may
request in writing (Section 8.01);
(I) establishing reasonable rules for matters relating to
Action by or a meeting of Noteholders not otherwise set forth in
Section 8.04 of the Indenture (subsection 8.04(g));
(J) preparing for the Issuer such filings for filing with the
Commission, and providing the Indenture Trustee with copies thereof
once filed, as required by the Securities Exchange Act of 1934, as
amended, or otherwise as in accordance with rules and regulations
prescribed from time to time by the Commission (Section 8.05);
(K) preparing, completing and delivering to the Indenture
Trustee and the trustee for the applicable Master Trust (with a copy to
each Note Rating Agency), a Monthly Noteholders' Statement (Section
8.06);
(L) preparing for the Issuer the Payment Instruction after the
Issuer receives each Monthly Servicer's Certificate under the
applicable Series Supplement, delivering a copy thereof to the
Indenture Trustee and the trustee for the applicable Master Trust and
compiling such other information for the Issuer (subsection 8.07(a));
(M) preparing or obtaining any necessary Opinion of Counsel,
Issuer Tax Opinion, Officer's Certificate, or other document or
instrument as may be required in
56
connection with any supplemental indenture or amendment to the
Indenture, any Indenture Supplement or any Asset Pool Supplement
(Article IX);
(N) giving notice to each Note Rating Agency and collecting
the vote of Noteholders, as necessary, in connection with any
supplemental indenture or amendment to the Indenture, any Indenture
Supplement or any Asset Pool Supplement (Article IX);
(O) appointing Paying Agents (Section 10.02) and causing any
such Paying Agents to execute and deliver to the Indenture Trustee an
instrument pursuant to which it agrees to act as Paying Agent as set
forth in Section 10.03 of the Indenture;
(P) preparing Officer's Certificates of the Issuer directing
the Paying Agent to pay to the Indenture Trustee sums held in trust by
the Issuer or such Paying Agent for the purpose of discharging the
Indenture (Section 10.03);
(Q) preparing written statements for execution by an
Authorized Officer as required by Section 10.04 of the Indenture;
(R) performing or causing to be performed all things necessary
to preserve and keep in full force and effect the legal existence of
the Issuer (Section 10.05) and comply with applicable law (Section
10.07);
(S) giving prompt written notice to the Indenture Trustee and
each Note Rating Agency of each Event of Default under the Indenture,
each breach on the part of the applicable Master Trust Servicer or the
applicable Master Trust Transferor of its respective obligations under
the applicable Pooling and Servicing Agreement or any default of a
Derivative Counterparty (Section 10.08);
(T) providing to Noteholders and prospective Noteholders
information required to be provided by the Issuer pursuant to Rule 144A
under the Securities Act (Section 10.12);
(U) performing and observing all of the Issuer's obligations
under the Indenture, any Indenture Supplement, any Asset Pool
Supplement, the Trust Agreement and any other instrument or agreement
relating to the Collateral including, without limitation, preparing and
causing the Issuer to file UCC financing statements and continuation
statements (Section 10.13);
(V) preparing or obtaining the instruments, documents,
agreements and legal opinions required to be delivered by the Issuer
and preparing any notice required to be
57
given to the Note Rating Agencies, in connection with the merger or
consolidation of the Issuer with any other Person (subsection 10.14(a))
or the conveyance or transfer of any of the Issuer's property or assets
(subsection 10.14(b));
(W) giving written notice to the affected Noteholders of any
optional repurchase by the Servicer (Section 11.02) and to the
Indenture Trustee and each Note Rating Agency with respect to any such
optional repurchase or Early Amortization Event (Section 11.03);
(X) to the extent set forth herein or in the related Asset
Pool Supplement, preparing or obtaining the instruments, documents,
agreements and legal opinions required to be delivered by the Issuer
and/or the Collateral Agent and preparing any notice required to be
given by the Issuer to the Note Rating Agencies, the Indenture Trustee,
the applicable Collateral Agent and the Servicer in connection with
addition or removal of Collateral, and designating such Collateral to
be added or removed, as the case may be;
(Y) to the extent set forth herein or in the related Asset
Pool Supplement, taking, or assisting the Issuer and/or the Collateral
Agent in taking, all actions necessary and advisable to obtain,
maintain and enforce a perfected lien on and security interest in the
Collateral in favor of the Collateral Agent and preparing for execution
and delivery or filing by the Issuer all such supplements and
amendments to this Agreement and any Asset Pool Supplement and all such
financing statements, continuation statements, instruments of further
assurance and other instruments;
(Z) to the extent set forth herein or in the related Asset
Pool Supplement, obtaining legal opinions with respect to the security
interest in the Collateral;
(AA) to the extent set forth in the related Asset Pool
Supplement, assisting the Issuer in appointing a suitable successor
Collateral Agent as necessary, and giving written notice to each Note
Rating Agency with respect to the removal of the Collateral Agent and
the appointment of a successor;
(BB) to the extent set forth in the related Asset Pool
Supplement, establishing and maintaining or causing to be established
and maintained certain Bank Accounts; and
(CC) to the extent set forth in the related Asset Pool
Supplement, directing the Collateral Agent with respect to the
investment of funds in the Bank Accounts.
58
(c) ADDITIONAL DUTIES.
(i) In addition to the duties of the Administrator
set forth above, the Administrator shall perform all duties and
obligations of the Issuer under the Related Agreements and shall
perform such calculations and shall prepare for execution by the Issuer
and shall cause the preparation by other appropriate Persons of all
such documents, reports, filings, instruments, certificates and
opinions as it shall be the duty of the Issuer or the Owner Trustee to
prepare, file or deliver pursuant to the Related Agreements, and at the
request of the Issuer shall take all appropriate action that it is the
duty of the Issuer or the Owner Trustee to take pursuant to the Related
Agreements. Subject to Section 5.05 of this Agreement, and in
accordance with the directions of the Issuer, the Administrator shall
administer, perform or supervise the performance of such other
activities in connection with the Collateral (including the Related
Agreements) as are not covered by any of the foregoing provisions and
as are expressly requested by the Owner Trustee and are reasonably
within the capability of the Administrator.
