EXHIBIT 4.5
_____________________________________________________________________________
BANK ONE ISSUANCE TRUST
TRANSFER AND SERVICING AGREEMENT
among
FIRST USA BANK, NATIONAL ASSOCIATION,
Transferor, Servicer and Administrator
and
BANK ONE ISSUANCE TRUST,
Issuer
and
▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
Indenture Trustee and Collateral Agent
Dated as of May 1, 2002
_____________________________________________________________________________
TABLE OF CONTENTS
Page
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions.....................................................1
Section 1.02 Other Definitional Provisions..................................18
ARTICLE II
CONVEYANCE OF COLLATERAL
Section 2.01 Conveyance of Collateral.......................................20
Section 2.02 Acceptance by Trust............................................21
Section 2.03 Representations and Warranties of Each Transferor
Relating to Such Transferor....................................22
Section 2.04 Representations and Warranties of each Transferor Relating
to this Agreement and any Series Supplement and
the Collateral.................................................24
Section 2.05 Transfer of Ineligible Receivables and Ineligible
Collateral Certificates........................................29
Section 2.06 Reassignment of Collateral.....................................31
Section 2.07 Additional Transferors.........................................32
Section 2.08 Covenants of each Transferor...................................33
Section 2.09 Covenants of Each Transferor with Respect to Any
Applicable Receivables Purchase Agreement......................34
Section 2.10 Reinvestment in Collateral.....................................34
Section 2.11 Increases in the Invested Amount of an Existing
Collateral Certificate.........................................35
Section 2.12 Addition of Collateral.........................................36
Section 2.13 Removal of Accounts............................................40
Section 2.14 Account Allocations............................................42
Section 2.15 Discount Receivables...........................................43
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.01 Collections and Allocations....................................44
Section 3.02 Allocations of Finance Charge Collections,
the Default Amount and the Trust Servicing Fee.................45
Section 3.03 Allocations of Principal Collections...........................45
Section 3.04 Allocations of Finance Charge Collections,
the Default Amount, the Servicing Fee and Principal
Collections Allocable to the Transferor Interest
of an Asset Pool...............................................45
Section 3.05 Transfer of Defaulted Accounts.................................46
Section 3.06 Adjustments for Miscellaneous Credits and Fraudulent Charges...47
Section 3.07 Recoveries and Interchange.....................................48
ARTICLE IV
SERVICING OF RECEIVABLES
Section 4.01 Acceptance of Appointment and Other Matters Relating
to the Servicer................................................49
Section 4.02 Servicing Compensation.........................................50
Section 4.03 Representations, Warranties and Covenants of the Servicer......51
Section 4.04 Reports and Records for the Owner Trustee, the
Indenture Trustee and the Applicable Collateral Agent..........53
Section 4.05 Annual Certificate of Servicer.................................53
Section 4.06 Annual Servicing Report of Independent Certified Public
Accountants; Copies of Reports Available.......................54
Section 4.07 Tax Treatment..................................................55
Section 4.08 Notices to First USA...........................................55
Section 4.09 Reports to the Commission......................................55
ARTICLE V
ADMINISTRATION OF THE TRUST; DUTIES
OF THE ADMINISTRATOR
Section 5.01 Appointment of Administrator; Duties of Administrator..........56
Section 5.02 Records........................................................61
Section 5.03 Compensation...................................................61
Section 5.04 Additional Information To Be Furnished to Issuer...............62
Section 5.05 Independence of Administrator..................................62
Section 5.06 No Joint Venture...............................................62
Section 5.07 Other Activities of Administrator..............................62
Section 5.08 Termination, Resignation and Removal of Administrator..........62
Section 5.09 Action upon Termination, Resignation or Removal................63
ARTICLE VI
OTHER MATTERS RELATING TO EACH TRANSFEROR
Section 6.01 Liability of each Transferor...................................65
