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FIRST USA BANK
Transferor and Servicer
and
NATIONSBANK OF VIRGINIA, N.A.
Trustees
on behalf of the Certificateholders
of the First USA Credit Card Master Trust
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POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1992
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS............................................................... 1
Section 1.1 Definitions.......................................... 1
Section 1.2 Other Definitional Provisions........................ 22
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.1 Conveyance of Receivables............................ 24
Section 2.2 Acceptance by Trustee................................ 26
Section 2.3 Representations and Warranties of the
Transferor......................................... 27
Section 2.4 Representations and Warranties of the
Transferor Relating to the Agreement and
the Receivables.................................... 29
Section 2.5 Covenants of the Transferor.......................... 37
Section 2.6 Addition of Accounts................................. 40
Section 2.7 Removal of Accounts.................................. 43
Section 2.8 Discount Receivables................................. 45
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other Matters
Relating to the Servicer........................... 47
Section 3.2 Servicing Compensation............................... 50
Section 3.3 Representations and Warranties of the Servicer....... 51
Section 3.4 Reports and Records for the Trustee.................. 53
Section 3.5 Annual Servicer's Certificate........................ 54
Section 3.6 Annual Independent Accountants' Servicing
Report............................................. 55
Section 3.7 Tax Treatment........................................ 56
Section 3.8 Notices to the Transferor............................ 57
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders......................... 58
Section 4.2 Establishment of Accounts............................ 58
Section 4.3 Collections and Allocations.......................... 61
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL
BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES)
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates..................................... 66
Section 6.2 Authentication of Certificates....................... 67
Section 6.3 Registration of Transfer and Exchange
of Certificates.................................... 68
Section 6.4 ▇▇▇▇▇▇▇▇▇, Destroyed, Lost or Stolen
Certificates....................................... 71
Section 6.5 Persons Deemed Owners................................ 72
Section 6.6 Appointment of Paying Agent.......................... 73
Section 6.7 Access to List of Certificateholders' Names
and Addresses...................................... 75
Section 6.8 Authenticating Agent................................. 75
Section 6.9 Tender of Exchangeable Transferor Certificate........ 77
Section 6.10 Book-Entry Certificates.............................. 80
Section 6.11 Notices to Clearing Agency........................... 81
Section 6.12 Definitive Certificates.............................. 82
Section 6.13 Global Certificate; Euro-Certificate
Exchange Date...................................... 83
Section 6.14 Meetings of Certificateholders....................... 83
ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
Section 7.1 Liability of the Transferor.......................... 84
Section 7.2 Merger or Consolidation of, or Assumption of
the Obligations of, the Transferor................ 84
Section 7.3 Limitation on Liability.............................. 85
Section 7.4 Liabilities.......................................... 86
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
Section 8.1 Liability of the Servicer............................ 87
Section 8.2 Merger or Consolidation of, or Assumption of
the Obligations of, the Servicer................... 87
Section 8.3 Limitation on Liability of the Servicer
and Others......................................... 88
Section 8.4 Servicer Indemnification of the Trust and
the Trustee....................................... 89
Section 8.5 The Servicer Not to Resign........................... 90
Section 8.6 Access to Certain Documentation and Information
Regarding the Receivables.......................... 90
Section 8.7 Delegation of Duties................................. 90
Section 8.8 Examination of Records............................... 91
ARTICLE IX
PAY OUT EVENTS
Section 9.1 Pay Out Events....................................... 92
Section 9.2 Additional Rights Upon the Occurrence of
Certain Events..................................... 92
ARTICLE X
SERVICER DEFAULTS
Section 10.1 Servicer Defaults.................................... 96
Section 10.2 Trustee to Act; Appointment of Successor............. 99
Section 10.3 Notification to Certificateholders...................101
Section 10.4 Waiver of Past Defaults..............................102
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee....................................103
Section 11.2 Certain Matters Affecting the Trustee................105
Section 11.3 Trustee Not Liable for Recitals in Certificates......107
Section 11.4 Trustee May Own Certificates.........................108
Section 11.5 The Servicer to Pay Trustee's Fees and Expenses......108
Section 11.6 Eligibility Requirements for Trustee.................108
Section 11.7 Resignation or Removal of Trustee....................109
Section 11.8 Successor Trustee....................................110
Section 11.9 Merger or Consolidation of Trustee...................111
Section 11.10 Appointment of Co-Trustee or Separate Trustee........111
Section 11.11 Tax Returns..........................................113
Section 11.12 Trustee May Enforce Claims Without Possession
of Certificates....................................113
Section 11.13 Suits for Enforcement................................113
Section 11.14 Rights of Certificateholders to Direct Trustee.......114
Section 11.15 Representations and Warranties of Trustee............114
Section 11.16 Maintenance of Office or Agency......................115
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust.................................116
Section 12.2 Optional Purchase....................................118
Section 12.3 Final Payment with Respect to any Series.............118
Section 12.4 Termination Rights of Holder of Exchangeable
Transferor Certificate.............................120
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment............................................122
Section 13.2 Protection of Right Title and Interest to Trust......123
Section 13.3 Limitation on Rights of Certificateholders...........125
Section 13.4 Governing Law........................................126
Section 13.5 Notices..............................................126
Section 13.6 Severability of Provisions...........................127
Section 13.7 Assignment...........................................127
Section 13.8 Certificates Non-Assessable and Fully Paid...........127
Section 13.9 Further Assurances...................................128
Section 13.10 No Waiver; Cumulative Remedies.......................128
Section 13.11 Counterparts.........................................128
Section 13.12 Third-Party Beneficiaries............................128
Section 13.13 Actions by Certificateholders........................128
Section 13.14 Rule 144A Information................................129
Section 13.15 ▇▇▇▇▇▇ and Integration...............................129
Section 13.16 Heading..............................................129
EXHIBITS
Exhibit A Form of Exchangeable Transferor Certificate
Exhibit B Form of Assignment of Receivables in Additional Accounts
Exhibit C Form of Monthly Servicer's Certificate
Exhibit D Form of Annual Servicer's Certificate
Exhibit E Form of Opinion of Counsel Regarding Additional Accounts
Exhibit F Form of Annual Opinion of Counsel
Exhibit G Form of Reassignment of Receivables
Exhibit H Form of Reconveyance of Receivables
SCHEDULES
Schedule 1 List of Account [Deemed Incorporated]
POOLING AND SERVICING AGREEMENT, dated as of September 1, 1992
by and between FIRST USA BANK, a Delaware chartered banking Corporation, as
Transferor and Servicer, and NATIONSBANK OF VIRGINIA, N.A., a national
banking association organized and existing under the laws of the United
States, as Trustee.
In consideration of the mutual agreements herein contained,
each party agrees as follows for the benefit of the other parties and the
Certificateholders:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Whenever used in this Agreement, the
following words and phrases shall have the following meanings:
"Account Information" shall have the meaning specified in
subsection 2.02(b).
"Account" shall mean each VISA(R) and MasterCard(R)* credit
card account established pursuant to a Credit Card Agreement between the
Transferor and any Person identified by account number and by the
Receivable balance as of August 21, 1992 and as of each Addition Cut-Off
Date in each computer file or microfiche list delivered to the Trustee by
the Transferor pursuant to Section 2.01 or 2.06. The definition of Account
shall include each Transferred Account. The term "Account" shall be deemed
to refer to an Additional Account only from and after the Addition Date
with respect thereto, and the term "Account" shall be deemed to refer to
any Removed Account only prior to the Removal Date with respect thereto.
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* VISA(R) and MasterCard(R) are registered trademarks of VISA USA, Inc.
and of MasterCard International Incorporated, respectively.
"Addition Cut Off Date" shall mean each date as of which
Additional Accounts shall be selected to be included as Accounts pursuant
to Section 2.06.
"Addition Date" shall mean each date as of which Additional
Accounts will be included as Accounts pursuant to Section 2.06.
"Additional Accounts" shall have the meaning specified in
subsection 2.06(a).
"Adjustment Payment" shall have the meaning specified in
subsection 4.03(c).
"Affiliate" of any Person shall mean any other Person
controlling, controlled by or under common control with such Person.
"Aggregate Investor Default Amount" shall have, with respect to
any Series of Certificates, the meaning stated in the related Supplement.
"Aggregate Invested Amount" shall mean, as of any date of
determination, the sum of the Invested Amounts of all Series of
Certificates issued and outstanding on such date of determination.
"Aggregate Investor Percentage" with respect to Principal
Receivables, Finance Charge Receivables and Receivables in Defaulted
Accounts, as the case may be, shall mean, as of any date of determination,
the sum of such Investor Percentages of all Series of Certificates issued
and outstanding on such date of determination; provided, however, that the
Aggregate Investor Percentage shall not exceed 100%.
"Agreement" shall mean this Pooling and Servicing Agreement and
all amendments hereof and supplements hereto, including any Supplement.
"Allocated Collections" shall have the meaning specified in
subsection 4.03(f).
"Amortization Period" shall mean, with respect to any Series,
the period following the related Revolving Period, which shall be the
controlled amortization period, the rapid amortization period, or other
amortization or accumulation period, in each case as defined with respect
to such Series in the related Supplement.
"Annual Membership Fee" shall have the meaning specified in the
Credit Card Agreement applicable to each Account for annual membership fees
or similar terms.
"Applicants" shall have the meaning specified in Section 6.07.
"Appointment Day" shall have the meaning specified in
subsection 9.02(a).
"Assignment" shall have the meaning specified in subsection
2.06(c)(ii).
"Authorized Newspaper" shall mean a newspaper of general
circulation in the Borough of Manhattan, The City of New York printed in
the English language and customarily published on each Business Day,
whether or not published on Saturdays, Sundays and holidays.
"Average Principal Receivables" shall mean, for any period, an
amount equal to (a) the sum of the aggregate amount of Principal
Receivables at the end of each day during such period divided by (b) the
number of days in such period.
"Bank Portfolio" shall mean the MasterCard and VISA accounts
originated by the Transferor.
"Bearer Certificates" shall have the meaning specified in
Section 6.01.
"Bearer Rules" shall mean the provisions of the Internal
Revenue Code, in effect from time to time, governing the treatment of
bearer obligations, including sections 163(f), 871, 881, 1441, 1442 and
4701, and any regulations thereunder including, to the extent applicable to
any Series, Proposed or Temporary Regulations.
"BIF" shall mean the Bank Insurance Fund administered by the
FDIC.
"Book-Entry Certificates" shall mean certificates evidencing a
beneficial interest in the Investor Certificates, ownership and transfers
of which shall be made through book entries by a Clearing Agency as
described in Section 6.10; provided, that after the occurrence of a
condition whereupon book-entry registration and transfer are no longer
authorized and Definitive Certificates are to be issued to the Certificate
Owners, such certificates shall no longer be ""Book-Entry Certificates."
"Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions in New York, New York, or
Richmond, Virginia (or, with respect to any Series, any additional city
specified in the related Supplement) are authorized or obligated by law or
executive order to be closed.
"Cash Advance Fees" shall have the meaning specified in the
Credit Card Agreement applicable to each Account for cash advance fees or
similar terms.
"CEDEL" shall mean Centrale de Livraison de Valeurs Mobilieres
S.A.
"Certificate" shall mean any one of the Investor Certificates
of any Series or the Exchangeable Transferor Certificate.
"Certificateholder" or "Holder" shall mean the Person in whose
name a Certificate is registered in the Certificate Register and, if
applicable, the holder of any Bearer Certificate or Coupon, as the case may
be.
"Certificate Interest" shall mean interest payable in respect
of the Investor Certificates of any Series pursuant to Article IV of the
Supplement for such Series.
"Certificate Owner" shall mean, with respect to a Book-Entry
Certificate, the Person who is the beneficial owner of such Book-Entry
Certificate, as may be reflected on the books of the Clearing Agency, or on
the books of a Person maintaining an account with such Clearing Agency
(directly or as an indirect participant, in accordance with the rules of
such Clearing Agency).
"Certificate Principal" shall mean principal payable in respect
of the Investor Certificates of any Series pursuant to Article IV of this
Agreement.
"Certificate Rate" shall mean, with respect to any Series of
Certificates (or, for any Series with more than one class, for each class
of such Series), the percentage (or formula on the basis of which such rate
shall be determined) stated in the related Supplement; provided, that
unless otherwise provided in a Supplement, such rate shall be calculated on
the basis of a 360-day year consisting of twelve 30-day months.
"Certificate Register" shall mean the register maintained
pursuant to Section 6.03, providing for the registration of the
Certificates and transfers and exchanges thereof.
"Class" shall mean, with respect to any Series, any one of the
classes of Certificates of that Series as specified in the related
Supplement.
"Clearing Agency" shall mean an organization registered as a
"clearing agency"" pursuant to Section 17A of the Securities Exchange Act
of 1934, as amended.
"Clearing Agency Participant" shall mean a broker, dealer,
bank, other financial institution or other Person for whom from time to
time a Clearing Agency or Foreign Clearing Agency effects book-entry
transfers and pledges of securities deposited with the Clearing Agency or
Foreign Clearing Agency.
"Closing Date" shall mean, with respect to any Series, the date
of issuance of such Series of Certificates, as specified in the related
Supplement.
"Collection Account" shall have the meaning specified in
subsection 4.02(a).
"Collections" shall mean all payments (including Insurance
Proceeds) received by the Servicer in respect of the Receivables, in the
form of cash, checks, wire transfers, ATM transfers or other form of
payment in accordance with the Credit Card Agreement in effect from time to
time on any Receivables. A Collection processed on an Account in excess of
the aggregate amount of Receivables in such Account as of the Date of
Processing of such Collection shall be deemed to be a payment in respect of
Principal Receivables to the extent of such excess. Collections with
respect to any Monthly Period shall include the amount of Interchange (if
any) allocable to any Series of Certificates pursuant to any Supplement
with respect to such Monthly Period (to the extent received by the Trust
and deposited into the Finance Charge Account or any Series Account as the
case may be, on the Transfer Date following such Monthly Period), to be
applied as if such Collections were Finance Charge Receivables for all
purposes. Collections with respect to any Monthly Period shall also include
the amount deposited by the Transferor into the Finance Charge Account (or
Series Account if provided in any Supplement) pursuant to Section 2.08.
"Corporate Trust Office" shall mean the principal office of the
Trustee at which at any particular time its corporate trust business shall
be administered, which office at the date of the execution of this
Agreement is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
"Coupon" shall have the meaning specified in Section 6.01.
"Credit Adjustment" shall have the meaning specified in
subsection 4.03(c).
"Credit Card Agreement" shall mean the Agreement and Federal
Truth in Lending Statement for MasterCard and VISA credit card accounts
between any Obligor and First USA Bank as such agreements may be amended,
modified or otherwise changed from time to time.
"Credit Card Guidelines" shall mean the Transferor's policies
and procedures relating to the operation of its credit card business,
including, without limitation, the policies and procedures for determining
the creditworthiness of credit card customers, the extension of credit to
credit card customers, and relating to the maintenance of credit card
accounts and collection of credit card receivables, as such policies and
procedures may be amended from time to time.
"Cut Off Date" shall mean August 21, 1992.
"Date of Processing" shall mean, with respect to any
transaction, the date on which such transaction is first recorded on the
Servicer's computer master file of VISAu and MasterCardu accounts (without
regard to the effective date of such recordation).
"Default Amount" shall mean, with respect to any Defaulted
Account, the amount of Principal Receivables (other than Ineligible
Receivables) in such Defaulted Account on the day such Account became a
Defaulted Account.
"Defaulted Account" shall mean each Account with respect to
which, in accordance with the Credit Card Guidelines or the Servicer's
customary and usual servicing procedures for servicing credit card
receivables comparable to the Receivables, the Servicer has charged off the
Receivables in such Account as uncollectible; an Account shall become a
Defaulted Account on the day on which such Receivables are recorded as
charged off as uncollectible on the Servicer's computer master file of VISA
and MasterCard accounts. Notwithstanding any other provision hereof, any
Receivables in a Defaulted Account that are Ineligible Receivables shall be
treated as Ineligible Receivables rather than Receivables in Defaulted
Accounts.
"Definitive Certificate" shall have the meaning specified in
Section 6.10.
"Depository" shall have the meaning specified in Section 6.10.
"Depository Agreement" shall mean, with respect to each Series,
the agreement among the Transferor, the Trustee and the Clearing Agency, or
as otherwise provided in the related Supplement.
"Determination Date" shall mean the first Business Day on or
before the eighth calendar day prior to each Distribution Date.
"Discount Receivables" shall mean on any Date of Processing,
the sum of (a) the aggregate Discount Receivables at the end of the prior
Date of Processing plus (b) any new Discount Receivables created on such
Date of Processing minus (c) any Discount Receivables Collections received
on such Date of Processing. Discount Receivables created on any Date of
Processing shall mean the product of the amount of any Principal
Receivables created on such Date of Processing (without giving effect to
the proviso in the definition of Principal Receivables) and the Yield
Factor.
"Discount Receivable Collections" shall mean on any Date of
Processing, the product of (a) a fraction the numerator of which is the
amount of Discount Receivables and the denominator of which is the sum of
the Principal Receivables and the Discount Receivables in each case (for
both numerator and denominator) at the end of the prior Monthly Period and
(b) collections of Principal Receivables on such Date of Processing.
"Distribution Account" shall have the meaning specified in
subsection 4.02(c).
"Distribution Date" shall mean, unless otherwise specified in
any Supplement for the related Series, the fifteenth day of each month or,
if such fifteenth day is not a Business Day, the next succeeding Business
Day.
"Dollars", "$" or "U.S. $" shall mean United States dollars.
"Draft Fees" shall have the meaning specified in the Credit
Card Agreement applicable to each Account for any draft fees or similar
terms.
"Eligible Account" shall mean, as of the Cut Off Date (or, with
respect to Additional Accounts as of the relevant Addition Cut Off Date),
each Account owned by the Transferor:
(a) which was in existence and maintained with the Transferor
prior to its selection for inclusion in the Trust;
(b) which is payable in Dollars;
(c) the Obligor on which has provided, as its most recent
billing address, an address which is located in the United States or its
territories or possessions;
(d) which the Transferor has not classified on its electronic
records as stolen or lost;
(e) which has not been identified by the Transferor in its
computer files as being involved in a voluntary or involuntary bankruptcy
proceeding;
(f) which has not been sold or pledged to any other party and
which does not have receivables which have been sold or pledged to any
other party;
(g) which is a VISA or MasterCard revolving credit card
account; and
(h) which the Transferor has not charged off in its customary
and usual manner for charging off such Accounts as of the Cut Off Date (or,
with respect to Additional Accounts, as of the relevant Addition Cut Off
Date).
"Eligible Receivable" shall mean each Receivable:
(a) which has arisen under an Eligible Account (in the case of
Accounts conveyed to the Trust on the Initial Closing Date as of the Cut
Off Date and in the case of Additional Accounts as of the relevant Addition
Cut Off Date);
(b) which was created in compliance, in all material respects,
with all Requirements of Law applicable to the Transferor and pursuant to a
Credit Card Agreement which complies, in all material respects, with all
Requirements of Law applicable to the Transferor;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by the Transferor in
connection with the creation of such Receivable or the execution, delivery
and performance by the Transferor of the Credit Card Agreement pursuant to
which such Receivable was created, have been duly obtained, effected or
given and are in full force and effect as of such date of creation;
(d) as to which, at the time of and at all times after the
creation of such Receivable, the Transferor or the Trust had good and
marketable title thereto, free and clear of all Liens arising under or
through the Transferor or any of its Affiliates (other than Liens permitted
pursuant to subsection 2.05(b));
(e) which is the legal, valid and binding payment obligation of
the Obligor thereon, enforceable against such Obligor in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws,
now or hereafter in effect, affecting the enforcement of creditors' rights
in general and except as such enforceability may be limited by general
principles of equity (whether considered in a suit at law or in equity);
and
(f) which constitutes an "account" under and as defined in
Article 9 of the UCC as then in effect in the State of Delaware.
"Enhancement" shall mean, with respect to any Series, the cash
collateral account, letter of credit, guaranteed rate agreement, maturity
guaranty facility, tax protection agreement, interest rate swap or any
other contract or agreement for the benefit of the Certificateholders of
such Series (or Certificateholders of a Class within such Series) as
designated in the applicable Supplement.
"Enhancement Provider" shall mean, with respect to any Series,
the Person, if any, designated as such in the related Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time.
"Euroclear Operator" shall mean ▇▇▇▇▇▇ Guaranty Trust Company
of New York, Brussels, Belgium office, as operator of the Euroclear System.
"Excess Amount Principal Allocation" shall have the meaning
specified in subsection 4.03(f).
"Excess Principal Collections" shall mean, with respect to a
Distribution Date, the aggregate amount for all outstanding Series of
Principal Collections which the related Supplements specify are to be
treated as "Excess Principal Collections" for such Distribution Date.
"Exchange" shall mean either of the procedures described under
Section 6.09.
"Exchangeable Transferor Certificate" shall mean the
certificate executed by the Transferor and authenticated by the Trustee,
substantially in the form of Exhibit A and exchangeable as provided in
Section 6.09; provided, that at any time there shall be only one
Exchangeable Transferor Certificate.
"Exchange Date" shall have the meaning, with respect to any
Series issued pursuant to an Exchange, specified in Section 6.09.
"Exchange Notice" shall have the meaning, with respect to any
Series issued pursuant to an Exchange, specified in Section 6.09.
"Extended Trust Termination Date" shall have the meaning
specified in subsection 12.01(a).
"FDIC" shall mean the Federal Deposit Insurance Corporation.
"Finance Charge Account" shall have the meaning specified in
subsection 4.02(b).
"Finance Charge Receivables" shall mean Receivables created in
respect of the Periodic Finance Charges, Annual Membership Fees, Cash
Advance Fees, Late Fees, overlimit fees, return check fees and similar fees
and charges and Discount Receivables. Finance Charge Receivables with
respect to any Monthly Period shall include the amount of Interchange (if
any) allocable to any Series of Certificates pursuant to any Supplement
with respect to such Monthly Period (to the extent received by the Trust
and deposited into the Finance Charge Account or any Series Account, as the
case may be, on the Transfer Date following such Monthly Period).
"Foreign Clearing Agency" shall mean CEDEL and the Euroclear
Operator.
"Global Certificate" shall have the meaning specified in
Section 6.13.
"Group" shall mean, with respect to any Series, the group of
Series in which the related Supplement specifies such Series is to be
included.
"Governmental Authority" shall mean the United States of
America, any state or other political subdivision thereof and any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government.
"Ineligible Receivable" shall have the meaning specified in
subsection 2.04(d)(iii).
"Initial Closing Date" shall mean September 24, 1992.
"Initial Invested Amount" shall mean, with respect to any
Series of Certificates, the amount stated in the related Supplement.
"Insolvency Event" shall have the meaning specified in
subsection 9.02(a).
"Insurance Proceeds" shall mean any amounts recovered by the
Servicer pursuant to any credit insurance policies covering any Obligor
with respect to Receivables under such Obligor's Account.
"Interchange" shall mean interchange fees payable to the
Transferor, in its capacity as credit card issuer, through VISA USA, Inc.
and MasterCard International Incorporated.
"Internal Revenue Code" shall mean the Internal Revenue Code of
1986, as amended from time to time.
"Invested Amount" shall have, with respect to any Series of
Certificates, the meaning stated in the related Supplement.
"Investment Company Act" shall mean the Investment Company Act
of 1940, as amended from time to time.
"Investor Account" shall mean each of the Finance Charge
Account, the Principal Account and the Distribution Account.
"Investor Certificate" shall mean any one of the certificates
(including, without limitation, the Bearer Certificates, the Registered
Certificates or the Global Certificates) executed by the Transferor and
authenticated by the Trustee substantially in the form (or forms in the
case of a Series with multiple classes) of the investor certificate
attached to the related Supplement.
"Investor Certificateholder" shall mean the Holder of record of
an Investor Certificate.
"Investor Charge Off" shall have, with respect to each Series,
the meaning specified in the applicable Supplement.
"Investor Default Amount" shall have, with respect to any
Series of Certificates, the meaning stated in the related Supplement.
"Investor Exchange" shall have the meaning specified in
subsection 6.09(b).
"Investor Monthly Servicing Fee" shall have, with respect to
each Series, the meaning specified in Section 3.02.
"Investor Percentage" shall have, with respect to Principal
Receivables, Finance Charge Receivables and Receivables in Defaulted
Accounts, and any Series of Certificates, the meaning stated in the related
Supplement.
"Late Fees" shall have the meaning specified in the Credit Card
Agreement applicable to each Account for late fees or similar terms.
"Lien" shall mean any mortgage, deed of trust, pledge,
hypothecation, assignment, participation or equity interest, deposit
arrangement, encumbrance, lien (statutory or other), preference, priority
or other security agreement or preferential arrangement of any kind or
nature whatsoever, including, without limitation, any conditional sale or
other title retention agreement, any financing lease having substantially
the same economic effect as any of the foregoing and the filing of any
financing statement under the UCC (other than any such financing statement
filed for informational purposes only) or comparable law of any
jurisdiction to evidence any of the foregoing; provided, however, that any
assignment pursuant to Section 7.02 shall not be deemed to constitute a
Lien.
"Minimum Aggregate Principal Receivables" shall mean, as of any
date of determination, an amount equal to the sum of the Initial Invested
Amounts for all outstanding Series on such date.
"Minimum Transferor Interest" shall have the meaning specified
in subsection 2.06(a).
"Monthly Period" shall mean, unless otherwise defined in any
Supplement, the period from and including the first day of a calendar month
to and including the last day of a calendar month.
"Monthly Transferor Servicing Fee" shall have the meaning
specified in Section 3.02.
"Monthly Servicing Fee" shall have the meaning specified in
Section 3.02.
"Moody's" shall mean ▇▇▇▇▇'▇ Investors Service, Inc.
"Notice Date" shall have the meaning specified in subsection
2.06(c)(i).
"Obligor" shall mean, with respect to any Account, the Person
or Persons obligated to make payments with respect to such Account,
including any guarantor thereof.
"Officer's Certificate" shall mean a certificate signed by any
Vice President or more senior officer of the Transferor or Servicer and
delivered to the Trustee.
"Opinion of Counsel" shall mean a written opinion of counsel,
who may be counsel for or an employee of the Person providing the opinion,
and who shall be reasonably acceptable to the Trustee.
"Outstanding Series" shall have the meaning specified in
subsection 4.03(f).
"Paying Agent" shall mean any paying agent appointed pursuant
to Section 6.06 and shall initially be the Trustee.
"Pay Out Commencement Date" shall mean, with respect to each
Series, (a) the date on which a Trust Pay Out Event is deemed to occur
pursuant to Section 9.01 or (b) a Series Pay Out Event is deemed to occur
pursuant to the Supplement for such Series.
"Pay Out Event" shall mean, with respect to each Series, a
Trust Pay Out Event or a Series Pay Out Event.
"Periodic Finance Charges" shall have the meaning specified in
the Credit Card Agreement applicable to each Account for finance charges
(due to periodic rate) or any similar term.
"Permitted Investments" shall mean, unless otherwise provided
in the Supplement with respect to any Series (a) negotiable instruments or
securities represented by instruments in bearer or registered form which
evidence (i) obligations of or fully guaranteed by the United States of
America; (ii) time deposits, promissory notes, or certificates of deposit
of any depositary institution or trust company incorporated under the laws
of the United States of America or any state thereof and subject to
supervision and examination by federal or state banking or depositary
institution authorities; provided, however, that at the time of the Trust's
investment or contractual commitment to invest therein, the certificates of
deposit or short-term deposits of such depositary institution or trust
company shall have a credit rating from ▇▇▇▇▇'▇ and Standard & Poor's of
P-1 and A-1+, respectively; (iii) commercial paper having, at the time of
the Trust's investment or contractual commitment to invest therein, a
rating from Moody's and Standard & Poor's of P-1 and A-1+, respectively;
(iv) bankers acceptances issued by any depository institution or trust
company described in clause (a)(ii) above; and (v) investments in money
market funds rated AAA-m or AAA-mg by Standard & Poor's and P-1 by ▇▇▇▇▇'▇
or otherwise approved in writing by each Rating Agency; (b) demand deposits
in the name of the Trust or the Trustee in any depositary institution or
trust company referred to in clause (a) (ii) above; (c) securities not
represented by an instrument that are registered in the name of the Trustee
upon books maintained for that purpose by or on behalf of the issuer
thereof and identified on books maintained for that purpose by the Trustee
as held for the benefit of the Trust or the Certificateholders, and
consisting of shares of an open end diversified investment company which is
registered under the Investment Company Act which (i) invests its assets
exclusively in obligations of or guaranteed by the United States of America
or any instrumentality or agency thereof having in each instance a final
maturity date of less than one year from their date of purchase or other
Permitted Investments, (ii) seeks to maintain a constant net asset value
per share, (iii) has aggregate net assets of not less than $100,000,000 on
the date of purchase of such shares and (iv) which each Rating Agency
designates in writing will not result in a withdrawal or downgrading of its
then current rating of any Series rated by it; and (d) any other investment
if the Rating Agency confirms in writing that such investment will not
adversely affect its then current rating of the Investor Certificates.
"Person" shall mean any legal person, including any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, governmental entity or other entity of
similar nature.
"Pool Factor" shall mean, unless any Series is issued in more
than one Class as stated in any related Supplement, a number carried out to
seven decimals representing the ratio of the applicable Invested Amount as
of such Record Date (determined after taking into account any reduction in
the Invested Amount which will occur on the following Distribution Date) to
the applicable Initial Invested Amount.
"Principal Account" shall have the meaning specified in
subsection 4.02(b).
"Principal Receivable" shall mean each Receivable other than
(i) Finance Charge Receivables, (ii) Receivables in Defaulted Accounts and
(iii) Discount Receivables. A Receivable shall be deemed to have been
created at the end of the day on the Date of Processing of such Receivable.
In calculating the aggregate amount of Principal Receivables on any day,
the amount of Principal Receivables shall be reduced by the aggregate
amount of credit balances in the Accounts on such day. Any Receivables
which the Transferor is unable to transfer as provided in subsection
2.05(e) shall not be included in calculating the aggregate amount of
Principal Receivables.
"Principal Shortfalls" shall mean, with respect to a
Distribution Date, the aggregate amount of all outstanding Series which the
related Supplements specify are "Principal Shortfalls" for such
Distribution Date.
"Principal Terms" shall have the meaning, with respect to any
Series issued pursuant to an Exchange, specified in subsection 6.09(c).
"Publication Date" shall have the meaning specified in
subsection 9.02(a).
"Qualified Institution" shall have the meaning specified in
subsection 4.02(a) (iii).
"Rating Agency" shall mean, with respect to each Series, the
rating agency or agencies, if any, specified in the related Supplement.
"Reassignment" shall have the meaning specified in subsection
2.07(b) (ii).
"Reassignment Date" shall have the meaning specified in
subsection 2.04(e).
"Receivable" shall mean any amount owing by the Obligors
including, without limitation, amounts owing for the payment of goods and
services, cash advances, access checks, Annual Membership Fees, Cash
Advance Fees, Periodic Finance Charges, Late Fees, overlimit fees, return
check fees and credit insurance premiums and Special Fees, if any.
"Record Date" shall mean, with respect to any Distribution
Date, the last Business Day of the preceding Monthly Period.
"Registered Certificates" shall have the meaning specified in
Section 6.01.
"Removal Date" shall mean the date on which Receivables in
certain designated Removed Accounts will be reassigned by the Trustee to
the Transferor.
"Removal Notice Date" shall mean the day no later than the
fifth Business Day prior to a Removal Date.
"Removed Accounts" shall have the meaning specified in
subsection 2.07(a).
"Requirements of Law" for any Person shall mean the certificate
of incorporation or articles of association and by-laws or other
organizational or governing documents of such Person, and any law, treaty,
rule or regulation, or determination of an arbitrator or Governmental
Authority, in each case applicable to or binding upon such Person or to
which such Person is subject, whether federal, state or local (including,
without limitation, usury laws, the federal Truth in Lending Act and
Regulation Z and Regulation B of the Board of Governors of the Federal
Reserve System).
"Responsible Officer" shall mean any officer within the
Corporate Trust Office (or any successor group of the Trustee), including
any Vice President or any other officer of the Trustee customarily
performing functions similar to those performed by any person who at the
time shall be an above-designated officer and who shall have direct
responsibility for the administration of this Agreement.
"Retired Series" shall have the meaning specified in subsection
4.03(f).
"Revolving Period" shall have, with respect to each Series, the
meaning specified in the related Supplement.
"SAIF" shall mean the Savings Association Insurance Fund
administered by the FDIC.
"Secured Obligations" shall have the meaning specified in
Section 2.01.
"Securities Act" shall mean the Securities Act of 1933, as
amended.
"Series" shall mean any series of Investor Certificates, which
may include within any such Series a Class or Classes of Investor
Certificates subordinate to another such Class or Classes of Investor
Certificates.
"Series Account" shall mean any account or accounts established
pursuant to a Supplement for the benefit of such Series.
"Series Pay Out Event" shall have, with respect to any Series,
the meaning specified pursuant to the Supplement for the related Series.
"Series Servicing Fee Percentage" shall mean, with respect to
any Series, the amount specified in the related Supplement.
"Series Termination Date" shall mean, with respect to any
Series of Certificates, the date stated in the related Supplement.
"Service Transaction Fees" shall have the meaning specified in
the Credit Card Agreement applicable to each Account for any service
transaction fees or similar terms.
"Servicer" shall mean initially First USA Bank, and its
permitted successors and assigns and thereafter any Person appointed as
successor as herein provided to service the Receivables.
"Servicer Default" shall have the meaning specified in Section
10.01.
"Servicing Officer" shall mean any officer of the Servicer
involved in, or responsible for, the administration and servicing of the
Receivables whose name appears on a list of servicing officers furnished to
the Trustee by the Servicer, as such list may from time to time be amended.
"Standard & Poor's" shall mean Standard & Poor's Corporation.
"Successor Servicer" shall have the meaning specified in
subsection 10.02(a).
"Supplement" shall mean, with respect to any Series, a
supplement to this Agreement complying with the terms of Section 6.09 of
this Agreement, executed in conjunction with any issuance of any Series of
Certificates (or, in the case of the Issuance of Certificates on the
Initial Closing Date, the supplement executed in connection with the
issuance of such Certificates).
"Termination Notice" shall have, with respect to any Series,
the meaning specified in subsection 10.01(d).
"Transfer Agent and Registrar" shall have the meaning specified
in Section 6.03 and shall initially be the Trustee's Corporate Trust
Office.
"Transfer Date" shall mean, with respect to any Series, the
Business Day immediately prior to each Distribution Date.
"Transferor" shall mean First USA Bank, a Delaware chartered
banking Corporation.
"Transferor Exchange" shall have the meaning specified in
subsection 6.09(b).
"Transferor Interest" shall mean, on any date of determination,
the aggregate amount of Principal Receivables at the end of the day
immediately prior to such date of determination, minus the Aggregate
Invested Amount at the end of such day.
"Transferor Percentage" shall mean, on any date of
determination, when used with respect to Principal Receivables, Finance
Charge Receivables and Receivables in Defaulted Accounts, a percentage
equal to 100% minus the Aggregate Investor Percentage with respect to such
categories of Receivables.
"Transferred Account" shall mean (a) an Account with respect to
which a new credit account number has been issued by the Servicer or the
Transferor under circumstances resulting from a lost or stolen credit card
or from the transfer from one affinity group to another affinity group and
not requiring standard application and credit evaluation procedures under
the Credit Card Guidelines or (b) an Eligible Account resulting from the
conversion of an Account that was a standard account to a premium account
or from a premium account to a standard account, and which in either case
can be traced or identified by reference to or by way of the computer files
or microfiche lists delivered to the Trustee pursuant to Section 2.01 or
2.06 as an account into which an Account has been transferred.
"Trust" shall mean the trust created by this Agreement, the
corpus of which shall consist of the Receivables now existing or hereafter
created and all monies due or to become due with respect thereto, all
proceeds (as defined in Section 9-306 of the UCC as in effect in the State
of Delaware) of the Receivables and Insurance Proceeds relating thereto,
the right to receive certain amounts paid or payable as Interchange (if
provided for in any Supplement), such funds as from time to time are
deposited in the Collection Account, the Finance Charge Account, the
Principal Account, the Distribution Account and any Series Account and the
rights to any Enhancement with respect to any Series.
"Trust Extension" shall have the meaning specified in
subsection 12.01(a).