(ii) The Administrator shall perform the duties of
the Administrator specified in Section 5.02 of the Trust Agreement
required to be performed in connection with the resignation or removal
of the Owner Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(iii) In carrying out the foregoing duties or any of
its other obligations under this Agreement, the Administrator may enter
into transactions with or otherwise deal with any of its Affiliates;
PROVIDED, HOWEVER, that the terms of any such transactions or dealings
shall be in accordance with any directions received from the Issuer and
shall be, in the Administrator's opinion, no less favorable to the
Issuer than would be available from unaffiliated parties.
(iv) It is the intention of the parties hereto that
the Administrator shall, and the Administrator hereby agrees to,
execute on behalf of the Issuer all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Related Agreements.
In furtherance thereof, the Owner Trustee shall, on behalf of the
Issuer, execute and deliver to the Administrator and its agents, and to
each successor Administrator appointed pursuant to the terms hereof,
one or more powers of attorney substantially in the form of Exhibit E,
appointing the Administrator the attorney-in-fact of the Issuer for the
purpose of executing on behalf of the Issuer all such documents,
reports, filings, instruments, certificates and opinions.
59
(d) NON-MINISTERIAL MATTERS.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the
taking of such action, the Administrator shall have notified the Owner
Trustee of the proposed action and the Owner Trustee shall not have
withheld consent or provided an alternative direction. For the purpose
of the preceding sentence, "non-ministerial matters" shall include:
(1) the amendment of or any supplement to the
Indenture;
(2) the initiation of any claim or lawsuit by the
Issuer and the compromise of any action, claim or
lawsuit brought by or against the Issuer;
(3) the amendment, change or modification of the
Related Agreements;
(4) the appointment of successor Note Registrars,
successor Paying Agents and successor trustees
pursuant to the Indenture or the appointment of
successor Administrators, or the consent to the
assignment by the Note Registrar, Paying Agent or
trustee of its obligations under the Indenture; and
(5) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not,
(x) make any payments to the Noteholders or any Transferor under the
Related Agreements or (y) take any other action that the Issuer directs
the Administrator not to take on its behalf.
Section 5.02 RECORDS. The Administrator shall maintain
appropriate books of account and records relating to services performed
hereunder, which books of account and records shall be accessible for inspection
by the Issuer, the Owner Trustee, the Indenture Trustee, the applicable
Collateral Agent and any Transferor at any time during normal business hours.
Section 5.03 COMPENSATION. As compensation for the performance
of the Administrator's obligations under this Agreement, the Administrator shall
be entitled to an amount not to exceed $5,000 per month, in addition to
reimbursement for its liabilities and extra out-of-pocket expenses related to
its performance hereunder or under any Related Agreement. Such amounts shall be
paid by the Transferor in accordance with Section 12.03.
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Section 5.04 ADDITIONAL INFORMATION TO BE FURNISHED TO ISSUER.
The Administrator shall furnish to the Issuer, the Indenture Trustee or the
applicable Collateral Agent from time to time such additional information
regarding the Related Agreements and the Trust as each of them shall reasonably
request.
Section 5.05 INDEPENDENCE OF ADMINISTRATOR. For all purposes
of this Agreement, the Administrator shall be an independent contractor and
shall not be subject to the supervision of the Issuer or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
Section 5.06 NO JOINT VENTURE. Nothing contained in this
Agreement shall (i) constitute the Administrator and either of the Issuer or the
Owner Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) be construed
to impose any liability as such on any of them or (iii) be deemed to confer on
any of them any express, implied or apparent authority to incur any obligation
or liability on behalf of the others.
Section 5.07 OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein
shall prevent the Administrator or its Affiliates from engaging in other
businesses or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Owner
Trustee, the Collateral Agent or the Indenture Trustee.
Section 5.08 TERMINATION, RESIGNATION AND REMOVAL OF
ADMINISTRATOR.
(a) Subject to subsection 5.08(d), the Administrator may
resign its duties hereunder by providing the Issuer with at least 60 days prior
written notice.
(b) Subject to subsection 5.08(d), the Issuer may, with
written notice to each Note Rating Agency, remove the Administrator without
cause by providing the Administrator with at least 60 days prior written notice.
(c) Subject to subsection 5.08(d), at the sole option of the
Issuer and with written notice to each Note Rating Agency, the Administrator may
be removed immediately upon written notice of termination from the Issuer to the
Administrator if any of the following events shall occur:
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(i) the Administrator shall default in the performance
of any of its duties under this Agreement and, after notice of such
default, shall not cure such default within 10 days (or, if such
default cannot be cured in such time, shall not give within 10 days
such assurance of cure as shall be reasonably satisfactory to the
Issuer);
(ii) a court having jurisdiction in the premises shall
enter a decree or order for relief, and such decree or order shall not
have been vacated within 60 days, in respect of the Administrator in
any involuntary case under any applicable bankruptcy, insolvency or
other similar law now or hereafter in effect or appoint a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar
official for the Administrator or any substantial part of its property
or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, shall consent to the entry of an order for relief
in an involuntary case under any such law, or shall consent to the
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Administrator or any
substantial part of its property, shall consent to the taking of
possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of its
creditors or shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clause
(ii) or (iii) of this subsection 5.08(c) shall occur, it shall give written
notice thereof to the Issuer, the Owner Trustee, the Indenture Trustee and the
applicable Collateral Agent within seven days after the happening of such event.
(d) No termination, resignation or removal of the
Administrator pursuant to this Section shall be effective until (i) a successor
Administrator shall have been appointed by the Issuer and (ii) such successor
Administrator shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Administrator is bound hereunder.
Section 5.09 ACTION UPON TERMINATION, RESIGNATION OR REMOVAL.