Section 6.02 Merger or Consolidation of, or Assumption of the
Obligations of, a Transferor...................................65
Section 6.03 Limitations on Liability of Each Transferor....................66
ARTICLE VII
OTHER MATTERS RELATING TO THE SERVICER
Section 7.01 Liability of the Servicer......................................68
Section 7.02 Merger or Consolidation of, or Assumption of the
Obligations of, the Servicer...................................68
Section 7.03 Limitation on Liability of the Servicer and Others.............69
Section 7.04 Servicer Indemnification of the Trust, the Owner
Trustee and the Indenture Trustee..............................69
Section 7.05 Resignation of the Servicer....................................70
Section 7.06 Delegation of Duties...........................................71
Section 7.07 Examination of Records.........................................71
ARTICLE VIII
ACQUISITION OF TRUST ASSETS
Section 8.01 Acquisition of Trust Assets....................................72
ARTICLE IX
INSOLVENCY EVENTS
Section 9.01 Rights upon the Occurrence of an Insolvency Event..............73
ARTICLE X
SERVICER DEFAULTS
Section 10.01 Servicer Defaults..............................................74
Section 10.02 Indenture Trustee To Act; Appointment of Successor.............76
Section 10.03 Notification to Noteholders....................................78
Section 10.04 Waiver of Past Defaults........................................78
ARTICLE XI
TERMINATION
Section 11.01 Termination of Agreement.......................................78
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment; Waiver of Past Defaults.............................79
Section 12.02 Protection of Right, Title and Interest in and to Trust Assets.81
Section 12.03 Fees Payable by the Transferor.................................82
Section 12.04 GOVERNING LAW..................................................82
Section 12.05 Notices; Payments..............................................82
Section 12.06 Severability of Provisions.....................................84
Section 12.07 Further Assurances.............................................84
Section 12.08 No Waiver; Cumulative Remedies.................................85
Section 12.09 Counterparts...................................................85
Section 12.10 Third-Party Beneficiaries......................................85
Section 12.11 Actions by Noteholders.........................................85
Section 12.12 Rule 144A Information..........................................85
Section 12.13 Merger and Integration.........................................86
Section 12.14 Headings.......................................................86
Section 12.15 Limitation of Liability........................................86
Section 12.16 No Petition....................................................86
EXHIBITS
EXHIBIT A-1 Form of Assignment of Collateral Certificates.....................A-1-1
EXHIBIT A-2 Form of Assignment of Receivables in Additional Accounts..........A-2-1
EXHIBIT B Form of Reassignment of Receivables in Removed Accounts.............B-1
EXHIBIT C Form of Annual Servicer's Certificate...............................C-1
EXHIBIT D-1 Form of Opinion of Counsel with Respect to Amendments.............D-1-1
EXHIBIT D-2 Form of Opinion of Counsel with Respect to Accounts...............D-2-1
EXHIBIT D-3 Provisions to be Included in Annual Opinion of Counsel............D-3-1
EXHIBIT E Form of Power of Attorney...........................................E-1
SCHEDULES
SCHEDULE 1 TO EXHIBIT A-1 List of Collateral Certificates....................A-1-8
SCHEDULE 1 TO EXHIBIT A-2 List of Accounts...................................A-2-8
SCHEDULE 1 TO EXHIBIT D-3 List of Accounts...................................D-3-2
This TRANSFER AND SERVICING AGREEMENT among FIRST USA BANK, NATIONAL
ASSOCIATION, a national banking association, as Transferor, Servicer and
Administrator, BANK ONE ISSUANCE TRUST, a statutory business trust created
under the laws of the State of Delaware, as Issuer, and ▇▇▇▇▇ FARGO BANK
MINNESOTA, NATIONAL ASSOCIATION, a national banking association, as Indenture
Trustee and Collateral Agent, is made and entered into as of May 1, 2002.
In consideration of the mutual agreements herein contained, each
party agrees as follows for the benefit of the other parties and the
Noteholders to the extent provided herein, in the Indenture, in any Asset Pool
Supplement and in any Indenture Supplement:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement,
the following words and phrases shall have the following meanings, and the
definitions of such terms are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such terms.