"Trust Pay Out Event" shall have, with respect to each Series,
the meaning specified in Section 9.01.
"Trust Termination Date" shall mean the earlier to occur of (i)
unless a Trust Extension shall have occurred, the day after the
Distribution Date with respect to any Series following the date on which
funds shall have been deposited in the Distribution Account or the
applicable Series Account for the payment of Investor Certificateholders of
each Series then issued and outstanding sufficient to pay in full the
Aggregate Invested Amount plus interest accrued at the applicable
Certificate Rate through the end of the related Monthly Period prior to the
Distribution Date with respect to each such Series, (ii) if a Trust
Extension shall have occurred, the Extended Trust Termination Date, and
(iii) August 1, 2032.
"Trustee" shall mean NationsBank of Virginia, N.A., a national
banking association, and its successors and any Person resulting from or
surviving any consolidation or merger to which it or its successors may be
a party and any successor trustee appointed as herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from
time to time, as in effect in any specified jurisdiction.
"Unallocated Principal Collections" shall have the meaning
specified in subsection 4.03(f).
"Undivided Interest" shall mean the undivided interest in the
Trust evidenced by an Investor Certificate.
"Yield Factor" shall mean the fixed percentage designated by
the Transferor pursuant to Section 2.08.
Section 1.2 Other Definitional Provisions.
(a) All terms defined in any Supplement or this Agreement shall
have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined
in Section 1.01, and accounting terms partially defined in Section 1.01 to
the extent not defined, shall have the respective meanings given to them
under generally accepted accounting principles or regulatory accounting
principles, as applicable. To the extent that the definitions of accounting
terms herein are inconsistent with the meanings of such terms under
generally accepted accounting principles or regulatory accounting
principles, the definitions contained herein shall control.
(c) The agreements, representations and warranties of First USA
Bank in this Agreement and in any Supplement in each of its capacities as
Transferor and Servicer shall be deemed to be the agreements,
representations and warranties of First USA Bank solely in each such
capacity for so long as First USA Bank acts in each such capacity under
this Agreement.
(d) The words "hereof," "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to any Supplement or
this Agreement as a whole and not to any particular provision of this
Agreement or any Supplement; and Section, subsection, Schedule and Exhibit
references contained in this Agreement or any Supplement are references to
Sections, subsections, Schedules and Exhibits in or to this Agreement or
any Supplement unless otherwise specified. The Monthly Servicer Report, the
form of which is attached as Exhibit C to this Agreement, shall be in
substantially the form of Exhibit C, with such changes as the Servicer may
determine to be necessary or desirable; provided, however, that no such
change shall serve to exclude information required by the Agreement or any
Supplement. The Servicer shall, upon making such determination, deliver to
the Trustee and each Rating Agency an Officer's Certificate to which shall
be annexed the form of the related Exhibit, as so changed. Upon the
delivery of such Officer's Certificate to the Trustee, the related Exhibit,
as so changed, shall for all purposes of this Agreement constitute such
Exhibit. The Trustee may conclusively rely upon such Officer's Certificate
in determining whether the related Exhibit, as changed, conforms to the
requirements of this Agreement.
[End of Article I]
ARTICLE II
CONVEYANCE OF RECEIVABLES;
ISSUANCE OF CERTIFICATES
Section 2.1 Conveyance of Receivables. The Transferor does
hereby transfer, assign, set-over, and otherwise convey to the Trust for
the benefit of the Certificateholders, without recourse, all of its right,
title and interest in and to the Receivables now existing and hereafter
created and arising in connection with the Accounts (other than Receivables
in Additional Accounts), all monies due or to become due with respect
thereto (including all Finance Charge Receivables), all proceeds of such
Receivables and Insurance Proceeds relating to such Receivables. The
foregoing transfer, assignment, set-over and conveyance does not constitute
and is not intended to result in a creation or an assumption by the Trust,
the Trustee or any Investor Certificateholder of any obligation of the
Transferor, the Servicer or any other Person in connection with the
Accounts or Receivables or any agreement or instrument relating thereto,
including, without limitation, any obligation to any Obligors, merchant
banks, merchants clearance systems, VISA USA, Inc., Mastercard
International Incorporated or any insurers.
In connection with such transfer, assignment, set-over and
conveyance, the Transferor agrees to record and file, at its own expense, a
financing statement (including any continuation statements with respect to
such financing statement when applicable) with respect to the Receivables
now existing and hereafter created for the transfer of accounts (as defined
in Section 9-106 of the UCC as in effect in the State of Delaware) meeting
the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect the assignment of the Receivables
to the Trust, and to deliver a file-stamped copy of such financing
statement or continuation statement or other evidence of such filing (which
may, for purposes of this Section 2.01, consist of telephone confirmation
of such filing) to the Trustee on or prior to the date of issuance of the
Certificates, and in the case of any continuation statements filed pursuant
to this Section 2.01, as soon as practicable after receipt thereof by the
Transferor. The foregoing transfer, assignment, set-over and conveyance to
the Trust shall be made to the Trustee, on behalf of the Trust, and each
reference in this Agreement to such transfer, assignment, set-over and
conveyance shall be construed accordingly.
In connection with such transfer, the Transferor agrees, at its
own expense, on or prior to the Initial Closing Date (i) to annotate and
indicate in its computer files that Receivables created in connection with
the Accounts (other than any Additional Accounts) have been transferred to
the Trust pursuant to this Agreement for the benefit of the
Certificateholders and (ii) to deliver to the Trustee a computer file or
microfiche list containing a true and complete list of all such Accounts,
identified by account number and setting forth the Receivable balance as of
August 21, 1992. Such file or list shall be marked as Schedule 1 to this
Agreement, delivered to the Trustee as confidential and proprietary, and is
hereby incorporated into and made a part of this Agreement. The Transferor
further agrees not to alter the file designation referenced in clause (i)
of this paragraph with respect to any Account during the term of this
Agreement unless and until such Account becomes a Removed Account.
The Transferor hereby grants and transfers to the Trustee a
first priority perfected security interest in all of the Transferor's
right, title and interest in, to and under the Receivables now existing and
hereafter created and arising in connection with the Accounts (other than
Receivables in Additional Accounts), all payments on such Receivables, all
Insurance Proceeds relating thereto and all proceeds thereof, to secure a
loan in an amount equal to the unpaid principal amount of the investor
certificates issued hereunder or to be issued pursuant to this Agreement
and the interest accrued at the related certificate rate (the "Secured
Obligations"), and that this Agreement shall constitute a security
agreement under applicable law.
Pursuant to the request of the Transferor, the Trustee shall
cause Certificates in authorized denominations evidencing the entire
interest in the Trust to be duly authenticated and delivered to or upon the
order of the Transferor pursuant to Section 6.02.
Section 2.2 Acceptance by Trustee.
(a) The Trustee hereby acknowledges its acceptance, on behalf
of the Trust, of all right, title and interest previously held by the
Transferor in and to the Receivables now existing and hereafter created and
arising in connection with the Accounts (other than Receivables in
Additional Accounts), all monies due or to become due with respect thereto
(including all Finance Charge Receivables), all proceeds of such
Receivables, Insurance Proceeds relating to such Receivables, and the
proceeds thereof, and declares that it shall maintain such right, title and
interest, upon the Trust herein set forth, for the benefit of all
Certificateholders. The Trustee further acknowledges that, prior to or
simultaneously with the execution and delivery of this Agreement, the
Transferor delivered to the Trustee the computer file or microfiche list
described in the third paragraph of Section 2.01.
(b) The Trustee hereby agrees not to disclose to any Person any
of the account numbers or other information contained in the computer files
or microfiche lists delivered to the Trustee by the Transferor pursuant to
Sections 2.01, 2.06 and 2.07 ("Account Information") except as is required
in connection with the performance of its duties hereunder or in enforcing
the rights of the Certificateholders or to a Successor Servicer appointed
pursuant to Section 10.02, any successor trustee appointed pursuant to
Section 11.08, any co-trustee or separate trustee appointed pursuant to
Section 11.10 or any other Person in connection with a UCC search or as
mandated pursuant to any Requirement of Law applicable to the Trustee. The
Trustee agrees to take such measures as shall be reasonably requested by
the Transferor to protect and maintain the security and confidentiality of
such information, and, in connection therewith, shall allow the Transferor
to inspect the Trustee's security and confidentiality arrangements from
time to time during normal business hours. In the event that the Trustee is
required by law to disclose any Account Information, the Trustee shall
provide the Transferor with prompt written notice, unless such notice is
prohibited by law, of any such request or requirement so that the
Transferor may request a protective order or other appropriate remedy. The
Trustee shall make best efforts to provide the Transferor with written
notice no later than five days prior to any disclosure pursuant to this
subsection 2.02(b).
(c) The Trustee shall have no power to create, assume or incur
indebtedness or other liabilities in the name of the Trust other than as
contemplated in this Agreement.
Section 2.3 Representations and Warranties of the Transferor.
The Transferor hereby represents and warrants to the Trust as of the
Initial Closing Date:
(a) Organization and Good Standing. The Transferor is a
Delaware chartered banking corporation duly organized and validly existing
in good standing under the Laws of the State of Delaware and has full
corporate power, authority and legal right to own its properties and
conduct its business as such properties are presently owned and such
business is presently conducted, and to execute, deliver and perform its
obligations under this Agreement and to execute and deliver to the Trustee
the Certificates pursuant hereto.
(b) Due Qualification. The Transferor is duly qualified to do
business and is in good standing (or is exempt from such requirement) in
any state required in order to conduct business, and has obtained all
necessary licenses and approvals with respect to the Transferor required
under federal and Delaware law; provided, however, that no representation
or warranty is made with respect to any qualifications, licenses or
approvals which the Trustee would have to obtain to do business in any
state in which the Trustee seeks to enforce any Receivable.
(c) Due Authorization. The execution and delivery of this
Agreement and the execution and delivery to the Trustee of the Certificates
by the Transferor and the consummation of the transactions provided for in
this Agreement have been duly authorized by the Transferor by all necessary
corporate action on its part and this Agreement will remain, from the time
of its execution, an official record of the Transferor.
(d) No Conflict. The execution and delivery of this Agreement
and the Certificates, the performance of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof will not conflict
with, result in any breach of any of the material terms and provisions of,
or constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of trust,
or other instrument to which the Transferor is a party or by which it or
any of its properties are bound.
(e) No Violation. The execution and delivery of this Agreement
and the Certificates, the performance of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof will not conflict
with or violate any Requirements of Law applicable to the Transferor.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Transferor, threatened against the
Transferor before any court, regulatory body administrative agency, or
other tribunal or governmental instrumentality (i) asserting the invalidity
of this Agreement or the Certificates, (ii) seeking to prevent the issuance
of the Certificates or the consummation of any of the transactions
contemplated by this Agreement or the Certificates, (iii) seeking any
determination or ruling that, in the reasonable judgment of the Transferor,
would materially and adversely affect the performance by the Transferor of
its obligations under this Agreement, (iv) seeking any determination or
ruling that would materially and adversely affect the validity or
enforceability of this Agreement or the Certificates or (v) seeking to
affect adversely the income tax attributes of the Trust.
(g) Eligibility of Accounts. As of the Cut Off Date, each
Account was an Eligible Account selected at random from among the Eligible
Accounts in the Bank Portfolio.
(h) Transferor's Deposit Accounts. As of the Initial Closing
Date, deposits in the Transferor's deposit accounts were insured to the
limits provided by law by BIF.
(i) All Consents Required. All appraisals, authorizations,
consents, orders or other actions of any Person or of any governmental body
or official required in connection with the execution and delivery of this
Agreement and the Certificates, the performance of the transactions
contemplated by this Agreement and the fulfillment of the terms hereof,
have been obtained.
For the purposes of the representations and warranties
contained in this Section 2.03 and made by the Transferor on the Initial
Closing Date, "Certificates" shall mean the Certificates issued on the
Initial Closing Date. The representations and warranties set forth in this
Section 2.03 shall survive the transfer and assignment of the respective
Receivables to the Trust, and termination of the rights and obligations of
the Servicer pursuant to Section 10.01. The Transferor hereby represents
and warrants to the Trust, with respect to any Series of Certificates, as
of its Closing Date, unless otherwise stated in such Supplement, that the
representations and warranties of the Transferor set forth in Section 2.03,
are true and correct as of such date (for the purposes of such
representations and warranties, "Certificates" shall mean the Certificates
issued on the related Closing Date). Upon discovery by the Transferor, the
Servicer or the Trustee of a breach of any of the foregoing representations
and warranties, the party discovering such breach shall give prompt written
notice to the others.
Section 2.4 Representations and Warranties of the Transferor
Relating to the Agreement and the Receivables.
(a) Binding Obligation; Valid Transfer and Assignment. The
Transferor hereby represents and warrants to the Trust that, as of the
Initial Closing Date:
(i) This Agreement constitutes a legal, valid and binding
obligation of the Transferor, enforceable against the Transferor in
accordance with its terms, except (A) as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws now or hereafter in effect affecting
the enforcement of creditors' rights in general and the rights of
creditors of national banking associations, and (B) as such
enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(ii) This Agreement constitutes either (A) a valid
transfer, assignment, set-over and conveyance to the Trust of all
right, title and interest of the Transferor in and to the Receivables
now existing and hereafter created and arising in connection with the
Accounts (other than Receivables in Additional Accounts), all
proceeds of such Receivables and Insurance Proceeds relating thereto
and such Receivables and all proceeds thereof and Insurance Proceeds
relating thereto will be held by the Trust free and clear of any Lien
of any Person claiming through or under the Transferor or any of its
Affiliates except for (x) Liens permitted under subsection 2.05(b),
(y) the interest of the Transferor as Holder of the Exchangeable
Transferor Certificate and (z) the Transferor's right, if any, to
interest accruing on, and investment earnings, if any, in respect of
the Finance Charge Account, the Principal Account or any Series
Account, as provided in this Agreement or the related Supplement, or
(B) a grant of a security interest (as defined in the UCC as in
effect in the State of Delaware) in such property to the Trust, which
is enforceable with respect to the existing Receivables (other than
Receivables in Additional Accounts), the proceeds thereof and
Insurance Proceeds relating thereto upon execution and delivery of
this Agreement, and which will be enforceable with respect to such
Receivables hereafter created, the proceeds thereof and Insurance
Proceeds relating thereto, upon such creation. If this Agreement
constitutes the grant of a security interest to the Trust in such
property, upon the filing of the financing statement described in
Section 2.01 and in the case of the Receivables hereafter created and
proceeds thereof and Insurance Proceeds relating thereto, upon such
creation, the Trust shall have a first priority perfected security
interest in such property (subject to Section 9-306 of the UCC as in
effect in the State of Delaware), except for Liens permitted under
subsection 2.05(b). Neither the Transferor nor any Person claiming
through or under the Transferor shall have any claim to or interest
in the Principal Account, the Finance Charge Account, the
Distribution Account or any Series Account, except for the
Transferor's rights to receive interest accruing on, and investment
earnings in respect of, the Finance Charge Account and Principal
Account as provided in this Agreement (or, if applicable, any Series
Account as provided in any Supplement) and, if this Agreement
constitutes the grant of a security interest in such property, except
for the interest of the Transferor in such property as a debtor for
purposes of the UCC as in effect in the State of Delaware.
(b) Eligibility of Receivables. The Transferor hereby
represents and warrants to the Trust as of the Initial Closing Date and as
of each Addition Date, as the case may be, that:
(i) Each Receivable is an Eligible Receivable as of the
Cut Off Date or the Addition Date, as applicable.
(ii) Each Receivable then existing has been conveyed to
the Trust free and clear of any Lien of any Person claiming through
or under the Transferor or any of its Affiliates (other than Liens
permitted under subsection 2.05(b)) and in compliance, in all
material respects, with all Requirements of Law applicable to the
Transferor.
(iii) With respect to each Receivable then existing, all
consents, licenses, approvals or authorizations of or registrations
or declarations with any Governmental Authority required to be
obtained, effected or given by the Transferor in connection with the
conveyance of such Receivable to the Trust have been duly obtained,
effected or given and are in full force and effect.
(iv) On each day on which any new Receivable is created,
the Transferor shall be deemed to represent and warrant to the Trust
that (A) each Receivable created on such day is an Eligible
Receivable, (B) each Receivable created on such day has been conveyed
to the Trust in compliance, in all material respects, with all
Requirements of Law applicable to the Transferor, (C) with respect to
each such Receivable, all consents, licenses, approvals or
authorizations of or registrations or declarations with, any
Governmental Authority required to be obtained, effected or given by
the Transferor in connection with the conveyance of such Receivable
to the Trust have been duly obtained, effected or given and are in
full force and effect and (D) the representations and warranties set
forth in subsection 2.04(a) are true and correct with respect to each
Receivable created on such day as if made on such day.
(v) As of the Initial Closing Date, Schedule l to this
Agreement, and as of the applicable Addition Date with respect to
Additional Accounts, the related computer file or microfiche list
referred to in Section 2.06, is an accurate and complete listing in
all material respects of all the Accounts as of August 21, 1992, or
with respect to Additional Accounts, as of the applicable Addition
Date, and the information contained therein with respect to the
identity of such Accounts and the Receivables existing thereunder is
true and correct in all material respects as of August 21, 1992 or
such applicable Addition Date, as of the Cut Off Date, the aggregate
amount of Receivables in all the Accounts was $406,709,099, of which
$394,803,925 were Principal Receivables.
(c) Notice of Breach. The representations and warranties set
forth in this Section 2.04 shall survive the transfer and assignment of the
respective Receivables to the Trust. Upon discovery by the Transferor, the
Servicer or the Trustee of a breach of any of the representations and
warranties set forth in this Section 2.04, the party discovering such
breach shall give prompt written notice to the other parties mentioned
above. The Transferor agrees to cooperate with the Servicer and the Trustee
in attempting to cure any such breach.
(d) Transfer of Ineligible Receivables.
(i) Automatic Removal. In the event of a breach with
respect to a Receivable of any representations and warranties set
forth in subsection 2.04(b)(ii), or in the event that a Receivable is
not an Eligible Receivable as a result of the failure to satisfy the
conditions set forth in clause (d) of the definition of Eligible
Receivable, and any of the following three conditions is met: (A) as
a result of such breach or event such Receivable is charged off as
uncollectible or the Trust's rights in, to or under such Receivable
or its proceeds are impaired or the proceeds of such Receivable are
not available for any reason to the Trust free and clear off any
Lien; (B) the Lien upon the subject Receivable (1) arises in favor of
the United States of America or any State or any agency or
instrumentality thereof and involves taxes or liens arising under
Title IV of ERISA or (2) has been consented to by the Transferor; or
(C) the unsecured short-term debt rating of the Transferor is not at
least P-1 by ▇▇▇▇▇'▇ and the Lien upon the subject Receivable ranks
prior to the Lien created pursuant to this Agreement; then, upon the
earlier to occur of the discovery of such breach or event by the
Transferor or the Servicer or receipt by the Transferor of written
notice of such breach or event given by the Trustee, each such
Receivable shall be automatically removed from the Trust on the terms
and conditions set forth in subsection 2.04(d)(iii).
(ii) Removal After Cure Period. In the event of a breach
of any of the representations and warranties set forth in subsection
2.04(b) other than a breach or event as set forth in clause (d)(i)
above, and as a result of such breach the related Account becomes a
Defaulted Account or the Trust's rights in, to or under the
Receivable or its proceeds are impaired or the proceeds of such
Receivable are not available for any reason to the Trust free and
clear of any Lien, then, upon the expiration of 60 days (or such
longer period as may be agreed to by the Trustee in its sole
discretion, but in no event later than 120 days) from the earlier to
occur of the discovery of any such event by either the Transferor or
the Servicer, or receipt by the Transferor of written notice of any
such event given by the Trustee, each such Receivable shall be
removed from the Trust on the terms and conditions set forth in
subsection 2.04(d)(iii); provided, however, that no such removal
shall be required to be made if, on any day within such applicable
period, such representations and warranties with respect to such
Receivable shall then be true and correct in all material respects as
if such Receivable had been created on such day.
(iii) Procedures for Removal. When the provisions of
subsection 2.04(d)(i) or (ii) above require removal of a Receivable,
the Transferor shall accept reassignment of such Receivable (an
"Ineligible Receivable") by directing the Servicer to deduct the
principal balance of each such Ineligible Receivable from the
Principal Receivables in the Trust and to decrease the Transferor
Interest by such amount. On and after the date of such removal, each
Ineligible Receivable shall be deducted from the aggregate amount of
Principal Receivables used in the calculation of any Investor
Percentage, the Transferor Percentage or the Transferor Interest. In
the event that the exclusion of an Ineligible Receivable from the
calculation of the Transferor Interest would cause the Transferor
Interest to be reduced below zero or would otherwise not be permitted
by law, the Transferor shall immediately, but in no event later than
10 Business Days after such event, make a deposit in the Collection
Account (for allocation as a Principal Receivable) in immediately
available funds prior to the next succeeding Transfer Date in an
amount equal to the amount by which the Transferor Interest would be
reduced below zero. The portion of such deposit allocated to the
Investor Certificates of each Series shall be distributed to the
Investor Certificateholders of each Series in the manner specified in
Article IV, if applicable, on the Distribution Date relating to the
Monthly Period in which ouch deposit is made. Upon the reassignment
to the Transferor of an Ineligible Receivable, the Trust shall
automatically and without further action be deemed to transfer,
assign, set-over and otherwise convey to the Transferor, without
recourse, representation or warranty, all the right, title and
interest of the Trust in and to such Ineligible Receivable, all
monies due or to become due with respect thereto and all proceeds
thereof and Insurance Proceeds relating thereto allocated to such
Ineligible Receivable pursuant to any Supplement. Such reassigned
Ineligible Receivable shall be treated by the Trust as collected in
full as of the date on which it was transferred. The Trustee shall
execute such documents and instruments of transfer or assignment and
take other actions as shall reasonably be requested by the Transferor
to evidence the conveyance of such Ineligible Receivable pursuant to
this subsection 2.04(d)(iii) (and any costs or expenses incurred by
the Trustee in connection with such conveyance shall be reimbursed by
the Servicer). The obligation of the Transferor, set forth in this
subsection 2.04(d)(iii), or the automatic removal of such Receivable
from the Trust, as the case may be, shall constitute the sole remedy
respecting any breach of the representations and warranties set forth
in the above-referenced subsections with respect to such Receivable
available to Certificateholders or the Trustee on behalf of
Certificateholders.
(iv) Proceeds Held by Servicer. For the purposes of
subsections 2.04(d)(i) and (ii) above, proceeds of a Receivable shall
not be deemed to be impaired hereunder solely because such proceeds
are held by the Servicer (if the Servicer is the Transferor) for more
than the applicable period under Section 9-306(3) of the UCC as in
effect in the State of Delaware.
(e) Reassignment of Trust Portfolio. In the event of a breach
of any of the representations and warranties set forth in subsection
2.04(a), either the Trustee or the Holders of Investor Certificates
evidencing Undivided Interests aggregating more than 50% of the Aggregate
Invested Amount, by notice then given in writing to the Transferor (and to
the Trustee and the Servicer, if given by the Investor Certificateholders),
may direct the Transferor to accept reassignment of an amount of Principal
Receivables (as specified below) within 60 days of such notice (or within
such longer period as may be specified in such notice), and the Transferor
shall be obligated to accept reassignment of such Principal Receivables on
a Distribution Date specified by the Transferor (such Distribution Date,
the "Reassignment Date") occurring within such applicable period on the
terms and conditions set forth below; provided, however, that no such
reassignment shall be required to be made if, at any time during such
applicable period, the representations and warranties contained in
subsection 2.04(a) shall then be true and correct in all material respects.
The Transferor shall deposit on the Transfer Date (in New York Clearing
House, next day funds) preceding the Reassignment Date an amount equal to
the reassignment deposit amount for such Receivables in the Distribution
Account or Series Account, as provided in the related Supplement, for
distribution to the Investor Certificateholders pursuant to Article XII.
The reassignment deposit amount with respect to each Series for such
reassignment, unless otherwise stated in the related Supplement, shall be
equal to (i) the Invested Amount of such Series at the end of the day on
the last day of the Monthly Period preceding the Reassignment Date, less
the amount, if any, previously allocated for payment of principal to such
Certificateholders on the related Distribution Date in the Monthly Period
in which the Reassignment Date occurs, plus (ii) an amount equal to all
interest accrued but unpaid on the Investor Certificates of such Series at
the applicable Certificate Rate through such last day, less the amount, if
any, previously allocated for payment of interest to the Certificateholders
of such Series on the related Distribution Date in the Monthly Period in
which the Reassignment Date occurs. Payment of the reassignment deposit
amount with respect to each Series, and all other amounts in the
Distribution Account or the applicable Series Account in respect of the
preceding Monthly Period shall be considered a prepayment in full of the
Receivables represented by the Investor Certificates. On the Distribution
Date following the Transfer Date on which such amount has been deposited in
full into the Distribution Account or the applicable Series Account, the
Receivables and all monies due or to become due with respect thereto and
all proceeds of the Receivables and Insurance Proceeds relating thereto and
Interchange (if any) allocated to the Receivables pursuant to any
Supplement shall be released to the Transferor after payment of all amounts
otherwise due hereunder on or prior to such dates and the Trustee shall
execute and deliver such instruments of transfer or assignment, in each
case without recourse, representation or warranty, as shall be prepared by
and as are reasonably requested by the Transferor to vest in the
Transferor, or its designee or assignee, all right, title and interest of
the Trust in and to the Receivables, all monies due or to become due with
respect thereto and all proceeds of the Receivables and Insurance Proceeds
relating thereto allocated to the Receivables pursuant to any Supplement
(and any costs or expenses incurred by the Trustee in connection with such
reassignment shall be reimbursed by the Servicer). If the Trustee or the
Investor Certificateholders give notice directing the Transferor to accept
reassignment as provided above, the obligation of the Transferor to accept
reassignment of the Receivables and pay the reassignment deposit amount
pursuant to this subsection 2.04(e) shall constitute the sole remedy
respecting a breach of the representations and warranties contained in
subsection 2.04(a) available to the Investor Certificateholders or the
Trustee on behalf of the Investor Certificateholders.
Section 2.5 Covenants of the Transferor. The Transferor hereby
covenants that:
(a) Receivables to be Accounts. The Transferor will take no
action to cause any Receivable to be evidenced by any instrument (as
defined in the UCC as in effect in the State of Delaware). Each Receivable
shall be payable pursuant to a contract which does not create a Lien on any
goods purchased thereunder. The Transferor will take no action to cause any
Receivable to be anything other than an "account" (as defined in the UCC as
in effect in the State of Delaware).
(b) Security Interests. Except for the conveyances hereunder,
the Transferor will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on any
Receivable, whether now existing or hereafter created, or any interest
therein; the Transferor will immediately notify the Trustee of the
existence of any Lien on any Receivable; and the Transferor shall defend
the right, title and interest of the Trust in, to and under the
Receivables, whether now existing or hereafter created, against all claims
of third parties claiming through or under the Transferor; provided,
however, that nothing in this subsection 2.05(b) shall prevent or be deemed
to prohibit the Transferor from suffering to exist upon any of the
Receivables any Liens for municipal or other local taxes if such taxes
shall not at the time be due and payable or if the Transferor shall
currently be contesting the validity thereof in good faith by appropriate
proceedings and shall have set aside on its books adequate reserves with
respect thereto.
(c) Credit Card Agreements and Account Guidelines. The
Transferor shall comply with and perform its obligations under the Credit
Card Agreements relating to the Accounts and the Credit Card Guidelines and
all applicable rules and regulations of VISA USA, Inc. and MasterCard
International Incorporated except insofar as any failure to comply or
perform would not materially and adversely affect the rights of the Trust
or the Certificateholders hereunder or under the Certificates. The
Transferor may change the terms and provisions of the Credit Card
Agreements or the Credit Card Guidelines in any respect (including, without
limitation, the reduction of the required minimum monthly payment, the
calculation of the amount, or the timing, of charge offs and the Periodic
Finance Charges and other fees to be assessed thereon) only if such change
(i) would not, in the reasonable belief of the Transferor, cause a Pay Out
Event to occur, and (ii) is made applicable to the comparable segment of
the revolving credit card accounts owned and serviced by the Transferor
which have characteristics the same as, or substantially similar to, the
Accounts that are the subject of such change, except as otherwise
restricted by an endorsement, sponsorship, or other agreement between the
Transferor and an unrelated third party or by the terms of the Credit Card
Agreements.
(d) Account Allocations.
(i) In the event that the Transferor is unable for any
reason to transfer Receivables to the Trust in accordance with the
provisions of this Agreement (including, without limitation, by
reason of the application of the provisions of Section 9.02 or an
order by any federal governmental agency having regulatory authority
over the Transferor or any court of competent jurisdiction that the
Transferor not transfer any additional Principal Receivables to the
Trust) then, in any such event, (A) the Transferor agrees to allocate
and pay to the Trust, after the date of such inability, all
Collections with respect to Principal Receivables, and all amounts
which would have constituted Collections with respect to Principal
Receivables but for the Transferor's inability to transfer such
Receivables (up to an aggregate amount equal to the amount of
Principal Receivables in the Trust on such date); (B) the Transferor
agrees to have such amounts applied as Collections in accordance with
Article IV; and (C) for only so long as all Collections and all
amounts which would have constituted Collections are allocated and
applied in accordance with clauses (A) and (B) above, Principal
Receivables (and all amounts which would have constituted Principal
Receivables but for the Transferor's inability to transfer
Receivables to the Trust) that are written off as uncollectible in
accordance with this Agreement shall continue to be allocated in
accordance with Article IV, and all amounts that would have
constituted Principal Receivables but for the Transferor's inability
to transfer Receivables to the Trust shall be deemed to be Principal
Receivables for the purpose of calculating (i) the applicable
Investor Percentage with respect to any Series and (ii) the Aggregate
Investor Percentage thereunder. If the Transferor is unable pursuant
to any Requirement of Law to allocate Collections as described above,
the Transferor agrees that it shall in any such event allocate, after
the occurrence of such event, payments on each Account with respect
to the principal balance of such Account first to the oldest
principal balance of such Account and to have such payments applied
as Collections in accordance with Article IV. The parties hereto
agree that Finance Charge Receivables, whenever created, accrued in
respect of Principal Receivables that have been conveyed to the
Trust, or that would have been conveyed to the Trust but for the
above described inability to transfer such Receivables, shall
continue to be a part of the Trust notwithstanding any cessation of
the transfer of additional Principal Receivables to the Trust and
Collections with respect thereto shall continue to be allocated and
paid in accordance with Article IV.
(ii) In the event that, pursuant to subsection 2.04(d),
the Transferor accepts reassignment of an Ineligible Receivable as a
result of a breach of the representations and warranties in
subsection 2.04(b) relating to such Receivable, then, in any such
event, the Transferor agrees to account for payments received with
respect to such Ineligible Receivable separately from its accounting
for Collections on Principal Receivables retained by the Trust. If
payments received from or on behalf of an Obligor are not
specifically applicable either to an Ineligible Receivable of such
Obligor reassigned to the Transferor or to the Receivables of such
Obligor retained in the Trust, then the Transferor agrees to allocate
payments proportionately based on the total amount of Principal
Receivables of such Obligor retained in the Trust and the total
amount owing by such Obligor on any Ineligible Receivables reassigned
to the Transferor, and the portion allocable to any Principal
Receivables retained in the Trust shall be treated as Collections and
deposited in accordance with the provisions of Article IV.
(e) Delivery of Collections. The Transferor agrees to pay to
the Servicer all payments received by the Transferor in respect of the
Receivables as soon as practicable after receipt thereof by the Transferor.
(f) Conveyance of Accounts. The Transferor covenants and agrees
that it will not convey, assign, exchange or otherwise transfer the
Accounts to any Person prior to the termination of this Agreement pursuant
to Article XII; provided, however, that the Transferor shall not be
prohibited hereby from conveying, assigning, exchanging or otherwise
transferring the Accounts in connection with a transaction complying with
the provisions of Section 7.02.
Section 2.6 Addition of Accounts.
(a) If, (i) during any period of thirty consecutive days, the
Transferor Interest averaged over that period is less than 5% (or such
higher percentage as may be specified in any Supplement, such percentage
the "Minimum Transferor Interest") of the Average Principal Receivables,
the Transferor shall designate additional eligible MasterCard or VISA
accounts from the Bank Portfolio ("Additional Accounts") to be included as
Accounts in a sufficient amount such that the average of the Transferor
Interest as a percentage of the Average Principal Receivables for such
30-day period, computed by assuming that the amount of the Average
Principal Receivables of such Additional Accounts shall be deemed to be
outstanding in the Trust during each day of such 30-day period, is at least
equal to the Minimum Transferor Interest, or (ii) on any Record Date the
aggregate amount of Principal Receivables is less than the Minimum
Aggregate Principal Receivables, the Transferor shall designate Additional
Accounts to be included as Accounts in a sufficient amount such that the
aggregate amount of Principal Receivables will be equal to or greater than
the Minimum Aggregate Principal Receivables. Receivables from such
Additional Accounts shall be transferred to the Trust on or before the
tenth Business Day following such thirty-day period or Record Date, as the
case may be.
(b) In addition to its obligation under subsection 2.06(a), the
Transferor may, but shall not be obligated to, designate from time to time
Additional Accounts of the Transferor to be included as Accounts; provided,
that the Transferor shall not make more than one such designation in any
one Monthly Period.
(c) The Transferor agrees that any such transfer of Receivables
from Additional Accounts, under subsection 2.06(a) or (b) shall satisfy the
following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the
Addition Date with respect to additions pursuant to subsection
2.06(a) and on or before the tenth Business Day prior to the Addition
Date with respect to additions pursuant to subsection 2.06(b) (the
"Notice Date"), the Transferor shall give the Trustee, each Rating
Agency and the Servicer written notice that such Additional Accounts
will be included, which notice shall specify the approximate
aggregate amount of the Receivables to be transferred;
(ii) on or before the Addition Date, the Transferor shall
have delivered to the Trustee a written assignment (including an
acceptance by the Trustee on behalf of the Trust for the benefit of
the Investor Certificateholders) in substantially the form of Exhibit
B (the "Assignment") and the Transferor shall have indicated in its
computer files that the Receivables created in connection with the
Additional Accounts have been transferred to the Trust and, within
five Business Days thereafter, the Transferor shall have delivered to
the Trustee a computer file or microfiche list containing a true and
complete list of all Additional Accounts, identified by account
number and the aggregate amount of the Receivables in such Additional
Accounts, as of the Addition Cut Off Date, which computer file or
microfiche list shall be as of the date of such Assignment
incorporated into and made a part of such Assignment and this
Agreement;
(iii) the Transferor shall represent and warrant that (x)
each Additional Account is, as of the Addition Cut Off Date, an
Eligible Account, and each Receivable in such Additional Account, is,
as of the Addition Cut Off Date, an Eligible Receivable, (y) no
selection procedures believed by the Transferor to be materially
adverse to the interests of the Investor Certificateholders were
utilized in selecting the Additional Accounts from the available
Eligible Accounts from the Bank Portfolio, and (z) as of the Addition
Date, the Transferor is not insolvent;
(iv) the Transferor shall represent and warrant that, as
of the Addition Date, the Assignment constitutes either (x) a valid
transfer and assignment to the Trust of all right, title and interest
of the Transferor in and to the Receivables then existing and
thereafter created in the Additional Accounts, and all proceeds (as
defined in the UCC as in effect in the State of Delaware) of such
Receivables and Insurance Proceeds relating thereto and such
Receivables and all proceeds thereof and Insurance Proceeds relating
thereto will be held by the Trust free and clear of any Lien of any
Person claiming through or under the Transferor or any of its
Affiliates, except for (i) Liens permitted under subsection 2.05(b),
(ii) the interest of the Transferor as Holder of the Exchangeable
Transferor Certificate and (iii) the Transferor's right to receive
interest accruing on, and investment earnings in respect of, the
Finance Charge Account and the Principal Account, or any Series
Account as provided in this Agreement and any related Supplement or
(y) a grant of a security interest (as defined in the UCC as in
effect in the State of Delaware) in such property to the Trust, which
is enforceable with respect to then existing Receivables of the
Additional Accounts, the proceeds (as defined in the UCC as in effect
in the State of Delaware) thereof and Insurance Proceeds relating
thereto upon the conveyance of such Receivables to the Trust, and
which will be enforceable with respect to the Receivables thereafter
created in respect of Additional Accounts conveyed on such Addition
Date, the proceeds (as defined in the UCC as in effect in the State
of Delaware) thereof and Insurance Proceeds relating thereto upon
such creation; and (z) if the Assignment constitutes the grant of a
security interest to the Trust in such property, upon the filing of a
financing statement as described in Section 2.01 with respect to such
Additional Accounts and in the case of the Receivables thereafter
created in such Additional Accounts and the proceeds (as defined in
the UCC as in effect in the State of Delaware) thereof, and Insurance
Proceeds relating thereto, upon such creation, the Trust shall have a
first priority perfected security interest in such property (subject
to Section 9-306 of the UCC as in effect in the State of Delaware),
except for Liens permitted under subsection 2.05(b);
(v) the Transferor shall deliver an Officer's Certificate
substantially in the form of Schedule 2 to Exhibit B to the Trustee
confirming the items set forth in paragraph (ii) above;
(vi) the Transferor shall deliver an Opinion of Counsel
with respect to the Receivables in the Additional Accounts to the
Trustee (with a copy to the Rating Agency) substantially in the form
of Exhibit E; and
(vii) the Transferor shall have received notice from
Standard & Poor's and ▇▇▇▇▇'▇ that the inclusion of such accounts as
Additional Accounts pursuant to subsection 2.06(b) will not result in
the reduction or withdrawal of its then existing rating of any Series
of Investor Certificates then issued and outstanding and shall have
delivered such notice to the Trustee.