Promptly upon the effective date of termination of the Administrator pursuant to
subsection 5.08(c) or the resignation or removal of the Administrator pursuant
to subsection 5.08(a) or (b), respectively, the Administrator shall be entitled
to be paid all fees and reimbursable expenses accruing to it to the date of such
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to subsection 5.08(c) deliver to the Issuer all property and documents
of or relating to the Collateral then in the custody of the Administrator. In
the event of the resignation or removal of the Administrator pursuant to
subsection 5.08(a), (b) or (d), respectively, the
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Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator.
[END OF ARTICLE V]
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ARTICLE VI
OTHER MATTERS RELATING TO EACH TRANSFEROR
Section 6.01 LIABILITY OF EACH TRANSFEROR. Each Transferor
shall be severally, and not jointly, liable for all obligations, covenants,
representations and warranties of such Transferor arising under or related to
this Agreement. Except as provided in the preceding sentence, each Transferor
shall be liable only to the extent of the obligations specifically undertaken by
it in its capacity as a Transferor.
Section 6.02 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, A TRANSFEROR.
(a) No Transferor shall dissolve, liquidate, consolidate with
or merge into any other Person or convey, transfer or sell its properties and
assets substantially as an entirety to any Person unless:
(i) (x) the Person formed by such consolidation or
into which such Transferor is merged or the Person which acquires by
conveyance, transfer or sale the properties and assets of such
Transferor substantially as an entirety shall be, if such 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 savings association, a national banking association, a bank
or other entity which is not eligible to be a debtor in a case under
Title 11 of the United States Code or is 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 Owner Trustee, the Indenture
Trustee and the applicable Collateral Agent, in form reasonably
satisfactory to the Owner Trustee, the Indenture Trustee and the
applicable Collateral Agent, the performance of every covenant and
obligation of such Transferor hereunder and shall benefit from all the
rights granted to such Transferor, as applicable hereunder; and (y)
such Transferor or the surviving entity, as the case may be, has
delivered to the Owner Trustee, the Indenture Trustee and the
applicable Collateral Agent (with a copy to each Note Rating Agency) an
Officer's Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or sale and such
supplemental agreement comply with this Section, that such supplemental
agreement is a valid and binding obligation of such surviving entity
enforceable against such surviving entity in accordance with its terms,
except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally from time to time in effect or general
principles
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of equity, and that all conditions precedent herein provided for
relating to such transaction have been complied with;
(ii) to the extent that any right, covenant or
obligation of such 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; and
(iii) such Transferor shall have given the Note
Rating Agencies notice of such consolidation, merger or transfer of
assets.
(b) Except as permitted by subsection 2.08(c), the
obligations, rights or any part thereof of each Transferor hereunder shall not
be assignable nor shall any Person succeed to such obligations or rights of any
Transferor hereunder except (i) for conveyances, mergers, consolidations,
assumptions, sales or transfers in accordance with the provisions of the
foregoing paragraph and (ii) for conveyances, mergers, consolidations,
assumptions, sales or transfers to other entities (1) which such Transferor and
the Servicer determine will not result in an Adverse Effect, (2) which meet the
requirements of clause (ii) of the preceding paragraph and (3) for which such
purchaser, transferee, pledgee or entity shall expressly assume, in an agreement
supplemental hereto, executed and delivered to the Owner Trustee, the Indenture
Trustee and the applicable Collateral Agent in writing in form satisfactory to
the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent,
the performance of every covenant and obligation of such Transferor thereby
conveyed.
Section 6.03 LIMITATIONS ON LIABILITY OF EACH TRANSFEROR.
Subject to Section 6.01, no Transferor nor any of the directors, officers,
members, managers, employees, incorporators or agents of any Transferor acting
in such capacities shall be under any liability to the Trust, the Owner Trustee,
the Indenture Trustee, the applicable Collateral Agent, the Noteholders or any
other Person for any action taken, or for refraining from the taking of any
action, in good faith in such capacities pursuant to this Agreement, it being
expressly understood that all such liability is expressly waived and released as
a condition of, and consideration for, the execution of this Agreement, the
Indenture and any Indenture Supplement and the issuance of the Notes; PROVIDED,
HOWEVER, that this provision shall not protect any Transferor, any director,
officer, employee, incorporator or agent of any Transferor or, if applicable,
any manager or member of any 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. Each Transferor and, any director, officer,
employee, incorporator or agent of such Transferor and, if applicable, any
member or manager of such Transferor may rely in good faith on any document of
any kind PRIMA FACIE
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properly executed and submitted by any Person (other than such Transferor)
respecting any matters arising hereunder.
[END OF ARTICLE VI]
66
ARTICLE VII
OTHER MATTERS RELATING TO THE SERVICER
Section 7.01 LIABILITY OF THE SERVICER. The Servicer shall be
liable under this Article VII only to the extent of the obligations specifically
undertaken by the Servicer in its capacity as Servicer.
Section 7.02 MERGER OR CONSOLIDATION OF, OR ASSUMPTION OF THE
OBLIGATIONS OF, THE SERVICER. The Servicer shall not consolidate with or merge
into any other Person or convey, transfer or sell its properties and assets
substantially as an entirety to any Person, unless:
(a) (i) the Person formed by such consolidation or into which
the Servicer is merged or the Person which acquires by conveyance,
transfer or sale the properties and assets of the Servicer
substantially as an entirety shall be, if the Servicer is not the
surviving entity, a corporation or a national banking association
organized and existing under the laws of the United States of America
or any state or the District of Columbia or is a special purpose entity
whose powers and activities are limited, and, if the Servicer is not
the surviving entity, such entity shall expressly assume, by an
agreement supplemental hereto, executed and delivered to the Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent, in
form satisfactory to the Owner Trustee, the Indenture Trustee and the
applicable Collateral Agent, 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 has delivered to the Owner Trustee,
the Indenture Trustee and the applicable Collateral Agent an Officer's
Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance, transfer or sale comply with this
Section 7.02 and that all conditions precedent herein provided for
relating to such transaction have been complied with;
(iii) the Servicer shall have given the Note Rating
Agencies notice of such consolidation, merger or transfer or assets;
and
(b) 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
an Eligible Servicer.