"Account" means each consumer revolving credit card account
established pursuant to a Credit Card Agreement between First USA or an
Affiliate and any Person, identified by account number and by the Receivable
balance as of each Addition Cut Off Date in each computer file delivered to
the applicable Collateral Agent, as designee of the Issuer, by the applicable
Transferor pursuant to subsection 2.12(c). The definition of "Account" shall
include each Transferred Account. The term "Account" shall be deemed to refer
to an Additional Account only from and after the Addition Date with respect
thereto, and the term "Account" shall be deemed to refer to any Removed
Account only prior to the Removal Date with respect thereto.
"Account Assignment" has the meaning specified in subsection
2.12(c)(iv).
"Account Owner" means First USA or any Affiliate which is the issuer
of the credit card relating to an Account pursuant to a Credit Card Agreement.
"Action" has the meaning specified in the Indenture.
"Addition Cut Off Date" means each date as of which Additional
Accounts will be selected to be included as Accounts pursuant to Section 2.12.
"Addition Date" has the meaning specified in subsection 2.12(a)(i).
"Additional Account" means each additional Eligible Account owned by
an Account Owner and designated for inclusion as an Account pursuant to
Section 2.12.
"Additional Collateral Certificate" means each additional Collateral
Certificate designated for inclusion as a Collateral Certificate by the
applicable Transferor to the Trust pursuant to Section 2.12.
"Additional Transferors" has the meaning specified in Section 2.07.
"Adjustment Payment" has the meaning specified in subsection 3.06(a).
"Administrator" means First USA, in its capacity as Administrator
pursuant to this Agreement, and any successors or assigns.
"Adverse Effect" has the meaning specified in the Indenture.
"Affiliate" has the meaning specified in the Indenture.
"Aggregate Addition Limit" means, with respect to any Asset Pool, the
aggregate number of Additional Accounts that may be designated as belonging to
such Asset Pool without prior satisfaction of the Note Rating Agency
Condition, equal to the aggregate number of Additional Accounts which would
either (x) with respect to any consecutive three-month period, equal 15% of
the aggregate number of Accounts designated for inclusion in such Asset Pool
as of the first day of such three-month period or (y) with respect to any
twelve-month period, equal 20% of aggregate number of Accounts as of the first
day of such twelve-month period.
"Agreement" means this Transfer and Servicing Agreement, as the same
may be amended, supplemented or otherwise modified from time to time.
"Annual Membership Fee" has the meaning specified in the Credit Card
Agreement applicable to each Account for annual membership fees or similar
fees.
"Appointment Day" has the meaning specified in Section 9.01.
"Asset Pool" has the meaning specified in the Indenture.
"Asset Pool Supplement" has the meaning specified in the Indenture.
"Authorized Newspaper" has the meaning specified in the Indenture.
"Authorized Officer" means, with respect to the Issuer, (a) an
authorized signatory of the Owner Trustee, or (b) the chairman or
vice-chairman of the board of directors, chairman or vice-chairman of the
executive committee of the board of directors, the president, any
vice-president, the secretary, any assistant secretary, the treasurer, or any
assistant treasurer, in each case of the Owner Trustee, or any other officer
or employee of the Owner Trustee who is authorized to act on behalf of the
Issuer.
"Bank Accounts" has the meaning specified in the related Asset Pool
Supplement.
"Bearer Notes" has the meaning specified in the Indenture.
"Beneficial Interest" has the meaning specified in the Trust
Agreement.
"Business Day" has the meaning specified in the Indenture.
"Cash Advance Fees" has the meaning specified in the Credit Card
Agreement applicable to each Account for cash advance fees or similar fees.
"Certificate Assignment" has the meaning specified in subsection
2.12(c)(v).
"Class" has the meaning specified in the Indenture.
"Collateral" has, with respect to any Asset Pool, the meaning
specified in the Granting Clause in the applicable Asset Pool Supplement for
such Asset Pool.
"Collateral Agent" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement.
"Collateral Certificate" has the meaning specified in the Indenture.
"Collateral Certificate Principal Shortfall Payments" means amounts
received on each Collateral Certificate in respect of Principal Shortfalls (as
such term is defined in the applicable Series Supplement).