Section 2.7 Removal of Accounts.
(a) Subject to the conditions set forth below, the Transferor
may, but shall not be obligated to, designate Receivables from Accounts for
deletion and removal ("Removed Accounts") from the Trust; provided,
however, that the Transferor shall not make more than one such designation
in any Monthly Period. On or before the fifth Business Day (the "Removal
Notice Date") prior to the date on which the designated Removed Accounts
will be reassigned by the Trustee to the Transferor (the "Removal Date"),
the Transferor shall give the Trustee and the Servicer written notice that
the Receivables from such Removed Accounts are to be reassigned to the
Transferor.
(b) The Transferor shall be permitted to designate and require
reassignment to it of the Receivables from Removed Accounts only upon
satisfaction of the following conditions:
(i) On any Removal Notice Date, the Principal Receivables
of the Removed Accounts to be reassigned back to the Seller on the
related Removal Date shall not equal or exceed 5% of the aggregate
amount of the Principal Receivables on such Removal Date; provided,
that if any Series has been paid in full, the Principal Receivables
in such Removed Accounts may equal the Initial Invested Amount of
such Series;
(ii) The removal of any Receivables of any Removed
Accounts on any Removal Date shall not, in the reasonable belief of
the Seller, cause a Pay Out Event to occur;
(iii) on or prior to the Removal Date, the Transferor
shall have delivered to the Trustee for execution a written
assignment in substantially the form of Exhibit G (the
"Reassignment") and, within five Business Days thereafter, the
Transferor shall have delivered to the Trustee a computer file or
microfiche list containing a true and complete list of all Removed
Accounts identified by account number and the aggregate amount of the
Receivables in such Removed Accounts as of the Removal Date, which
computer file or microfiche list shall as of the Removal Date modify
and amend and be made a part of this Agreement;
(iv) the Transferor shall represent and warrant that no
selection procedures believed by the Transferor to be materially
adverse to the interests of the Certificateholders were utilized in
selecting the Removed Accounts to be removed from the Trust;
(v) As of the Removal Notice Date, not more than 15% of
the Receivables are more than 34 days delinquent;
(vi) on or before the tenth Business Day prior to the
Removal Date, each Rating Agency shall have received notice of such
proposed removal of the Receivables of such Accounts and the
Transferor shall have received notice prior to the Removal Date from
such Rating Agency that such proposed removal will not result in a
downgrade or withdrawal of its then current rating of any outstanding
Series of the Investor Certificates;
(vii) on any Removal Notice Date, the amount of the
Principal Receivables of the Removed Accounts to be reassigned to the
Transferor on the related Removal Date shall not equal or exceed 7%
of the aggregate amount of the Principal Receivables on such Removal
Date; provided, that if any Series has been paid in full, the
Principal Receivables in such Removed Accounts may equal the Initial
Invested Amount of such Series; and
(viii) the Transferor shall have delivered to the Trustee
an Officer's Certificate confirming the items set forth in clauses
(i) through (vi) above. The Trustee may conclusively rely on such
Officer's Certificate, shall have no duty to make inquiries with
regard to the matters set forth therein and shall incur no liability
in so relying.
Upon satisfaction of the above conditions, the Trustee shall
execute and deliver the Reassignment to the Transferor, and the Receivables
from the Removed Accounts shall no longer constitute a part of the Trust.
Section 2.8 Discount Receivables. (a) The Transferor shall
designate a fixed percentage (the "Yield Factor"), initially equal to 1.3%,
of all Receivables other than Periodic Finance Charges, Annual Membership
Fees, Cash Advance Fees, Late Fees, overlimit fees, return check fees and
similar fees and other charges and Receivables in Defaulted Accounts
outstanding on any date of determination to be treated as Finance Charge
Receivables ("Discount Receivables").
(b) The Transferor, in accordance with Section 4.03, shall (i)
deposit into the Collection Account in immediately available funds an
amount equal to the product of (a) the aggregate Investor Percentages for
all Series with respect to Finance Charge Receivables and (b) the aggregate
amount of the Discount Receivable Collections processed on such day and
(ii) pay to the Holder of the Exchangeable Transferor Certificate an amount
equal to the product of (a) the Transferor Percentage and (b) the aggregate
amount of such Discount Receivable Collections. The deposit made by the
Transferor into the Collection Account under the preceding sentence shall
be considered a payment of such Discount Receivables and shall be applied
as Finance Charge Receivables in accordance with Article IV.
(c) The Transferor shall have the option to increase the Yield
Factor to an amount not greater than 4%. The Transferor shall provide to
the Servicer, the Trustee, any Enhancement Provider and the Rating Agency
30 days' prior written notice of such designation, and such designation
shall become effective on the date designated therein (i) unless such
designation in the reasonable belief of the Transferor would cause a Pay
Out Event to occur, or an event which, with notice or the lapse of time or
both, would constitute a Pay Out Event and (ii) only if each Rating Agency
shall have delivered a letter to the Transferor and the Trustee confirming
that its then current rating of the Investor Certificates of any Series
then outstanding will not be reduced or withdrawn as a result of such
designation.
[End of Article II]
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.1 Acceptance of Appointment and Other Matters
Relating to the Servicer.
(a) The Transferor agrees to act as the Servicer under this
Agreement. The Investor Certificateholders of each Series by their
acceptance of the related Certificates consent to the Transferor acting as
Servicer.
(b) The Servicer shall service and administer the Receivables
and shall collect payments due under the Receivables in accordance with its
customary and usual servicing procedures for servicing credit card
receivables comparable to the Receivables and in accordance with the Credit
Card Guidelines and shall have full power and authority, acting alone or
through any party properly designated by it hereunder, to do any and all
things in connection with such servicing and administration which it may
deem necessary or desirable. Without limiting the generality of the
foregoing and subject to Section 10.01, the Servicer is hereby authorized
and empowered (i) to make withdrawals from the Collection Account as set
forth in this Agreement, (ii) unless such power and authority is revoked by
the Trustee on account of the occurrence of a Servicer Default pursuant to
Section 10.01, to instruct the Trustee to make withdrawals and payments,
from the Finance Charge Account, the Principal Account and any Series
Account, in accordance with such instructions as set forth in this
Agreement, (iii) unless such power and authority is revoked by the Trustee
on account of the occurrence of a Servicer Default pursuant to Section
10.01, to instruct the Trustee in writing, as set forth in this Agreement,
(iv) to execute and deliver, on behalf of the Trust for the benefit of the
Certificateholders, any and all instruments of satisfaction or
cancellation, or of partial or full release or discharge, and all other
comparable instruments, with respect to the Receivables and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivables and (v) to make any filings,
reports, notices, applications, registrations with, and to seek any
consents or authorizations from the Securities and Exchange Commission and
any state securities authority on behalf of the Trust as may be necessary
or advisable to comply with any federal or state securities or reporting
requirements. The Trustee agrees that it shall promptly follow the
instructions of the Servicer to withdraw funds from the Principal Account,
the Finance Charge Account or any Series Account and to take any action
required under any Enhancement at such time as required under this
Agreement. The Trustee shall execute at the Servicer's written request such
documents prepared by the Transferor and acceptable to the Trustee as may
be necessary or appropriate to enable the Servicer to carry out its
servicing and administrative duties hereunder.
(c) In the event that the Transferor is unable for any reason
to transfer Receivables to the Trust in accordance with the provisions of
this Agreement (including, without limitation, by reason of the application
of the provisions of Section 9.02 or the order of any federal governmental
agency having regulatory authority over the Transferor or any court of
competent jurisdiction that the Transferor not transfer any additional
Principal Receivables to the Trust) then, in any such event, (A) the
Servicer agrees to allocate, after such date, all Collections with respect
to Principal Receivables, and all amounts which would have constituted
Collections with respect to Principal Receivables but for the Transferor's
inability to transfer such Receivables (up to an aggregate amount equal to
the aggregate amount of Principal Receivables in the Trust as of such date)
in accordance with subsection 2.05(e); (B) the Servicer agrees to apply
such amounts as Collections in accordance with Article IV, and (C) for only
so long as all Collections and all amounts which would have constituted
Collections are allocated and applied in accordance with clauses (A) and
(B) above, Principal Receivables and all amounts which would have
constituted Principal Receivables but for the Transferor's inability to
transfer Receivables to the Trust that are written off as uncollectible in
accordance with this Agreement shall continue to be allocated in accordance
with Article IV and all amounts which would have constituted Principal
Receivables but for the Transferor's inability to transfer Receivables to
the Trust shall be deemed to be Principal Receivables for the purpose of
calculating the applicable Investor Percentage thereunder. If the Servicer
is unable pursuant to any Requirement of Law to allocate payments on the
Accounts as described above, the Servicer agrees that it shall in any such
event allocate, after the occurrence of such event, payments on each
Account with respect to the principal balance of such Account first to the
oldest principal balance of such Account and to have such payments applied
as Collections in accordance with Article IV. The parties hereto agree that
Finance Charge Receivables, whenever created, accrued in respect of
Principal Receivables which have been conveyed to the Trust, or which would
have been conveyed to the Trust but for the above described inability to
transfer such Receivables, shall continue to be a part of the Trust
notwithstanding any cessation of the transfer of additional Principal
Receivables to the Trust and Collections with respect thereto shall
continue to be allocated and paid in accordance with Article IV.
(d) In the event that pursuant to subsection 2.04(d), the
Transferor accepts reassignment of an Ineligible Receivable as a result of
a breach of the representations and warranties in subsection 2.04(b)
relating to such Receivable, then, in any such event, the Servicer agrees
to account for payments received with respect to such Ineligible Receivable
separately from its accounting for Collections on Principal Receivables
retained by the Trust. If payments received from or on behalf of an Obligor
are not specifically applicable either to an Ineligible Receivable of such
Obligor reassigned to the Transferor or to Receivables of such Obligor
retained in the Trust, then the Servicer agrees to allocate payments
proportionately based on the total amount of Principal Receivables of such
Obligor retained in the Trust and the total amount owing by such Obligor on
any Ineligible Receivables purchased by the Transferor, and the portion
allocable to any Principal Receivables retained in the Trust shall be
treated as Collections and deposited in accordance with the provisions of
Article IV.
(e) The Servicer shall not be obligated to use separate
servicing procedures, offices, employees or accounts for servicing the
Receivables from the procedures, offices, employees and accounts used by
the Servicer in connection with servicing other credit card receivables.
(f) The Servicer shall maintain fidelity bond coverage insuring
against losses through wrongdoing of its officers and employees who are
involved in the servicing of credit card receivables covering such actions
and in such amounts as the Servicer believes to be reasonable from time to
time.
Section 3.2 Servicing Compensation. As compensation for its
servicing activities hereunder and reimbursement for its expenses as set
forth in the immediately following paragraph, the Servicer shall be
entitled to receive a monthly servicing fee in respect of any Monthly
Period prior to the termination of the Trust pursuant to Section 12.01
(with respect to each Monthly Period, the "Monthly Servicing Fee"). The
share of the Monthly Servicing Fee allocable to each Series of Investor
Certificateholders with respect to any Monthly Period (or portion thereof)
shall be payable on the related Transfer Date and, with respect to each
Series (unless otherwise provided in the related Supplement), shall be
equal to one-twelfth of the product of (A) the applicable Series Servicing
Fee Percentage per annum and (B) the Invested Amount of such Series as of
the last day of the Monthly Period preceding such Transfer Date (the
"Investor Monthly Servicing Fee") and shall be paid to the Servicer
pursuant to Article IV. The servicing fee payable by the Holder of the
Exchangeable Transferor Certificate shall be equal to the product of
one-twelfth of the product of (A) the Transferor Interest and (B) the
weighted average of the Series Servicing Fee Percentages with respect to
each Series of Investor Certificates then outstanding (the "Monthly
Transferor Servicing Fee"). The Monthly Servicing Fee shall equal the sum
of (x) the aggregate amount of Investor Monthly Servicing Fees with respect
to each Series then outstanding and (y) the Monthly Transferor Servicing
Fee. The Investor Monthly Servicing Fee with respect to any Series is
payable in arrears on the related Transfer Date (unless otherwise provided
in the related Supplement) and the Monthly Transferor Servicing Fee is
payable in arrears no later than the last Transfer Date with respect to any
Series occurring in a Monthly Period. The Monthly Transferor Servicing Fee
and, unless otherwise provided in a Supplement, each Investor Monthly
Servicing Fee, shall be calculated on the basis of a 360-day year
consisting of twelve 30-day months.
The Servicer's expenses include the amounts due to the Trustee
pursuant to Section 11.05 and the reasonable fees and disbursements of
independent public accountants and all other expenses incurred by the
Servicer in connection with its activities hereunder; provided, that the
Servicer shall not be liable for any liabilities, costs or expenses of the
Trust, the Investor Certificateholders or the Certificate Owners arising
under any tax law, including without limitation any federal, state or local
income or franchise taxes or any other tax imposed on or measured by income
(or any interest or penalties with respect thereto or arising from a
failure to comply therewith). The Servicer shall be required to pay such
expenses for its own account and shall not be entitled to any payment
therefor other than the Monthly Servicing Fee.
Section 3.3 Representations and Warranties of the Servicer.
First USA Bank, as initial Servicer, hereby makes, and any Successor
Servicer by its appointment hereunder shall make the following
representations and warranties on which the Trustee has relied in accepting
the Receivables in trust and in authenticating the Certificates issued on
the Initial Closing Date:
(a) Organization and Good Standing. The Servicer is a Delaware
chartered banking corporation duly organized, validly existing and in good
standing under the laws of the State of Delaware 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 and Delaware law. If the Servicer shall be required by any
Requirement of Law to so qualify or register or obtain such license or
approval, then it shall do so.
(c) Due Authorization. The execution, delivery, and performance
of this Agreement have been duly authorized by the Servicer by all
necessary corporate action on the part of the Servicer and this Agreement
will remain, from the time of its execution, an official record of the
Servicer.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Servicer, enforceable in accordance
with its terms, except as enforceability be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
now or hereinafter in effect, affecting the enforcement of creditors'
rights in general and the rights of creditors of national banking
associations.
(e) No Violation. The execution and delivery of this Agreement
by the Servicer, and the performance of the transactions contemplated by
this Agreement and the fulfillment of the terms hereof applicable to the
Servicer, will not conflict with, violate, result in any breach of any of
the material terms and provisions of, or constitute (with or without notice
or lapse of time or both) a default under, any Requirement of Law
applicable to the Servicer or any indenture, contract, agreement, mortgage,
deed of trust or other instrument to which the Servicer is a party or by
which it is bound.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Servicer, threatened against the
Servicer before any court, regulatory body, administrative agency or other
tribunal or governmental instrumentality seeking to prevent the issuance of
the Certificates or the consummation of any of the transactions
contemplated by this Agreement, seeking any determination or ruling that,
in the reasonable judgment of the Servicer, would materially and adversely
affect the performance by the Servicer of its obligations under this
Agreement, or seeking any determination or ruling that would materially and
adversely affect the validity or enforceability of this Agreement.
(g) Compliance with Requirements of Law. The Servicer shall
duly satisfy all obligations on its part to be fulfilled under or in
connection with each Receivable and the related Account, will maintain in
effect all qualifications required under Requirements of Law in order to
service properly each Receivable and the related Account and will comply in
all material respects with all other Requirements of Law in connection with
servicing each Receivable and the related Account the failure to comply
with which would have a material adverse effect on the Certificateholders
or any Enhancement Provider.
(h) Protection of Certificateholders' Rights. The Servicer
shall take no action which, nor omit to take any action the omission of
which, would impair the rights of Certificateholders in any Receivable or
the related Account or the rights of any Enhancement Provider, nor shall it
reschedule, revise or defer payments due on any Receivable except in
accordance with the Credit Card Guidelines.
(i) All Consents. All authorizations, consents, order or
approvals of or registrations or declarations with any Governmental
Authority required to be obtained, effected or given by the Servicer in
connection with the execution and delivery of this Agreement by the
Servicer and the performance of the transactions contemplated by this
Agreement by the Servicer, have been duly obtained, effected or given and
are in full force and effect.
(j) Rescission or Cancellation. The Servicer shall not permit
any rescission or cancellation of any Receivable except as ordered by a
court of competent jurisdiction or other Governmental Authority or in
accordance with the normal operating procedures of the Servicer.
(k) Receivables Not To Be Evidenced by Promissory Notes. Except
in connection with its enforcement or collection of an Account, the
Servicer will take no action to cause any Receivable to be evidenced by an
instrument or chattel paper (as defined in the UCC as in effect in the
State of Delaware).
Section 3.4 Reports and Records for the Trustee.
(a) Daily Reports. On each Business Day, the Servicer, with
prior notice, shall prepare and make available at the office of the
Servicer for inspection by the Trustee a record setting forth (i) the
aggregate amount of Collections processed by the Servicer on the preceding
Business Day and (ii) the aggregate amount of Receivables as of the close
of business on the preceding Business Day.
(b) Monthly Servicer's Certificate. Unless otherwise stated in
the related Supplement with respect to any Series, on each Determination
Date the Servicer shall forward, as provided in Section 13.05, to the
Trustee, the Paying Agent, any Enhancement Provider and each Rating Agency,
a certificate of a Servicing Officer in the form of Exhibit C (which
includes the Schedule thereto specified as such in each Supplement) setting
forth (i) the aggregate amount of Collections processed during the
preceding Monthly Period, (ii) the aggregate amount of the applicable
Investor Percentage of Collections of Principal Receivables processed by
the Servicer pursuant to Article IV during the preceding Monthly Period
with respect to each Series then outstanding, (iii) the aggregate amount of
the applicable Investor Percentage of Collections of Finance Charge
Receivables processed by the Servicer pursuant to Article IV during the
Preceding Monthly Period with respect to each Series then outstanding, (iv)
the aggregate amount of Principal Receivables outstanding as of the end of
the last day of the preceding Monthly Period, (v) the balance on deposit in
the Finance Charge Account and the Principal Account or any Series Account
applicable to any Series then outstanding on such Determination Date with
respect to Collections processed by the Servicer during the preceding
Monthly Period, (vi) the aggregate amount, if any, of withdrawals, drawings
or payments under any Enhancement, if any, for each Series then outstanding
required to be made with respect to the previous Monthly Period in the
manner provided in the related Supplement, (vii) the sum of all amounts
payable to the Investor Certificateholders of each Series on the succeeding
Distribution Date in respect of Certificate Principal and Certificate
Interest and (viii) such other matters as are set forth in Exhibit C.
Section 3.5 Annual Servicer's Certificate. The Servicer will
deliver, as provided in Section 13.05, to the Trustee, any Enhancement
Provider and the Rating Agency, an Officer's Certificate substantially in
the form of Exhibit D stating that (a) a review of the activities of the
Servicer during the twelve-month period (which shall be the period from
July 1 of the preceding calendar year to and including June 30 of such
calendar year) and of its performance under this Agreement was made under
the supervision of the officer signing such certificate and (b) to the best
of such officer's knowledge, based on such review, the Servicer has fully
performed all its obligations under this Agreement throughout such period,
or, if there has been a default in the performance of any such obligation,
specifying each such default known to such officer and the nature and
status thereof. A copy of such certificate may be obtained by any Investor
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
Section 3.6 Annual Independent Accountants' Servicing Report.
(a) On or before September 30, of each calendar year, beginning
with September 30, 1993, the Servicer shall cause a firm of nationally
recognized independent public accountants (who may also render other
services to the Servicer or the Transferor) to furnish a report to the
Trustee, any Enhancement Provider and the Rating Agency, to the effect that
such firm has made a study and evaluation in accordance with generally
accepted auditing standards of the Servicer's internal accounting controls
relative to the servicing of Accounts under this Agreement, 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 the system of internal accounting controls in effect for the fiscal
year ending on June 30 of such year relating to servicing procedures
performed by the Servicer, taken as a whole, provided reasonable assurance
that internal control system was sufficient for the prevention and
detection of errors and irregularities and that such servicing was
conducted in compliance with such provisions of this Agreement of which
such accountants can reasonably be expected to possess adequate knowledge
of the subject matter, which are susceptible of positive assurance by such
accountants and for which their professional competence is relevant, except
for such exceptions as they believe to be immaterial and such other
exceptions as shall be set forth in such statement. A copy of such report
may be obtained by any Investor Participation Certificateholder by a
request in writing to the Trustee addressed to the Corporate Trust Office.
(b) On or before September 30 of each calendar year, beginning
with September 30, 1993, the Servicer shall cause a firm of nationally
recognized independent certified public accountants (who may also render
other services to the Servicer or the Transferor) to furnish a report to
the Trustee, any Enhancement Provider and the Rating Agency to the effect
that they have compared the mathematical calculations of each amount set
forth in the monthly certificates forwarded by the Servicer pursuant to
subsection 3.04(b) during the period covered by such report (which shall be
the period from July 1 of the preceding calendar year to and including June
30 of such calendar year, or for the initial period, from the Closing Date
until June 30, 1993) with the Servicer's computer reports which were the
source of such amounts and that on the basis of such comparison, such
amounts are in agreement, except for such exceptions as they believe to be
immaterial and such other exceptions as shall be set forth in such report.
A copy of such report may be obtained by any Investor Certificateholder by
a request in writing to the Trustee addressed to the Corporate Trust
Office.
Section 3.7 Tax Treatment. The Transferor has structured this
Agreement and the Investor Certificates with the intention that the
Investor Certificates will qualify under applicable federal, state, local
and foreign tax law as indebtedness. The Transferor, the Servicer, the
Holder of the Exchangeable Transferor, Certificate, each Investor
Certificateholder, and each Certificate Owner, agree to treat and to take
no action inconsistent with the treatment of the Investor Certificates (or
beneficial interest therein) as indebtedness for purposes of federal,
state, local and foreign income or franchise taxes and any other tax
imposed on or measured by income. Each Investor Certificateholder and the
Holder of the Exchangeable Transferor Certificate, by acceptance of its
Certificate and each Certificate Owner, by acquisition of a beneficial
interest in a Certificate, agree to be bound by the provisions of this
Section 3.07. Each Certificateholder agrees that it will cause any
Certificate Owner acquiring an interest in a Certificate through it to
comply with this Agreement as to treatment as indebtedness under applicable
tax law, as described in this Section 3.07. Furthermore, the Trustee shall
treat the Trust as a security device only, and shall not file tax returns
or obtain an employer identification number on behalf of the Trust.
Section 3.8 Notices to the Transferor. In the event that the
Transferor is no longer acting as Servicer, any Successor Servicer
appointed pursuant to Section 10.02 shall deliver or make available to the
Transferor each certificate and report required to be prepared, forwarded
or delivered thereafter pursuant to Sections 3.04, 3.05 and 3.06.
[End of Article III]
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.1 Rights of Certificateholders. Each Series of
Investor Certificates shall represent Undivided Interests in the Trust,
including the benefits of any Enhancement issued with respect to such
Series and the right to receive the Collections and other amounts at the
times and in the amounts specified in this Article IV to be deposited in
the Investor Accounts or to be paid to the Investor Certificateholders of
such Series; provided, however, that the aggregate interest represented by
such Certificates at any time in the Principal Receivables shall not exceed
an amount equal to the Invested Amount at such time. The Exchangeable
Transferor Certificate shall represent the remaining undivided interest in
the Trust, including the right to receive the Collections and other amounts
at the times and in the amounts specified in this Article IV to be paid to
the Holder of the Exchangeable Transferor Certificate; provided, however,
that the aggregate interest represented by such Certificate at any time in
the Principal Receivables shall not exceed the Transferor Interest at such
time and such Certificate shall not represent any interest in the Investor
Accounts, except as provided in this Agreement, or the benefits of any
Enhancement issued with respect to any Series.
Section 4.2 Establishment of Accounts.
(a) The Collection Account. The Servicer, for the benefit of
the Certificateholders, shall establish in the name of the Trustee, on
behalf of the Trust, a non-interest bearing segregated account (the
"Collection Account") bearing a designation clearly indicating that the
funds deposited therein are held in trust for the benefit of the
Certificateholders, and shall cause such Collection Account to be
established and maintained, with (i) in a segregated trust account with the
corporate trust department of a depository institution or trust company
(which may include the Trustee or an Affiliate of the Servicer) organized
under the laws of the United States of America or any one of the states
thereof or the District of Columbia and with deposit insurance provided by
BIF or SAIF which at all times maintains a long-term deposit rating of at
least Baa3 by ▇▇▇▇▇'▇ and having corporate trust powers and acting as
trustee for funds deposited therein; provided, however, that such account
need not be maintained as a segregated trust account with the corporate
trust department of such institution if at all times the certificates of
deposit, short-term deposits or commercial paper or the long-term unsecured
debt obligations (other than such obligation whose rating is based on
collateral or on the credit of a Person other than such institution or
trust company) of such depository institution or trust company shall have a
credit rating from ▇▇▇▇▇'▇ and Standard & Poor's of P-1 and A-1+,
respectively, in the case of the certificates of deposit, short-term
deposits or commercial paper, or a rating from ▇▇▇▇▇'▇ of at least Aa2 and
from Standard & Poor's of AAA in the case of the long-term unsecured debt
obligations, or (ii) a depository institution, which may include the
Trustee, which is acceptable to the Rating Agency (a "Qualified
Institution"); provided further, that upon the insolvency of the Servicer,
the Collection Account shall not be permitted to be maintained with the
Servicer. Pursuant to authority granted to it pursuant to subsection
3.01(b), the Servicer shall have the revocable power to withdraw funds from
the Collection Account for the purposes of carrying out its duties
hereunder.
(b) The Finance Charge and Principal Accounts. The Trustee, for
the benefit of the Investor Certificateholders, shall establish and
maintain with the Trustee in the name of the Trust two segregated trust
accounts (the "Finance Charge Account" and the "Principal Account,"
respectively), bearing a designation clearly indicating that the funds
therein are held for the benefit of the Investor Certificateholders. The
Trustee shall possess all right, title and interest in all funds on deposit
from time to time in the Finance Charge Account and the Principal Account
and in all proceeds thereof. The Finance Charge Account and the Principal
Account shall be under the sole dominion and control of the Trustee for the
benefit of the Investor Certificateholders. Pursuant to authority granted
to it hereunder, the Servicer shall have the revocable power to instruct
the Trustee to withdraw funds from the Finance Charge Account and Principal
Account for the purpose of carrying out the Servicer's or the Trustee's
duties hereunder. The Trustee at all times shall maintain accurate records
reflecting each transaction in the Principal Account and the Finance Charge
Account and that funds held therein shall at all times be held in trust for
the benefit of the Investor Certificateholders.
(c) The Distribution Account. The Trustee, for the benefit of
the Investor Certificateholders, shall cause to be established and
maintained in the name of the Trust, with an office or branch of a
Qualified Institution (other than the Transferor), a non-interest bearing
segregated demand deposit account (the "Distribution Account") bearing a
designation clearly indicating that the funds deposited therein are held in
trust for the benefit of the Investor Certificateholders. The Trustee shall
possess all right, title and interest in all funds on deposit from time to
time in the Distribution Account and in all proceeds thereof. The
Distribution Account shall be under the sole dominion and control of the
Trustee for the benefit of the Investor Certificateholders.
(d) Administration of the Investor Accounts. Funds on deposit
in the Principal Account and the Finance Charge Account shall at all times
be invested in Permitted Investments. Any such investment shall mature and
such funds shall be available for withdrawal on or prior to the Transfer
Date following the Record Date occurring in the Monthly Period in which
such funds were processed for collection. The Trustee shall maintain for
the benefit of the Investor Certificateholders possession of the negotiable
instruments or securities evidencing the Permitted Investments described in
clause (a) of the definition thereof from the time of purchase thereof
until the time of sale or maturity provided, that no such investment shall
be disposed of prior to its maturity date. At the end of each month, all
interest and earnings (net of losses and investment expenses) on funds on
deposit in the Principal Account and the Finance Charge Account shall be
deposited by the Trustee in a separate deposit account with a Qualified
Institution in the name of the Servicer, or a Person designated in writing
by the Servicer, which shall not constitute a part of the Trust, or shall
otherwise be turned over by the Trustee to the Servicer not less frequently
than monthly. Subject to the restrictions set forth above, the Servicer, or
a Person designated in writing by the Servicer, of which the Trustee shall
have received written notification thereof, shall have the authority to
instruct the Trustee with respect to the investment of funds on deposit in
the Principal Account and the Finance Charge Account. For purposes of
determining the availability of funds or the balances in the Finance Charge
Account and the Principal Account for any reason under this Agreement, all
investment earnings on such funds shall be deemed not to be available or on
deposit.
Section 4.3 Collections and Allocations.
(a) Collections. Except as provided below, the Servicer shall
deposit all Collections in the Collection Account as promptly as possible
after the Date of Processing of such Collections, but in no event later
than the second Business Day following such Date of Processing. 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 which shall be established and
maintained with a Qualified Institution other than the Servicer in
accordance with subsection 4.02(a), and in no such event shall the Servicer
deposit any Collections thereafter into any account established, held or
maintained with the Servicer.
The Servicer shall allocate such amounts to each Series of
Investor Certificates and to the Holder of the Exchangeable Transferor
Certificate in accordance with this Article IV and shall withdraw the
required amounts from the Collection Account or pay such amounts to the
Holder of the Exchangeable Transferor Certificate in accordance with this
Article IV, in both cases as modified by any Supplement. The Servicer shall
make such deposits or payments on the date indicated therein by wire
transfer or as otherwise provided in the Supplement for any Series of
Certificates with respect to such Series.
Notwithstanding anything in this Agreement to the contrary, for
so long as, and only so long as, the Transferor shall remain the Servicer
hereunder, and (a) (i) the Servicer provides to the Trustee a letter of
credit or other form of Enhancement covering the risk of collection of the
Servicer, and (ii) the Transferor shall not have received a notice from
such Rating Agency that such a letter of credit or other form of
Enhancement would result in the lowering of such Rating Agency's
then-existing rating of the Investor Certificates, or (b) the Servicer
shall have and maintain a certificate of deposit or short-term deposit
rating of P-1 by ▇▇▇▇▇'▇ and of A-1 by Standard & Poor's and deposit
insurance provided by BIF or SAIF, the Servicer need not deposit
Collections from the Collection Account into the Principal Account or the
Finance Charge Account or any Series Account, as provided in any
Supplement, or make payments to the Holder of the Exchangeable Transferor
Certificate, prior to the close of business on the day any Collections are
deposited in the Collection Account as provided in Article IV, but may make
such deposits, payments and withdrawals on each Transfer Date in an amount
equal to the net amount of such deposits, payments and withdrawals which
would have been made but for the provisions of this paragraph.
(b) Allocations for the Exchangeable Transferor Certificate.
Throughout the existence of the Trust, unless otherwise stated in any
Supplement, the Servicer shall allocate to the Holder of the Exchangeable
Transferor Certificate an amount equal to the product of (A) the Transferor
Percentage and (B) the aggregate amount of such Collections allocated to
Principal Receivables and Finance Charge Receivables, respectively, in
respect of each Monthly Period. Notwithstanding anything in this Agreement
to the contrary, unless otherwise stated in any Supplement, the Servicer
need not deposit this amount or any other amounts so allocated to the
Exchangeable Transferor Certificate pursuant to any Supplement into the
Collection Account and shall pay, or be deemed to pay, such amounts as
collected to the Holder of the Exchangeable Transferor Certificate.
(c) Adjustments for Miscellaneous Credits and Fraudulent
Charges. The Servicer shall be obligated to reduce on a net basis each
Monthly Period the aggregate amount of Principal Receivables used to
calculate the Transferor Interest as provided in this subsection 4.03(c) (a
"Credit Adjustment") with respect to any Principal Receivable (i) which was
created in respect of merchandise refused or returned by the Obligor
thereunder or as to which the Obligor thereunder has asserted a
counterclaim or defense, (ii) which is reduced by the Servicer by any
rebate, refund, charge-back or adjustment (including Servicer errors) or
(iii) which was created as a result of a fraudulent or counterfeit charge.
In the event that the inclusion of the amount of a Credit
Adjustment in the calculation of the Transferor Interest would cause the
Transferor Interest to be an amount less than zero, the Transferor shall
make a deposit, no later than the Business Day following the Date of
Processing of such Credit Adjustment, in the Principal Account (for
allocation as a Principal Receivable pursuant to Article IV) in immediately
available funds in an amount equal to the amount by which such Credit
Adjustment exceeds the Transferor Interest on such Date of Processing (each
such deposit, an "Adjustment Payment").
(d) Transfer of Defaulted Accounts. Unless otherwise provided
in any Supplement, on the date on which an Account becomes a Defaulted
Account, the Trust shall automatically and without further action or
consideration be deemed to transfer, set over, and otherwise convey to the
Transferor, without recourse, representation or warranty, all the right,
title and interest of the Trust in and to Receivables in such Defaulted
Account, all monies due or to become due with respect thereto, all proceeds
thereof and Insurance Proceeds relating thereto allocable to the Trust with
respect to such Receivables.
(e) Allocation for Series. On each Determination Date,
Collections for the preceding Monthly Period shall be allocated to each
Series as follows. Each Series' allocable share of such Collections in
respect of Finance Charge Receivables, Principal Receivables and
Receivables in Defaulted Accounts, respectively, shall be determined by
multiplying the aggregate amount of such Collections by such Investor
Percentage with respect to such type of Receivables and such Monthly
Period. Adjustment Payments and Unallocated Principal Collections shall be
allocated on each Determination Date to each Series in the same manner as
Collections of Principal Receivables. The Servicer shall, prior to the
close of business on the day any Collections are deposited in the
Collection Account, withdraw the required amounts from the Collection
Account and deposit such amounts into the Principal Account or the Finance
Charge Account or pay such amounts to the Holder of the Exchangeable
Transferor Certificate in accordance with the provisions of Article IV.
(f) Unallocated Principal Collections. If, pursuant to any
provisions of Article IV, Collections allocated to Principal Receivables
with respect to any Series would cause such Series (a "Retired Series") to
be paid in full or if, pursuant to such provisions, Collections of
Principal Receivables allocated to the Holder of the Exchangeable
Transferor Certificate would cause the Transferor Interest to be a negative
number (any such Collections being referred to as "Allocated Collections")
or such Collections are treated hereunder as an Adjustment Payment, any
Collections of Principal Receivables allocated to a Retired Series or to
the Transferor Interest in excess of Allocated Collections or any
Adjustment Payment ("Unallocated Principal Collections") shall be
reallocated to any outstanding Series which would not have been allocated
additional Principal Receivables but for the application of this
subparagraph (any such allocation, an "Excess Amount Principal Allocation,"
and any such Series, an "Outstanding Series"). Any Excess Amount Principal
Allocation shall be performed assuming that (a) the character of
Unallocated Principal Collections as Principal Receivables shall not be
altered, (b) the Investor Percentages with respect to any Outstanding
Series shall be recalculated assuming that the Retired Series has been
retired and that only the Outstanding Series are outstanding, (c) Allocated
Collections have been paid to the Retiring Series, and (d) if the payment
of Allocated Collections as described above causes a Pay Out Event to
occur, Unallocated Principal Collections shall be allocated as if such Pay
Out Event has occurred.