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Section 7.03 LIMITATION ON LIABILITY OF THE SERVICER AND
OTHERS. Except as provided in Section 7.04, neither the Servicer nor any of the
directors, officers, employees or agents of the Servicer in its capacity as
Servicer shall be under any liability to the Trust, the Owner Trustee, the
Indenture Trustee, any Collateral Agent, the Noteholders or any other Person for
any action taken, or for refraining from the taking of any action, in good faith
in its capacity as Servicer pursuant to this Agreement; PROVIDED, HOWEVER, that
this provision shall not protect the Servicer or any directors, officers,
employees or 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. The Servicer and any director, officer, employee or agent of
the Servicer may rely in good faith on any document of any kind PRIMA FACIE
properly executed and submitted by any Person (other than the Servicer)
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 as Servicer in accordance with this Agreement and which
in its reasonable judgment may involve it in any expense or liability. The
Servicer may, in its sole discretion, undertake any such legal action which it
may deem necessary or desirable for the benefit of the Noteholders with respect
to this Agreement and the rights and duties of the parties hereto and the
interests of the Noteholders hereunder.
Section 7.04 SERVICER INDEMNIFICATION OF THE TRUST, THE OWNER
TRUSTEE AND THE INDENTURE TRUSTEE. The Servicer shall indemnify and hold
harmless each of the Trust, the Owner Trustee (as such and in its individual
capacity), the Indenture Trustee and any trustees predecessor thereto
(including the Indenture Trustee in its capacity as Transfer Agent and Note
Registrar or as Paying Agent), any Collateral Agent and their respective
directors, officers, employees and agents from and against any and all
reasonable loss, liability, claim, expense, damage or injury suffered or
sustained by reason of (a) any acts or omissions of the Servicer with respect to
the Trust pursuant to this Agreement or (b) the administration of the Trust by
the Owner Trustee, the issuance by the Trust of the Notes, any Servicer Default,
or 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 Owner Trustee, the Indenture Trustee, each Collateral
Agent or the Noteholders if such acts, omissions or alleged acts or omissions
constitute or are caused by fraud, negligence, or willful misconduct by the
Owner Trustee, the Indenture Trustee or the applicable Collateral Agent;
PROVIDED FURTHER, that the Servicer shall not indemnify the Trust, the
Noteholders or the Note Owners for any liabilities, costs or expenses of the
Trust with respect to any action taken by the Owner Trustee, the Indenture
Trustee or the applicable Collateral Agent at the request of the Noteholders;
PROVIDED FURTHER, that the Servicer shall not indemnify the Trust, the
Noteholders or the Note 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
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Defaulted Accounts or Receivables which are written off as uncollectible or
losses suffered by the Collateral Certificates; and PROVIDED FURTHER, that the
Servicer shall not indemnify the Trust, the Noteholders or the Note Owners for
any liabilities, costs or expenses of the Trust, the Noteholders or the Note
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
Noteholders or the Note Owners in connection herewith to any taxing authority.
Any such indemnification shall not be payable from the Trust Assets. 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 Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent and the
termination of the Trust.
Section 7.05 RESIGNATION OF THE SERVICER. The Servicer shall
not resign from the obligations and duties hereby imposed on it except (a) 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 or (b) upon the assumption, by an agreement
supplemental hereto, executed and delivered to the Owner Trustee, the Indenture
Trustee and the applicable Collateral Agent, in form satisfactory to the Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent, of the
obligations and duties of the Servicer hereunder by any of its Affiliates or by
any entity the appointment of which shall have satisfied the Note Rating Agency
Condition and, in either case, qualifies as an Eligible Servicer. Any
determination permitting the resignation of the Servicer shall be evidenced as
to clause (a) above by an Opinion of Counsel to such effect delivered to the
Owner Trustee, the Indenture Trustee and the applicable Collateral Agent. No
resignation shall become effective until the Indenture Trustee or a Successor
Servicer shall have assumed the responsibilities and obligations of the Servicer
in accordance with Section 7.02 hereof. If within 120 days of the date of the
determination that the Servicer may no longer act as Servicer under clause (a)
above the Indenture Trustee is unable to appoint a Successor Servicer, the
Indenture Trustee shall serve as Successor Servicer (but shall have continued
authority to appoint another Person as Successor Servicer). Notwithstanding the
foregoing, the Indenture Trustee shall, if it is legally unable so to act,
petition a court of competent jurisdiction to appoint any established
institution qualifying as an Eligible Servicer as the Successor Servicer
hereunder. The Trust shall give prompt notice to each Note Rating Agency upon
the appointment of a Successor Servicer. Notwithstanding anything in this
Agreement to the contrary, First USA may assign part or all of its obligations
and duties as Servicer under this Agreement to an Affiliate of First USA so long
as First USA shall have fully guaranteed the performance of such obligations and
duties under this Agreement.
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Section 7.06 DELEGATION OF DUTIES. In the ordinary course of
business, the Servicer may at any time 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 that agrees to conduct such duties in accordance with the Credit Card
Guidelines and this Agreement. Any such delegation 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 7.05. If any
such delegation is to a party other than First Data Resources, Inc.,
notification thereof shall be given to each Note Rating Agency.
Section 7.07 EXAMINATION OF RECORDS. Each Transferor and the
Servicer shall indicate generally in their computer files or other records that
the Receivables arising in the Accounts have been conveyed to the Trust,
pursuant to this Agreement. Each Transferor and the Servicer shall, prior to the
sale or transfer to a third party of any receivable held in its custody, examine
its computer records and other records to determine that such receivable is not,
and does not include, a Receivable. Each Transferor and the Servicer shall also
indicate generally in their computer files or other records that each applicable
Collateral Certificate has been conveyed to the Trust, pursuant to this
Agreement.