"Collection Account" has, with respect to each Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"Collections" means, with respect to any Asset Pool, for any Monthly
Period, the sum of (i) with respect to Receivables designated for inclusion in
such Asset Pool, all payments by or on behalf of Obligors received in respect
of the Receivables, in the form of cash, checks, wire transfers, electronic
transfers, ATM transfers or any other form of payment in accordance with a
Credit Card Agreement in effect from time to time and all other amounts
specified by this Agreement, the Indenture or any Indenture Supplement as
constituting Collections on the Receivables and (ii) with respect to any
Collateral Certificate designated for inclusion in such Asset Pool,
collections allocable to the holder of such Collateral Certificate pursuant to
the applicable Series Supplement. Collections of Recoveries will be treated as
Collections of Principal Receivables; provided, however, that to the extent
the amount of Recoveries received with respect to any Monthly Period exceeds
the aggregate amount of Principal Receivables (other than Ineligible
Receivables) in Accounts that became Defaulted Accounts during such Monthly
Period, the amount of such excess shall be treated as Collections of Finance
Charge Receivables. Collections, with respect to any Asset Pool, for any
Monthly Period, shall include the Interchange Amount, if any, with respect to
such Asset Pool for such Monthly Period, to be applied as if such amount were
Collections of Finance Charge Receivables for such Monthly Period.
"Commission" means the Securities and Exchange Commission.
"Corporate Trust Office" has the meaning (a) when used in respect of
the Owner Trustee, specified in the Trust Agreement and (b) when used in
respect of the Indenture Trustee, specified in the Indenture.
"Credit Adjustment" has the meaning specified in subsection 3.06(a).
"Credit Card Agreement" means, with respect to a consumer revolving
credit card account, the agreement and Federal Truth in Lending Statement for
consumer revolving credit card accounts between the Account Owner and the
Obligor governing the terms and conditions of such account, as such agreements
may be amended, modified or otherwise changed from time to time and as
distributed (including any amendments and revisions thereto) to holders of
such credit card account.
"Credit Card Guidelines" means the respective policies and procedures
of the Account Owner, as the case may be, as such policies and procedures may
be amended from time to time, (a) relating to the operation of its credit card
business, which generally are applicable to its portfolio of consumer
revolving credit card accounts and in each case which are consistent with
prudent practice, including, without limitation, the policies and procedures
for determining the creditworthiness of credit card customers and the
extension of credit to credit card customers, and (b) relating to the
maintenance of consumer revolving credit card accounts and collection of
credit card receivables.
"Date of Processing" means, with respect to any transaction the date
on which such transaction is first recorded on the Servicer's computer file of
accounts (without regard to the effective date of such recordation).
"Default Amount" means, with respect to any Asset Pool, for any
Monthly Period, the sum of (1) with respect to Receivables designated for
inclusion in such Asset Pool, an amount (which shall not be less than zero)
equal to (a) the aggregate amount of Principal Receivables (other than
Ineligible Receivables) in Accounts designated for inclusion in such Asset
Pool which became Defaulted Accounts during such Monthly Period on the day
each such Account became a Defaulted Account, minus (b) the aggregate amount
of Recoveries received in such Monthly Period (not to exceed the amount set
forth in clause (a)) in respect of Defaulted Accounts in such Asset Pool for
such Monthly Period and (2) with respect to any Collateral Certificate
designated for inclusion in such Asset Pool, the investor default amount or
similar amount allocated to the holder of the Collateral Certificate for such
Monthly Period pursuant to the applicable Series Supplement.
"Defaulted Account" means each Account with respect to which, in
accordance with the Credit Card Guidelines or the Servicer's customary and
usual servicing procedures for servicing credit card receivables comparable to
the Receivables, the Servicer has charged off the Receivables in such Account
as uncollectible; an Account shall become a Defaulted Account on the day on
which such Receivables are recorded as charged off as uncollectible on the
Servicer's computer master file of consumer revolving credit card accounts.
Notwithstanding any other provision hereof, any Receivables in a Defaulted
Account that are Ineligible Receivables shall be treated as Ineligible
Receivables rather than Receivables in Defaulted Accounts.