[THE REMAINDER OF ARTICLE IV IS
RESERVED AND SHALL BE SPECIFIED IN ANY
SUPPLEMENT WITH RESPECT TO ANY SERIES]
[End of Article IV]
ARTICLE V
[ARTICLE V IS RESERVED AND SHALL BE
SPECIFIED IN ANY SUPPLEMENT WITH
RESPECT TO ANY SERIES)
[End of Article V]
ARTICLE VI
THE CERTIFICATES
Section 6.1 The Certificates. Subject to Sections 6.10 and
6.13, the Investor Certificates of each Series and any Class thereof may be
issued in bearer form (the "Bearer Certificates") with attached interest
coupons and a special coupon (collectively, the "Coupons") or in fully
registered form (the "Registered Certificates"), and shall be substantially
in the form of the exhibits with respect thereto attached to the related
Supplement. The Exchangeable Transferor Certificate shall be substantially
in the form of Exhibit A. The Investor Certificates and the Exchangeable
Transferor Certificate shall, upon issue pursuant hereto or to Section 6.09
or Section 6.10, be executed and delivered by the Transferor to the Trustee
for authentication and redelivery as provided in Sections 2.01 and 6.02.
Any Investor Certificate shall be issuable in a minimum denomination of
$1,000 Undivided Interest and integral multiples thereof, unless otherwise
specified in any Supplement, and shall be issued upon original issuance in
an original principal amount equal to the Initial Invested Amount. The
Exchangeable Transferor Certificate shall be issued as a single
certificate. Each Certificate shall be executed by manual or facsimile
signature on behalf of the Transferor by its President or any Vice
President. Certificates bearing the manual or facsimile signature of the
individual who was, at the time when such signature was affixed, authorized
to sign on behalf of the Transferor or the Trustee shall not be rendered
invalid, notwithstanding that such individual has ceased to be so
authorized prior to the authentication and delivery of such Certificates or
does not hold such office at the date of such Certificates. No Certificate
shall be entitled to any benefit under this Agreement, or be valid for any
purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein, executed by
or on behalf of the Trustee by the manual signature of a duly authorized
signatory, and such certificate upon any Certificate shall be conclusive
evidence, and the only evidence, that such Certificate has been duly
authenticated and delivered hereunder. All Certificates shall be dated the
date of their authentication except Bearer Certificates which shall be
dated the applicable Issuance Date as provided in the related Supplement.
Section 6.2 Authentication of Certificates. Contemporaneously
with the initial assignment and transfer of the Receivables, whether now
existing or hereafter created (other than Receivables in Additional
Accounts) and the other components to the Trust, the Trustee shall
authenticate and deliver the initial Series of Investor Certificates, upon
the written order of the Transferor, to the underwriters for the sale of
the Book-Entry Certificates evidenced by such Investor Certificates, and
against payment to the Transferor of the Initial Invested Amount (net of
any purchase or underwriting discount). Upon the receipt of such payment
and the issuance of the Investor Certificates, such Investor Certificates
shall be fully paid and non-assessable. The Trustee shall authenticate and
deliver the Exchangeable Transferor Certificate to the Transferor
simultaneously with its delivery to the Transferor of the initial Series of
Investor Certificates. Upon an Exchange as provided in Section 6.09 and the
satisfaction of certain other conditions specified therein, the Trustee
shall authenticate and deliver the Investor Certificates of additional
Series (with the designation provided in the related Supplement), upon the
order of the Transferor, to the persons designated in such Supplement. Upon
the order of the Transferor, the Certificates of any Series shall be duly
authenticated by or on behalf of the Trustee, in authorized denominations
equal to (in the aggregate) the Initial Invested Amount of such Series of
Investor Certificates. If specified in the related Supplement for any
Series, the Trustee shall authenticate and deliver outside the United
States the Global Certificate that is issued upon original issuance
thereof, upon the written order of the Transferor, to the Depository
against payment of the purchase price therefor. If specified in the related
Supplement for any Series, the Trustee shall authenticate Book-Entry
Certificates that are issued upon original issuance thereof, upon the
written order of the Transferor, to a Clearing Agency or its nominee as
provided in Section 6.10 against payment of the purchase price thereof.
Section 6.3 Registration of Transfer and Exchange of
Certificates.
(a) The Trustee shall cause to be kept at the office or agency
to be maintained by a transfer agent and registrar (the "Transfer Agent and
Registrar"), in accordance with the provisions of Section 11.16, a register
(the "Certificate Register") in which, subject to such reasonable
regulations as it may prescribe, the Transfer Agent and Registrar shall
provide for the registration of the Investor Certificates of each Series
(unless otherwise provided in the related Supplement) and of transfers and
exchanges of the Investor Certificates as herein provided. The Trustee is
hereby initially appointed Transfer Agent and Registrar for the purposes of
registering the Investor Certificates and transfers and exchanges of the
Investor Certificates as herein provided. If any form of Investor
Certificate is issued as a Global Certificate, the Trustee may, or if and
so long as any Series of Investor Certificates are listed on the Luxembourg
Stock Exchange and such exchange shall so require, the Trustee shall
appoint a co-transfer agent and co-registrar in Luxembourg or another
European city. Any reference in this Agreement to the Transfer Agent and
Registrar shall include any co-transfer agent and co-registrar unless the
context otherwise requires. The Trustee shall be permitted to resign as
Transfer Agent and Registrar upon 30 days' written notice to the Servicer.
In the event that the Trustee shall no longer be the Transfer Agent and
Registrar, the Transferor shall appoint a successor Transfer Agent and
Registrar.
Upon surrender for registration of transfer of any Certificate
at any office or agency of the Transfer Agent and Registrar, the Transferor
shall execute, subject to the provisions of subsection 6.03(c), and the
Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Certificates in authorized
denominations of like aggregate Undivided Interests; provided, that the
provisions of this paragraph shall not apply to Bearer Certificates.
At the option of an Investor Certificateholder, Investor
Certificates may be exchanged for other Investor Certificates of the same
Series in authorized denominations of like aggregate Undivided Interests,
upon surrender of the Investor Certificates to be exchanged at any such
office or agency. At the option of any Holder of Registered Certificates,
Registered Certificates may be exchanged for other Registered Certificates
of the same Series in authorized denominations of like aggregate Undivided
Interests in the Trust, upon surrender of the Registered Certificates to be
exchanged at any office or agency of the Transfer Agent and Registrar
maintained for such purpose. At the option of a Bearer Certificateholder,
subject to applicable laws and regulations (including without limitation,
the Bearer Rules), Bearer Certificates may be exchanged for other Bearer
Certificates or Registered Certificates of the same Series in authorized
denominations of like aggregate Undivided Interests in the Trust, in the
manner specified in the Supplement for such Series, upon surrender of the
Bearer Certificates to be exchanged at an office or agency of the Transfer
Agent and Registrar located outside the United States. Each Bearer
Certificate surrendered pursuant to this Section 6.03 shall have attached
thereto (or be accompanied by) all unmatured Coupons, provided that any
Bearer Certificate so surrendered after the close of business on the Record
Date preceding the relevant Distribution Date after the related Series
Termination Date need not have attached the Coupons relating to such
Distribution Date.
Whenever any Investor Certificates of any Series are so
surrendered for exchange, the Transferor shall execute, and the Trustee
shall authenticate and (unless the Transfer Agent and Registrar is
different than the Trustee, in which case the Transfer Agent and Registrar
shall) deliver, the Investor Certificates of such Series which the
Certificateholder making the exchange is entitled to receive. Every
Investor Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in a
form satisfactory to the Trustee and the Transfer Agent and Registrar duly
executed by the Certificateholder thereof or his attorney-in-fact duly
authorized in writing.
The preceding provisions of this Section 6.03 notwithstanding,
the Trustee or the Transfer Agent and Registrar, as the case may be, shall
not be required to register the transfer of or exchange any Investor
Certificate of any Series for a period of 15 days preceding the due date
for any payment with respect to the Investor Certificates of such Series.
Unless otherwise provided in the related Supplement, no service
charge shall be made for any registration of transfer or exchange of
Certificates, but the Transfer Agent and Registrar may require payment of a
sum sufficient to cover any tax or governmental charge that may be imposed
in connection with any transfer or exchange of Certificates.
All Investor Certificates (together with any Coupons attached
to Bearer Certificates) surrendered for registration of transfer and
exchange shall be canceled by the Transfer Agent and Registrar and disposed
of in a manner satisfactory to the Trustee. The Trustee shall cancel and
destroy the Global Certificates upon its exchange in full for Definitive
Certificates and shall deliver a certificate of destruction to the
Transferor. Such certificate shall also state that a certificate or
certificates of each Foreign Clearing Agency to the effect referred to in
Section 6.13 was received with respect to each portion of the Global
Certificate exchanged for Definitive Certificates.
The Transferor shall execute and deliver to the Trustee or the
Transfer Agent and Registrar, as applicable, Bearer Certificates and
Registered Certificates in such amounts and at such times as are necessary
to enable the Trustee to fulfill its responsibilities under this Agreement
and the Certificates.
(b) Except as provided in Section 6.09 or 7.02 or in any
Supplement, in no event shall the Exchangeable Transferor Certificate or
any interest therein be transferred, sold, exchanged, pledged, participated
or otherwise assigned hereunder, in whole or in part, unless the Transferor
shall have consented in writing to such transfer and unless the Trustee
shall have received (1) confirmation in writing from each Rating Agency
that such transfer will not result in a lowering or withdrawal of its
then-existing rating of any Series of Investor Certificates, and (2) an
Opinion of Counsel that such transfer does not (i) adversely affect the
conclusions reached in any of the federal income tax opinions dated the
applicable Closing Date issued in connection with the original issuance of
any Series of Investor Certificates or (ii) result in a taxable event to
the holders of any such Series; provided, however, that unless the consent
of Holders of Investor Certificates evidencing more than 50% of the
Aggregate Invested Amount is obtained for such transfer, the Holder of the
Exchangeable Transferor Certificate shall be permitted to transfer the
Exchangeable Transferor Certificate only if the Holder of the Exchangeable
Transferor Certificate shall have provided the Trustee with an Opinion of
Counsel to the effect that the contemplated transfer would be treated as a
financing and not as a sale of an equity interest in the Receivables or an
equity interest in an entity that owns the Receivables for federal income
tax purposes.
(c) Unless otherwise provided in the related Supplement,
registration of transfer of Registered Certificates containing a legend
relating to the restrictions on transfer of such Registered Certificates
(which legend shall be set forth in the Supplement relating to such
Investor Certificates) shall be effected only if the conditions set forth
in such related Supplement are satisfied.
Whenever a Registered Certificate containing the legend set
forth in the related Supplement is presented to the Transfer Agent and
Registrar for registration of transfer, the Transfer Agent and Registrar
shall promptly seek instructions from the Servicer regarding such transfer.
The Transfer Agent and Registrar and the Trustee shall be entitled to
receive written instructions signed by a Servicing Officer prior to
registering any such transfer or authenticating new Registered
Certificates, as the case may be. The Servicer hereby agrees to indemnify
the Transfer Agent and Registrar and the Trustee and to hold each of them
harmless against any loss, liability or expense incurred without negligence
or bad faith on their part arising out of or in connection with actions
taken or omitted by them in reliance on any such written instructions
furnished pursuant to this subsection 6.03(c).
(d) The Transfer Agent and Registrar will maintain an office or
offices or an agency or agencies where Investor Certificates of such Series
may be surrendered for registration of transfer or exchange.
Section 6.4 Mutilated, Destroyed, Lost or Stolen Certificates.
If (a) any mutilated Certificate (together, in the case of Bearer
Certificates, with all unmatured Coupons, if any, appertaining thereto) is
surrendered to the Transfer Agent and Registrar, or the Transfer Agent and
Registrar receives evidence to its satisfaction of the destruction, loss or
theft of any Certificate and (b) there is delivered to the Transfer Agent
and Registrar and the Trustee such security or indemnity as may be required
by them to save each of them harmless, then, in the absence of notice to
the Trustee that such Certificate has been acquired by a bona fide
purchaser, the Transferor shall execute and the Trustee shall authenticate
and (unless the Transfer Agent and Registrar is different from the Trustee,
in which case the Transfer Agent and Registrar shall) deliver (in
compliance with applicable law), in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Certificate, a new Certificate of like
tenor and aggregate Undivided Interest. In connection with the issuance of
any new Certificate under this Section 6.04, the Trustee or the Transfer
Agent and Registrar may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the
Trustee and the Transfer Agent and Registrar) connected therewith. Any
duplicate Certificate issued pursuant to this Section 6.04 shall constitute
complete and indefeasible evidence of ownership in the Trust, as if
originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.
Section 6.5 Persons Deemed Owners. Prior to due presentation of
a Certificate for registration of transfer, the Trustee, the Paying Agent,
the Transfer Agent and Registrar and any agent of any of them may treat the
Person in whose name any Certificate is registered as the owner of such
Certificate for the purpose of receiving distributions pursuant to Article
V (as described in any Supplement) and for all other purposes whatsoever,
and neither the Trustee, the Paying Agent, the Transfer Agent and Registrar
nor any agent of any of them shall be affected by any notice to the
contrary; provided, however, that in determining whether the holders of
Investor Certificates evidencing the requisite Undivided Interests have
given any request, demand, authorization, direction, notice, consent or
waiver hereunder, Investor Certificates owned by the Transferor, the
Servicer or any Affiliate thereof shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Investor Certificates which a
Responsible Officer in the Corporate Trust Office of the Trustee knows to
be so owned shall be so disregarded. Investor Certificates so owned that
have been pledged in good faith shall not be disregarded as outstanding, if
the pledgee establishes to the satisfaction of the Trustee the pledgee's
right so to act with respect to such Investor Certificates and that the
pledgee is not the Transferor, the Servicer or an Affiliate thereof.
In the case of a Bearer Certificate, the Trustee, the Paying
Agent, the Transfer Agent and Registrar and any agent of any of them may
treat the holder of a Bearer Certificate or Coupon as the owner of such
Bearer Certificate or Coupon for the purpose of receiving distributions
pursuant to Article IV and Article XII and for all other purposes
whatsoever, and neither the Trustee, the Paying Agent, the Transfer Agent
and Registrar nor any agent of any of them shall be affected by any notice
to the contrary. Certificates so owned which have been pledged in good
faith shall not be disregarded and may be regarded as outstanding, if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Investor Certificates and that the pledgee
is not the Transferor, the Servicer or an Affiliate thereof.
Section 6.6 Appointment of Paying Agent.
(a) The Paying Agent shall make distributions to Investor
Certificateholders from the appropriate account or accounts maintained for
the benefit of Certificateholders as specified in this Agreement or the
related Supplement for any Series pursuant to Articles IV and V hereof. Any
Paying Agent shall have the revocable power to withdraw funds from such
appropriate account or accounts for the purpose of making distributions
referred to above. The Trustee (or the Servicer if the Trustee is the
Paying Agent) may revoke such power and remove the Paying Agent, if the
Trustee (or the Servicer if the Trustee is the Paying Agent) determines in
its sole discretion that the Paying Agent shall have failed to perform its
obligations under this Agreement in any material respect or for other good
cause. The Trustee (or the Servicer if the Trustee is the Paying Agent)
shall notify Moody's of the removal of any Paying Agent. The Paying Agent,
unless the Supplement with respect to any Series states otherwise, shall
initially be the Trustee. If any form of Investor Certificate is issued as
a Global Certificate, or if and so long as any Series of Investor
Certificates are listed on the Luxembourg Stock Exchange and the Trustee
shall have received written notice that such exchange shall so require, the
Trustee shall appoint a co-paying agent in Luxembourg or another European
city. The Trustee shall be permitted to resign as Paying Agent upon 30
days' written notice to the Servicer. In the event that the Trustee shall
no longer be the Paying Agent, the Transferor shall appoint a successor to
act as Paying Agent (which shall be a bank or trust company). The
provisions of Sections 11.01, 11.02 and 11.03 shall apply to the Trustee
also in its role as Paying Agent, for so long as the Trustee shall act as
Paying Agent. Any reference in this Agreement to the Paying Agent shall
include any co-paying agent unless the context requires otherwise. Any
costs or expenses incurred by the Trustee in connection with the
appointment of a co-paying agent or successor paying agent shall be
reimbursed by the Servicer.
If specified in the related Supplement for any Series, so long
as the Investor Certificates of such Series are outstanding, the Transferor
shall maintain a co-paying agent in New York City (for Registered
Certificates only) or any other city designated in such Supplement which,
if and so long as any Series of Investor Certificates is listed on the
Luxembourg Stock Exchange or other stock exchange and such exchange so
requires, shall be in Luxembourg or the location required by such other
stock exchange.
(b) The Trustee shall cause the Paying Agent (other than
itself) to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee that such Paying Agent will hold
all sums, if any, held by it for payment to the Certificateholders in trust
for the benefit of the Certificateholders entitled thereto until such sums
shall be paid to such Certificateholders and shall agree, and if the
Trustee is the Paying Agent it hereby agrees, that it shall comply with all
requirements of the Internal Revenue Code regarding the withholding by the
Trustee of payments in respect of federal income taxes due from Certificate
Owners.
Section 6.7 Access to List of Certificateholders' Names and
Addresses. The Trustee will furnish or cause to be furnished by the
Transfer Agent and Registrar to the Servicer or the Paying Agent, within
five Business Days after receipt by the Trustee of a request therefor from
the Servicer or the Paying Agent, respectively, in writing, a list in such
form as the Servicer or the Paying Agent may reasonably require, of the
names and addresses of the Investor Certificateholders as of the most
recent Record Date for payment of distributions to Investor
Certificateholders. Unless otherwise provided in the related Supplement,
holders of Investor Certificates evidencing Undivided Interests aggregating
not less than 10% of the Invested Amount of the Investor Certificates of
any Series (the "Applicants") may apply in writing to the Trustee, and if
such application states that the Applicants desire to communicate with
other Investor Certificateholders of any Series with respect to their
rights under this Agreement or under the Investor Certificates and is
accompanied by a copy of the communication which such Applicants propose to
transmit, then the Trustee, after having been adequately indemnified by
such Applicants for its costs and expenses, shall afford or shall cause the
Transfer Agent and Registrar to afford such Applicants access during normal
business hours to the most recent list of Certificateholders held by the
Trustee and shall give the Servicer notice that such request has been made,
within five Business Days after the receipt of such application. Such list
shall be as of a date no more than 45 days prior to the date of receipt of
such Applicants' request. Every Certificateholder, by receiving and holding
a Certificate, agrees with the Trustee that neither the Trustee, the
Transfer Agent and Registrar, nor any of their respective agents shall be
held accountable by reason of the disclosure of any such information as to
the names and addresses of the Certificateholders hereunder, regardless of
the source from which such information was obtained.
Section 6.8 Authenticating Agent.
(a) The Trustee may appoint one or more authenticating agents
with respect to the Certificates which shall be authorized to act on behalf
of the Trustee in authenticating the Certificates in connection with the
issuance, delivery, registration of transfer, exchange or repayment of the
Certificates. Whenever reference is made in this Agreement to the
authentication of Certificates by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication
on behalf of the Trustee by an authenticating agent and a certificate of
authentication executed on behalf of the Trustee by an authenticating
agent. Each authenticating agent must be acceptable to the Transferor.
(b) Any institution succeeding to the corporate agency business
of an authenticating agent shall continue to be an authenticating agent
without the execution or filing of any paper or any further act on the part
of the Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by giving
written notice of resignation to the Trustee and to the Transferor. The
Trustee may at any time terminate the agency of an authenticating agent by
giving notice of termination to such authenticating agent and to the
Transferor. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time an authenticating agent shall cease to
be acceptable to the Trustee or the Transferor, the Trustee promptly may
appoint a successor authenticating agent. Any successor authenticating
agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an authenticating agent. No successor
authenticating agent shall be appointed unless acceptable to the Trustee
and the Transferor.
(d) The Trustee agrees to pay each authenticating agent from
time to time reasonable compensation for its services under this Section
6.08, and the Trustee shall be entitled to be reimbursed and the Servicer
shall reimburse the Trustee for such reasonable payments actually made,
subject to the provisions of Section 11.05.
(e) The provisions of Sections 11.01, 11.02 and 11.03 shall be
applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section 6.08,
the Certificates may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication
in substantially the following form:
This is one of the certificates described in the Pooling and
Servicing Agreement.
as Authenticating Agent
for the Trustee,
By:____________________________
Authorized Officer
Section 6.9 Tender of Exchangeable Transferor Certificate.
(a) Upon any Exchange, the Trustee shall issue to the Holder of
the Exchangeable Transferor Certificate under Section 6.01, for execution
and redelivery to the Trustee for authentication under Section 6.02, one or
more new Series of Investor Certificates. Any such Series of Investor
Certificates shall be substantially in the form specified in the related
Supplement and shall bear, upon its face, the designation for such Series
to which it belongs, as selected by the Transferor. Except as specified in
any Supplement for a related Series, all Investor Certificates of any
Series shall rank pari passu and be equally and ratably entitled as
provided herein to the benefits hereof (except that the Enhancement
provided for any Series shall not be available for any other Series)
without preference, priority or distinction on account of the actual time
or times of authentication and delivery, all in accordance with the terms
and provisions of this Agreement and the related Supplement.
(b) The Holder of the Exchangeable Transferor Certificate may
tender the Exchangeable Transferor Certificate to the Trustee in exchange
for (i) one or more newly issued Series of Investor Certificates and (ii) a
reissued Exchangeable Transferor Certificate (any such tender, a
"Transferor Exchange"). In addition, to the extent permitted for any Series
of Investor Certificates as specified in the related Supplement, the
Investor Certificateholders of such Series may tender their Investor
Certificates and the Holder of the Exchangeable Transferor Certificate may
tender the Exchangeable Transferor Certificate to the Trustee pursuant to
the terms and conditions set forth in such Supplement in exchange for (i)
one or more newly issued Series of Investor Certificates and (ii) a
reissued Exchangeable Transferor Certificate (an "Investor Exchange"). The
Transferor Exchange and Investor Exchange are referred to collectively
herein as an "Exchange." The Holder of the Exchangeable Transferor
Certificate may perform an Exchange by notifying the Trustee, in writing at
least five days in advance (an "Exchange Notice") of the date upon which
the Exchange is to occur (an "Exchange Date"). Any Exchange Notice shall
state the designation of any Series to be issued on the Exchange Date and,
with respect to each such Series: (a) its Initial Invested Amount (or the
method for calculating such Initial Investor Interest), which at any time
may not be greater than the current principal amount of the Exchangeable
Transferor Certificate at such time (or in the case of an Investor
Exchange, the sum of the Invested Amount of the Series of Investor
Certificates to be exchanged plus the current principal amount of the
Exchangeable Transferor Certificate), (b) its Certificate Rate (or the
method for allocating interest payments or other cash flows to such
Series), if any, and (c) the Enhancement Provider, if any, with respect to
such Series. On the Exchange Date, the Trustee shall authenticate and
deliver any such Series of Investor Certificates only upon delivery to it
of the following: (a) a Supplement satisfying the criteria set forth in
subsection 6.09(c) executed by the Transferor and specifying the Principal
Terms of such Series, (b) the applicable Enhancement, if any, (c) the
agreement, if any, pursuant to which the Enhancement Provider agrees to
provide the Enhancement, if any, (d) an Opinion of Counsel to the effect
that, unless otherwise stated in the related Supplement, the newly issued
Series of Investor Certificates will be treated as debt for Federal income
tax purposes and that the issuance of the newly issued Series of Investor
Certificates will not adversely affect the Federal income tax
characterization of the Holder of any outstanding Series of Investor
Certificates or any Certificate Owner, (e) written confirmation from each
Rating Agency that the Exchange will not result in such Rating Agency's
reducing or withdrawing its rating on any then outstanding Series as to
which it is a Rating Agency, (f) an Officer's Certificate signed by a Vice
President (or any more senior officer) of the Transferor, that on the
Exchange Date (i) the Transferor, after giving effect to the Exchange,
would not be required to add Additional Accounts pursuant to subsection
2.06(a) and (ii) after giving effect to such Exchange, the Transferor
Interest would be at least equal to the Minimum Transferor Interest, and
(g) the existing Exchangeable Transferor Certificate or applicable Investor
Certificates, as the case may be. Upon satisfaction of such conditions, the
Trustee shall cancel the existing Exchangeable Transferor Certificate or
applicable Investor Certificates, as the case may be, and issue, as
provided above, such Series of Investor Certificates and a new Exchangeable
Transferor Certificate, dated the Exchange Date. There is no limit to the
number of Exchanges that may be performed under the Agreement.
(c) In conjunction with an Exchange, the parties hereto shall
execute a Supplement, which shall specify the relevant terms with respect
to any newly issued Series of Investor Certificates, which may include
without limitation: (i) its name or designation, (ii) an Initial Invested
Amount or the method of calculating the Initial Invested Amount, (iii) the
Certificate Rate (or formula for the determination thereof), (iv) the
Closing Date, (v) the rating agency or agencies rating such Series, (vi)
the name of the Clearing Agency, if any, (vii) the rights of the Holder of
the Exchangeable Transferor Certificate that have been transferred to the
Holders of such Series pursuant to such Exchange (including any rights to
allocations of Collections of Finance Charge Receivables and Principal
Receivables), (viii) the interest payment date or dates and the date or
dates from which interest shall accrue, (ix) the method of allocating
Collections with respect to Principal Receivables for such Series and, if
applicable, with respect to other Series and the method by which the
principal amount of Investor Certificates of such Series shall amortize or
accrete and the method for allocating Collections with respect to Finance
Charge Receivables and Receivables in Defaulted Accounts, (x) the names of
any accounts to be used by such Series and the terms governing the
operation of any such account, (xi) the Series Servicing Fee Percentage,
(xii) the Minimum Transferor Interest, the Series Termination Date, (xiii)
the terms of any Enhancement with respect to such Series, (xiv) the
Enhancement Provider, if applicable, (xv) the base rate applicable to such
Series, (xvi) the terms on which the Certificates of such Series may be
repurchased or remarketed to other investors, (xvii) any deposit into any
account provided for such Series, (xviii) the number of Classes of such
Series, and if more than one Class, the rights and priorities of each such
Class, (xix) whether Interchange or other fees will be included in the
funds available to be paid for such Series, (xx) the priority of any Series
with respect to any other Series, (xxi) the rights, if any, of the holders
of the Exchangeable Transferor Certificates that have been transferred to
the holders of such Series, (xxii) the Pool Factor, (xxiii) the Minimum
Aggregate Principal Receivables, (xxiv) whether such Series will be part of
a Group, and (xxv) any other relevant terms of such Series (including
whether or not such Series will be pledged as collateral for an issuance of
any other securities, including commercial paper) (all such terms, the
"Principal Terms" of such Series). The terms of such Supplement may modify
or amend the terms of this Agreement solely as applied to such new Series.
If on the date of the issuance of such series there is issued and
outstanding one or more Series of Investor Certificates and no Series of
Investor Certificates is currently rated by a Rating Agency, then as a
condition to such Exchange a nationally recognized investment banking firm
or commercial bank shall also deliver to the Trustee an officer's
certificate stating, in substance, that the Exchange will not have an
adverse effect on the timing or distribution of payments to such other
Series of Investor Certificates then issued and outstanding
Section 6.10 Book-Entry Certificates. Unless otherwise
provided in any related Supplement, the Investor Certificates, upon
original issuance, shall be issued in the form of typewritten Certificates
representing the Book-Entry Certificates, to be delivered to the depository
specified in such Supplement (the "Depository") which shall be the Clearing
Agency or Foreign Clearing Agency, by or on behalf of such Series. The
Investor Certificates of each Series shall, unless otherwise provided in
the related Supplement, initially be registered on the Certificate Register
in the name of the nominee of the Clearing Agency or Foreign Clearing
Agency. No Certificate Owner will receive a definitive certificate
representing such Certificate Owner's interest in the related Series of
Investor Certificates, except as provided in Section 6.12. Unless and until
definitive, fully registered Investor Certificates of any Series
("Definitive Certificates") have been issued to Certificate Owners pursuant
to Section 6.12:
(i) the provisions of this Section 6.10 shall be in full
force and effect with respect to each such Series;
(ii) the Transferor, the Servicer, the Paying Agent, the
Transfer Agent and Registrar and the Trustee may deal with the
Clearing Agency and the Clearing Agency Participants for all purposes
(including the making of distributions on the Investor Certificates
of each such Series) as the authorized representatives of the
Certificate Owners;
(iii) to the extent that the provisions of this Section
6.10 conflict with any other provisions of this Agreement, the
provisions of this Section 6.10 shall control with respect to each
such Series; and
(iv) the rights of Certificate Owners of each such Series
shall be exercised only through the Clearing Agency or Foreign
Clearing Agency and the applicable Clearing Agency Participants and
shall be limited to those established by law and agreements between
such Certificate Owners and the Clearing Agency or Foreign Clearing
Agency and/or the Clearing Agency Participants. Pursuant to the
Depository Agreement applicable to a Series, unless and until
Definitive Certificates of such Series are issued pursuant to Section
6.12, the initial Clearing Agency will make book-entry transfers
among the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Investor Certificates
to such Clearing Agency Participants.
Section 6.11 Notices to Clearing Agency. Whenever notice or
other communication to the Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued
to Certificate Owners pursuant to Section 6.12, the Trustee shall give all
such notices and communications specified herein to be given to Holders of
the Investor Certificates to the Clearing Agency or Foreign Clearing Agency
for distribution to Holders of Investor Certificates.
Section 6.12 Definitive Certificates. If (i) (A) the
Transferor advises the Trustee in writing that the Clearing Agency or
Foreign Clearing Agency is no longer willing or able to discharge properly
its responsibilities under the applicable Depository Agreement, and (B) the
Transferor is unable to locate a qualified successor, (ii) the Transferor,
at its option, advises the Trustee in writing that it elects to terminate
the book-entry system through the Clearing Agency or Foreign Clearing
Agency with respect to any Series of Certificates or (iii) after the
occurrence of a Servicer Default, Certificate Owners of a Series
representing beneficial interests aggregating not less than 50% of the
Invested Amount of such Series advise the Trustee and the applicable
Clearing Agency or Foreign Clearing Agency through the applicable Clearing
Agency Participants in writing that the continuation of a book-entry system
through the applicable Clearing Agency or Foreign Clearing Agency is no
longer in the best interests of the Certificate Owners, the Trustee shall
notify all Certificate Owners of such Series, through the applicable
Clearing Agency Participants, of the occurrence of any such event and of
the availability of Definitive Certificates to Certificate Owners of such
Series requesting the same. Upon surrender to the Trustee of the Investor
Certificates of such Series by the applicable Clearing Agency or Foreign
Clearing Agency, accompanied by registration instructions from the
applicable Clearing Agency or Foreign Clearing Agency for registration, the
Trustee shall issue the Definitive Certificates of such Series. Neither the
Transferor nor the Trustee shall be liable for any delay in delivery of
such instructions and may conclusively rely on, and shall be protected in
relying on, such instructions. Upon the issuance of Definitive Certificates
of such Series all references herein to obligations imposed upon or to be
performed by the applicable Clearing Agency or Foreign Clearing Agency
shall be deemed to be imposed upon and performed by the Trustee, to the
extent applicable with respect to such Definitive Certificates, and the
Trustee shall recognize the Holders of the Definitive Certificates of such
Series as Certificateholders of such Series hereunder.
Section 6.13 Global Certificate; Euro-Certificate Exchange
Date. If specified in the related Supplement for any Series, the Investor
Certificates may be initially issued in the form of a single temporary
Global Certificate (the "Global Certificate") in bearer form, without
interest coupons, in the denomination of the Initial Invested Amount and
substantially in the form attached to the related Supplement. Unless
otherwise specified in the related Supplement, the provisions of this
Section 6.13 shall apply to such Global Certificate. The Global Certificate
will be authenticated by the Trustee upon the same conditions, in
substantially the same manner and with the same effect as the Definitive
Certificates. The Global Certificate may be exchanged in the manner
described in the related Supplement for Registered or Bearer Certificates
in definitive form.
Section 6.14 Meetings of Certificateholders.
To the extent provided by the Supplement for any Series issued
in whole or in part in Bearer Certificates, the Servicer or the Trustee may
at any time call a meeting of the Certificateholders of such Series, to be
held at such time and at such place as the Servicer or the Trustee, as the
case may be, shall determine, for the purpose of approving a modification
of or amendment to, or obtaining a waiver of, any covenant or condition set
forth in this Agreement with respect to such Series or in the Certificates
of such Series, subject to Section 13.01 of this Agreement.
[End of Article VI]
ARTICLE VII
OTHER MATTERS RELATING TO THE TRANSFEROR
Section 7.1 Liability of the Transferor. The Transferor shall
be liable in accordance herewith to the extent of the obligations
specifically undertaken by the Transferor.
Section 7.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Transferor.
(a) The Transferor shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into
which the Transferor is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Transferor
substantially as an entirety shall be, if the Transferor is not the
surviving entity, organized and existing under the laws of the United
States of America or any State or the District of Columbia, and shall
be a national banking association, state banking corporation or other
entity which is not subject to the bankruptcy laws of the United
States of America and shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the performance of every covenant and
obligation of the Transferor, as applicable hereunder and shall
benefit from all the rights granted to the Transferor, as applicable
hereunder. To the extent that any right, covenant or obligation of
the Transferor, as applicable hereunder, is inapplicable to the
successor entity, such successor entity shall be subject to such
covenant or obligation, or benefit from such right, as would apply,
to the extent practicable, to such successor entity. In furtherance
hereof, in applying this Section 7.02 to a successor entity, Section
9.02 hereof shall be applied by reference to events of involuntary
liquidation, receivership or conservatorship applicable to such
successor entity as shall be set forth in the officer's certificate
described in subsection 7.02(a)(ii);
(ii) the Transferor shall have delivered to the Trustee
an Officer's Certificate signed by a Vice President (or any more
senior officer) of the Transferor stating that such consolidation,
merger, conveyance or transfer and such supplemental agreement comply
with this Section 7.02 and that all conditions precedent herein
provided for relating to such transaction have been complied with and
an Opinion of Counsel that such supplemental agreement is legal,
valid and binding; and
(iii) the Servicer shall have delivered notice to the
Rating Agency of such consolidation, merger, conveyance or transfer.
(b) The obligations of the Transferor hereunder shall not be
assignable nor shall any Person succeed to the obligations of the
Transferor hereunder except for mergers, consolidations, assumptions or
transfers in accordance with the provisions of the foregoing paragraph.
Section 7.3 Limitation on Liability. The directors, officers,
employees or agents of the Transferor shall not be under any liability to
the Trust, the Trustee, the Certificateholders, any Enhancement Provider or
any other Person hereunder or pursuant to any document delivered hereunder,
it being expressly understood that all such liability is expressly waived
and released as a condition of, and as consideration for, the execution of
this Agreement and any Supplement and the issuance of the Certificates;
provided, however, that this provision shall not protect the officers,
directors, employees, or agents of the Transferor against any liability
which would otherwise be imposed by reason of willful misfeasance, bad
faith or gross negligence in the performance of duties or by reason of
reckless disregard of obligations and duties hereunder. Except as provided
in Section 7.04, the Transferor shall not be under any liability to the
Trust, the Trustee, the Certificateholders, any Enhancement Provider or any
other Person for any action taken or for refraining from the taking of any
action in its capacity as Transferor pursuant to this Agreement or any
Supplement whether arising from express or implied duties under this
Agreement or any Supplement; provided, however, that this provision shall
not protect the Transferor against any liability which would otherwise be
imposed by reason of willful misfeasance, bad faith or gross negligence in
the performance of duties or by reason of reckless disregard of obligations
and duties hereunder. The Transferor and any director, officer, employee or
agent may rely in good faith on any document of any kind prima facie
properly executed and submitted by any Person respecting any matters
arising hereunder.
Section 7.4 Liabilities. By entering into this Agreement, the
Transferor agrees to be liable, directly to the injured party, for the
entire amount of any losses, claims, damages or liabilities (other than
those incurred by an Investor Certificateholder as a result of defaults in
payment of the Receivables) arising out of or based on the arrangement
created by this Agreement and the actions of the Servicer taken pursuant
hereto as though this Agreement created a partnership under the New York
Uniform Partnership Act in which the Transferor is a general partner. The
Transferor agrees to pay, indemnify and hold harmless each Investor
Certificateholder against and from any and all such losses, claims, damages
and liabilities except to the extent that they arise from any action by
such Investor Certificateholder. In the event of a service transfer, the
Successor Servicer will indemnify and hold harmless the Transferor against
and from any losses, claims, damages and liabilities of the Transferor as
described in this Section arising from the actions or omissions of such
Successor Servicer.