[END OF ARTICLE VII]
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ARTICLE VIII
ACQUISITION OF TRUST ASSETS
Section 8.01 ACQUISITION OF TRUST ASSETS. If the Master Trust
Transferor exercises its option to accept retransfer of any Collateral
Certificate pursuant to the terms of the related Series Supplement, the Master
Trust Transferor shall (a) acquire the Collateral Certificate, which
acquisition shall be effective as of the date on which such retransfer occurs,
(b) deliver notice of such acquisition to the Owner Trustee, the Indenture
Trustee, the applicable Collateral Agent and the Servicer on or prior to the
Determination Date following the applicable Monthly Period for which the option
is deemed exercised, (c) deposit in the Collection Account for the relevant
Asset Pool on or prior to the First Note Transfer Date following the applicable
Monthly Period an amount equal to the lesser of (1) (x) the amount required so
that the Transferor Amount for such Asset Pool is equal to or greater than the
Required Transferor Amount for such Asset Pool and (y) the amount required so
that the Pool Balance for such Asset Pool is equal to or greater than the
Minimum Pool Balance for such Asset Pool and (2) the Invested Amount of the
Collateral Certificate on such date and all other amounts payable to the
Noteholders of each Outstanding Series of Notes including accrued interest on
the Notes. Upon the completion of the foregoing condition, the applicable Master
Trust shall succeed to all interests in and to the Trust with respect to such
Collateral Certificate.
[END OF ARTICLE VIII]
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ARTICLE IX
INSOLVENCY EVENTS
Section 9.01 RIGHTS UPON THE OCCURRENCE OF AN INSOLVENCY
EVENT. If any Transferor shall consent to the appointment of a bankruptcy
trustee or 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 bankruptcy trustee or conservator or receiver or liquidator for the winding-up
or liquidation of its affairs shall have been entered against such Transferor
(an "INSOLVENCY EVENT"), each Transferor shall on the day of such Insolvency
Event (the "APPOINTMENT DAY") immediately cease to (i) transfer Principal
Receivables or additional Collateral Certificates to the Trust and (ii) increase
any Invested Amount of a Collateral Certificate transferred to the Trust by such
Transferor and shall promptly give notice to the Owner Trustee, the Indenture
Trustee and the applicable Collateral Agent 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 to Noteholders in accordance with the terms of the
Indenture and each Indenture Supplement.
[END OF ARTICLE IX]
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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 notice or instructions to the Indenture Trustee to make
any required withdrawal or payment, transfer or deposit on the date the Servicer
is required to do so under the terms of this Agreement, the Indenture or any
Indenture Supplement, or within the applicable grace period, which will not
exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or
perform in any material respect any other covenants or agreements of the
Servicer set forth in this Agreement which has an Adverse Effect on the
Noteholders of any Series, Class or Tranche 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
Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or to
the Servicer, the Owner Trustee, the Indenture Trustee and the applicable
Collateral Agent by Holders of Notes evidencing not less than 50% of the
aggregate unpaid principal amount of all Notes sustaining such Adverse Effect
(or, with respect to any such failure that does not relate to all Series,
Classes or Tranches, not less than 50% of the aggregate unpaid principal amount
of all Series, Classes or Tranches to which such failure related); or the
Servicer shall assign or delegate its duties under this Agreement, except as
permitted by Sections 7.02, 7.05 and 7.06;
(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 an Adverse
Effect on the rights of the Noteholders of any Series, Class or Tranche and
which Adverse Effect continues for a period of 60 days after the date on which
written notice thereof, requiring the same to be remedied, shall have been given
to the Servicer by the Owner Trustee, the Indenture Trustee or the applicable
Collateral Agent, or to the Servicer, the Owner Trustee, the Indenture Trustee
and the applicable Collateral Agent by the Holders of Notes evidencing not less
than 50% of the aggregate unpaid principal amount of all Notes (or, with respect
to any such representation, warranty or certification that does not relate to
all Series, Classes or Tranches, not less than 50% of the aggregate unpaid
principal amount of all Series, Classes or Tranches to which such
representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a
bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy
proceeding or other insolvency,
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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 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 a conservator or receiver or liquidator in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings, or 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
bankruptcy, insolvency or reorganization statute, make any assignment for the
benefit of its creditors or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture
Supplement.
Then, in the event of any Servicer Default, so long as the
Servicer Default shall not have been remedied, either the Indenture Trustee or
the Holders of Notes evidencing more than 50% of the aggregate unpaid principal
amount of all affected Notes, by notice then given in writing to the Servicer
and the Owner Trustee (and to the Indenture Trustee if given by the Noteholders)
(a "TERMINATION NOTICE"), may terminate all but not less than all the rights and
obligations of the Servicer as Servicer under this Agreement; PROVIDED, HOWEVER,
if within 60 days of receipt of a Termination Notice the Indenture Trustee does
not receive any bids from Eligible Servicers in accordance with subsection
10.02(a) to act as a Successor Servicer and receives an Officer's Certificate of
the Servicer to the effect that the Servicer cannot in good faith cure the
Servicer Default which gave rise to the Termination Notice, the Indenture
Trustee shall assume the role of Successor Servicer.
After receipt by the Servicer of a Termination Notice, and on
the date that a Successor Servicer is appointed by the Indenture Trustee
pursuant to Section 10.02, all authority and power of the Servicer under this
Agreement shall pass to and be vested in the Successor Servicer (a "SERVICE
TRANSFER") and, without limitation, the Indenture 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 Service
Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such
Successor Servicer in effecting the termination of the responsibilities and
rights of the Servicer to conduct servicing hereunder, including the transfer to
such Successor Servicer of all authority of the Servicer to service the
Collateral 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 for
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the applicable Asset Pool, or which shall thereafter be received with respect to
the Collateral, 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 within 20 Business Days 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
Collateral in the manner and at such times as the Successor Servicer shall
reasonably request. To the extent that compliance with this Section shall
require the Servicer to disclose to the Successor Servicer information of any
kind which the Servicer deems to be confidential, the Successor Servicer shall
be required to enter into such customary licensing and confidentiality
agreements as the Servicer shall deem reasonably necessary to protect its
interests.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in paragraph (a) above for a period of 10 Business Days
after the applicable grace period or under paragraph (b) or (c) above for a
period of 60 Business Days after the applicable grace period, 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 or sabotage, epidemics, landslides, lightning,
fire, hurricanes, earthquakes, floods or similar causes. The preceding sentence
shall not relieve the Servicer from using all commercially reasonable efforts to
perform its obligations in a timely manner in accordance with the terms of this
Agreement and the Servicer shall provide the Indenture Trustee, the Owner
Trustee, the applicable Collateral Agent and each Transferor with an Officer's
Certificate giving prompt notice of such failure or delay by it, together with a
description of its efforts so to perform its obligations.