"Delaware Act" means the Asset-Backed Securities Facilitation Act
located in Title 6, Chapter 27A of the Delaware Code.
"Derivative Agreement" has, with respect to any Series, Class or
Tranche of Notes, the meaning specified in the Indenture.
"Derivative Counterparty" has the meaning specified in the Indenture.
"Determination Date" has the meaning specified in the applicable
Asset Pool Supplement.
"Discount Option Date" has the meaning specified in subsection
2.15(a) hereof.
"Discount Receivables" means, with respect to any Asset Pool, the
Gross Principal Receivables so designated as such pursuant to the designation
formula as described in subsection 2.15(a). The aggregate amount of Discount
Receivables outstanding on any Date of Processing occurring on or after the
Discount Option Date, shall equal the sum of (a) the aggregate Discount
Receivables at the end of the prior Date of Processing (which amount, prior to
the Discount Option Date, shall be zero) plus (b) any new Discount Receivables
created on such Date of Processing minus (c) any Discount Receivables
Collections received on such Date of Processing.
Discount Receivables created on any Date of Processing shall mean the product
of the amount of the Gross Principal Receivables arising in Accounts on such
Date of Processing specified in accordance with subsection 2.15(a) and the
applicable Yield Factor.
"Discount Receivables Collections" means, with respect to any Asset
Pool, on any Date of Processing occurring in any Monthly Period succeeding the
Monthly Period in which the Discount Option Date occurs, the product of (a)
the Yield Factor and (b) Collections of Gross Principal Receivables
outstanding in such Asset Pool on such Date of Processing.
"Dollars," "$" or "U.S. $" means United States dollars.
"Early Amortization Event" has the meaning specified in the
Indenture, as supplemented with respect to any Series, Class or Tranche of
Notes by the applicable Indenture Supplement and Terms Document.
"Eligible Account" means a consumer revolving credit card account
owned by an Account Owner which meets the following requirements as of the
Addition Cut Off Date:
(a) is a consumer revolving credit card account in existence
and maintained with an Account Owner;
(b) is payable in Dollars;
(c) has an Obligor who has provided, as his or her most recent
billing address, an address located in the United States or its territories or
possessions or a military address;
(d) has an Obligor who has not been identified by the Servicer
in its computer files as being involved in a voluntary or involuntary
bankruptcy proceeding;
(e) has not been classified by the Servicer as cancelled,
counterfeit, deleted, fraudulent, stolen or lost;
(f) does not have Receivables which are at the time of transfer
sold or pledged to any other party;
(g) which has not been charged-off by the Servicer in its
customary and usual manner for charging-off accounts as of their date of
designation for inclusion in the Trust; and
(h) has an Obligor who has not been identified by the Servicer
as being deceased.
"Eligible Collateral Certificate" means a Collateral Certificate that
has been duly authorized by the applicable Transferor and validly issued by
the applicable Master Trust and is entitled to the benefits of the applicable
Pooling and Servicing Agreement and with respect to which the representations
and warranties made in subsections 2.04(a)(ii), (iii), (iv), (v), (vii) and
(viii) are true and correct in all material respects.
"Eligible Receivable" means each Receivable:
(a) which has arisen in an Eligible Account (as of the relevant
Addition Cut Off Date);
(b) which was created in compliance in all material respects
with all Requirements of Law applicable to the institution which owned such
Receivable at the time of its creation and pursuant to a Credit Card Agreement
which complies in all material respects with all Requirements of Law
applicable to the applicable Account Owner, as the case may be;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given in connection with the
creation of such Receivable or the execution, delivery and performance by the
applicable Account Owner, as the case may be, of the Credit Card Agreement
pursuant to which such Receivable was created, have been duly obtained,
effected or given and are in full force and effect;
(d) as to which at the time of the transfer of such Receivable
to the Trust, the applicable Transferor or the Trust has good and marketable
title thereto, free and clear of all Liens occurring under or through such
applicable Transferor or any of its Affiliates (other than Liens permitted
pursuant to subsection 2.04(a)(v));
(e) which is the legal, valid and binding payment obligation of
the Obligor thereon enforceable against such Obligor in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws, now or hereafter
in effect, affecting the enforcement of creditors' rights in general and
except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity);
(f) which constitutes an "account" under and as defined in
Article 9 of the UCC; and
(g) which is not subject to any setoff, right of rescission,
counterclaim, or other defense, including the defense of usury, other than
defenses arising out of applicable bankruptcy, insolvency, reorganization,
moratorium, or other similar laws affecting the enforcement of creditors'
rights in general.