[End of Article VII]
ARTICLE VIII
OTHER MATTERS RELATING
TO THE SERVICER
Section 8.1 Liability of the Servicer. The Servicer shall be
liable in accordance herewith only to the extent of the obligations
specifically undertaken by the Servicer in such capacity herein.
Section 8.2 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer. The Servicer shall not consolidate with or
merge into any other corporation or convey or transfer its properties and
assets substantially as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or into
which the Servicer is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Servicer
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America or any State
or the District of Columbia, and shall be a state or national banking
association or other entity which is not subject to the bankruptcy
laws of the United States of America and, if the Servicer is not the
surviving entity, shall expressly assume, by an agreement
supplemental hereto, executed and delivered to the Trustee in form
satisfactory to the Trustee, the performance of every covenant and
obligation of the Servicer hereunder (to the extent that any right,
covenant or obligation of the Servicer, as applicable hereunder, is
inapplicable to the successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit from such right,
as would apply, to the extent practicable, to such successor entity);
(ii) the Servicer shall have delivered to the Trustee an
Officer's Certificate that such consolidation, merger, conveyance or
transfer and such supplemental agreement comply with this Section
8.02 and that all conditions precedent herein provided for relating
to such transaction have been complied with and an Opinion of Counsel
that such supplemental agreement is legal, valid and binding with
respect to the Servicer; and
(iii) the Servicer shall have delivered notice to the
Rating Agency of such consolidation, merger, conveyance or transfer.
Section 8.3 Limitation on Liability of the Servicer and Others.
The directors, officers, employees or agents of the Servicer shall not be
under any liability to the Trust, the Trustee, the Certificateholders, any
Enhancement Provider or any other Person hereunder or pursuant to any
document delivered hereunder, it being expressly understood that all such
liability is expressly waived and released as a condition of, and as
consideration for, the execution of this Agreement and any Supplement and
the issuance of the Certificates; provided, however, that this provision
shall not protect the directors, officers, employees and agents of the
Servicer against any liability which would otherwise be imposed by reason
of willful misfeasance, bad faith or gross negligence in the performance of
duties or by reason of reckless disregard of obligations and duties
hereunder. Except as provided in Section 8.04 with respect to the Trust and
the Trustee, its officers, directors, employees and agents, the Servicer
shall not be under any liability to the Trust, the Trustee, its officers,
directors, employees and agents, the Certificateholders or any other Person
for any action taken or for refraining from the taking of any action in its
capacity as Servicer pursuant to this Agreement or any Supplement;
provided, however, that this provision shall not protect the Servicer
against any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or
by reason of its reckless disregard of its obligations and duties hereunder
or under any Supplement. The Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder. The Servicer shall not be
under any obligation to appear in, prosecute or defend any legal action
which is not incidental to its duties to service the Receivables in
accordance with this Agreement which in its reasonable opinion may involve
it in any expense or liability.
Section 8.4 Servicer Indemnification of the Trust and the
Trustee. The Servicer shall indemnify and hold harmless the Trust, the
Investor Certificateholders and the Trustee, its officers, directors,
employees and agents, from and against any reasonable loss, liability,
expense, damage or injury suffered or sustained by reason of any acts or
omissions or alleged acts or omissions of the Servicer with respect to
activities of the Trust or the Trustee pursuant to this Agreement or any
Supplement, or by reason of the acceptance of this Trust by the Trustee,
the issuance by the Trust of the Certificates, any Servicer Default, any
termination of the rights and obligations of the Servicer including, but
not limited to, any judgment, award, settlement, reasonable attorneys' fees
and other costs or expenses incurred in connection with the defense of any
actual or threatened action, proceeding or claim; provided, however, that
the Servicer shall not indemnify the Trustee or the Investor
Certificateholders if such acts, omissions or alleged acts or omissions
constitute or are caused by fraud, negligence, or willful misconduct by the
Trustee; provided further, that the Servicer shall not indemnify the Trust,
the Investor Certificateholders or the Certificate Owners for any
liabilities, costs or expenses of the Trust with respect to any action
taken by the Trustee at the request of the Investor Certificateholders;
provided further, that the Servicer shall not indemnify the Trust, the
Investor Certificateholders or the Certificate Owners as to any losses,
claims or damages incurred by any of them in their capacities as investors,
including without limitation losses incurred as a result of Defaulted
Accounts or Receivables which are written off as uncollectible; and
provided further, that the Servicer shall not indemnify the Trust, the
Investor Certificateholders or the Certificate Owners for any liabilities,
costs or expenses of the Trust, the Investor Certificateholders or the
Certificate Owners arising under any tax law, including without limitation,
any federal, state, local or foreign income or franchise taxes or any other
tax imposed on or measured by income (or any interest or penalties with
respect thereto or arising from a failure to comply therewith) required to
be paid by the Trust, the Investor Certificateholders or the Certificate
Owners in connection herewith to any taxing authority. Any such
indemnification shall not be payable from the assets of the Trust. The
provisions of this indemnity shall run directly to and be enforceable by an
injured party subject to the limitations hereof and shall survive the
resignation or removal of the Servicer, the resignation or removal of the
Trustee and/or the termination of the Trust and shall survive the
termination of the Trust.
Section 8.5 The Servicer Not to Resign. The Servicer shall not
resign from the obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action
which the Servicer could take to make the performance of its duties
hereunder permissible under applicable law. Any such determination
permitting the resignation of the Servicer shall be evidenced as to clause
(i) above by an Opinion of Counsel to such effect delivered to the Trustee.
No such resignation shall become effective until the Trustee or a Successor
Servicer shall have assumed the responsibilities and obligations of the
Servicer in accordance with Section 10.02 hereof. If the Trustee is unable
within 120 days of the date of such determination to appoint a Successor
Servicer, the Trustee shall serve as Successor Servicer hereunder (but
shall have continued authority to appoint another Person as Successor
Servicer).
Section 8.6 Access to Certain Documentation and Information
Regarding the Receivables. The Servicer shall provide to the Trustee access
to the documentation regarding the Accounts and the Receivables in such
cases where the Trustee is required in connection with the enforcement of
the rights of the Investor Certificateholders, or by applicable statutes or
regulations, to review such documentation, such access being afforded
without charge but only (i) upon reasonable request, (ii) during normal
business hours, (iii) subject to the Servicer's normal security and
confidentiality procedures and (iv) at offices designated by the Servicer.
Nothing in this Section 8.06 shall derogate from the obligation of the
Transferor, the Trustee or the Servicer to observe any applicable law
prohibiting disclosure of information regarding the Obligors and the
failure of the Servicer to provide access as provided in this Section 8.06
as a result of such obligations shall not constitute a breach of this
Section 8.06.
Section 8.7 Delegation of Duties. It is understood and agreed
by the parties hereto that the Servicer may delegate certain of its duties
hereunder to First Data Resources, Inc., a Delaware corporation. In the
ordinary course of business, the Servicer may at any time delegate any
duties hereunder to any Person who agrees to conduct such duties in
accordance with the Credit Card Guidelines. Any such delegations shall not
relieve the Servicer of its liability and responsibility with respect to
such duties, and shall not constitute a resignation within the meaning of
Section 8.05 hereof. If any such delegation is to a party other than First
Data Resources, Inc., notification thereof shall be given to each Rating
Agency.
Section 8.8 Examination of Records. The Servicer shall clearly
and unambiguously identify each Account (including any Additional Account
designated pursuant to Section 2.06) in its computer or other records to
reflect that the Receivables arising in such Account have been conveyed to
the Trust pursuant to this Agreement. The Servicer shall, prior to the sale
or transfer to a third party of any receivable held in its custody, examine
its computer and other records to determine that such receivable is not a
Receivable.
[End of Article VIII]
ARTICLE IX
PAY OUT EVENTS
Section 9.1 Pay Out Events. If any one of the following events
(each, a "Trust Pay Out Event") shall occur:
(a) the Transferor shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to all or substantially all of its property, or a decree or order
of a court or agency or supervisory authority having jurisdiction in the
premises for the appointment of a conservator or receiver or liquidator in
any insolvency, readjustment of debt, ▇▇▇▇▇▇▇▇▇▇▇ of assets and liabilities
or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Transferor; or the Transferor
shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency
or reorganization statute, make an assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations; or the
Transferor shall become unable for any reason to transfer Receivables to
the Trust in accordance with the provisions of this Agreement; or
(b) Trust shall become subject to regulation by the Securities
and Exchange Commission as an "investment company" within the meaning of
the Investment Company Act;
then a Pay Out Event with respect to all Series of Certificates shall occur
without any notice or other action on the part of the Trustee or the
Investor Certificateholders immediately upon the occurrence of such event.
Section 9.2 Additional Rights Upon the Occurrence of Certain
Events.
(a) If the Transferor shall consent to the appointment of a
conservator or receiver or liquidator for the winding-up or liquidation of
its affairs, or a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator for the winding-up or liquidation of
its affairs shall have been entered against the Transferor (an "Insolvency
Event"), the Transferor shall on the day of such Insolvency Event (the
"Appointment Day") immediately cease to transfer Principal Receivables to
the Trust and shall promptly give notice to the Trustee of such Insolvency
Event. Notwithstanding any cessation of the transfer to the Trust of
additional Principal Receivables, Finance Charge Receivables, whenever
created, accrued in respect of Principal Receivables which have been
transferred to the Trust shall continue to be a part of the Trust, and
Collections with respect thereto shall continue to be allocated and paid in
accordance with Article IV. Within 15 days of the Appointment Day, the
Trustee shall (i) publish a notice in an Authorized Newspaper that an
Insolvency Event has occurred and that the Trustee intends to sell, dispose
of or otherwise liquidate the Receivables in a commercially reasonable
manner and (ii) send written notice to the Investor Certificateholders
describing the provisions of this Section 9.02 and requesting instructions
from such Holders, which notice shall request each Investor
Certificateholder to advise the Trustee in writing that it elects one of
the following options: (A) the Investor Certificateholder wishes the
Trustee to instruct the Servicer not to sell, dispose of or otherwise
liquidate the Receivables, or (B) the Investor Certificateholder wishes the
Trustee to instruct the Servicer to sell, dispose of or otherwise liquidate
the Receivables and to instruct the Servicer to reconstitute the Trust upon
the same terms and conditions set forth herein, or (C) the Investor
Certificateholder refuses to advise the Trustee as to the specific action
the Trustee shall instruct the Servicer to take. If after 60 days from the
day notice pursuant to clause (i) above is first published (the
"Publication Date"), the Trustee shall not have received written
instructions of Holders of Investor Certificates representing Undivided
Interests aggregating in excess of 50% of the related Invested Amount of
each Series (or in the case of a series having more than one class of
investor certificates, each class of such series) to the effect that the
Trustee shall not instruct the Servicer to sell, dispose of, or otherwise
liquidate the Receivables and to instruct the Servicer to reconstitute the
Trust upon the same terms and conditions as set forth herein, the Trustee
shall instruct the Servicer to proceed to sell, dispose of, or otherwise
liquidate the Receivables in a commercially reasonable manner and on
commercially reasonable terms, which shall include the solicitation of
competitive bids and the Servicer shall proceed to consummate the sale,
liquidation or disposition of the Receivables as provided above with the
highest bidder for the Receivables. If, however, with respect to the
portion of the Receivables allocable to any outstanding Series, the holders
of more than 50% of the principal amount of each class of such Series
instruct the Trustee not to sell the portion of the Receivables allocable
to such Series, the Trust shall continue with respect to such Series
pursuant to the terms of the Agreement and the Supplement. The portion of
the Receivables allocable to any Series shall be equal to the sum of (1)
the product of (A) the Transferor Percentage, (B) the aggregate outstanding
Principal Receivables and (C) a fraction the numerator of which is the
related Investor Percentage of Collections of Finance Charge Receivables
and the denominator of which is the sum of all Investor Percentages with
respect to Collections of Finance Charge Receivables for all Series
outstanding and (2) the Invested Amount of such Series. The Transferor or
any of its Affiliates shall be permitted to bid for the Receivables. In
addition the Transferor or any of its Affiliates shall have the right to
match any bid by a third person and be granted the right to purchase the
Receivables at such matched bid price. The Trustee may obtain a prior
determination from any such conservator, receiver or liquidator that the
terms and manner of any proposed sale, disposition or liquidation are
commercially reasonable. The provisions of Sections 9.01 and 9.02 shall not
be deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation of
the Receivables pursuant to subsection (a) above shall be treated as
Collections on the Receivables and shall be allocated and deposited in
accordance with the provisions of Article IV; provided, however that the
proceeds for any such sale, disposition or liquidation of Receivables which
respect a Series but not all of the outstanding Series shall but applied
solely to make payments to such Series; provided further, that the Trustee
shall determine conclusively in its sole discretion the amount of such
proceeds which are allocable to Finance Charge Receivables and the amount
of such proceeds which are allocable to Principal Receivables. Unless the
Trustee receives written instructions from Investor Certificateholders of
one or more Series to continue the Trust with respect to such Series as
provided in subsection 9.02(b) above, on the day following the last
Distribution Date in the Monthly Period during which such proceeds are
distributed to the Investor Certificateholders of each Series, the Trust
shall terminate.
(c) The Trustee may appoint an agent or agents to assist with
its responsibilities pursuant to this Article IX with respect to
competitive bids.
[End of Article IX]
ARTICLE X
SERVICER DEFAULTS
Section 10.1 Servicer Defaults. If any one of the following
events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment, transfer
or deposit or to give instructions or notice to the Trustee pursuant to
Article IV or to instruct the Trustee to make any required drawing,
withdrawal, or payment under any Enhancement on or before the date
occurring five Business Days after the date such payment, transfer, deposit
withdrawal or drawing or such instruction or notice is required to be made
or given, as the case may be, under the terms of this Agreement;
(b) failure on the part of the Servicer duly to observe or
perform in any respect any other covenants or agreements of the Servicer
set forth in this Agreement, which has a material adverse effect on the
Investor Certificateholders of any Series and which continues unremedied
for a period of 60 days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given to the
Servicer by the Trustee, or to the Servicer and the Trustee by the Holders
of Investor Certificates evidencing Undivided Interests aggregating not
less than 50% of the Invested Amount of any Series adversely affected
thereby and continues to materially adversely affect such Investor
Certificateholders for such period; or the Servicer shall delegate its
duties under this Agreement, except as permitted by Section 8.07;
(c) any representation, warranty or certification made by the
Servicer in this Agreement or in any certificate delivered pursuant to this
Agreement shall prove to have been incorrect when made, which has a
material adverse effect on the Investor Certificateholders of any Series
and which continues to be incorrect in any material respect for a period of
60 days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the
Trustee, or to the Servicer and the Trustee by the Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than 50%
of the Invested Amount of any Series adversely affected thereby and
continues to materially adversely affect such Investor Certificateholders
for such period; or
(d) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and liabilities or similar proceedings of or
relating to the Servicer or of or relating to all or substantially all of
its property, or a decree or order of a court or agency or supervisory
authority having jurisdiction in the premises for the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of
debt, marshalling of assets and Liabilities or similar proceedings, or for
the winding-up or liquidation of its affairs, shall have been entered
against the Servicer, and such decree or order shall have remained in force
undischarged or unstayed for a period of 60 days; or the Servicer shal
admit in writing its inability to pay its debts generally as they become
due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make any assignment for the benefit of its
creditors or voluntarily suspend payment of its obligations;
then, so long as such Servicer Default shall not have been remedied, either
the Trustee, or the Holders of Investor Certificates evidencing Undivided
Interests aggregating more than 50% of the Aggregate Invested Amount, by
notice then given in writing to the Servicer (and to the Trustee if given
by the Investor Certificateholders) (a "Termination Notice"), may terminate
all of the rights and obligations of the Servicer as Servicer under this
Agreement. After receipt by the Servicer of such Termination Notice, and on
the date that a Successor Servicer shall have been appointed by the Trustee
pursuant to Section 10.02, all authority and power of the Servicer under
this Agreement shall pass to and be vested in a Successor Servicer; and,
without limitation, the Trustee is hereby authorized and empowered (upon
the failure of the Servicer to cooperate) to execute and deliver, on behalf
of the Servicer, as attorney-in-fact or otherwise, all documents and other
instruments upon the failure of the Servicer to execute or deliver such
documents or instruments, and to do and accomplish all other acts or things
necessary or appropriate to effect the purposes of such transfer of
servicing rights and obligations. The Servicer agrees to cooperate with the
Trustee and such Successor Servicer in effecting the termination of the
responsibilities and rights of the Servicer to conduct servicing hereunder
including, without limitation, the transfer to such Successor Servicer of
all authority of the Servicer to service the Receivables provided for under
this Agreement, including, without limitation, all authority over all
Collections which shall on the date of transfer be held by the Servicer for
deposit, or which have been deposited by the Servicer, in the Collection
Account, the Finance Charge Account or the Principal Account, and any
Series Account, or which shall thereafter be received with respect to the
Receivables, and in assisting the Successor Servicer and in enforcing all
rights to Insurance Proceeds and Interchange (if any) applicable to the
Trust. The Servicer shall promptly transfer its electronic records or
electronic copies thereof relating to the Receivables to the Successor
Servicer in such electronic form as the Successor Servicer may reasonably
request and shall promptly transfer to the Successor Servicer all other
records, correspondence and documents necessary for the continued servicing
of the Receivables in the manner and at such times as the Successor
Servicer shall reasonably request. To the extent that compliance with this
Section 10.01 shall require the Servicer to disclose to the Successor
Servicer information of any kind which the Servicer reasonably deems to be
confidential, the Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as the Servicer shall
deem necessary to protect its interests. The Servicer shall, on the date of
any servicing transfer, transfer all of its rights and obligations under
the Enhancement with respect to any Series to the Successor Servicer.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in subsection 10.01(a) for a period of 10 Business
Days or under subsection 10.01(b) or (c) for a period of 60 Business Days,
shall not constitute a Servicer Default if such delay or failure could not
be prevented by the exercise of reasonable diligence by the Servicer and
such delay or failure was caused by an act of God or the public enemy, acts
of declared or undeclared war, public disorder, rebellion, riot or
sabotage, epidemics, landslides, lightning, fire, hurricanes, tornadoes,
earthquakes, nuclear disasters or meltdowns, floods, power outages or
similar causes. The preceding sentence shall not relieve the Servicer from
using its best efforts to perform its obligations in a timely manner in
accordance with the terms of this Agreement and the Servicer shall provide
the Trustee, any Enhancement Provider, the Transferor and the Holders of
Investor Certificates with an Officer's Certificate giving prompt notice of
such failure or delay by it, together with a description of the cause of
such failure or delay and its efforts so to perform its obligations.
Section 10.2 Trustee to Act; Appointment of Successor.
(a) On and after the receipt by the Servicer of a Termination
Notice pursuant to Section 10.01, the Servicer shall continue to perform
all servicing functions under this Agreement until the date specified in
the Termination Notice or otherwise specified by the Trustee in writing or,
if no such date is specified in such Termination Notice, or otherwise
specified by the Trustee, until a date mutually agreed upon by the Servicer
and Trustee. The Trustee shall notify each Rating Agency of such removal of
the Servicer. The Trustee shall, as promptly as possible after the giving
of a Termination Notice appoint a successor servicer (the "Successor
Servicer"), and such Successor Servicer shall accept its appointment by a
written assumption in a form acceptable to the Trustee. The Trustee may
obtain bids from any potential successor servicer. If the Trustee is unable
to obtain any bids from any potential successor servicer and the Servicer
delivers an Officer's Certificate to the effect that they cannot in good
faith cure the Servicer Default which gave rise to a transfer of servicing,
and if the Trustee is legally unable to act as Successor Servicer, then the
Trustee shall notify each Enhancement Provider of the proposed sale of the
Receivables and shall provide each such Enhancement Provider an opportunity
to bid on the Receivables and shall offer the Transferor the right of first
refusal to purchase the Receivables on terms equivalent to the best
purchase offer as determined by the Trustee, but in no event less than an
amount equal to the Aggregate Invested Amount on the date of such purchase
plus all interest accrued but unpaid on all of the outstanding Investor
Certificates at the applicable Certificate Rate through the date of such
purchase; provided, however, that if the short-term deposits or long-term
unsecured debt obligations of the Transferor (or if neither such deposits
nor such obligations of the Transferor are rated by Moody's, if ▇▇▇▇▇'▇ is
a Rating Agency with respect to any Series of Certificates outstanding,
then of the holding company of the Transferor so long as such holding
company shall be First USA, Inc.) are not rated at the time of such
purchase at least P-3 or Baa-3, respectively, by Moody's, if ▇▇▇▇▇'▇ is a
Rating Agency with respect to any Series of Certificates outstanding, no
such purchase by the Transferor shall occur unless the Transferor shall
deliver an Opinion of Counsel reasonably acceptable to the Trustee that
such purchase would not constitute a fraudulent conveyance of the
Transferor. The proceeds of such sale shall be deposited in the
Distribution Account or any Series Account, as provided in the related
Supplement, for distribution to the Investor Certificateholders of each
outstanding Series pursuant to Section 12.03 of the Agreement. In the event
that a Successor Servicer has not been appointed and has not accepted its
appointment at the time when the Servicer ceases to act as Servicer, the
Trustee without further action shall automatically be appointed the
Successor Servicer (but shall have continued authority, to appoint another
Person as Successor Servicer). Notwithstanding the above, the Trustee
shall, if it is legally unable to act, petititon a court of competent
jurisdiction to appoint any established financial institution having, in
the case of an entity that is subject to risk-based capital adequacy
requirements, risk-based capital of at least $50,000,000 or, in the case of
an entity that is not subject to risk-based capital requirements, having a
net worth of not less than $50,000,000 and whose regular business includes
the servicing of VISA or MasterCard credit card receivables as the
Successor Servicer hereunder.
(b) Upon its appointment, the Successor Servicer shall be the
successor in all respects to the Servicer with respect to servicing
functions under this Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof, and all references in this
Agreement to the Servicer shall be deemed to refer to the Successor
Servicer. Any Successor Servicer, by its acceptance of its appointment,
will automatically agree to be bound by the terms and provisions of each
Enhancement.
(c) In connection with such appointment and assumption, the
Trustee shall be entitled to such compensation, or may make such
arrangements for the compensation of the Successor Servicer out of
Collections, as it and such Successor Servicer shall agree; provided,
however, that no such compensation shall be in excess of the Monthly
Servicing Fee permitted to the Servicer pursuant to Section 3.02. The
Transferor agrees that if the Servicer is terminated hereunder, it will
agree to deposit a portion of the Collections in respect of Finance Charge
Receivables that it is entitled to receive pursuant to Article IV to pay
its share of the compensation of the Successor Servicer.
(d) All authority and power granted to the Successor Servicer
under this Agreement shall automatically cease and terminate upon
termination of the Trust pursuant to Section 12.01 and shall pass to and be
vested in the Transferor and, without limitation, the Transferor is hereby
authorized and empowered to execute and deliver, on behalf of the Successor
Servicer, as attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such transfer of servicing rights.
The Successor Servicer agrees to cooperate with the Transferor in effecting
the termination of the responsibilities and rights of the Successor
Servicer to conduct servicing on the Receivables. The Successor Servicer
shall transfer its electronic records relating to the Receivables to the
Transferor in such electronic form as the Transferor may reasonably request
and shall transfer all other records, correspondence and documents to the
Transferor in the manner and at such times as the Transferor shall
reasonably request. To the extent that compliance with this Section 10.02
shall require the Successor Servicer to disclose to the Transferor
information of any kind which the Successor Servicer deems to be
confidential, the Transferors shall be required to enter into such
customary licensing and confidentiality agreements as the Successor
Servicer shall deem necessary to protect its interests.
Section 10.3 Notification to Certificateholders. Within two
Business Days after the Servicer becomes aware of any Servicer Default, the
Servicer shall give prompt written notice thereof to the Trustee and any
Enhancement Provider and the Trustee shall give notice to the Investor
Certificateholders at their respective addresses appearing in the
Certificate Register. Upon any termination or appointment of a Successor
Servicer pursuant to this Article X, the Trustee shall give prompt written
notice thereof to Investor Certificateholders at their respective addresses
appearing in the Certificate Register.
Section 10.4 Waiver of Past Defaults. The Holders of Investor
Certificates evidencing Undivided Interests aggregating not less than
66-2/3% of the Invested Amount of each Series adversely affected by any
default by the Servicer or Transferor may, on behalf of all
Certificateholders of such Series, waive any default by the Servicer or
Transferor in the performance of its obligations hereunder and its
consequences, except a default in the failure to make any required deposits
or payments of interest or principal relating to such Series pursuant to
Article IV which default does not result from the failure of the Paying
Agent to perform its obligations to make any required deposits or payments
of interest and principal in accordance with Article IV. Upon any such
waiver of a past default, such default shall cease to exist, and any
default arising therefrom shall be deemed to have been remedied for every
purpose of this Agreement. No such waiver shall extend to any subsequent or
other default or impair any right consequent thereon except to the extent
expressly so waived.
[End of Article X]
ARTICLE XI
THE TRUSTEE
Section 11.1 Duties of Trustee.
(a) The Trustee, prior to the occurrence of any Servicer
Default and after the curing of all Servicer Defaults which may have
occurred, undertakes to perform such duties and only such duties as are
specifically set forth in this Agreement. If a Responsible Officer has
received written notice that a Servicer Default has occurred (and such
Servicer Default has not been cured or waived), the Trustee shall exercise
such of the rights and powers vested in it by this Agreement, and use the
same degree of care and skill in its exercise, as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs; provided, however, that if the Trustee shall assume the duties of
the Servicer pursuant to Section 8.05 or 10.02, the Trustee in performing
such duties shall use the degree of skill and attention customarily
exercised by a servicer with respect to comparable receivables that it
services for itself or others.
(b) The Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments
furnished to the Trustee which are specifically required to be furnished
pursuant to any provision of this Agreement, shall examine them to
determine whether they substantially conform to the requirements of this
Agreement.
(c) Subject to subsection 11.01(a), no provision of this
Agreement shall be construed to relieve the Trustee from liability for its
own negligent action, its own negligent failure to act or its own
misconduct; provided, however, that:
(i) the Trustee shall not be personally liable for an
error of judgment made in good faith by a Responsible Officer or
Responsible Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts;
(ii) the Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in
good faith in accordance with the direction of the Holders of
Investor Certificates evidencing Undivided Interests aggregating more
than 50% of the Invested Amount of any Series relating to the time,
method and place of conducting any proceeding for any remedy
available to the Trustee with respect to such Series, or exercising
any trust or power conferred upon the Trustee with respect to such
Series, under this Agreement; and
(iii) the Trustee shall not be charged with knowledge of
any failure by the Servicer referred to in clauses (a) and (b) of
Section 10.01 or of any breach by the Servicer contemplated by clause
(c) of Section 10.01 or any Pay-Out Event unless a Responsible
Officer of the Trustee obtains actual knowledge of such failure,
breach or Pay-Out Event or the Trustee receives written notice of
such failure, breach or Pay-Out Event from the Servicer or any
Holders of Investor Certificates evidencing Undivided Interests
aggregating not less than 10% of the Invested Amount of any Series
adversely affected thereby.
(d) The Trustee shall not be required to expend or risk its own
funds or otherwise incur financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds
or adequate indemnity against such risk or liability is not reasonably
assured to it, and none of the provisions contained in this Agreement shall
in any event require the Trustee to perform, or be responsible for the
manner of performance of, any of the obligations of the Servicer under this
Agreement except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges
of, the Servicer in accordance with the terms of this Agreement.
(e) Except for actions expressly authorized by this Agreement,
the Trustee shall take no action reasonably likely to impair the interests
of the Trust in any Receivable now existing or hereafter created or to
impair the value of any Receivable now existing or hereafter created.
(f) Except as provided in this subsection 11.01(f), the Trustee
shall have no power to vary the corpus of the Trust including, without
limitation, the power to (i) accept any substitute obligation for a
Receivable initially assigned to the Trust under Section 2.01 or 2.06
hereof, (ii) add any other investment, obligation or security to the Trust,
except for an addition permitted under Section 2.06 or (iii) withdraw from
the Trust any Receivables, except for a withdrawal permitted under Sections
2.07, 9.02, 10.02, 12.01 or 12.02 or subsections 2.04(d), 2.04(e) or
Article IV.
(g) In the event that the Paying Agent or the Transfer Agent
and Registrar shall fail to perform any obligation, duty or agreement in
the manner or on the day required to be performed by the Paying Agent or
the Transfer Agent and Registrar, as the case may be, under this Agreement,
the Trustee shall be obligated promptly upon its knowledge thereof by a
Responsible Officer of the Trustee to perform such obligation, duty or
agreement in the manner so required.
(h) If the Transferor has agreed to transfer any of its credit
card receivables (other than the Receivables) to another Person, upon the
written request of the Transferor, the Trustee will enter into such
intercreditor agreements with the transferee of such receivables as are
customary and necessary to identify separately the rights, if any, of the
Trust and such other Person in the Transferor's credit card receivables;
provided, that the Trust shall not be required to enter into any
intercreditor agreement which could adversely affect the interests of the
Certificateholders or the Trustee and, upon the request of the Trustee, the
Transferor will deliver an Opinion of Counsel on any matters relating to
such intercreditor agreement, reasonably requested by the Trustee.
Section 11.2 Certain Matters Affecting the Trustee. Except as
otherwise provided in Section 11.01:
(a) the Trustee may rely on and shall be protected in acting
on, or in refraining from acting in accord with, any assignment of
Receivables in Additional Accounts, the initial report, the monthly
Servicer's certificate, the annual Servicer's certificate, the monthly
payment instructions and notification to the Trustee, the monthly
Certificateholder's statement, any resolution, Officer's Certificate,
certificate of auditors or any other certificate, statement, instrument,
opinion, report, notice, request, consent, order, appraisal, bond or other
paper or document believed by it to be genuine and to have been signed or
presented to it pursuant to this Agreement by the proper party or parties;
(b) the Trustee may consult with counsel, and any Opinion of
Counsel shall be full and complete authorization and protection in respect
of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such Opinion of Counsel;
(c) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Agreement or any Enhancement, or
to institute, conduct or defend any litigation hereunder or in relation
hereto, at the request, order or direction of any of the Certificateholders
or any Enhancement Provider, pursuant to the provisions of this Agreement,
unless such Certificateholders or Enhancement Provider shall have offered
to the Trustee reasonable security or indemnity against the costs, expenses
and liabilities which may be incurred therein or thereby; nothing contained
herein shall, however, relieve the Trustee of the obligations, upon the
occurrence of any Servicer Default (which has not been cured or waived), to
exercise such of the rights and powers vested in it by this Agreement and
any Enhancement, and to use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances
in the conduct of his own affairs;
(d) the Trustee shall not be personally liable for any action
taken, suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Agreement;
(e) the Trustee shall not be bound to make any investigation
into the facts of matters stated in any assignment of Receivables in
Additional Accounts, the initial report, the monthly Servicer's
certificate, the annual Servicer's certificate, the monthly payment
instructions and notification to the Trustee, the monthly
Certificateholders statement, any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing so to do by
Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Invested Amount of any Series which could be adversely
affected if the Trustee does not perform such acts;
(f) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or a custodian, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such agent,
attorney or custodian appointed with due care by it hereunder; and
(g) except as may be required by subsection 11.01(a), the
Trustee shall not be required to make any initial or periodic examination
of any documents or records related to the Receivables or the Accounts for
the purpose of establishing the presence or absence of defects, the
compliance by the Transferor with its representations and warranties or for
any other purpose.
(h) whenever in the administration of this Agreement the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in the
absence of bad faith on its part, rely upon an Officer's Certificate; and
Section 11.3 Trustee Not Liable for Recitals in Certificates.
The Trustee assumes no responsibility for the correctness of the recitals
contained herein and in the Certificates (other than the certificate of
authentication on the Certificates). Except as set forth in Section 11.15,
the Trustee makes no representations as to the validity or sufficiency of
this Agreement or of the Certificates (other than the certificate of
authentication on the Certificates) or of any Receivable or related
document. The Trustee shall not be accountable for the use or application
by the Transferor of any of the Certificates or of the proceeds of such
Certificates, or for the use or application of any funds paid to the
Transferor in respect of the Receivables or deposited in or withdrawn from
the Collection Account, the Principal Account or the Finance Charge
Account, or any Series Account or other accounts now or hereafter
established to effectuate the transactions contemplated herein and in
accordance with the terms hereof.
Section 11.4 Trustee May Own Certificates. The Trustee in its
individual or any other capacity may become the owner or pledgee of
Investor Certificates with the same rights as it would have if it were not
the Trustee.
Section 11.5 The Servicer to Pay Trustee's Fees and Expenses.
The Servicer covenants and agrees to pay to the Trustee from time to time,
and the Trustee shall be entitled to receive, reasonable compensation
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) for all services rendered by
the Trustee in the execution of the Trust hereby created and in the
exercise and performance of any of the powers and duties hereunder of the
Trustee, and, subject to Section 8.04, the Servicer will pay or reimburse
the Trustee (without reimbursement from any Investor Account, any Series
Account or otherwise) upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any of the provisions of this Agreement (including the reasonable fees
and expenses of its agents and counsel) except any such expense,
disbursement or advance as may arise from its own negligence or bad faith
and except as provided in the following sentence. If the Trustee is
appointed Successor Servicer pursuant to Section 10.02, the provisions of
this Section 11.05 shall not apply to expenses, disbursements and advances
made or incurred by the Trustee in its capacity as Successor Servicer
(which shall be covered out of the Monthly Servicing Fee).
The obligations of the Servicer under this Section 11.05 shall
survive the termination of the Trust and the resignation or removal of the
Trustee.
Section 11.6 Eligibility Requirements for Trustee. The Trustee
hereunder shall at all times be a corporation organized and doing business
under the laws of the United States of America or any state thereof
authorized under such laws to exercise corporate trust powers, having a
long-term unsecured debt rating of at least Baa3 by ▇▇▇▇▇'▇ and BBB- by
Standard & Poor's having, in the case of an entity that is subject to
risk-based capital adequacy requirements, risk-based capital of at least
$50,000,000 or, in the case of an entity that is not subject to risk-based
capital adequacy requirements, having a combined capital and surplus of at
least $50,000,000 and subject to supervision or examination by federal or
state authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid
supervising or examining authority, then for the purpose of this Section
11.06, the combined capital and surplus of such corporation shall be deemed
to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section
11.06, the Trustee shall resign immediately in the manner and with the
effect specified in Section 11.07.
Section 11.7 Resignation or Removal of Trustee.
(a) The Trustee may at any time resign and be discharged from
the Trust hereby created by giving written notice thereof to the Servicer.
Upon receiving such notice of resignation, the Servicer shall promptly
appoint a successor trustee by written instrument, in duplicate, one copy
of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted such appointment within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition
any court of competent jurisdiction for the appointment of a successor
trustee.
(b) If at any time the Trustee shall cease to be eligible in
accordance with the provisions of Section 11.06 hereof and shall fail to
resign after written request therefor by the Transferor, or if at any time
the Trustee shall be legally unable to act, or shall be adjudged a bankrupt
or insolvent, or a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Transferor may, but shall not be
required to, remove the Trustee and promptly appoint a successor trustee by
written instrument, in duplicate, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee.
(c) Any resignation or removal of the Trustee and appointment
of a successor trustee pursuant to any of the provisions of this Section
11.07 shall not become effective until acceptance of appointment by the
successor trustee as provided in Section 11.08 hereof and any liability of
the Trustee arising hereunder shall survive such appointment of a successor
trustee.
Section 11.8 Successor Trustee.
(a) Any successor trustee appointed as provided in Section
11.07 hereof shall execute, acknowledge and deliver to the Transferor and
to its predecessor Trustee an instrument accepting such appointment
hereunder, and thereupon the resignation or removal of the predecessor
Trustee shall become effective and such successor trustee, without any
further act, deed or conveyance, shall become fully vested with all the
rights, powers, duties and obligations of its predecessor hereunder, with
the like effect as if originally named as Trustee herein. The predecessor
Trustee shall deliver to the successor trustee all documents and statements
held by it hereunder, and the Transferor and the predecessor Trustee shall
execute and deliver such instruments and do such other things as may
reasonably be required for fully and certainly vesting and confirming in
the successor trustee all such rights, powers, duties and obligations.
(b) No successor trustee shall accept appointment as provided
in this Section 11.08 unless at the time of such acceptance such successor
trustee shall be eligible under the provisions of Section 11.06 hereof.