Section 10.02 INDENTURE 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 Indenture Trustee or until a
date mutually agreed upon by the Servicer and the Indenture Trustee. The
Indenture Trustee shall as promptly as possible after the giving of a
Termination Notice appoint an Eligible Servicer as a successor servicer (the
"SUCCESSOR SERVICER"), and such Successor Servicer shall accept its appointment
by a written assumption in a form acceptable to the Indenture Trustee. The
Indenture Trustee may obtain bids from any potential successor Servicer. In the
event that a Successor Servicer has not been appointed or has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the
Indenture Trustee without further action shall automatically be appointed the
Successor Servicer. The Indenture
75
Trustee may delegate any of its servicing obligations to an Affiliate or agent
in accordance with subsection 4.01(b) and Section 7.06.
Notwithstanding the foregoing, the Indenture Trustee shall, if
it is legally unable so to act, petition at the expense of the Servicer a court
of competent jurisdiction to appoint any established institution qualifying as
an Eligible Servicer as the Successor Servicer hereunder. The Indenture Trustee
shall notify each Note Rating Agency and the Administrator upon the removal of
the Servicer and upon the appointment of a Successor Servicer.
(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; PROVIDED, HOWEVER, that the Successor
Servicer shall have (i) no liability with respect to any obligation which was
required to be performed by the terminated Servicer prior to the date that the
Successor Servicer becomes the Servicer or any claim of a third party based on
any alleged action or inaction of the terminated Servicer and (ii) no liability
or obligation with respect to any Servicer indemnification obligations of any
prior servicer including the original Servicer.
(c) In connection with such appointment and assumption, the
Indenture 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 Trust Servicing Fee permitted to the
Servicer pursuant to Section 4.02. Each 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 this Agreement to pay its share of the compensation of the Successor
Servicer.
(d) All authority and power granted to the Servicer under this
Agreement shall automatically cease and terminate upon termination of the Trust
pursuant to Article VIII of the Trust Agreement, and shall pass to and be vested
in the applicable Transferor and, without limitation, the applicable Transferor
is hereby authorized and empowered to execute and deliver, on behalf of the
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 Servicer agrees to
cooperate with the applicable Transferor in effecting the termination of the
responsibilities and rights of the Servicer to conduct servicing on the
Receivables. The Servicer shall transfer its electronic records relating to the
Receivables to the applicable Transferor or its designee in such electronic form
as it may reasonably request and shall transfer all other records,
correspondence and documents to it in the
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manner and at such times as it shall reasonably request. To the extent that
compliance with this Section shall require the Servicer to disclose to the
applicable Transferor information of any kind which the Servicer deems to be
confidential, the applicable Transferor shall be required to enter into such
customary licensing and confidentiality agreements as the Servicer shall deem
necessary to protect its interests.
Section 10.03 NOTIFICATION TO NOTEHOLDERS. Within five
Business Days after the Servicer becomes aware of any Servicer Default, the
Servicer shall give written notice thereof to the Owner Trustee, the Indenture
Trustee, the applicable Collateral Agent, each Note Rating Agency and the
Indenture Trustee shall give notice to the Noteholders. Upon any termination or
appointment of a Successor Servicer pursuant to this Article, the Indenture
Trustee shall give prompt written notice thereof to the Noteholders.
Section 10.04 WAIVER OF PAST DEFAULTS. The Holders of Notes
evidencing more than 66 2/3% of the aggregate unpaid principal amount of all
Notes sustaining an Adverse Effect by any default by the Servicer may, on behalf
of all Noteholders of such Series, Class or Tranche, waive any default by the
Servicer 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, Class or Tranche pursuant to
Article III. 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
TERMINATION
Section 11.01 TERMINATION OF AGREEMENT. This Agreement and the
respective obligations and responsibilities of the Trust, each Transferor, the
Administrator and the Servicer under this Agreement shall terminate, except with
respect to the indemnification obligations described in Section 7.04, on the
Trust Termination Date.
[END OF ARTICLE XI]
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ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 AMENDMENT; WAIVER OF PAST DEFAULTS.
(a) This Agreement may be amended from time to time by the
Servicer, the Transferor, the Administrator and the Issuer, by a written
instrument signed by each of them, without the consent of the Indenture Trustee,
any Collateral Agent or any of the Noteholders; PROVIDED that (i) each
Transferor shall have delivered to the Indenture Trustee and the Owner Trustee
an Officer's Certificate, dated the date of any such amendment, stating that
such Transferor reasonably believes that such amendment will not have an Adverse
Effect and (ii) the Note Rating Agency Condition shall have been satisfied.
Additionally, notwithstanding the preceding sentence, this Agreement will be
amended by the Servicer, the Administrator and the Issuer at the direction of
the Transferor without the consent of the Indenture Trustee or any of the
Noteholders to add, modify or eliminate such provisions as may be necessary or
advisable in order to enable all or a portion of the Trust (i) to qualify as,
and to permit an election to be made to cause the Trust to be treated as, a
"financial asset securitization investment trust" as described in the provisions
of Section 860L of the Internal Revenue Code, and (ii) to avoid the imposition
of state or local income or franchise taxes imposed on the Trust's property or
its income; PROVIDED, HOWEVER, that each Transferor delivers to the Indenture
Trustee, the Owner Trustee and the applicable Collateral Agent an Officer's
Certificate to the effect that the proposed amendments meet the requirements
set forth in this subsection and (ii) such amendment does not affect the rights,
duties, benefits, protections, privileges or immunities of the Indenture
Trustee, the Owner Trustee (as such or in its individual capacity) or the
applicable Collateral Agent hereunder.