"Eligible Servicer" means First USA or the Indenture Trustee or, if
neither First USA nor the Indenture Trustee is acting as Servicer, an entity
which, at the time of its appointment as Servicer, (a) is servicing a
portfolio of consumer revolving credit card accounts, (b) is legally qualified
and has the capacity to service the Accounts, (c) in the sole determination of
the Indenture Trustee, which determination shall be conclusive and binding,
has demonstrated the ability to service professionally and competently a
portfolio of similar accounts in accordance with high standards of skill and
care, (d) is qualified to use the software that is then being used to service
the Accounts or obtains the right to use or has its own software which is
adequate to perform its duties under this Agreement and (e) has a net worth of
at least $50,000,000 as of the end of its most recent fiscal quarter.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Event of Default" has the meaning specified in the Indenture.
"Excess Funding Account" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"Finance Charge Collections" means, with respect to any Asset Pool,
for any Monthly Period, the sum of (a) with respect to Receivables designated
for inclusion in such Asset Pool, all Collections received by the Servicer on
behalf of the Issuer of Finance Charge Receivables (including Discount
Receivables Collections and Recoveries received for such Monthly Period to the
extent such Recoveries are deemed Finance Charge Collections under the
definition of "Collections" above), (b) with respect to any Collateral
Certificate designated for inclusion in such Asset Pool, collections of
finance charge receivables allocable to the holder of the Collateral
Certificate for such Monthly Period pursuant to the applicable Series
Supplement and (c) any amounts received by the Issuer which are designated as
Finance Charge Collections pursuant to any Asset Pool Supplement or Indenture
Supplement for such Monthly Period. Finance Charge Collections with respect to
any Monthly Period shall include the Interchange Amount (if any) paid to the
Trust with respect to such Asset Pool with respect to such Monthly Period (to
the extent received by the Trust and deposited into the applicable Collection
Account on the First Note Transfer Date following such Monthly Period).
"Finance Charge Receivables" means Receivables created in respect of
the Periodic Finance Charges, Annual Membership Fees, Cash Advance Fees, Late
Fees, Overlimit Fees, return check fees and similar fees and charges and
Discount Receivables.
"First Note Transfer Date" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"First USA" means First USA Bank, National Association, a national
banking association, and its successors and permitted assigns.
"First USA Credit Card Master Trust Pooling and Servicing Agreement"
means the Pooling and Servicing Agreement for the First USA Credit Card Master
Trust as amended and supplemented, including by the Series 2002-CC Supplement
thereto.
"Fitch" means Fitch, Inc. or any successor thereto.
"Governmental Authority" means the United States of America, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Gross Principal Receivables" means Receivables other than (i)
Periodic Finance Charges, Annual Membership Fees, Cash Advance Fees, Late
Fees, Overlimit Fees, return check fees and similar fees and other charges and
(ii) Receivables in Defaulted Accounts.
"Increase Date" has the meaning specified in subsection 2.12(a)(i).
"Indenture" means the Indenture, dated as of May 1, 2002, between the
Issuer and the Indenture Trustee, as the same may be amended, supplemented or
otherwise modified from time to time.
"Indenture Supplement" has the meaning specified in the Indenture.
"Indenture Trustee" means ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, in its capacity as trustee under the Indenture, its successors in
interest and any successor indenture trustee under the Indenture.
"Ineligible Collateral Certificate" has the meaning specified in
subsection 2.05(c).
"Ineligible Receivables" has the meaning specified in subsection
2.05(c).
"Initial Collateral Certificate" means the First USA Collateral
Certificate issued pursuant to the First USA Credit Card Master Trust Pooling
and Servicing Agreement and the related Series 2002-CC Supplement thereto.