(c) Upon acceptance of appointment by a successor trustee as
provided in this Section 11.08, such successor trustee shall mail notice of
such succession hereunder to all Certificateholders at their addresses as
shown in the Certificate Register.
Section 11.9 Merger or Consolidation of Trustee. Any Person
into which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person
succeeding to the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such corporation shall be
eligible under the provisions of Section 11.06 hereof, without the
execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
Section 11.10 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Agreement, at
any time, for the purpose of meeting any legal requirements of any
jurisdiction in which any part of the Trust may at the time be located, the
Trustee shall have the power and may execute and deliver all instruments to
appoint one or more Persons to act as a co-trustee or co-trustees, or
separate trustee or separate trustees, of all or any part of the Trust, and
to vest in such Person or Persons, in such capacity and for the benefit of
the Certificateholders, such title to the trust, or any part thereof, and,
subject to the other provisions of this Section 11.10, such powers, duties,
obligations, rights and trusts as the Trustee may consider necessary or
desirable. No co-trustee or separate trustee hereunder shall be required to
meet the terms of eligibility as a successor trustee under Section 11.06
and no notice to Certificateholders of the appointment of any co-trustee or
separate trustee shall be required under Section 11.08 hereof.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions
and conditions:
(i) all rights, powers, duties and obligations conferred
or imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any laws of any
jurisdiction in which any particular act or acts are to be performed
(whether as Trustee hereunder or as successor to the Servicer
hereunder), the Trustee shall be incompetent or unqualified to
perform such act or acts, in which event such rights, powers, duties
and obligations (including the holding of title to the Trust or any
portion thereof in any such jurisdiction) shall be exercised and
performed singly by such separate trustee or co-trustee, but solely
at the direction of the Trustee;
(ii) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder; and
(iii) the Trustee may at any time accept the resignation
of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the Trustee
shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every
instrument appointing any separate trustee or co-trustee shall refer to
this Agreement and the conditions of this Article XI. Each separate trustee
and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of
appointment, either jointly with the Trustee or separately, as may be
provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the
conduct of, affecting the liability of, or affording protection to, the
Trustee. Every such instrument shall be filed with the Trustee and a copy
thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under
or in respect to this Agreement on its behalf and in its name. If any
separate trustee or co-trustee shall die, become incapable of acting,
resign or be removed, all of its estates, properties, rights, remedies and
trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor trustee.
Section 11.11 Tax Returns. In the event the Trust shall be
required to file tax returns, the Servicer, shall at its expense prepare or
cause to be prepared any tax returns required to be filed by the Trust and,
to the extent possible, shall remit such returns to the Trustee for
signature at least five days before such returns are due to be filed. The
Trustee is hereby authorized to sign any such return on behalf of the
Trust. The Servicer shall prepare or shall cause to be prepared all tax
information required by law to be distributed to Certificateholders and
shall deliver such information to the Trustee at least five days prior to
the date it is required by law to be distributed to Certificateholders. The
Trustee, upon request, will furnish the Servicer with all such information
known to the Trustee as may be reasonably required in connection with the
preparation of all tax returns of the Trust and shall, upon request,
execute such return. In no event shall the Trustee or the Servicer be
liable for any liabilities, costs or expenses of the Trust, the Investor
Certificateholders or the Certificate Owners arising under any tax law,
including without limitation federal, state, local or foreign income or
excise taxes or any other tax imposed on or measured by income (or any
interest or penalty with respect thereto or arising from a failure to
comply therewith).
Section 11.12 Trustee May Enforce Claims Without Possession of
Certificates. All rights of action end claims under this Agreement or any
Series of Certificates may be prosecuted and enforced by the Trustee
without the possession of any of the Certificates or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by
the Trustee shall be brought in its own name as trustee. Any recovery of
judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, be for the ratable benefit of any Series of
Certificateholders in respect of which such judgment has been obtained.
Section 11.13 Suits for Enforcement. If a Servicer Default
shall occur and be continuing, the Trustee, in its discretion may, subject
to the provisions of Section 10.01, proceed to protect and enforce its
rights and the rights of any Series of Certificateholders under this
Agreement by a suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained
in this Agreement or in aid of the execution of any power granted in this
Agreement or for the enforcement of any other legal, equitable or other
remedy as the Trustee, being advised by counsel, shall deem most effectual
to protect and enforce any of the rights of the Trustee or any Series of
Certificateholders.
Section 11.14 Rights of Certificateholders to Direct Trustee.
Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Aggregate Invested Amount (or, with respect to any
remedy, trust or power that does not relate to all Series, 50% of the
aggregate Invested Amount of the Investor Certificates of all Series to
which such remedy, trust or power relates) shall have the right to direct
the time, method, and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred on the
Trustee; provided, however, that, subject to Section 11.01, the Trustee
shall have that the right to decline to follow any such direction if the
Trustee being advised by counsel determines that the action so directed may
not lawfully be taken, or if the Trustee in good faith shall, by a
Responsible Officer or Responsible Officers of the Trustee, determine that
the proceedings so directed would be illegal or involve it in personal
liability or be unduly prejudicial to the rights of Certificateholders not
parties to such direction; and provided further that nothing in this
Agreement shall impair the right of the Trustee to take any action deemed
proper by the Trustee and which is not inconsistent with such direction of
such Holders of Investor Certificates.
Section 11.15 Representations and Warranties of Trustee. The
Trustee represents and warrants that:
(i) the Trustee is a national banking association
organized, existing and authorized to engage in the business of
banking under the laws of the United States;
(ii) the Trustee has full power, authority and right to
execute, deliver and perform this Agreement, and has taken all
necessary action to authorize the execution, delivery and performance
by it of this Agreement; and
(iii) this Agreement has been duly executed and delivered
by the Trustee.
Section 11.16 Maintenance of Office or Agency. The Trustee will
maintain at its expense an office or offices, or agency or agencies, where
notices and demands to or upon the Trustee in respect of the Certificates
and this Agreement may be served. The Trustee initially appoints its
Corporate Trust Office as its office for such purposes. The Trustee will
give prompt written notice to the Servicer and to Certificateholders (or in
the case of Holders of Bearer Certificates, in the manner provided for in
the related Supplement) of any change in the location of the Certificate
Register or any such office or agency.
[End of Article XI]
ARTICLE XII
TERMINATION
Section 12.1 Termination of Trust.
(a) The respective obligations and responsibilities of the
Transferor, the Servicer and the Trustee created hereby (other than the
obligation of the Trustee to make payments to Certificate holders as
hereafter set forth) shall terminate, except with respect to the duties
described in Section 8.04 and 11.05 and subsection 2.04(c) and 12.03(b), on
the Trust Termination Date; provided, however, that the Trust shall not
terminate on the date specified in clause (i) of the definition of "Trust
Termination Date" if each of the Servicer and the Holder of the
Exchangeable Transferor Certificate notify the Trustee in writing, not
later than 5 Business Days preceding such date, that they desire that the
Trust not terminate on such date, which notice (such notice, a "Trust
Extension") shall specify the date on which the Trust shall terminate (such
date, the "Extended Trust Termination Date"); provided, however, that the
Extended Trust Termination Date shall be not later than August 1, 2032. The
Servicer and the Holder of the Exchangeable Transferor Certificate may, on
any date following the Trust Extension, so long as no Series of
Certificates is outstanding, deliver a notice in writing to the Trustee
changing the Extended Trust Termination Date.
(b) In the event that (i) the Trust has not terminated by the
last Distribution Date occurring in the second month preceding the Trust
Termination Date, and (ii) the Invested Amount of any Series (after giving
effect to all transfers, withdrawals, deposits and drawings to occur on
such date and the payment of principal on any Series of Certificates to be
made on the related Distribution Date during such month pursuant to Article
IV) would be greater than zero, the Servicer shall sell within 30 days
after such Transfer Date all the Receivables. The Servicer shall notify
each Enhancement Provider of the proposed sale of the Receivables and shall
provide each Enhancement Provider an opportunity to bid on the Receivables.
The Transferor shall have the right of first refusal to purchase the
Receivables on terms equivalent to the best purchase offer as determined by
the Trustee in its sole discretion. The proceeds of any such sale shall be
treated as Collections on the Receivables and shall be allocated and
deposited in accordance with Article IV; provided, however, that the
Trustee shall determine conclusively in its sole discretion the amount of
such proceeds which are allocable to Finance Charge Receivables and the
amount of such proceeds which are allocable to Principal Receivables.
During such thirty-day period, the Servicer shall continue to collect
payments on the Receivables and allocate and deposit such payments in
accordance with the provisions of Article IV.
(c) All principal or interest with respect to any Series of
Investor Certificates shall be due and payable no later than the Series
Termination Date with respect to such Series. Unless otherwise provided in
a Supplement, in the event that the Invested Amount of any Series of
Certificates is greater than zero on its Series Termination Date, after
giving effect to all transfers, withdrawals, deposits and drawings to occur
on such date and the payment of principal to be made on such Series on such
date, the Trustee will sell or cause to be sold, and pay the proceeds to
all Certificateholders of such Series pro rata in final payment of all
principal of and accrued interest on such Series of Certificates, an amount
of Principal Receivables and the related Finance Charge Receivables (or
interests therein) up to 110% of the Invested Amount of such Series at the
close of business on such date (but not more than an amount of Receivables
equal to the sum of (1) the product of (A) the Transferor Percentage, (B)
the aggregate outstanding Principal Receivables and (C) a fraction the
numerator of which is the related Investor Percentage of Collections of
Finance Charge Receivables and the denominator of which is the sum of all
Investor Percentages with respect to Collections of Finance Charge
Receivables of all Series outstanding and (2) the Invested Amount of such
Series). The Trustee shall notify each Enhancement Provider of the proposed
sale of such Receivables and shall provide each Enhancement Provider an
opportunity to bid on such Receivables. The Transferor shall be permitted
to purchase such Receivables in such case and shall have a right of first
refusal with respect thereto. Any proceeds of such sale in excess of such
principal and interest paid shall be paid to the Holder of the Exchangeable
Transferor Certificate. Upon such Series Termination Date with respect to
the applicable Series of Certificates, final payment of all amounts
allocable to any Investor Certificates of such Series shall be made in the
manner provided in Section 12.03.
Section 12.2 Optional Purchase. (a) If so provided in any
Supplement, the Transferor may, but shall not be obligated to, cause a
final distribution to be made in respect of the related Series of
Certificates on a Distribution Date specified in such Supplement by
depositing into the Distribution Account or the applicable Series Account,
not later than the Transfer Date preceding such Distribution Date, for
application in accordance with Section 12.03, the amount specified in such
Supplement; provided, however that if the short-term deposits or long-term
unsecured debt obligations of the Transferor (or, if neither such deposits
nor such obligations of the Transferor are rated by ▇▇▇▇▇'▇, then the
short-term deposits or long-term unsecured debt obligations of the holding
company of the Transferor so long as such holding company is First USA,
Inc.) are not rated at the time of such purchase of Receivables at least
P-3 or Baa-3, respectively, by ▇▇▇▇▇'▇, no such event shall occur unless
the Transferor shall deliver an Opinion of Counsel reasonably acceptable to
the Trustee that such deposit into the Distribution Account or any Series
Account as provided in the related Supplement would not constitute a
fraudulent conveyance of the Transferor.
(b) The amount deposited pursuant to subsection 12.02(a) shall
be paid to the Investor Certificateholders of the related Series pursuant
to Section 12.03 on the related Distribution Date following the date of
such deposit. All Certificates of a Series which are purchased by the
Transferor pursuant to subsection 12.02(a) shall be delivered by the
Transferor upon such purchase to, and be canceled by, the Transfer Agent
and Registrar and be disposed of in a manner satisfactory to the Trustee
and the Transferor. The Invested Amount of each Series which is purchased
by the Transferor pursuant to subsection 12.02(a) shall, for the purposes
of the definition of "Transferor Interest," be deemed to be equal to zero
on the Distribution Date following the making of the deposit, and the
Transferor Interest shall thereupon be deemed to have been increased by the
Invested Amount of such Series.
Section 12.3 Final Payment with Respect to any Series.
(a) Written notice of any termination, specifying the
Distribution Date upon which the Investor Certificateholders of any Series
may surrender their Certificates for payment of the final distribution with
respect to such Series and cancellation, shall be given (subject to at
least two Business Days' prior notice from the Servicer to the Trustee) by
the Trustee to Investor Certificateholders of such Series mailed not later
than the fifth day of the month of such final distribution (or in the
manner provided by the Supplement relating to such Series) specifying (i)
the Distribution Date (which shall be the Distribution Date in the month
(x) in which the deposit is made pursuant to subsection 2.04(e), 9.02(a),
10.02(a), or subsection 12.02(a) of the Agreement or such other section as
may be specified in the related Supplement, or (y) in which the related
Series Termination Date occurs) upon which final payment of such Investor
Certificates will be made upon presentation and surrender of such Investor
Certificates at the office or offices therein designated (which, in the
case of Bearer Certificates, shall be outside the United States), (ii) the
amount of any such final payment and (iii) that the Record Date otherwise
applicable to such Distribution Date is not applicable, payments being made
only upon presentation and surrender of the Investor Certificates at the
office or offices therein specified. The Servicer's notice to the Trustee
in accordance with the preceding sentence shall be accompanied by an
Officers' Certificate setting forth the information specified in Article V
of this Agreement covering the period during the then current calendar year
through the date of such notice and setting forth the date of such final
distribution. The Trustee shall give such notice to the Transfer Agent and
Registrar and the Paying Agent at the time such notice is given to such
Investor Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant to
subsection 12.01(a) or the occurrence of the Series Termination Date with
respect to any Series, all funds then on deposit in the Finance Charge
Account, the Principal Account, the Distribution Account or any Series
Account applicable to the related Series shall continue to be held in trust
for the benefit of the Certificateholders of the related Series and the
Paying Agent or the Trustee shall pay such funds to the Certificateholders
of the related Series upon surrender of their Certificates (which
surrenders and payments, in the case of Bearer Certificates, shall be made
only outside the United States). In the event that all of the Investor
Certificateholders of any Series shall not surrender their Certificates for
cancellation within six months after the date specified in the
above-mentioned written notice, the Trustee shall give a second written
notice (or, in the case of Bearer Certificates, publication notice) to the
remaining Investor Certificateholders of such Series upon receipt of the
appropriate records from the Transfer Agent and Registrar to surrender
their Certificates for cancellation and receive the final distribution with
respect thereto. If within one and one half years after the second notice
with respect to a Series, all the Investor Certificates of such Series
shall not have been surrendered for cancellation, the Trustee may take
appropriate steps or may appoint an agent to take appropriate steps, to
contact the remaining Investor Certificateholders of such Series concerning
surrender of their Certificates, and the cost thereof shall be paid out of
the funds in the Distribution Account or any Series Account held for the
benefit of such Investor Certificateholders. The Trustee and the Paying
Agent shall pay to the Transferor upon request any monies held by them for
the payment of principal or interest which remains unclaimed for two years.
After payment to the Transferor, Investor Certificateholders entitled to
the money must look to the Transferor for payment as general creditors
unless an applicable abandoned property law designates another Person.
(c) All Certificates surrendered for payment of the final
distribution with respect to such Certificates and cancellation shall be
canceled by the Transfer Agent and Registrar and be disposed of in a manner
satisfactory to the Trustee and the Transferor.
Section 12.4 Termination Rights of Holder of Exchangeable
Transferor Certificate. Upon the termination of the Trust pursuant to
Section 12.01, and after payment of all amounts due hereunder on or prior
to such termination and the surrender of the Exchangeable Transferor
Certificate, the Trustee shall execute a written reconveyance substantially
in the form of Exhibit H pursuant to which it shall reconvey to the Holder
of the Exchangeable Transferor Certificate (without recourse,
representation or warranty) all right, title and interest of the Trust in
the Receivables, whether then existing or thereafter created, all moneys
due or to become due with respect thereto (including all accrued interest
theretofore posted as Finance Charge Receivables) and all proceeds thereof
and Insurance Proceeds relating thereto and Interchange (if any) allocable
to the Trust pursuant to any Supplement, except for amounts held by the
Trustee pursuant to subsection 12.03(b). The Trustee shall execute and
deliver such instruments of transfer and assignment, in each case without
recourse, as shall be reasonably requested by the Holder of the
Exchangeable Transferor Certificate to vest in such Holder all right, title
and interest which the Trust had in the Receivables (and any costs or
expenses incurred by the Trustee in connection with such reconveyances
shall be reimbursed by the Servicer).
[End Of Article XII]
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.1 Amendment.
(a) This Agreement or any Supplement may be amended in writing
from time to time by the Servicer, the Transferor and the Trustee, without
the consent of any of Certificateholders; provided, that such action shall
not, as evidenced by an Opinion of Counsel for the Transferor addressed and
delivered to the Trustee, adversely affect in any material respect the
interests of any Investor Certificateholder; provided further, that each
Rating Agency shall have notified the Transferor, the Servicer and the
Trustee in writing that such action will not result in a reduction or
withdrawal of the rating of any outstanding Series or Class to which it is
a Rating Agency and provided, further, that the Trustee may, but shall not
be obligated to, enter into any such amendment which materially affects the
Trustee's rights, duties or immunities under this Agreement or otherwise.
(b) This Agreement or any Supplement may also be amended in
writing from time to time by the Servicer, the Transferor and the Trustee
with the consent of the Holders of Investor Certificates evidencing
Undivided Interests aggregating not less than 66-2/3% of the Invested
Amount of each outstanding Series adversely affected by such amendment for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or any Supplement or
modifying in any manner the rights of Investor Certificateholders of any
Series then issued and outstanding; provided, however, that no such
amendment shall (i) reduce in any manner the amount of, or delay the timing
of, distributions which are required to be made on any Investor
Certificates of such Series without the consent of each Investor
Certificateholders of such Series, (ii) change the definition of or the
manner of calculating the Invested Amount, the Investor Percentage or the
Investor Default Amount of such Series without the consent of each Investor
Certificateholder of such Series or (iii) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of each
Investor Certificateholder of all Series adversely affected. The Trustee
may, but shall not be obligated to, enter into any such amendment which
affects the Trustee's rights, duties or immunities under this Agreement or
otherwise.
(c) Notwithstanding anything in this Section 13.01 to the
contrary, the Series Supplement with respect to any Series may be amended
on the items and in accordance with the procedures provided in such Series
Supplement.
(d) Promptly after the execution of any such amendment (other
than an amendment pursuant to paragraph (a)), the Trustee shall furnish
notification of the substance of such amendment to each Investor
Certificateholder of each Series adversely affected and ten Business Days
prior to the proposed effective date for such amendment the Trustee shall
furnish notification of the substance of such amendment to each Rating
Agency providing a rating for such Series.
(e) It shall not be necessary for the consent of Investor
Certificateholders under this Section 13.01 to approve the particular form
of any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Investor
Certificateholders shall be subject to such reasonable requirements as the
Trustee may prescribe.
(f) Any Series Supplement executed and delivered pursuant to
Section 6.09 and any amendments regarding the addition to or removal of
Receivables from the Trust as provided in Sections 2.06 and 2.07, executed
in accordance with the provisions hereof, shall not be considered
amendments to this Agreement for the purpose of subsections 13.01(a) and
(b).
(g) In connection with any amendment, the Trustee may request
an Opinion of counsel from the Transferor or Servicer to the effect that
the amendment complies with all requirements of this Agreement.
Section 13.2 Protection of Right Title and Interest to Trust.
(a) The Servicer shall cause this Agreement, all amendments
hereto and/or all financing statements and continuation statements and any
other necessary documents covering the Certificateholders and the Trustee's
right, title and interest to the Trust to be promptly recorded, registered
and filed, and at all times to be kept recorded, registered and filed, all
in such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of the
Certificateholders or the Trustee, as the case may be, hereunder to all
property comprising the Trust. The Servicer shall deliver to the Trustee
file-stamped copies of, or filing receipts for, any document recorded,
registered or filed as provided above, as soon as available following such
recording, registration or filing. The Transferor shall cooperate fully
with the Servicer in connection with the obligations set forth above and
will execute any and all documents reasonably required to fulfill the
intent of this subsection 13.02(a).
(b) Within 30 days after the Transferor makes any change in its
name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph (a)
above materially misleading within the meaning of Section 9-402(7) of the
UCC as in effect in the State of Delaware, the Transferor shall give the
Trustee notice of any such change and shall file such financing statements
or amendments as may be necessary to continue the perfection of the Trust's
security interest in the Receivables and the proceeds thereof.
(c) Each of the Transferor and the Servicer will give the
Trustee prompt written notice of any relocation of any office from which it
services Receivables or keeps records concerning the Receivables or of its
principal executive office and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment
of any previously filed financing or continuation statement or of any new
financing statement and shall file such financing statements or amendments
as may be necessary to continue the perfection of the Trust's security
interest in the Receivables and the proceeds thereof. Each of the
Transferor and the Servicer will at all times maintain each office from
which it services Receivables and its principal executive office within the
United States of America.
(d) The Servicer will deliver to the Trustee: (i) upon each date
that any Additional Accounts are to be included in the Accounts pursuant to
Section 2.06, an Opinion of Counsel substantially in the form of Exhibit E;
and (ii) on or before March 31 of each year, beginning withMarch 31, 1992,
an Opinion of Counsel, substantially in the form of Exhibit F.
Section 13.3 Limitation on Rights of Certificateholders.
(a) The death or incapacity of any Investor Certificateholder
shall not operate to terminate this Agreement or the Trust, nor shall such
death or incapacity entitle such Certificateholder's legal representatives
or heirs to claim an accounting or to take any action or commence any
proceeding in any court for a partition or winding up of the Trust, nor
otherwise affect the rights, obligations and liabilities of the parties
hereto or any of them.
(b) No Investor Certificateholder shall have any right to vote
(except with respect to the Investor Certificateholders as provided in
Section 13.01 hereof) or in any manner otherwise control the operation and
management of the Trust, or the obligations of the parties hereto, nor
shall anything herein set forth, or contained in the terms of the
Certificates, be construed so as to constitute the Certificateholders from
time to time as members of an association; nor shall any Investor
Certificateholder be under any liability to any third person by reason of
any action taken by the parties to this Agreement pursuant to any provision
hereof.
(c) No Certificateholder shall have any right by virtue of any
provisions of this Agreement to institute any suit, action or proceeding in
city or at law upon or under or with respect to this Agreement, unless such
Certificateholder previously shall have given written notice to the
Trustee, and unless the Holders of Certificates evidencing Undivided
Interests aggregating more than 50% of the Invested Amount of any Series
which may be adversely affected but for the institution of such suit,
action or proceeding, shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee
hereunder and shall have offered to the Trustee such reasonable indemnity
as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt
of such notice, request and offer of indemnity, shall have neglected or
refused to institute any such action, suit or proceeding; it being
understood and intended, and being expressly covenanted by each
Certificateholder with every other Certificateholder and the Trustee, that
no one or more Certificateholders shall have the right in any manner
whatever by virtue or by availing itself or themselves of any provisions of
this Agreement to affect, disturb or prejudice the rights of the
Certificateholders of any other of the Certificates, or to obtain or seek
to obtain priority over or preference to any other such Certificateholder,
or to enforce any right under this Agreement, except in the manner herein
provided and for the equal, ratable and common benefit of all
Certificateholders. For the protection and enforcement of the provisions of
this Section 13.03, each and every Certificateholder and the Trustee shall
be entitled to such relief as can be given either at law or in equity.
Section 13.4 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE WITHOUT REFERENCE TO
ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF
THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 13.5 Notices. All demands, notices and communications
hereunder shall be in writing and shall be deemed to have been duly given
if personally delivered at, sent by facsimile to, sent by courier at or
mailed by registered mail, return receipt requested, to (a) in the case of
the Transferor and the Servicer, to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, with a copy to First USA, Inc.,
2001 ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇▇▇ ▇▇▇▇▇,
General Counsel, (b) in the case of the Trustee, to the Corporate Trust
Office (c) in the case of the Enhancement Provider for a particular Series,
the address, if any, specified in the Supplement relating to such Series
and (d) in the case of the Rating Agency for a particular Series, the
address, if any, specified in the Supplement relating to such Series; or,
as to each party, at such other address as shall be designated by such
party in a written notice to each other party. Unless otherwise provided
with respect to any Series in the related Supplement any notice required or
permitted to be mailed to a Certificateholder shall be given by first class
mail, postage prepaid, at the address of such Certificateholder as shown in
the Certificate Register, or with respect to any notice required or
permitted to be made to the Holders of Bearer Certificates, by publication
in the manner provided in the related Supplement. If and so long as any
Series or Class is listed on the Luxembourg Stock Exchange and such
Exchange shall so require, any Notice to Investor Certificateholders shall
be published in an authorized newspaper of general circulation in
Luxembourg within the time period prescribed in this Agreement. Any notice
so mailed within the time prescribed in this Agreement shall be
conclusively presumed to have been duly given, whether or not the
Certificateholder receives such notice.
Section 13.6 Severability of Provisions. If any one or more of
the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way
affect the validity or enforceability of the other provisions of this
Agreement or of the Certificates or rights of the Certificateholders
thereof.
Section 13.7 Assignment. Notwithstanding anything to the
contrary contained herein, except as provided in Section 8.02, this
Agreement may not be assigned by the Servicer without the prior consent of
Holders of Investor Certificates evidencing Undivided Interests aggregating
not less than 66 2/3% of the Invested Amount of each Series on a Series by
Series basis.
Section 13.8 Certificates Non-Assessable and Fully Paid. It is
the intention of the parties to this Agreement that the Certificateholders
shall not be personally liable for obligations of the Trust, that the
Undivided Interests represented by the Certificates shall be non-assessable
for any losses or expenses of the Trust or for any reason whatsoever, and
that Certificates upon authentication thereof by the Trustee pursuant to
Sections 2.01 and 6.02 are and shall be deemed fully paid.
Section 13.9 Further Assurances. The Transferor and the
Servicer agree to do and perform, from time to time, any and all acts and
to execute any and all further instruments required or reasonably requested
by the Trustee more fully to effect the purposes of this Agreement,
including, without limitation, the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
Section 13.10 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trustee, any
Enhancement Provider or the Investor Certificateholders, any right, remedy,
power or privilege hereunder, shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of
any other right, remedy, power or privilege. The rights, remedies, powers
and privileges herein provided are cumulative and not exhaustive of any
rights, remedies, powers and privileges provided by law.
Section 13.11 Counterparts. This Agreement may be executed in
two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
Section 13.12 Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the
Certificateholders and, to the extent provided in the related Supplement,
to the Enhancement Provider named therein, and their respective successors
and permitted assigns. Except as otherwise provided in this Article XIII,
no other Person will have any right or obligation hereunder.
Section 13.13 Actions by Certificateholders.
(a) Wherever in this Agreement a provision is made that an
action may be taken or a notice, demand or instruction given by Investor
Certificateholders, such action, notice or instruction may be taken or
given by any Investor Certificateholder, unless such provision requires a
specific percentage of Investor Certificateholders.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind such
Certificateholder and every subsequent holder of such Certificate issued
upon the registration of transfer thereof or in exchange therefor or in
lieu thereof in respect of anything done or omitted to be done by the
Trustee or the Servicer in reliance thereon, whether or not notation of
such action is made upon such Certificate.
Section 13.14 Rule 144A Information. For so long as any of
the Investor Certificates of any Series or any Class are "restricted
securities" within the meaning of Rule 144(a)(3) under the Securities Act,
each of the Transferor, the Servicer, the Trustee and the Enhancement
Provider for such Series agree to cooperate with each other to provide to
any Investor Certificateholders of such Series or Class and to any
prospective purchaser of Certificates designated by such an Investor
Certificateholder upon the request of such Investor Certificateholder or
prospective purchaser, any information required to be provided to such
holder or prospective purchaser to satisfy the condition set forth in Rule
144A(d)(4) under the Securities Act.
Section 13.15 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding
of the parties relating to the subject matter hereof, and all prior
understandings, written or oral, are superseded by this Agreement. This
Agreement may not be modified, amended, waived or supplemented except as
provided herein.
Section 13.16 Heading. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
[End of Article XIII]
IN WITNESS WHEREOF, the Transferor, the Servicer and the
Trustee have caused this Agreement to be duly executed by their respective
officers as of the day and year first above written.
FIRST USA BANK
Transferor and Servicer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
__________________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
Finance & Accounting
NATIONSBANK OF VIRGINIA, N.A.,
Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
___________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Trust Officer
EXHIBIT A
FORM OF EXCHANGEABLE TRANSFEROR CERTIFICATE
No. 1 One Unit
FIRST USA CREDIT CARD MASTER TRUST
ASSET BACKED CERTIFICATE
THIS CERTIFICATE WAS ISSUED PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND MAY BE SOLD
ONLY PURSUANT TO A REGISTRATION STATEMENT EFFECTIVE UNDER THE ACT OR AN
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE ACT. IN ADDITION, THE
TRANSFER OF THIS CERTIFICATE IS SUBJECT TO RESTRICTIONS SET FORTH IN THE
POOLING AND SERVICING AGREEMENT REFERRED TO HEREIN. A COPY OF THE POOLING
AND SERVICING AGREEMENT WILL BE FURNISHED TO THE HOLDER OF THIS CERTIFICATE
BY THE TRUSTEE UPON WRITTEN REQUEST.
This Certificate represents an
Undivided Interest in the
First USA Credit Card Master Trust
Evidencing an Undivided Interest in a trust, the corpus of which consists
of a portfolio of VISA and MasterCard* credit card receivables generated or
acquired by First USA Bank and other assets and interests constituting the
Trust under the Pooling and Servicing Agreement described below.
(Not an interest in or a recourse obligation of
First USA Bank or any Affiliate thereof.)
--------------
* MasterCard and VISA are registered trademarks of MsterCard
International Incorporated and of VISA USA, Inc., respectively.
This certifies that FIRST USA BANK (the "Holder") is the
registered owner of an undivided interest in a trust (the "Trust"), the
corpus of which consists of a portfolio of receivables (the "Receivables")
now existing or hereafter created under selected VISA and Mastercard credit
card accounts (the "Accounts") of First USA Bank (the "Transferor"), a
Delaware chartered banking corporation organized under the laws of the
State of Delaware, all monies due in payment of the Receivables, all
proceeds of such Receivables and Insurance Proceeds relating to the
Receivables, and the other assets and interests constituting the Trust
pursuant to a Pooling and Servicing Agreement dated as of September 1,
1992, as supplemented by any Supplement relating to a Series of Investor
Certificates (the "Pooling and Servicing Agreement"), by and between First
USA Bank, as Transferor and Servicer, and NationsBank of Virginia, N.A., as
Trustee (the "Trustee"), a summary of certain of the pertinent provisions
of which is set forth hereinbelow.
To the extent not defined herein, the capitalized terms used
herein have the meanings assigned in the Pooling and Servicing Agreement.
This Certificate is issued under and is subject to the terms, provisions
and conditions of the Pooling and Servicing Agreement, to which Pooling and
Servicing Agreement, as amended from time to time, the Holder by virtue of
the acceptance hereof assents and by which the Holder is bound.
This Certificate has not been registered or qualified under the
Securities Act of 1933, as amended, or any state securities law. No sale,
transfer or other disposition of this Certificate shall be permitted other
than in accordance with the provisions of Section 6.03, 6.09 or 7.02 of the
Pooling and Servicing Agreement.
The Receivables consist of Principal Receivables which arise
generally from the purchase of goods and services and of amounts advanced
to cardholders as cash advances, and of Finance Charge Receivables which
arise generally from Periodic Finance Charges and other fees and charges,
as more fully specified in the Pooling and Servicing Agreement.
This Certificate is the Exchangeable Transferor Certificate
(the "Certificate"), which represents an Undivided Interest in the Trust,
including the right to receive the Collections and other accounts at the
times and in the amounts specified in the Pooling and Servicing Agreement
to be paid to the Holder of the Exchangeable Transferor Certificate. The
aggregate interest represented by this Certificate at any time in the
Principal Receivables in the Trust shall not exceed the Transferor Interest
at such time. In addition to this Certificate, Series of Investor
Certificates will be issued to investors pursuant to the Pooling and
Servicing Agreement, each of which will represent an Undivided Interest in
the Trust. This Certificate shall not represent any interest in the
Investor Accounts, any Series Accounts or any Enhancement, except to the
extent provided in the Pooling and Servicing Agreement. The Transferor
Interest on any date of determination will be an amount equal to the
aggregate amount of Principal Receivables at the end of the day immediately
prior to such date of determination minus the Aggregate Invested Amount at
the end of such day.
The Servicer shall deposit all Collections in the Collection
Account as promptly as possible after the Date of Processing of such
Collections, but in no event later than the second Business Day following
such Date of Processing (except as provided below and except as provided in
any Supplement to the Pooling and Servicing Agreement). Unless otherwise
stated in any Supplement, throughout the existence of the Trust, the
Servicer shall allocate to the Holder of the Certificate an amount equal to
the product of (A) the Transferor Percentage and (B) the aggregate amount
of such Collections allocated to Principal Receivables and Finance Charge
Receivables, respectively, in respect of each Monthly Period.
Notwithstanding the first sentence of this paragraph, the Servicer need not
deposit this amount or any other amounts so allocated to the Certificate
pursuant to the Pooling and Servicing Agreement into the Collection Account
and shall pay, or be deemed to pay, such amounts as collected to the Holder
of the Certificate.
First USA Bank, as Servicer, is entitled to receive as
servicing compensation a monthly servicing fee. The portion of the
servicing fee which will be allocable to the Holder of the Certificate
pursuant to the Pooling and Servicing Agreement will be payable by the
Holder of the Certificate and neither the Trust nor the Trustee or the
Investor Certificateholders will have any obligation to pay such portion of
the servicing fee.
This Certificate does not represent a recourse obligation of,
or any interest in, the Transferor or the Servicer, and neither the
Certificates nor the Accounts or Receivables are insured or guaranteed by
the Federal Deposit Insurance Corporation or any other governmental agency.
This Certificate is limited in right of payment to certain Collections
respecting the Receivables, all as more specifically set forth hereinabove
and in the Pooling and Servicing Agreement.
Upon the termination of the Trust pursuant to Section 12.01 of
the Pooling and Servicing Agreement, the Trustee shall assign and convey to
the Holder of the Certificate (without recourse, representation or
warranty) all right, title and interest of the Trust in the Receivables,
whether then existing or thereafter created, and all proceeds thereof and
Insurance Proceeds relating thereto. The Trustee shall execute and deliver
such instruments of transfer and assignment, in each case without recourse,
as shall be reasonably requested by the Holder of the Certificate to vest
in such Holder all right, title and interest which the Trustee had in the
Receivables.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee, by manual signature, this
Certificate shall not be entitled to any benefit under the Pooling and
Servicing Agreement, or be valid for any purpose.
IN WITNESS WHEREOF, First USA Bank has caused this Certificate
to be duly executed under its official seal.
By:____________________________
Senior Vice President
[SEAL]
Attested to:
By:__________________________
Date:
CERTIFICATE OF AUTHENTICATION
This is the Exchangeable Transferor Certificate referred to in
the within-mentioned Pooling and Servicing Agreement.
NATIONSBANK OF VIRIGINA, N.A.,
as Trustee
By:_______________________________
Authorized Signatory
EXHIBIT B
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS
ASSIGNMENT No. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS, dated
as of ________ __, ____ by and between FIRST USA BANK, a Delaware chartered
banking corporation organized under the laws of the State of Delaware (the
"Bank"), to NATIONSBANK OF VIRGINIA, N.A., a national banking organized and
existing under the laws of the United States (the "Trustee") pursuant to
the Pooling and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Bank and the Trustee are parties to the Pooling
and Servicing Agreement, dated as of September 1, 1992 (hereinafter as such
agreement may have been, or may from time to time be, amended, supplemented
or otherwise modified, the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the
Bank wishes to designate Additional Accounts of the Bank to be included as
Accounts and to convey the Receivables of such Additional Accounts, whether
now existing or hereafter created, to the Trust as part of the corpus of
the Trust (as each such term is defined in the Pooling and Servicing
Agreement); and
WHEREAS, the Trustee is willing to accept such designation and
conveyance subject to the terms and conditions hereof;
NOW, THEREFORE, the Bank and the Trustee hereby agree as
follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings
when used herein, unless otherwise defined herein.
"Addition Date" shall mean, with respect to the
Additional Accounts designated hereby, ____________, ____.