This Agreement may also be amended from time to time
by the Servicer, the Transferor, the Administrator and the Issuer by a written
instrument signed by each of them, without the consent of the Indenture Trustee
or any of the Noteholders and without satisfaction of the Note Rating Agency
Condition to add, modify or eliminate such provisions as may be necessary to
satisfy accounting requirements under SFAS 140 and any related or successor
accounting interpretations or requirements hereto for off-balance sheet
treatment for the Collateral of the Issuer.
Any amendments regarding the addition to or removal
of Collateral Certificates or Receivables from the Trust as provided in Sections
2.12 and 2.13, executed in accordance with the provisions hereof, shall not be
considered amendments to this Agreement for the purpose of subsections 12.01(a)
and (b).
78
(b) This Agreement may also be amended in writing from time to
time by the Servicer, the Transferor, the Administrator, the Indenture Trustee,
the Collateral Agent and the Trust, with the consent of the Holders of Notes
evidencing more than 66 2/3% of the aggregate unpaid principal amount of the
Notes of all affected Series, Classes or Tranches for which the Transferor has
not delivered an Officer's Certificate stating that there is no Adverse Effect,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Noteholders; PROVIDED, HOWEVER, that no such amendment
shall (i) reduce in any manner the amount of or delay the timing of any
distributions (changes in Early Amortization Events or Events of Default that
decrease the likelihood of the occurrence thereof shall not be considered delays
in the timing of distributions for purposes of this clause) to be made to
Noteholders or deposits of amounts to be so distributed or the amount available
under any Supplemental Credit Enhancement and any Derivative Agreement without
the consent of each affected Noteholder, (ii) change the definition of or the
manner of calculating the interest of any Noteholder without the consent of each
affected Noteholder or (iii) reduce the aforesaid percentage required to consent
to any such amendment without the consent of each Noteholder without the consent
of the Holders of Notes of such Series, Class or Tranche evidencing more than
66 2/3% of the aggregate unpaid principal amount of the Notes of such Series,
Class or Tranche.
(c) Promptly after the execution of any such amendment or
consent (other than an amendment pursuant to paragraph (a)), the Trust shall
furnish notification of the substance of such amendment to the Indenture Trustee
and each Noteholder, and the Servicer shall furnish notification of the
substance of such amendment to each Note Rating Agency.
(d) It shall not be necessary for the consent of Noteholders
under this Section 12.01 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 Noteholders shall be subject to such
reasonable requirements as the Indenture Trustee may prescribe.
(e) Any Indenture Supplement executed in accordance with the
provisions of Article IX of the Indenture shall not be considered an amendment
of this Agreement for the purposes of this Section 12.01.
(f) The Owner Trustee may, but shall not be obligated to,
enter into any such amendment which affects the Owner Trustee's rights, duties,
benefits, protections, privileges or immunities under this Agreement or
otherwise. In connection with the execution of any amendment hereunder, the
Owner Trustee shall be entitled to receive the Opinion of Counsel described in
subsection 12.02(d).
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Section 12.02 PROTECTION OF RIGHT, TITLE AND INTEREST IN AND
TO TRUST ASSETS.
(a) Each Transferor shall cause this Agreement, all amendments
and supplements hereto and all financing statements and continuation statements
and any other necessary documents covering the Indenture Trustee's and the
Trust's right, title and interest to the Trust Assets 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 Indenture Trustee,
Noteholders and the Trust hereunder to all property comprising the Trust Assets.
Each Transferor shall deliver to the Owner Trustee and Indenture 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. Each 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
paragraph.
(b) Within 30 days after any 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)
seriously misleading within the meaning of Section 9-506 (or any comparable
provision) of the UCC, such Transferor shall give the Owner Trustee and the
Indenture 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 or ownership interest in the Receivables and
Collateral Certificates and the proceeds thereof.
(c) Each Transferor and the Servicer shall give the Owner
Trustee and the Indenture Trustee prompt written notice of any relocation of its
chief executive office or any change in the jurisdiction under whose laws it is
organized and whether, as a result of such relocation or change, 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 perfect or to continue the perfection of the Trust's security
interest in each Collateral Certificate and the Receivables and the proceeds
thereof. Each Transferor shall at all times maintain its chief executive offices
within the United States and shall at all times be organized under the laws of a
jurisdiction located within the United States.
(d) Each Transferor shall deliver to the Owner Trustee and the
Indenture Trustee (i) upon the execution and delivery of each amendment of this
Agreement, an Opinion of Counsel to the effect specified in Exhibit D-1; (ii) on
each date specified in subsection 2.12(c) with respect to the addition of
Additional Accounts to be designated as Accounts, an Opinion of Counsel
substantially in the form of Exhibit D-2, (iii) on each Addition Date on which
any Collateral Certificates are to be included in the Trust pursuant to
subsection 2.12(a) or (b), an
80
Opinion of Counsel covering the same substantive legal issues addressed by
Exhibits D-1 and D-2, but conformed to the extent appropriate to relate to
Collateral Certificates; and (iv) on or before April 30 of each year, beginning
with April 30, 2003, an Opinion of Counsel substantially in the form of Exhibit
D-3.
Section 12.03 FEES PAYABLE BY THE TRANSFEROR. Notwithstanding
anything contained in any other Transaction Document (unless such document
specifically refers to this Section), the Transferor shall pay out of its own
funds, without reimbursement, all expenses incurred, fees and disbursements of
the Owner Trustee (as such and in its individual capacity), the Administrator,
the Indenture Trustee and the applicable Collateral Agent (including, in each
case, the reasonable fees and expenses of its outside counsel) and independent
accountants and all other fees and expenses, including the costs of filing UCC
continuation statements, the costs and expenses relating to obtaining and
maintaining the listing of any Notes on any stock exchange, the costs and
expenses relating to maintaining Bank Accounts, and any stamp, documentary,
excise, property (whether on real, personal or intangible property) or any
similar tax levied on the Trust or the Trust's assets that are not expressly
stated in this Agreement to be payable by any Transferor or the Trust (other
than federal, state, local and foreign income and franchise taxes, if any, or
any interest or penalties with respect thereto, assessed on the Trust). In
addition, the Transferor shall, until such time as Receivables are included as
Trust Assets, pay the expenses incurred by the Servicer in connection with the
Trust and the servicing activities hereunder including expenses related to
enforcement of the Collateral Certificates and the Receivables, as set forth in
subsection 4.01(e). In the event an Additional Transferor is added, the existing
Transferor or Transferors and the new Additional Transferor will, at such time,
determine how the expenses described in this Section 12.03 shall be allocated.