"Initial Issuance Date" means May 1, 2002.
"Insolvency Event" has the meaning specified in Section 9.01.
"Insurance Proceeds" means any amounts recovered by the Servicer
pursuant to any credit insurance policies covering any Obligor with respect to
Receivables under such Obligor's Account.
"Interchange" means interchange fees payable to the Servicer with
respect to the Accounts by the Account Owner, in its capacity as credit card
issuer, through bankcard associations or other similar organizations.
"Interchange Amount" means, with respect to any Asset Pool for any
Monthly Period, an amount determined by the Account Owner, in its sole
discretion, to be reasonably representative of the amount of Interchange
generated by the Receivables arising in the Accounts of such Account Owner.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time.
"Invested Amount" has, with respect to any Collateral Certificate,
the meaning specified in the applicable Series Supplement for such Collateral
Certificate.
"Investor Certificate" has the meaning specified in the applicable
Pooling and Servicing Agreement.
"Issuance Date" means the Initial Issuance Date and each date
thereafter on which a Series, Class or Tranche of Notes is issued pursuant to
the Indenture.
"Issuer" means the Trust.
"Issuer Tax Opinion" has the meaning specified in the Indenture.
"Late Fees" has the meaning specified in the Credit Card Agreement
applicable to each Account for late fees or similar fees.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, participation or equity interest, deposit arrangement,
encumbrance, lien (statutory or other), preference, priority or other security
agreement or preferential arrangement of any kind or nature whatsoever,
including, without limitation, any conditional sale or other title retention
agreement, any financing lease having substantially the same economic effect
as any of the foregoing and the filing of any financing statement under the
UCC (other than any such financing statement filed for informational purposes
only) or comparable law of any jurisdiction to evidence any of the foregoing.
"Master Trust" has the meaning specified in the Indenture.
"Master Trust Servicer" means the entity responsible for the
servicing obligations under the applicable Pooling and Servicing Agreement.
"Master Trust Tax Opinion" has the meaning specified in the
Indenture.
"Master Trust Transferor" means the entity acting as transferor under
the applicable Pooling and Servicing Agreement.
"Master Trust Trustee" means the entity acting as trustee under the
applicable Pooling and Servicing Agreement.
"Minimum Pool Balance" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"Monthly Noteholders' Statement" has the meaning specified in the
Indenture.
"Monthly Period" has the meaning specified in the Indenture.
"Monthly Servicer's Certificate" means the certificate delivered by
the Servicer as described in subsection 4.04(b).
"Moody's" means ▇▇▇▇▇'▇ Investors Service, Inc., or its successor.
"Nominal Liquidation Amount" has, with respect to any Series, Class
or Tranche of Notes, the meaning specified in the applicable Indenture
Supplement for such Series, Class or Tranche of Notes.
"Nominal Liquidation Amount Deficit" has, with respect to any Series,
Class or Tranche of Notes, the meaning specified in the applicable Indenture
Supplement for such Series, Class or Tranche of Notes.
"Note" or "Notes" has the meaning specified in the Indenture.
"Note Owner" has the meaning specified in the Indenture.
"Note Rating Agency" has the meaning specified in the Indenture.
"Note Rating Agency Condition" means, at any time with respect to any
Series, Class or Tranche of Notes, the written confirmation of the Note Rating
Agency that a specified event or modification of the terms of such Series,
Class or Tranche will not result in the withdrawal or downgrade by such Note
Rating Agency of the rating of the Notes of any Series, Class or Tranche then
in effect.
"Note Register" has the meaning specified in the Indenture.
"Note Registrar" has the meaning specified in the Indenture.
"Note Transfer Date" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement for such Asset Pool.
"Noteholder" or "Holder" has the meaning specified in the Indenture.
"Noteholder Percentage" means, for any Series of Notes, with respect
to Principal Collections, Finance Charge Collections, the Default Amount and
the Servicing Fee of any Asset Pool, the percentage stated in the applicable
Indenture Supplement for such Series of Notes.
"Notice Date" has the meaning specified in subsection 2.12(c)(i).