"Notice Date" shall mean, with respect to the Additional
Accounts designated hereby, _________, ______ (which shall be a date
on or prior to the fifth Business Day prior to the Addition Date with
respect to additions pursuant to subsection 2.06(a) of the Pooling
and Servicing Agreement and the tenth Business Day prior to the
Addition Date with respect to additions pursuant to subsection2.06(b)
of the Pooling and Servicing Agreement).
2. Designation of Additional Accounts. The Bank shall
deliver to the Trustee not later than five Business Days after the
Addition Date, a computer file or microfiche list containing a true
and complete list of each Mastercard and VISA account which as of the
Addition Date shall be deemed to be an Additional Account, such
accounts being identified by account number and by the amount of
Receivables in such accounts as of the close of business on the
Addition Date. Such list shall be delivered five Business Days after
the date of this Agreement and shall be marked as Schedule l to this
Assignment and, as of the Addition Date, shall be incorporated into
and made a part of this Assignment.
3. Conveyance of Receivables.
The Bank does hereby transfer, assign, set-over and otherwise
convey to the Trust for the benefit of the Certificateholders, without
recourse on and after the Addition Date, all right, title and interest of
the Bank in and to the Receivables now existing and hereafter created in
the Additional Accounts designated hereby, all monies due or to become due
with respect thereto (including all Finance Charge Receivables) and all
proceeds of such Receivables and Insurance Proceeds relating thereto.
(a) In connection with such transfer, the Bank
agrees to record and file, at its own expense, a financing
statement with respect to the Receivables now existing and
hereafter created in the Additional Accounts designated hereby
(which may be a single financing statement with respect to all
such Receivables) for the transfer of accounts as defined in
Section 9.106 of the UCC as in effect in the State of Delaware
meeting the requirements of applicable state law in such manner
and such jurisdictions as are necessary to perfect the
assignment of such Receivables to the Trust, and to deliver a
file-stamped copy of such financing statement or other evidence
of such filing (which may, for purposes of this Section 3,
consist of telephone confirmation of such filing) to the
Trustee on or prior to the date of this Assignment.
(b) In connection with such transfer, the Bank
further agrees, at its own expense, on or prior to the date of
this Assignment to indicate in its computer files that
Receivables created in connection with the Additional Accounts
designated hereby have been transferred to the Trust pursuant
to this Assignment for the benefit of the Certificateholders.
4. Acceptance by Trustee. The Trustee hereby
acknowledges its acceptance on behalf of the Trust for the benefit of
the Certificateholders of all right, title and interest previously
held by the Bank in and to the Receivables now existing and hereafter
created, and declares that it shall maintain such right, title and
interest, upon the trust herein set forth, for the benefit of all
Certificateholders.
5. Representations and Warranties of the Bank. The Bank
hereby represents and warrants to the Trust as of the Addition Date:
(a) Legal Valid and Binding Obligation. This
Assignment constitutes a legal, valid and binding obligation of
the Bank enforceable against the Bank in accordance with its
terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general and the rights of
creditors of national banking associations and except as such
enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(b) Eligibility of Accounts and Receivables. Each
Additional Account designated hereby is an Eligible Account and
each Receivable in such Additional Account is an Eligible
Receivable.
(c) Selection Procedures. No selection procedures
believed by the Bank to be materially adverse to the interests
of the Investor Certificateholders were utilized in selecting
the Additional Accounts designated hereby from the available
Eligible Accounts in the Bank Portfolio.
(d) Insolvency. The Bank is not insolvent and,
after giving effect to the conveyance set forth in Section 3 of
this Assignment, will not be insolvent.
(e) Security Interest. This Assignment constitutes
either (i) a valid transfer and assignment to the Trust of all
right, title and interest of the Bank in and to Receivables now
existing and hereafter created in the Additional Accounts
designated hereby, and all proceeds (as defined in the UCC as
in effect in the State of Delaware) of such Receivables and
Insurance Proceeds relating thereto, and such Receivables and
any proceeds thereof and Insurance Proceeds relating thereto
will be held by the Trust free and clear of any Lien of any
Person claiming through or under the Bank or any of its
Affiliates except for (x) Liens permitted under subsection
2.05(b) of the Pooling and Servicing Agreement, (y) the
interest of the Holder of the Exchangeable Transferor
Certificate and (z) the Bank's right to receive interest
accruing on, and investment earnings in respect of, the Finance
Charge Account and the Principal Account as provided in the
Pooling and Servicing Agreement; or (ii) it constitutes a grant
of a security interest (as defined in the UCC as in effect in
the State of Delaware) in such property to the Trust, which is
enforceable with respect to the existing Receivables of the
Additional Accounts designated hereby, the proceeds (as defined
in the UCC as in effect in the State of Delaware) thereof and
Insurance Proceeds relating thereto upon the conveyance of such
Receivables to the Trust, and which will be enforceable with
respect to the Receivables thereafter created in respect of
Additional Accounts designated hereby, the proceeds (as defined
in the UCC as in effect in the State of Delaware) thereof and
Insurance Proceeds relating thereto, upon such creation; and
(iii) if this Assignment constitutes the grant of a security
interest to the Trust in such property, upon the filing of a
financing statement described in Section 3 of this Assignment
with respect to the Additional Accounts designated hereby and
in the case of the Receivables of such Additional Accounts
thereafter created and the proceeds (as defined in the UCC as
in effect in the State of Delaware) thereof, and Insurance
Proceeds relating to such Receivables, upon such creation, the
Trust shall have a first priority perfected security interest
in ouch property, except for Liens permitted under subsection
2.05(b) of the Pooling and Servicing Agreement.
6. Conditions Precedent. The acceptance by the Trustee
set forth in Section 4 and the amendment of the Pooling and Servicing
Agreement set forth in Section 7 are subject to the satisfaction, on
or prior to the Addition Date, of the following conditions precedent:
(a) Officer's Certificate. The Bank shall have
delivered to the Trustee a certificate of a Vice President or
more senior officer substantially in the for: of Schedule 2
hereto, certifying that (i) all requirements set forth in
Section 2.06 of the Pooling and Servicing Agreement for
designating Additional Accounts and conveying the Principal
Receivables of such Accounts, whether now existing or hereafter
created, have been satisfied and (ii) each of the
representations and warranties made by the Bank in Section 5 is
true and correct as of the Addition Date. The Trustee may
conclusively rely on such Officer's Certificate, shall have no
duty to make inquiries with regard to the matters set forth
therein, end shall incur no liability In so relying.
(b) Opinion of Counsel. The Bank shall have
delivered to the Trustee en Opinion of Counsel with respect to
the Additional Accounts designated hereby substantially in the
form of Exhibit E to the Pooling and Servicing Agreement.
(c) Additional Information. The Bank shall have
delivered to the Trustee such information as was reasonably
requested by the Trustee to satisfy itself as to the accuracy
of the representation and warranty set forth in subsection 5(d)
to this Agreement.
7. Amendment of the Pooling and Servicing Agreement. The
Pooling and Servicing Agreement is hereby amended to provide that all
references therein to the "Pooling and Servicing Agreement," to "this
Agreement" and "herein" shall be deemed from and after the Addition
Date to be a dual reference to the Pooling and Servicing Agreement as
supplemented by this Assignment. Except as expressly amended hereby,
all of the representations, warranties, terms, covenants and
conditions of the Pooling and Servicing Agreement shall remain
unamended and shall continue to be, and shall remain, in full force
and effect in accordance with its terms and except as expressly
provided herein shall not constitute or be deemed to constitute a
waiver of compliance with or a consent to noncompliance with any term
or provision of the Pooling and Servicing Agreement.
8. Counterparts. This Assignment may be executed in two
or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which
together shall constitute one and the same instrument.
9. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE,
WITHOUT REGARD TO ITS CONFLICT OF LAW PROVISIONS.
IN WITNESS WHEREOF, the undersigned have caused this Assignment
of Receivables in Additional Accounts to be duly executed and delivered by
their respective duly authorized officers on the day and year first above
written.
FIRST USA BANK,
By:________________________________
Name:
Title
NATIONSBANK OF VIRGINIA, N.A.
Trustee
By:________________________________
Name:
Title:
Schedule 1
to Assignment of
Receivables in
Additional Accounts
ADDITIONAL ACCOUNTS
Schedule 2
to Assignment of
Receivables in
Additional Acccounts
First USA Bank,
First USA Credit Card Master Trust
Officer's Certificate
____________________, a duly authorized officer of First USA
Bank, a Delaware chartered banking corporation (the "Bank"), hereby
certifies and acknowledges on behalf of the Bank that to the best of his
knowledge the following statements are true on ______, ____, (the "Addition
Date"), and acknowledges on behalf of the Bank that this Officer's
Certificate will be relied upon by ______________ as Trustee (the
"Trustee") of the First USA Credit Card Master Trust in connection with the
Trustee entering into Assignment No. of Receivables in Additional Accounts,
dated as of the Addition Date (the "Assignment"), by and between the Bank
and the Trustee, in connection with the Pooling and Servicing Agreement,
dated as of September 1, 1992, as heretofore supplemented and amended (the
"Pooling and Servicing Agreement") pursuant to which the Bank, as
Transferor and Servicer, and the Trustee are parties. The undersigned
hereby certifies and acknowledges on behalf of the Bank that:
(a) On or prior to the Addition Date, the Bank has delivered to
the Trustee the Assignment (including on acceptance by the Trustee on
behalf of the Trust for the benefit of the Investor Certificateholders) and
the Bank his Indicated in its computer files that the Receivables created
in connection with the Additional Accounts have been transferred to the
Trust and within five Business Days after the Addition Date the Bank shall
deliver to the Trustee a [computer file or] microfiche list containing a
true and complete list of all Additional Accounts identified by account
number and the aggregate amount of the Receivables in such Additional
Accounts as of the Addition Date, which computer file or microfiche list
shall be as of the date of such Assignment, incorporated into and made a
part of such Assignment and the Pooling and Servicing Agreement.
(b) Legal Valid and Binding Obligation. The Assignment
constitutes a legal, valid and binding obligation of the Bank, enforceable
against the Bank in accordance with its terms, except as ouch
enforceability may be limited by applicable bankruptcy, Insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and the rights of
creditors of national banking associations and except as such
enforceability lay be limited by general principles of equity (whether
considered in a suit at law or in equity).
(c) Eligibility of Accounts. Each Additional Account designated
Pursuant to the Assignment is on Eligible Account.
(d) Selection Procedures. No selection procedures believed by
the Bank to be materially adverse to the interests of the Investor
Certificateholders were utilized in selecting the Additional Accounts
designated hereby from the available Eligible Accounts in the Bank
Portfolio.
(e) Insolvency. The Bank is not insolvent and, after giving
effect to the conveyance set forth in Section 3 of the Assignment, will not
be insolvent.
(f) Security Interest. The Assignment constitutes either (i) a
valid transfer and assignment to the Trust of all right, title and interest
of the Bank in and to Receivables now existing and hereafter created in the
Additional Accounts designated pursuant to the Assignment, and all proceeds
(as defined in the UCC as in effect in the State of Delaware) of such
Receivables and Insurance Proceeds relating thereto, and such Receivables
and any proceeds thereof, and Insurance Proceeds relating thereto will be
held by the Trust free and clear of any Lien of any Person claiming through
or under the Transferor or any of its Affiliates except for (x) Liens
permitted under subsection 2.05(b) of the Pooling and Servicing Agreement,
(y) the interest of the Bank as holder of the Exchangeable Transferor
Certificate and (z) the Bank's right to receive interest accruing on, and
investment earnings in respect of, the Finance Charge Account and the
Principal Account [or any Series Account] as provided in the Pooling and
Servicing Agreement and any Supplement; or (ii) a grant of a security
interest (as defined in the UCC as in effect in the State of Delaware) in
such property to the Trust, which is enforceable with respect to the
existing Receivables of the Additional Accounts designated pursuant to the
Assignment, the proceeds (as defined in the UCC as in effect in the State
of Delaware) thereof and Insurance Proceeds relating thereto upon the
conveyance of such Receivables to the Trust, and which will be enforceable
with respect to the Receivables thereafter created in respect of Additional
Accounts designated pursuant to the Assignment, the proceeds (05 defined in
the UCC as in effect in the State of Delaware) thereof and Insurance
Proceeds relating thereto, upon such creation; and (iii) if the Assignment
constitutes the grant of a security interest to the Trust in such property,
upon the filing of a financing statement described in Section 3 of the
Assignment with respect to the Additional Accounts designated pursuant to
the Assignment and in the case of the Receivables of such Additional
Accounts thereafter created and the proceeds (as defined in the UCC as in
effect in the State of Delaware) thereof, and Insurance Proceeds relating
to such Receivables, upon such creation, the Trust shall have a first
priority perfected security Interest in such property, except for Liens
permitted under subsection 2.05(b) of the Pooling and Servicing Agreement.
(g) Requirements off Pooling and Servicing Agreement. All
requirements set forth in Section 2.06 of the Pooling and Servicing
Agreement for designating Additional Accounts and conveying the Principal
Receivables of such Accounts, whether now existing or hereafter created,
have been satisfied.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Pooling and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand this
___________ day of ________ ____.
FIRST USA BANK,
By:______________________________
Name:
Title:
EXHIBIT C
FORM OF MONTHLY SERVICER'S CERTIFICATE
FIRST USA BANK
----------------------------------
FIRST USA CREDIT CARD MASTER TRUST
-----------------------------------
The undersigned, a duly authorized representative of First USA
Bank, (the "Bank"), as Servicer pursuant to the Pooling and Servicing
Agreement dated as of September 1, 1992 (the "Pooling and Servicing
Agreement") by and between the Bank and NationsBank of Virginia, N.A., as
Trustee, does hereby certify as follows:
1. Capitalized terms used in this Certificate have their
respective meanings set forth in the Pooling and Servicing Agreement;
provided, that the "preceding Monthly Period" shall mean the Monthly
Period immediately preceding the calendar month in which this
Certificate is delivered. This Certificate is delivered pursuant to
subsection 3.04(b) of the Pooling and Servicing Agreement. References
herein to certain sections and subsections are references to the
respective sections and subsections of the Pooling and Servicing
Agreement.
2. The Bank is Servicer under the Pooling and Servicing
Agreement.
3. The undersigned is a Servicing Officer.
4. The date of this Certificate is a Determination Date
under the Pooling and Servicing Agreement.
5. The aggregate amount of Collections
processed during the preceding Monthly Period was
equal to................................................ $___________
6. The aggregate amount of Receivables
processed as of the end of the last day of the
preceding Monthly Period was equal to................... $___________
7. The Aggregate Investor Percentage of
Collections of Finance Charge Receivables processed
by the Servicer during the preceding Monthly Period
was equal to............................................ $___________
8. The Aggregate Investor Percentage of
Collections of Principal Receivables processed by
the Servicer during the current month is equal to....... $___________
9. The aggregate amount of Interchange
to be deposited in the Finance Charge Account on
the Transfer Date of the current month is equal to...... $___________
10. To the knowledge of the undersigned, there are no Liens on
any Receivables in the Trust except as described below:
[If applicable, insert "None".]
IN WITNESS WHEREOF, the undersigned has duly executed and
delivered this certificate this ___ day of ________________, ____.
FIRST USA BANK,
Servicer
By:_______________________________
Name:
Title:
Schedule To Monthly
Servicer's Certificate*
FIRST USA BANK
----------------------------------
FIRST USA CREDIT CARD MASTER TRUST
----------------------------------
* A separate schedule is to be attached for each
Series, with appropriate changes and additions
to reflect the specifics of the related Series
Supplement
EXHIBIT D
FORM OF ANNUAL SERVICER'S CERTIFICATE
FIRST USA BANK
----------------------------------
FIRST USA CREDIT CARD MASTER TRUST
----------------------------------
The undersigned, a duly authorized representative of First USA
Bank (the "Bank"), as Servicer pursuant to the Pooling and Servicing
Agreement dated as of September 1, 1992 (the "Pooling and Servicing
Agreement") by and between the Bank and NationsBank of Virginia, N.A., as
trustee, (the "Trustee") does hereby certify that:
1. The Bank is Servicer under the Pooling and Servicing
Agreement.
2. The undersigned is duly authorized pursuant to the Pooling
and Servicing Agreement to execute and deliver this Certificate to the
Trustee.
3. This Certificate is delivered pursuant to Section 3.05 of
the Pooling and Servicing Agreement.
4. A review of the activities of the Servicer during (the
period from the Closing Date until) (the twelve month period ended) June
30, 19__ was conducted under our supervision.
5. Based on such review, the Servicer has, to the best of our
knowledge, fully performed all its obligations under the Pooling and
Servicing Agreement throughout such period and no default in the
performance of such obligations has occurred or is continuing except as set
forth in paragraph 6 below.
6. The following is a description of each default in the
performance of the Servicer's obligations under the provisions of the
Pooling and Servicing Agreement, including any Supplement, known to us to
have been made during such period which sets forth in detail (i) the nature
of each such default, (ii) the action taken by the Servicer, If any, to
remedy each such default and (iii) the current status of each such default:
[If applicable, insert "None."]
IN WITNESS WHEREOF, the undersigned has duly executed this
certificate this ___ day of ________, ____.
_____________________________________
Name:
Title: Vice President
EXHIBIT E
FORM OF OPINION OF COUNSEL REGARDING ADDITIONAL ACCOUNTS
PROVISIONS TO BE INCLUDED IN OPINION OF COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 2.06(c)(vi)
OF THE POOLING AND SERVICING AGREEMENT
The opinions set forth below may be subject to certain
qualifications, assumptions, limitations and exceptions taken or made in
the opinion of the Transferor's counsel with respect to similar matters
delivered on the Closing Date. Such counsel may rely as to factual matters
on certificates of officers of the Transferor and the Servicer.
(i) The Assignment has been duly authorized, executed and
delivered by the Transferor and constitutes the valid and legally binding
agreement of the Transferor, enforceable against the Transferor in
accordance with its terms subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditor's rights and to general
equity principles.
(ii) The provisions of the Pooling and Servicing Agreement are
effective to create, in favor of the Trustee for the benefit of the Holders
of the Certificates, a valid security interest in the Receivables and the
proceeds thereof. Such security interest constitutes a first priority
perfected security interest in such Receivables and the proceeds thereof.
No other security interest of any creditor of the Transferor is equal or
prior to the security interest of the Trustee in such Receivables.
(iii) No filing or other action, other than the filing of a
Uniform Commercial Code financing statement in the recording offices in the
Relevant UCC State is necessary to perfect or maintain the security
interest in the Receivables and the proceeds thereof, except that (a)
appropriate Uniform Commercial Code continuation statements must be filed
within the period of six months prior to the expiration of five years from
the date of the original filing, (b) if the Transferor changes its name,
identity or corporate structure, appropriate Uniform Commercial Code
financing statements must be filed prior to the expiration of four months
after the Transferor changes its name, identity or corporate structure and
(c) if the Transferor changes its chief executive office or principal place
of business to a jurisdiction other than the State of New York, such
security interest must be perfected in such jurisdiction within four months
of the date on which the change occurs (or earlier, if perfection under the
laws of such jurisdiction would have otherwise ceased as set forth in
clause (a) above).
EXHIBIT F
FORM OF ANNUAL OPINION OF COUNSEL
The opinion set forth below, which is to be delivered pursuant
to subsection 13.02(d)(ii) of the Pooling and Servicing Agreement, may be
subject to certain qualifications, assumptions, limitations and exceptions
taken or made in the opinion of counsel delivered on the Closing Date with
respect to similar matters.
No filing or other action, other than such filing or action
described in such opinion, is necessary from the date of such opinion
through March 1 of the following year to continue the perfected status of
the interest of the Trust in the collateral described in the financing
statements referred to in such opinion.
EXHIBIT G
FORM OF REASSIGNMENT OF RECEIVABLES
REASSIGNMENT NO. __ OF RECEIVABLES, dated as of ________ __,
____, by and between FIRST USA BANK, a Delaware chartered banking
corporation organized under the laws of the State of Delaware (the "Bank"),
and NATIONSBANK OF VIRGINIA, N.A., a national banking association organized
under the laws of the United States (the "Trustee") pursuant to the Pooling
and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Bank and the Trustee are parties to the Pooling
and Servicing Agreement, dated as of September 1, 1992 (hereinafter as such
agreement may have been, or may from time to time be, amended, supplemented
or otherwise modified, the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the
Bank wishes to remove all Receivables from certain designated Accounts of
the Bank (the "Removed Accounts") and to cause the Trustee to reconvey the
Receivables of such Removed Accounts, whether now existing or hereafter
created, from the Trust to the Bank (as each such term is defined in the
Pooling and Servicing Agreement); and
WHEREAS, the Trustee is willing to accept such designation and
to reconvey the Receivables in the Removed Accounts subject to the terms
and conditions hereof.
NOW THEREFORE, the Bank and the Trustee hereby agree as
follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings
when used herein, unless otherwise defined herein.
"Removal Date" shall mean, with respect to the Removed
Accounts designated hereby, __________, ____.
"Removal Notice Date" shall mean, with respect to the
Removed Accounts designated hereby, ______, ______ (which shall be a
date on or prior to the fifth Business Day prior to the Removal
Date).
2. Designation of Removed Accounts. The Bank shall
deliver to the Trustee, not later than five Business Days after the
Removal Date, a computer file or microfiche list containing a true
and complete list of each Mastercard and VISA account which as of the
Removal Date shall be deemed to be a Removed Account, such accounts
being identified by account number and by the aggregate amount of
Receivables in such accounts as of the close of business on the
Removal Date. Such list shall be marked as Schedule l to this
Reassignment and shall be incorporated into and made a part of this
Reassignment as of the Removal Date.
3. Conveyance of Receivables.
(a) The Trustee does hereby reconvey to the Bank, without
recourse on and after the Removal Date, all right, title and interest
of the Trust in and to the Receivables now existing and hereafter
created in the Removed Accounts designated hereby, all monies due or
to become due with respect thereto (including all Finance Charge
Receivables), all proceeds (as defined in Section 9-306 of the UCC as
in effect in the State of Delaware) of such Receivables and Insurance
Proceeds relating thereto.
(b) In connection with such transfer, the Trustee agrees
to execute and deliver to the Bank on or prior to the date of this
Reassignment, a termination statement with respect to the Receivables
now existing and hereafter created in the Removed Accounts designated
hereby (which may be a single termination statement with respect to
all such Receivables) evidencing the release by the Trust of its Lien
on the Receivables in the Removed Accounts, and meeting the
requirements of applicable state law, in such manner and such
jurisdictions as are necessary to remove such Lien.
4. Representations and Warranties of the Bank. The Bank hereby
represents and warrants to the Trust as of the Removal Date:
(a) Legal valid and Binding Obligation. This
Reassignment constitutes a legal, valid and binding obligation
of the Bank enforceable against the Bank in accordance with its
terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect affecting the
enforcement of creditors' rights in general and the rights of
creditors of national banking associations and except as such
enforceability may be limited by general principles of equity
(whether considered in a suit at law or In equity).
(b) Selection Procedures. No selection procedures
believed by the Bank to be materially adverse to the interests
of the Investor Certificateholders were utilized in selecting
the Removed Accounts designated hereby.
5. Conditions Precedent. The amendment of the Pooling and
Servicing Agreement set forth in Section 6 hereof is subject to the
satisfaction, on or prior to the Removal Date, of the following
condition precedent:
The Bank shall have delivered to the Trustee an
Officer's Certificate certifying that (i) as of the Removal
Date, all requirements set forth in Section 2.07 of the Pooling
and Servicing Agreement for designating Removed Accounts and
reconveying the Receivables of such Removed Accounts, whether
now existing or hereafter created, have been satisfied, and
(ii) each of the representations and warranties made by the
Bank in Section 4 hereof is true and correct as of the Removal
Date. The Trustee may conclusively rely on such Officer's
Certificate, shall have no duty to make inquiries with regard
to the matters set forth therein and shall incur no liability
in so relying.
6. Amendment of the Pooling and Servicing Agreement. The
Pooling and Servicing Agreement is hereby amended to provide that all
references therein to the "Pooling and Servicing Agreement", to "this
Agreement" and "herein" shall be deemed from and after the Removal
Date to be a dual reference to the Pooling and Servicing Agreement as
supplemented by this Reassignment. Except as expressly amended
hereby, all of the representations, warranties, terms, covenants and
conditions of the Pooling and Servicing Agreement shall remain
unamended and shall continue to be, and shall remain, in full force
and effect in accordance with its terms and except as expressly
provided herein shall not constitute or be deemed to constitute a
waiver of compliance with or a consent to non-compliance with any
term or provision of the Pooling and Servicing Agreement.
7. Counterparts. This Reassignment may be executed in two
or more counterparts, and by different parties on separate
counterparts, each of which shall be an original, but all of which
together shall constitute one and the same instrument.
8. Governing Law. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE
TO ITS CONFLICT OF LAW PROVISIONS.
IN WITNESS WHEREOF, the undersigned have caused this
Reassignment of Receivables to be duly executed and delivered by their
respective duly authorized officers on the day and year first above
written.
FIRST USA BANK
By: ______________________________
Name:
Title:
NATIONSBANK OF VIRGINIA, N.A.
Trustee
By: _______________________________
Name:
Title:
Schedule 1
to Reassignment
of Receivables
REMOVED ACCOUNTS
EXHIBIT H
FORM OF RECONVEYANCE OF RECEIVABLES
RECONVEYANCE of RECEIVABLES, dated as of _____ __ , 19__ by and
between First USA Bank, a Delaware chartered banking corporation organized
under the laws of the State of Delaware (the "Transferor"), and NationsBank
of Virginia, N.A., a national banking association organized and existing
under the laws of the United States (the "Trustee") pursuant to the Pooling
and Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Transferor and the Trustee are parties to the
Pooling and Servicing Agreement dated as of September 1, 1992 (hereinafter
as such agreement may have been, or may from time to time be, amended,
supplemented or otherwise modified, the "Pooling and Servicing Agreement");
WHEREAS, pursuant to the Pooling and Servicing Agreement, the
Transferor wishes to cause the Trustee to reconvey all of the Receivables
and proceeds thereof, whether now existing or hereafter created, from the
Trust to the Transferor pursuant to the terms of Section 12.04 of the
Pooling and Servicing Agreement upon termination of the Trust pursuant to
subsection 12.01(a) of the Pooling and Servicing Agreement (as each such
term is defined in the Pooling and Servicing Agreement);
WHEREAS, the Trustee is willing to reconvey the Receivables
subject to the terms and conditions hereof;
NOW THEREFORE, the Transferor and the Trustee hereby agree as
follows:
1. Defined Terms. All terms defined in the Pooling and
Servicing Agreement and used herein shall have such defined meanings when
used herein, unless otherwise defined herein.
"Reconveyance Date" shall mean _____ __, 19__.
2. Return of Lists of Accounts. The Trustee shall deliver to
the Transferor, not later than three Business Days after the Reconveyance
Date, each and every computer file or microfiche list of Accounts delivered
to the Trustee pursuant to the terms of the Pooling and Servicing
Agreement.
3. Conveyance of Receivables. (a) The Trustee does hereby
reconvey to the Transferor, without recourse, on and after the Reconveyance
Date, all right, title and interest of the Trust in and to each and every
Receivable now existing and hereafter created in the Accounts, all monies
due or to become due with respect thereto (including all Finance Charge
Receivables, all proceeds (as defined in Section 9-306 of the UCC as in
effect in the State of Delaware) of such receivables and Insurance Proceeds
relating to such Receivables, except for amounts, if any, held by the
Trustee pursuant to subsection 12.03(b) of the Pooling and Servicing
Aqreement.
(b) In connection with such transfer, the Trustee agrees
to execute and deliver to the Transferor on or prior to the date of this
Reconveyance, such UCC termination statements as the Transferor may
reasonably request, evidencing the release by the Trust of its lien on the
Receivables.
4. Counterparts. This Reconveyance may be executed in two or
more counterparts (and by different parties on separate counterparts), each
of which shall be an original, but all of which together shall constitute
one and the same instrument.
5. Governing Law. THIS RECONVEYANCE SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS.
IN WITNESS WHEREOF, the undersigned have caused this
Reconveyance of Receivables to be duly executed and delivered by their
respective duly authorized officers on the day and year first above
written.
FIRST USA BANK,
By _________________________________
Title:
NATIONSBANK OF VIRGINIA, N.A.
Trustee
By _________________________________
Title:
SCHEDULE 1
LIST OF ACCOUNTS
Delivered to Trustee only
[Deemed Incorporated]
FIRST USA BANK
as Transferor and Servicer
and
NATIONSBANK OF VIRGINIA, N.A.
as Trustee on behalf of the Investor Certificateholders
First USA Credit Card Master Trust
FIRST AMENDMENT
Dated as of April 14, 1994
to
POOLING AND SERVICING AGREEMENT
Dated as of September 1, 1992
FIRST AMENDMENT to POOLING AND SERVICING AGREEMENT, dated as of
April 14, 1994 (the "Amendment") by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively) and NATIONSBANK OF VIRGINIA, N.A., as Trustee
(the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered the Pooling and Servicing Agreement dated
as of September 1, 1992 (the "Master Pooling and Servicing Agreement"),
between the Transferor, the Servicer and the Trustee for the issuance by
the First USA Credit Card Master Trust (the "Trust") of the Investor
Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from the Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to waive the provision of
the Master Pooling and Servicing Agreement specified below in the following
manner.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Waiver of proviso in Section 2.06(b). In connection
with the Transferor's delivery of Receivables in Additional Accounts
pursuant to Assignment No. 4 of Receivables in Additional Accounts, the
Servicer, the Transferor and the Trustee hereby waive the restriction in
the fifth and sixth lines of Section 2.06(b) of the Master Pooling and
Servicing Agreement.
SECTION 2.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement as so amended by this First Amendment shall be
read, taken and construed as one and the same instrument.
SECTION 3.1 No Waiver of Past Default. The execution and
delivery of this Amendment shall not constitute a waiver of a past default
under the Master Pooling and Servicing Agreement or impair any right
consequent thereon.
SECTION 4.1 Counterparts. The Amendment may be executed
simultaneously in any number of counterparts, each of which counterparts
shall be deemed to be an original, and all of which counterparts shall
constitute one and the same instrument.
SECTION 5.1 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, AND THE OBLIGATIONS,
RIGHTS, AND REMEDIES OF THE PARTIES UNDER THIS FIRST AMENDMENT SHALL BE
DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 6.1 Effective Date. This First Amendment shall become
effective as of the day and year first above written.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this First Amendment to be duly executed by their respective
officers, thereunto duly authorized, as of the day and year first above
written.
FIRST USA BANK
as Transferor and Servicer
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Senior Vice President
NATIONSBANK OF VIRGINIA, N.A.
as Trustee
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Assistant Vice President
SECOND AMENDMENT TO THE
POOLING AND SERVICING AGREEMENT
SECOND AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
May 4, 1995 (this "Amendment"), by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and NATIONSBANK, N.A., as Trustee (the
"Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (the "Master Pooling and Servicing Agreement"),
between the Transferor, the Servicer and the Trustee for the issuance by
the First USA Credit Card Master Trust (the "Trust") of the Investor
Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from each Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency,
a letter confirming the current rating of each outstanding Series and (ii)
an Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of
this Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee
are executing and delivering this Amendment in order to amend the
provisions of the Master Pooling and Servicing Agreement in the manner set
forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Defined Terms.
The preamble to the definition of "Eligible Account" is hereby
amended by inserting the phrase "or Addition Date" immediately after the
words "Addition Cut Off Date."
Subsection (f) of the definition of "Eligible Account" is
hereby amended by deleting subsection (f) thereof and substituting in its
place the following subsection (f):
"(f) which has not been sold or pledged to any other party and
which does not have receivables which, in the case of Accounts identified
on the Cut Off Date, have been sold or pledged to any other party or, in
the case of Accounts identified on any Addition Cut Off Date, are at the
time of transfer to the Trust sold or pledged to any other party;"
Subsection (d) of the definition of "Eligible Receivable" is
hereby amended by deleting subsection (d) thereof and substituting in its
place the following subsection (d):
"(d) as to which, as of the Closing Date, or in the case of
Additional Receivables as of the relevant Addition Date, the Transferor or
the Trust had good and marketable title thereto, free and clear of all
Liens arising under or through the Transferor or any of its Affiliates
(other than Liens permitted pursuant to subsection 2.05(b));"
SECTION 2.1 Trustee Name Change. Wherever used in the Pooling
Agreement, all references to the name of the Trustee as "NationsBank of
Virginia, N.A." are hereby amended to read "NationsBank, N.A."
SECTION 3.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 4.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 5.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 6.1 GOVERNING LAW. THIS AMENDMENT 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.
IN WITNESS WHEREOF, the Servicer, the Transferor and the
Trustee have caused this Second Amendment to be executed by their
respective officers, thereunto duly authorized, as of the day and year
first above written.
FIRST USA BANK
as Transferor and Servicer
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title:Senior Vice President
NATIONSBANK, N.A.
Trustee
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Vice President
THIRD AMENDMENT TO THE
POOLING AND SERVICING AGREEMENT
THIRD AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
November 3, 1995 (this "Amendment"), by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and NATIONSBANK, N.A., as Trustee (the
"Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (the "Master Pooling and Servicing Agreement"),
between the Transferor, the Servicer and the Trustee for the issuance by
the First USA Credit Card Master Trust (the "Trust") of the Investor
Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from each Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency,
a letter confirming the current rating of each outstanding Series and (ii)
an Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the
execution of this Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee
are executing and delivering this Amendment in order to amend the
provisions of the Master Pooling and Servicing Agreement in the manner set
forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Defined Terms. Section 1.01 of the Master Pooling
and Servicing Agreement is hereby amended by deleting the defined term
listed below and substituting therefor the following definition:
"Determination Date" shall mean, unless otherwise specified in
any Supplement for the related Series, the first Business Day
on or before the eighth calendar day prior to each Distribution
Date.
SECTION 2.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 3.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 4.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 5.1 GOVERNING LAW. THIS AMENDMENT 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.
IN WITNESS WHEREOF, the Servicer, the Transferor and the
Trustee have caused this Amendment to be executed by their respective
officers, thereunto duly authorized, as of the day and year first above
written.
FIRST USA BANK
as Transferor and Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
NATIONSBANK, N.A.
as Trustee
By: /s/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Asst. Vice President
FOURTH AMENDMENT TO THE
POOLING AND SERVICING AGREEMENT
FOURTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
January 26, 1996 (this "Amendment") , by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as Trustee
(the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (the "Master Pooling and Servicing Agreement") ,
between the Transferor, the Servicer and the Trustee for the issuance by
the First USA Credit Card Master Trust (the "Trust") of the Investor
Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from each Rating Agency then rating the investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Mast"er Pooling and Servicing Agreement.
SECTION 1.1 Defined-Terms. Section 1.01 of the Master Pooling
and Servicing Agreement is hereby amended by deleting the defined term
"Addition Cut Off Date" and substituting therefor the following defined
term:
"Addition Cut Off Date" shall mean each date as of which
Additional Accounts shall be selected to be included as Accounts
pursuant to Section 2.06; provided, however, that in no event shall an
Addition Cut Off Date be greater than ten months prior to the related
Addition Date.
SECTION 2.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 3.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 4.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 5.1 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH TEE LAWS OF TH33 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.
IN WITNESS the Servicer, the Transferor and the Trustee have
caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK
as Transferor and Servicer
By:/s/ ▇▇▇▇▇▇. ▇▇▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Senior Vice President
THE BANK OF NEW YORK (DELAWARE)
as Trustee
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Assistant Vice President
FIFTH AMENDMENT TO THE
POOLING AND SERVICING AGREEMENT
FIFTH AMENDMENT TO THE POOLING AND SERVICING AGREEMENT dated as
of June 28, 1996 (this "Amendment") , by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as
Trustee (the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (as amended and supplemented through the date
hereof, the "Master Pooling and Servicing Agreement") , between the
Transferor, the Servicer and the Trustee for the issuance by the First USA
Credit Card Master Trust (the "Trust") of the Investor Certificates and the
Exchangeable Transferor Certificate;
WHEREAS, Section 13. 01 (a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received W from each Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii)
an Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Defined Terms.
a) Section 1.01 of the Master Pooling and Servicing Agreement is
hereby amended by deleting the definition of the term "Collections" and
substituting therefor the following definition:
"Collections" shall mean all payments (including Recoveries
of Principal Receivables or Finance Charge Receivables and Insurance
Proceeds) received by the Servicer in respect of the Receivables, in
the form of cash, checks, wire transfers, ATM transfers or other form
of payment in accordance with the Credit Card Agreement in effect from
time to time on any Receivables. A Collection processed on an Account
in excess of the aggregate amount of Receivables in such Account as of
the Date of Processing of such Collection shall be deemed to be a
payment in respect of Principal Receivables to the extent of such
excess. Collections with respect to any Monthly Period shall include
the amount of Interchange (if any) allocable to any Series of
Certificates pursuant to any Supplement with respect to such Monthly
Period (to the extent received by the Trust and deposited into the
Finance Charge Account or any Series Account as the case may be, on
the Transfer Date following such Monthly Period), to be applied as if
such Collections were Finance Charge Receivables for all purposes.