Section 12.04 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 12.05 NOTICES; PAYMENTS.
(a) All demands, notices, instructions, directions and
communications (collectively, "NOTICES") 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 First USA, as Transferor, the Servicer or
the Administrator, to:
81
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
First USA Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Gavra Flood
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
BANK ONE CORPORATION
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
BANK ONE CORPORATION
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) in the case of the Trust or the Owner Trustee, to:
Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) in the case of the Indenture Trustee or the Collateral
Agent, to:
82
▇▇▇▇▇ Fargo Bank Minnesota, National Association
6th & Marquette
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services Asset Backed
Administration
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) in the case of the Note Rating Agency for a particular
Series, the address, if any, specified in the Indenture Supplement
relating to such Series, and
(v) to any other Person as specified in the Indenture or any
Indenture Supplement; 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.
(b) Any Notice required or permitted to be given to a Holder
of Registered Notes shall be given by first-class mail, postage prepaid, at the
address of such Holder as shown in the Note Register. No Notice shall be
required to be mailed to a Holder of Bearer Notes but shall be given as provided
below. Any Notice so mailed within the time prescribed in this Agreement shall
be conclusively presumed to have been duly given, whether or not the Noteholder
receives such Notice. In addition, (a) if and so long as any Series, Class or
Tranche is listed on the Luxembourg Stock Exchange and such stock exchange shall
so require, any Notice to Noteholders shall be published in an Authorized
Newspaper of general circulation in Luxembourg within the time period
prescribed in this Agreement and (b) in the case of any Series, Class or Tranche
with respect to which any Bearer Notes are Outstanding, any Notice required or
permitted to be given to Noteholders of such Series, Class or Tranche shall be
published in an Authorized Newspaper within the time period prescribed in this
Agreement.
Section 12.06 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 provisions shall be deemed
severable from the remaining provisions of this Agreement and shall in no way
affect the validity or enforceability of the remaining provisions or of the
Notes or the rights of the Noteholders.
Section 12.07 FURTHER ASSURANCES. Each 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
Owner Trustee and the Indenture Trustee more fully to effect the purposes of
this Agreement, including 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.
83
Section 12.08 NO WAIVER; CUMULATIVE REMEDIES. No failure to
exercise and no delay in exercising, on the part of the Trust, the Owner
Trustee, the Indenture Trustee or the Noteholders, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, remedy, power or privilege under this
Agreement preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges provided under this Agreement are cumulative and not exhaustive of
any rights, remedies, powers and privileges provided by law.
Section 12.09 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 12.10 THIRD-PARTY BENEFICIARIES. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the Owner
Trustee, the Indenture Trustee, the Noteholders and their respective successors
and permitted assigns. Except as otherwise expressly provided in this Agreement,
no other Person will have any right or obligation hereunder.
Section 12.11 ACTIONS BY NOTEHOLDERS.
(a) Wherever in this Agreement a provision is made that an
action may be taken or a Notice, demand or instruction given by Noteholders,
such action, Notice or instruction may be taken or given by any Noteholder,
unless such provision requires a specific percentage of Noteholders.
(b) Any Notice, request, demand, authorization, direction,
consent, waiver or other act by the Holder of a Note shall bind such Holder and
every subsequent Holder of such Note and of any Note 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 Owner Trustee, any
Transferor or the Servicer in reliance thereon, whether or not notation of such
action is made upon such Note.
Section 12.12 RULE 144A INFORMATION. For so long as any of the
Notes of any Series or Class are "restricted securities" within the meaning of
Rule 144(a)(3) under the Securities Act, each Transferor and each of the Owner
Trustee, the Indenture Trustee and the Servicer agree to cooperate with each
other to provide to any Noteholders of such Series or Class and to any
prospective purchaser of Notes designated by such Noteholder, upon the request
of such Noteholder or prospective purchaser, any information required to be
provided to such
84
Holder or prospective purchaser to satisfy the condition set forth in Rule
144A(d)(4) under the Securities Act.
Section 12.13 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 12.14 HEADINGS. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
Section 12.15 LIMITATION OF LIABILITY. Notwithstanding any
other provision herein or elsewhere, this Agreement has been executed and
delivered by Wilmington Trust Company, not in its individual capacity, but
solely in its capacity as Owner Trustee of the Trust. In no event shall
Wilmington Trust Company in its individual capacity have any liability in
respect of the representations, warranties, or obligations of the Trust
hereunder or under any other document, as to all of which recourse shall be had
solely to the Trust Assets, and for all purposes of this Agreement and each
other document, the Owner Trustee (as such or in its individual capacity) shall
be subject to, and entitled to the benefits of, the terms and provisions of the
Trust Agreement.
Section 12.16 NO PETITION. The Indenture Trustee, Collateral
Agent, Servicer, Transferor and Administrator, by entering into this Agreement,
and each Noteholder, by accepting a Note, agrees that it will not at any time
institute against First USA, any Master Trust or the Issuer, or join in any
institution against First USA, any Master Trust or the Issuer of any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes and this Agreement.
[END OF ARTICLE XII]
85
IN WITNESS WHEREOF, the Transferor, the Servicer, the
Administrator and the Trust have caused this
Transfer and Servicing 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, Servicer and Administrator
By:
----------------------------------------
Name:
Title:
BANK ONE ISSUANCE TRUST,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity
but solely as Owner Trustee
on behalf of the Trust
By:
----------------------------------------
Name:
Title:
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Indenture Trustee and Collateral Agent
By:
----------------------------------------
Name:
Title:
Acknowledged and Accepted:
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By:
----------------------------
Name:
Title:
A-1