Collections with respect to any Monthly Period shall also include the
amount deposited by the Transferor into the Finance Charge Account (or
Series Account if provided in any Supplement) pursuant to Section
2.08. Collections of Recoveries will be treated as Collections of
Principal Receivables; provided, however, that to the extent the
aggregate amount of Recoveries received with respect to any Monthly
Period exceeds the aggregate amount of Principal Receivables (other
than Ineligible Receivables) in Defaulted Accounts on the day such
Account became a Defaulted Account for each day in such Monthly
Period, the amount of such excess shall be treated as Collections of
Finance Charge Receivables.
(b) Section 1.01 of the Master Pooling and Servicing Agreement is
hereby further amended by deleting the definition of the term "Default
Amount" and substituting therefor the following definition:
"Default Amount" shall mean for any Monthly Period, an
amount (which shall not be less than zero) equal to (a) the aggregate
amount of Principal Receivables (other than Ineligible Receivables) in
Defaulted Accounts on the day such Account became a Defaulted Account
for each day in such Monthly Period minus (b) the aggregate amount of
Recoveries received in such Monthly Period.
(c) Section 1.01 of the Master Pooling and Servicing Agreement is
hereby further amended by adding the following definition of the term
"Recoveries" after the definition of the term "Record Date":
"Recoveries" shall mean all amounts received by the
Transferor or the Servicer with respect to Receivables in Defaulted
Accounts, including amounts received by the Transferor or the Servicer
from the purchaser or transferee with respect to the sale or other
disposition of Receivables in Defaulted Accounts and all rights (but
not obligations) under any agreement to sell or transfer such
Receivables (including any rights to payment from any purchaser or
transferee in connection with such sale or other disposition) . In the
event of any such sale or disposition of such Receivables, Recoveries
shall not include amounts received by the purchaser or transferee of
such Receivables but shall be limited to amounts received by the
Transferor or the Servicer from the purchaser or transferee and all
rights of the Transferor and the Servicer against the purchaser or
transferee, including any right to payment.
(d) Section 1.01 of the Master Pooling and Servicing Agreement is
hereby further amended by deleting the definition of the term "Trust" and
substituting therefor the following definition:
"Trust" shall mean the trust created by this Agreement, the
corpus of which shall consist of the Receivables now existing or
hereafter created and all monies due or to become due with respect
thereto, all proceeds (as defined in Section 9-306 of the TJCC as in
effect in the State of Delaware) including, without limitation,
Recoveries of the Receivables and Insurance Proceeds relating thereto,
the right to receive certain amounts paid or payable as Interchange
(if provided for in any Supplement) , such funds as from time to time
are deposited in the Collection Account, the Finance Charge Account,
the Principal Account, the Distribution Account and any Series Account
and the rights to any Enhancement with respect to any Series.
SECTION 2.1 Transfer of Ineligible Receivables. Section 2.04 of
the Master Pooling and Servicing Agreement is hereby amended by deleting
the word "ouch" in the fourth sentence of subsection (d) (iii) thereof and
replacing it with the word "such".
SECTION 3.1 Transfer of Defaulted Accounts. Section 4.03 of the
Master Pooling and Servicing Agreement is hereby amended by deleting
subsection (d) thereof and replacing it with the following:
(d) Transfer of Defaulted Accounts. Unless otherwise
provided in any Supplement, in consideration of receiving Recoveries
as provided in Section 4. 03 (g) hereof , on the date on which an
Account becomes a Defaulted Account, the Trust shall automatically and
without further action or consideration be deemed to transfer, set
over, and otherwise convey to the Transferor, without recourse,
representation or warranty, all the right, title and interest of the
Trust in and to the Receivables in such Defaulted Account, all monies
due or to become due with respect thereto, all proceeds thereof
allocable to the Trust with respect to such Receivables, excluding
Recoveries relating thereto, which shall remain an asset of the Trust.
SECTION 4.1 Recoveries. Section 4.03 of the Master Pooling and
Servicing Agreement is hereby amended by adding a new subsection (g)
thereto which shall read in its entirety as follows:
(g) Recoveries. On or prior to the earliest Determination
Date in each Monthly Period, the Transferor shall notify the Servicer
of the amount of Recoveries to be included as Collections with respect
to the preceding Monthly Period. On the earliest Transfer Date in each
Monthly Period, the Transferor shall pay to the Servicer and the
Servicer shall deposit into the Collection Account, the amount of
Recoveries to be so included as Collections with respect to the
preceding Monthly Period; provided, however, that such deposit need-
be made only to the extent that such funds are required to be retained
in the Principal Account or the Finance Charge Account for the benefit
of any Series pursuant to the provisions of Article IV of this
Agreement or any Series Supplement.
SECTION 5.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 6.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 7.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 8.1 GOVERNING LAW. THIS AMENDMENT SHALL BE CONSTRUED IN
ACCORDANCE WIT33 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 9.1 Effective Date. The provisions of this Amendment
shall take effect as of the opening of business on July 1, 1996
(THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK
as Transferor and Servicer
By:/s/ ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
_____________________________
Name: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
_____________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
SIXTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
SIXTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
August 27, 1997 (this "Amendment"), by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as Trustee
(the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (as amended and supplemented through the date
hereof, the "Master Pooling and Servicing Agreement"), between the
Transferor, the Servicer and the Trustee for the issuance by the First USA
Credit Card Master Trust (the "Trust") of the Investor Certificates and the
Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from each Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Definitions. Section 1.01 of the Master Pooling and
Servicing Agreement is hereby amended by deleting the definition of
"Business Day" and substituting therefor the following definition:
"Business Day" shall mean any day other than a Saturday, a Sunday
or a day on which banking institutions in New York, New York, Newark,
Delaware or Wilmington, Delaware (or, with respect to any Series, any
additional city specified in the related Supplement) are authorized or
obligated by law or executive order to be closed.
SECTION 2.1 Collections. Section 4.03(a) of the Master Pooling
and Servicing Agreement is hereby amended by deleting the third paragraph
thereof and substituting therefor the following paragraph:
Notwithstanding anything in this Agreement to the contrary, for
so long as, and only so long as, the Transferor shall remain the
Servicer hereunder, and (a)(i) the Servicer provides to the
Trustee a letter of credit or other form of Enhancement covering
the risk of collection of the Servicer, and (ii) the Transferor
shall not have received a notice from any Rating Agency that such
a letter of credit or other form of Enhancement would result in
the lowering of such Rating Agency's then-existing rating of the
Investor Certificates, or (b) the Servicer shall have and
maintain a certificate of deposit or short-term deposit rating of
P-1 by ▇▇▇▇▇'▇ and of A-1 by Standard & Poor's and deposit
insurance provided by BIF or SAIF, the Servicer need not deposit
Collections into the Collection Account, the Principal Account,
the Finance Charge Account or any Series Account, as provided in
any Supplement, or make payments to the Holder of the
Exchangeable Transferor Certificate, as provided in Article IV,
but may make such deposits, payments and withdrawals on each
Transfer Date in an amount equal to the net amount of such
deposits, payments and withdrawals which would have been made but
for the provisions of this paragraph.
SECTION 3.1 Addition of Accounts. Section 2.06(b) of the Master
Pooling and Servicing Agreement is hereby amended by deleting the text
thereof and replacing it with the following:
In addition to its obligation under subsection 2.06(a), the
Transferor may, but shall not be obligated to, designate from
time to time Additional Accounts of the Transferor to be included
as Accounts.
SECTION 4.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 5.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 6.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 7.1 GOVERNING LAW. THIS AMENDMENT 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.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK,
as Transferor and Servicer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
____________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
______________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
SEVENTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
SEVENTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
April 15, 1998 (this "Amendment"), by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as Trustee
(the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (as amended and supplemented through the date
hereof, the "Master Pooling and Servicing Agreement"), between the
Transferor, the Servicer and the Trustee for the issuance by the First USA
Credit Card Master Trust (the "Trust") of the Investor Certificates and the
Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from each Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1.1 Amendments.
(a) Definition of Business Day. Section 1.01 of the Master
Pooling and Servicing Agreement is hereby amended by deleting the
definition of "Business Day" and replacing it with the following:
""Business Day" shall mean any day other than a Saturday, a
Sunday or a day on which banking institutions are authorized or
obligated by law or executive order to be closed in (a) New York, New
York, (b) Newark, Delaware, (c) with respect to any Series for which
payments to any Certificateholders are to be made outside of the
United States, the city or cities in which the Paying Agents for such
Series located outside of the United States have their principal place
of business, and (d) with respect to any Series, any additional city
specified in the related Supplement."
(b) Annual Servicer's Certificate. Section 3.05 of the
Master Pooling and Servicing Agreement is hereby amended by deleting the
text thereof and replacing it with the following:
"Section 3.05 Annual Servicer's Certificate. Within four
months after the end of each fiscal year of the Servicer, the Servicer
will deliver, as provided in Section 13.05, to the Trustee, any
Enhancement Provider and the Rating Agency, an Officer's Certificate
substantially in the form of Exhibit D stating that (a) a review of
the activities of the Servicer during the prior twelve-month period
(or, with respect to the report to be delivered on or before April 30,
1998, the six-month period from July 1, 1997 through December 31,
1997) and of its performance under this Agreement was made under the
supervision of the officer signing such certificate, (b) to the best
of such officer's knowledge, based on such review, the Servicer has
fully performed all its obligations under this Agreement throughout
such period, or, if there has been a default in the performance of any
such obligation, specifying each such default known to such officer
and the nature and status thereof and (c) the report required to be
delivered to the Servicer by the independent certified public
accountants pursuant to subsection 3.06(b) of this Agreement has been
delivered to the Servicer, and such report contains no exceptions,
except for such exceptions as the independent certified public
accountants believe to be immaterial and such other exceptions as may
be set forth in such report. Such Officer's Certificate shall specify
all exceptions listed in the independent certified public accountants'
report referred to in clause (c) above. A copy of such certificate
may be obtained by any Investor Certificateholder by a request in
writing to the Trustee addressed to the Corporate Trust Office."
(c) Annual Independent Accountants' Servicing Report.
Section 3.06 of the Master Pooling and Servicing Agreement is hereby
amended by deleting the text thereof and replacing it with the following:
"Section 3.06 Annual Independent Accountants' Servicing
Report.
(a) Within four months after the end of each fiscal year of
the Servicer, the Servicer shall cause a firm of nationally recognized
independent public accountants (who may also render other services to
the Servicer or the Transferor) to furnish a report to the Trustee,
any Enhancement Provider and the Rating Agency, to the effect that
such firm has examined the assertion of the Servicer that it has
maintained effective internal control over the servicing of Accounts
under this Agreement and has complied with the provisions of this
Agreement with respect to the servicing of Accounts, and that such
firm has completed such examination in accordance with standards
established by the American Institute of Certified Public Accountants
and that, on the basis of such examination, such firm is of the
opinion (assuming the accuracy of any reports generated by the
Servicer's third party agents) that such assertion is fairly stated in
all material respects. A copy of such report may be obtained by any
Investor Certificateholder by a request in writing to the Trustee
addressed to the Corporate Trust Office.
(b) Within four months after the end of each fiscal year of
the Servicer, the Servicer shall cause a firm of nationally recognized
independent certified public accountants (who may also render other
services to the Servicer or the Transferor) to furnish a report to the
Servicer to the effect that they have compared the mathematical
calculations of each amount set forth in the monthly certificates
forwarded by the Servicer pursuant to subsection 3.04(b) during the
period covered by such report (which shall be each fiscal year of the
Servicer or, with respect to the report to be delivered on or before
April 30, 1998, the six-month period from July 1, 1997 through
December 31, 1997) with the Servicer's computer reports which were the
source of such amounts and that on the basis of such comparison, such
amounts are in agreement, except for such exceptions as they believe
to be immaterial and such other exceptions as shall be set forth in
such report."
SECTION 2.1 Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 3.1 Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 4.1 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 5.1 GOVERNING LAW. THIS AMENDMENT 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.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK,
as Transferor and Servicer
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
EIGHTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
EIGHTH AMENDMENT TO POOLING AND SERVICING AGREEMENT dated as of
June 30, 1998 (this "Amendment"), by and between FIRST USA BANK, as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as Trustee
(the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement dated
as of September 1, 1992 (as amended and supplemented through the date
hereof, the "Master Pooling and Servicing Agreement"), between the
Transferor, the Servicer and the Trustee for the issuance by the First USA
Credit Card Master Trust (the "Trust") of the Investor Certificates and the
Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders may amend the Master
Pooling and Servicing Agreement from time to time so long as the Trustee
shall have received (i) from each Rating Agency then rating the Investor
Certificates, a written notification that such action will not result in a
reduction or withdrawal of the rating of any outstanding Series which it is
then rating and (ii) an Opinion of Counsel to the effect that such
amendment will not adversely affect in any material respect the interests
of the Investor Certificateholders;
WHEREAS, the Trustee has received from (i) each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1. Amendments. Subsection 6.03(b) of the Master
Pooling and Servicing Agreement is hereby amended by deleting the text
thereof and replacing it with the following:
(b) Except as provided in Section 6.09 or 7.02 or in
any Supplement, in no event shall the Exchangeable
Transferor Certificate or any interest therein be
transferred, sold, exchanged, pledged, participated or
otherwise assigned hereunder, in whole or in part,
unless the Transferor shall have consented in writing
to such transfer and unless the Trustee shall have
received (x) an Opinion of Counsel that such transfer
(i) does not adversely affect the conclusions reached
in any of the federal income tax opinions dated the
applicable Closing Date issued in connection with the
original issuance of any Series of Investor
Certificates and (ii) will not cause the Trust to be
deemed to be an association or "publicly traded
partnership" (within the meaning of Section 7704(b) of
the Internal Revenue Code) taxable as a corporation and
(y) with respect to any such transfer, sale, exchange,
pledge, participation or assignment to an entity which
is not an Affiliate of the Transferor, confirmation in
writing from each Rating Agency that such transfer will
not result in a lowering or withdrawal of its then-
existing rating of any Series of Investor Certificates.
The Transferor shall give each Rating Agency notice of
any such transfer, sale, exchange, pledge,
participation or assignment to an Affiliate of the
Transferor.
SECTION 2. Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 3. Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 4. Counterparts. This Amendment may be executed in
one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
SECTION 5. GOVERNING LAW. THIS AMENDMENT 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.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK,
as Transferor and Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
NINTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
NINTH AMENDMENT TO POOLING AND SERVICING AGREEMENT, dated as of
July 21, 1998 (this "Amendment"), by and between FIRST USA BANK, N.A., as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as Trustee
(in such capacity, the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement, dated
as of September 1, 1992 (as amended and supplemented through the date
hereof and as the same may be further amended, supplemented or otherwise
modified and in effect from time to time, the "Master Pooling and Servicing
Agreement"), by and between the Transferor, the Servicer and the Trustee,
for the issuance by the First USA Credit Card Master Trust (the "Trust") of
the Investor Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders, may amend the
Master Pooling and Servicing Agreement from time to time so long as the
Trustee shall have received (i) from each Rating Agency then rating the
Investor Certificates, a written notification that such action will not
result in a reduction or withdrawal of the rating of any outstanding Series
which it is then rating and (ii) an Opinion of Counsel to the effect that
such amendment will not adversely affect in any material respect the
interests of the Investor Certificateholders;
WHEREAS, the Trustee has received (i) from each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1. Name Change. Wherever used in the Master Pooling and
Servicing Agreement, including in the exhibits and schedules thereto, (a)
all references to the Transferor or the Servicer as "First USA Bank, a
Delaware chartered banking corporation" are hereby amended to read "First
USA Bank, N.A., a national banking association" and (b) all references to
the name of the Transferor or the Servicer as "First USA Bank" are hereby
amended to read "First USA Bank, N.A." .
SECTION 2. Amendments to Section 2.03. (a) Section 2.03(a) of
the Master Pooling and Servicing Agreement is hereby amended by deleting
the words "Delaware chartered banking corporation duly organized and
validly existing in good standing under the Laws of the State of Delaware"
therefrom and substituting therefor the words "national banking association
duly organized and validly existing in good standing under the laws of the
United States".
(b) Section 2.03(b) of the Master Pooling and Servicing
Agreement is hereby amended by deleting the words "and Delaware" therefrom.
SECTION 3. Amendments to Section 3.03. (a) Section 3.03(a) of
the Master Pooling and Servicing Agreement is hereby amended by deleting
the words "Delaware chartered banking corporation duly organized and
validly existing in good standing under the laws of the State of Delaware"
therefrom and substituting therefor the words "national banking association
duly organized and validly existing in good standing under the laws of the
United States".
(b) Section 3.03(b) of the Master Pooling and Servicing
Agreement is hereby amended by deleting the words "and Delaware" therefrom.
SECTION 4. Amendment to Section 11.15. Section 11.15(i) is
hereby amended by deleting the words "national banking association" and
substituting therefor the words "Delaware chartered banking corporation".
SECTION 5. Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 6. Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 7. Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 8. GOVERNING LAW. THIS AMENDMENT 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.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK, N.A.
as Transferor and Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Assistant Vice President
TENTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
TENTH AMENDMENT TO POOLING AND SERVICING AGREEMENT, dated as of
August 14, 1998 (this "Amendment"), by and between FIRST USA BANK, N.A., as
Transferor and Servicer (in such capacities, the "Transferor" and the
"Servicer," respectively), and THE BANK OF NEW YORK (DELAWARE), as Trustee
(in such capacity, the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement, dated
as of September 1, 1992 (as amended and supplemented through the date
hereof and as the same may be further amended, supplemented or otherwise
modified and in effect from time to time, the "Master Pooling and Servicing
Agreement"), by and between the Transferor, the Servicer and the Trustee,
for the issuance by the First USA Credit Card Master Trust (the "Trust") of
the Investor Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders, may amend the
Master Pooling and Servicing Agreement from time to time so long as the
Trustee shall have received (i) from each Rating Agency then rating the
Investor Certificates, a written notification that such action will not
result in a reduction or withdrawal of the rating of any outstanding Series
which it is then rating and (ii) an Opinion of Counsel to the effect that
such amendment will not adversely affect in any material respect the
interests of the Investor Certificateholders;
WHEREAS, the Trustee has received (i) from each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1. Amendments to Section 1.01. (a) The definition of
"Eligible Account" set forth in Section 1.01 of the Master Pooling and
Servicing Agreement is hereby amended by deleting subsection (c) thereof
and substituting in its place the following subsection (c):
"(c) the Obligor on which has provided, as its most recent
billing address, an address which is located in the United States or
its territories or possessions or a Military Address;"
(b) Section 1.01 of the Master Pooling and Servicing Agreement
is hereby further amended by adding the following definition thereto in the
proper order therefor:
""Military Address" shall mean any mailing address on any
United States armed forces military base of operations, including APO
and FPO Addresses."
SECTION 2. Amendment to Section 2.06(a). Section 2.06(a) of the
Master Pooling and Servicing Agreement is hereby amended by deleting such
subsection in its entirety and substituting therefor the following:
"(a) If, (i) during any period of thirty consecutive days,
the Transferor Interest averaged over that period is less than 4% (or
such higher percentage as may be specified in any Supplement, such
percentage the "Minimum Transferor Interest") of the Average Principal
Receivables, the Transferor shall designate additional eligible
MasterCard or VISA accounts from the Bank Portfolio ("Additional
Accounts") to be included as Accounts in a sufficient amount such that
the average of the Transferor Interest as a percentage of the Average
Principal Receivables for such 30-day period, computed by assuming
that the amount of the Average Principal Receivables of such
Additional Accounts shall be deemed to be outstanding in the Trust
during each day of such 30-day period, is at least equal to the
Minimum Transferor Interest, or (ii) on any Record Date the aggregate
amount of Principal Receivables is less than the Minimum Aggregate
Principal Receivables, the Transferor shall designate Additional
Accounts to be included as Accounts in a sufficient amount such that
the aggregate amount of Principal Receivables will be equal to or
greater than the Minimum Aggregate Principal Receivables. Receivables
from such Additional Accounts shall be transferred to the Trust on or
before the tenth Business Day following such thirty-day period or
Record Date, as the case may be."
SECTION 3. Amendment to Section 4.03(b). Section 4.03(b) of the
Master Pooling and Servicing Agreement is hereby amended by deleting such
subsection in its entirety and substituting therefor the following:
"(b) Allocations for the Exchangeable Transferor
Certificate. Throughout the existence of the Trust, unless otherwise
stated in any Supplement, the Servicer shall allocate to the Holder of
the Exchangeable Transferor Certificate an amount equal to the product
of (A) the Transferor Percentage and (B) the aggregate amount of such
Collections allocated to Principal Receivables and Finance Charge
Receivables, respectively, in respect of each Monthly Period;
provided, however, that amounts payable to the Holder of the
Exchangeable Transferor Certificate pursuant to this clause (b) shall
instead be deposited in the Collection Account to the extent that the
Transferor Interest is less than the Minimum Transferor Interest.
Notwithstanding anything in this Agreement to the contrary, unless
otherwise stated in any Supplement, the Servicer need not deposit this
amount or any other amounts so allocated to the Exchangeable
Transferor Certificate pursuant to any Supplement into the Collection
Account and shall pay, or be deemed to pay, such amounts as collected
to the Holder of the Exchangeable Transferor Certificate."
SECTION 4. Amendment to Section 4.03(f). Section 4.03(f) of the
Master Pooling and Servicing Agreement is hereby amended by deleting such
subsection in its entirety and substituting therefor the following:
"(f) Unallocated Principal Collections. If, pursuant to
any provisions of Article IV, Collections allocated to Principal
Receivables with respect to any Series would cause such Series (a
"Retired Series") to be paid in full or if, pursuant to such
provisions, Collections of Principal Receivables are allocated to the
Holder of the Exchangeable Transferor Certificate and the Transferor
Interest is equal to or less than the Minimum Transferor Interest or
the payment of such amount to the Transferor would cause the
Transferor Interest to be equal to or less than the Minimum Transferor
Interest (any such Collections being referred to as "Allocated
Collections") or any Adjustment Payment is made, any Collections of
Principal Receivables allocated to a Retired Series in excess of the
amount required to pay such Series in full, or to the Transferor
Interest if the Transferor Interest is or would be caused to be less
than the Minimum Transferor Interest or any Adjustment Payment
("Unallocated Principal Collections") shall be retained in the
Collection Account. If on any Business Day following a Business Day
on which Unallocated Principal Collections were retained in the
Collection Account the Transferor Interest is greater than the Minimum
Transferor Interest, such Unallocated Principal Collections may be
released to the Holder of the Exchangeable Transferor Certificate. On
each Transfer Date with respect to each Series in the Monthly Period
succeeding the Monthly Period in which Unallocated Principal
Collections were retained in the Collection Account, such Unallocated
Principal Collections shall be reallocated to outstanding Series (any
such allocation, an "Excess Amount Principal Allocation," and any such
Series, an "Outstanding Series"). Any Excess Amount Principal
Allocation shall be performed assuming that (a) the character of
Unallocated Principal Collections as Principal Receivables shall not
be altered, (b) the Investor Percentages with respect to any
Outstanding Series shall be recalculated assuming that the Retired
Series has been retired and that only the Outstanding Series are
outstanding, (c) Allocated Collections have been paid to the Retiring
Series, (d) if the payment of Allocated Collections as described above
causes a Pay Out Event to occur, Unallocated Principal Collections
shall be allocated as if such Pay Out Event has occurred and (e) the
Unallocated Principal Collections available on any Transfer Date with
respect to any Series shall be applied as if they were available on
the last Business Day of the preceding Monthly Period. On each
Transfer Date immediately preceding each Distribution Date related to
the Amortization Period for any Series, Unallocated Principal
Collections will be deposited in the Principal Account for such Series
to the extent of the lesser of (x) the Principal Shortfall on the last
Business Day of the preceding Monthly Period for such Series and (y)
the aggregate amount of Unallocated Principal Collections retained in
the Collection Account on such day. If more that one Series is in its
Amortization Period, Unallocated Principal Collections retained in the
Collection Account shall be allocated to each outstanding Series pro
rata based on the Principal Shortfall, if any, for each such Series on
the last Business Day of the preceding Monthly Period, and then, at
the option of the Transferor, any remainder may be applied as
principal with respect to any Series of variable funding certificates.
The Servicer shall pay any remaining Shared Principal Collections on
such Transfer Date to the Transferor; provided, that if the Transferor
Interest as determined on such Business Day does not exceed the
Minimum Transferor Interest, then such remaining Unallocated Principal
Collections shall be deposited in the Collection Account in an amount
equal to the lesser of (i) the remaining Unallocated Principal
Collections and (ii) the excess of the Minimum Transferor Interest
over the Transferor Interest on such Business Day."
SECTION 5. Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 6. Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 7. Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 8. GOVERNING LAW. THIS AMENDMENT 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.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK, N.A.
as Transferor and Servicer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
___________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
ELEVENTH AMENDMENT TO
THE POOLING AND SERVICING AGREEMENT
ELEVENTH AMENDMENT TO POOLING AND SERVICING AGREEMENT, dated as
of August 31, 1999 (this "Amendment"), by and between FIRST USA BANK,
NATIONAL ASSOCIATION, as Transferor and Servicer (in such capacities, the
"Transferor" and the "Servicer," respectively), and THE BANK OF NEW YORK
(DELAWARE), as Trustee (in such capacity, the "Trustee").
WHEREAS, the Transferor, the Servicer and the Trustee have
heretofore executed and delivered a Pooling and Servicing Agreement, dated
as of September 1, 1992 (as amended and supplemented through the date
hereof and as the same may be further amended, supplemented or otherwise
modified and in effect from time to time, the "Master Pooling and Servicing
Agreement"), by and between the Transferor, the Servicer and the Trustee,
for the issuance by the First USA Credit Card Master Trust (the "Trust") of
the Investor Certificates and the Exchangeable Transferor Certificate;
WHEREAS, Section 13.01(a) of the Master Pooling and Servicing
Agreement provides that the Servicer, the Transferor and the Trustee,
without the consent of the Investor Certificateholders, may amend the
Master Pooling and Servicing Agreement from time to time so long as the
Trustee shall have received (i) from each Rating Agency then rating the
Investor Certificates, a written notification that such action will not
result in a reduction or withdrawal of the rating of any outstanding Series
which it is then rating and (ii) an Opinion of Counsel to the effect that
such amendment will not adversely affect in any material respect the
interests of the Investor Certificateholders;
WHEREAS, the Trustee has received (i) from each Rating Agency, a
letter confirming the current rating of each outstanding Series and (ii) an
Opinion of Counsel to the effect that such amendment will not adversely
affect in any material respect the interests of the Investor
Certificateholders; and
WHEREAS, all other conditions precedent to the execution of this
Amendment have been complied with;
NOW, THEREFORE, the Servicer, the Transferor and the Trustee are
executing and delivering this Amendment in order to amend the provisions of
the Master Pooling and Servicing Agreement in the manner set forth below.
Capitalized terms used but not defined herein shall have the
meanings assigned to them in the Master Pooling and Servicing Agreement.
SECTION 1. Defined Terms. Section 1.01 of the Master Pooling
and Servicing Agreement is hereby amended by adding the following
definitions thereto in the proper order therefor:
"Aggregate Addition Limit" shall mean the aggregate number
of accounts that may be added as Additional Accounts without prior
satisfaction of the Rating Agency Condition, equal to the aggregate
number of Accounts (exclusive of the aggregate amount of Accounts that
are Approved Accounts), which would either (x) with respect to any
consecutive three-month period, equal 15% of the aggregate number of
Accounts (inclusive of the aggregate number of Accounts that are
Approved Accounts added during such period) as of the first day of
such three-month period or (y) with respect to any twelve-month
period, equal 20% of aggregate number of Accounts (inclusive of the
aggregate number of Accounts that are Approved Accounts added during
such period) as of the first day of such twelve-month period.
"Approved Accounts" shall mean each Additional Account added
to the Trust with respect to which the Rating Agency Condition has
been satisfied.
"Fitch" shall mean Fitch IBCA, Inc.
"Opinion Delivery Date" shall mean March 31, June 30,
September 30 and December 31 of each year; provided, however, that if
in connection with the issuance of a Series of Certificates an Opinion
of Counsel substantially in the form of Exhibit E has been delivered
within the three month period preceding either of such dates then such
date shall not be an "Opinion Delivery Date."
"Rating Agency Condition" shall mean, at any time with
respect to a Series, the written confirmation of the Rating Agency
that a specified event or modification of the terms of such Series
will not result in the withdrawal or downgrade of the rating of the
Certificates of any Series then in effect.
SECTION 2. Amendment to Section 2.06. Section 2.06 of the
Master Pooling and Servicing Agreement is hereby replaced in its entirety
with the following:
Section 2.06 Addition of Accounts.
(a) Required Additions. If, (i) during any period of
thirty consecutive days, the Transferor Interest averaged over that
period is less than 4% (or such higher percentage as may be specified
in any Supplement, such percentage the "Minimum Transferor Interest")
of the Average Principal Receivables, the Transferor shall designate
additional eligible MasterCard or VISA accounts from the Bank
Portfolio ("Additional Accounts") to be included as Accounts in a
sufficient amount such that the average of the Transferor Interest as
a percentage of the Average Principal Receivables for such 30-day
period, computed by assuming that the amount of the Average Principal
Receivables of such Additional Accounts shall be deemed to be
outstanding in the Trust during each day of such 30-day period, is at
least equal to the Minimum Transferor Interest, or (ii) on any Record
Date the aggregate amount of Principal Receivables is less than the
Minimum Aggregate Principal Receivables, the Transferor shall
designate Additional Accounts to be included as Accounts in a
sufficient amount such that the aggregate amount of Principal
Receivables will be equal to or greater than the Minimum Aggregate
Principal Receivables. Receivables from such Additional Accounts
shall be transferred to the Trust on or before the tenth Business Day
following such thirty-day period or Record Date, as the case may be.
(b) Permitted Additions. In addition to its obligation
under subsection 2.06(a), the Transferor may, but shall not be
obligated to, designate from time to time Additional Accounts of the
Transferor to be included as Accounts.
(c) The Transferor agrees that any such transfer of
Receivables from Additional Accounts, under subsection 2.06(a) or (b)
shall satisfy the following conditions (to the extent provided below):
(i) on or before the fifth Business Day prior to the
Addition Date with respect to additions pursuant to subsection
2.06(a) and on or before the tenth Business Day prior to the
Addition Date with respect to additions pursuant to subsection
2.06(b) (the "Notice Date"), the Transferor shall give the
Trustee, each Rating Agency and the Servicer written notice that
such Additional Accounts will be included, which notice shall
specify the approximate aggregate amount of the Receivables to be
transferred;
(ii) on or before the Addition Date, the Transferor
shall have delivered to the Trustee a written assignment
(including an acceptance by the Trustee on behalf of the Trust
for the benefit of the Investor Certificateholders) in
substantially the form of Exhibit B (the "Assignment") and the
Transferor shall have indicated in its computer files that the
Receivables created in connection with the Additional Accounts
have been transferred to the Trust and, within five Business Days
thereafter, the Transferor shall have delivered to the Trustee a
computer file or microfiche list containing a true and complete
list of all Additional Accounts, identified by account number and
the aggregate amount of the Receivables in such Additional
Accounts, as of the Addition Cut Off Date, which computer file or
microfiche list shall be as of the date of such Assignment
incorporated into and made a part of such Assignment and this
Agreement;
(iii) the Transferor shall represent and warrant that
(x) each Additional Account is, as of the Addition Cut Off Date,
an Eligible Account, and each Receivable in such Additional
Account, is, as of the Addition Cut Off Date, an Eligible
Receivable, (y) no selection procedures believed by the
Transferor to be materially adverse to the interests of the
Investor Certificateholders were utilized in selecting the
Additional Accounts from the available Eligible Accounts from the
Bank Portfolio, and (z) as of the Addition Date, the Transferor
is not insolvent;
(iv) the Transferor shall represent and warrant that,
as of the Addition Date, the Assignment constitutes either (x) a
valid transfer and assignment to the Trust of all right, title
and interest of the Transferor in and to the Receivables then
existing and thereafter created in the Additional Accounts, and
all proceeds (as defined in the UCC as in effect in the State of
Delaware) of such Receivables and Insurance Proceeds relating
thereto and such Receivables and all proceeds thereof and
Insurance Proceeds relating thereto will be held by the Trust
free and clear of any Lien of any Person claiming through or
under the Transferor or any of its Affiliates, except for (i)
Liens permitted under subsection 2.05(b), (ii) the interest of
the Transferor as Holder of the Exchangeable Transferor
Certificate and (iii) the Transferor's right to receive interest
accruing on, and investment earnings in respect of, the Finance
Charge Account and the Principal Account, or any Series Account
as provided in this Agreement and any related Supplement or (y) a
grant of a security interest (as defined in the UCC as in effect
in the State of Delaware) in such property to the Trust, which is
enforceable with respect to then existing Receivables of the
Additional Accounts, the proceeds (as defined in the UCC as in
effect in the State of Delaware) thereof and Insurance Proceeds
relating thereto upon the conveyance of such Receivables to the
Trust, and which will be enforceable with respect to the
Receivables thereafter created in respect of Additional Accounts
conveyed on such Addition Date, the proceeds (as defined in the
UCC as in effect in the State of Delaware) thereof and Insurance
Proceeds relating thereto upon such creation; and (z) if the
Assignment constitutes the grant of a security interest to the
Trust in such property, upon the filing of a financing statement
as described in Section 2.01 with respect to such Additional
Accounts and in the case of the Receivables thereafter created in
such Additional Accounts and the proceeds (as defined in the UCC
as in effect in the State of Delaware) thereof, and Insurance
Proceeds relating thereto, upon such creation, the Trust shall
have a first priority perfected security interest in such
property (subject to Section 9-306 of the UCC as in effect in the
State of Delaware), except for Liens permitted under subsection
2.05(b);
(v) the Transferor shall deliver an Officer's
Certificate substantially in the form of Schedule 2 to Exhibit B
to the Trustee confirming the items set forth in paragraph (ii)
above;
(vi) on or before the Opinion Delivery Date, the
Transferor shall deliver to the Trustee (with a copy to each
Rating Agency) an Opinion of Counsel with respect to the
Receivables arising in Accounts included as Additional Accounts
during the preceding three month period substantially in the form
of Exhibit E; and
(vii) if (a) with respect to any three-month period or
with respect to any twelve-month period, the aggregate number of
Accounts designated to have their Receivables added to the Trust
shall exceed the applicable Aggregate Addition Limit or (b) the
Accounts designated to have their Receivables added to the Trust
were not originated by the Transferor, the Transferor shall have
received notice from Standard & Poor's, ▇▇▇▇▇'▇ and Fitch that
the inclusion pursuant to subsection 2.06(b) of accounts as
Additional Accounts that are in excess of the applicable
Aggregate Addition Limit or were not originated by the Transferor
will not result in the reduction or withdrawal of its then
existing rating of any Series of Investor Certificates then
issued and outstanding and shall have delivered such notice to
the Trustee.
SECTION 3. Ratification of Master Pooling and Servicing
Agreement. As amended by this Amendment, the Master Pooling and Servicing
Agreement is in all respects ratified and confirmed, and the Master Pooling
and Servicing Agreement, as so amended by this Amendment, shall be read,
taken and construed as one and the same instrument.
SECTION 4. Severability. If any one or more of the covenants,
agreements, provisions or terms or portions thereof of this Amendment shall
be for any reason whatsoever held invalid, then such covenants, agreements,
provisions or terms or portions thereof shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Amendment and
shall in no way affect the validity or enforceability of the other
provisions or portions of this Amendment.
SECTION 5. Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
SECTION 6. GOVERNING LAW. THIS AMENDMENT 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.
IN WITNESS WHEREOF, the Servicer, the Transferor and the Trustee
have caused this Amendment to be executed by their respective officers,
thereunto duly authorized, as of the day and year first above written.
FIRST USA BANK, NATIONAL ASSOCIATION
as Transferor and Servicer
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
_______________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
THE BANK OF NEW YORK (DELAWARE),
as Trustee
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
________________________________
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Agent