"Notices" has the meaning specified in subsection 12.05(a).
"Obligor" means, with respect to any Account, the Person or Persons
obligated to make payments with respect to such Account, including any
guarantor thereof, but excluding any merchant.
"Officer's Certificate" means a certificate signed by the Owner
Trustee, the Administrator or the Servicer and delivered to the Indenture
Trustee or the applicable Collateral Agent or a certificate signed by the
applicable Transferor and delivered to the Owner Trustee, the Indenture
Trustee or the applicable Collateral Agent. Wherever this Agreement requires
that an Officer's Certificate be signed also by an accountant or other expert,
such accountant or other expert (except as otherwise expressly provided in
this Agreement) may be an employee of the Owner Trustee, the Administrator or
the Servicer.
"Opinion of Counsel" means a written opinion of counsel acceptable to
the Owner Trustee and the Indenture Trustee, who may, without limitation, and
except as otherwise expressly provided in this Agreement, be an employee of or
of counsel to the Issuer, the Servicer or any of their Affiliates.
"Outstanding" has the meaning specified in the Indenture.
"Overlimit Fees" has the meaning specified in the Credit Card
Agreement applicable to each Account for overlimit fees or similar fees if
such fees are provided for with respect to such Account.
"Owner Trustee" means Wilmington Trust Company, not in its individual
capacity, but solely as owner trustee under the Trust Agreement, its
successors in interest and any successor owner trustee under the Trust
Agreement.
"Paying Agent" has the meaning specified in the Indenture.
"Payment Date" has the meaning specified in the Indenture.
"Payment Instruction" has the meaning specified in the Indenture.
"Periodic Finance Charges" has the meaning specified in the Credit
Card Agreement applicable to each Account for finance charges (due to periodic
rate) or any similar term.
"Person" has the meaning specified in the Indenture.
"Pooling and Servicing Agreement" has the meaning specified in the
Indenture.
"Pool Balance" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement for such Asset Pool.
"Principal Collections" means, with respect to any Asset Pool, for
any Monthly Period, the sum of (1) with respect to Receivables designated for
inclusion in such Asset Pool, all Collections other than those designated as
Finance Charge Collections on Accounts designated for such Monthly Period and
(2) with respect to any Collateral Certificate designated for inclusion in
such Asset Pool, all collections of principal receivables, including
Collateral Certificate Principal Shortfall Payments, allocable to the holder
of such Collateral Certificate for such Monthly Period pursuant to the
applicable Series Supplement.
"Principal Receivables" means Gross Principal Receivables minus
Discount Receivables. In calculating the aggregate amount of Principal
Receivables for any Monthly Period, the amount of Principal Receivables shall
be reduced by the aggregate amount of credit balances in the Accounts on the
last day of such Monthly Period. Any Principal Receivables which a Transferor
is unable to transfer as provided in Section 2.14 or 9.01 shall not be
included in calculating the amount of Principal Receivables.
"Reassignment" has the meaning specified in subsection 2.13(b)(iii).
"Reassignment Amount" means, with respect to the Receivables or a
particular Collateral Certificate designated for inclusion in any Asset Pool,
subject to reassignment pursuant to Section 2.06, for any First Note Transfer
Date, unless otherwise provided in the related Asset Pool Supplement, the sum
of (a)(i) an amount equal to the outstanding principal balance of such
Receivables designated for inclusion in such Asset Pool or (ii) the Invested
Amount of such Collateral Certificate designated for inclusion in such Asset
Pool plus (b) accrued and unpaid interest, determined based upon a weighted
average interest rate, through such Payment Date, on Notes secured by the
related Asset Pool with an outstanding principal amount equal to the
applicable amount specified in clause (a).
"Receivables" means any amount owing by the Obligors including,
without limitation, amounts owing for the payment of goods and services, cash
advances, access checks, Annual Membership Fees, Cash Advance Fees, Periodic
Finance Charges, Late Fees, Overlimit Fees, return check fees and similar fees
and charges, if any.
"Receivables Purchase Agreement" means any receivables purchase
agreement entered into between a special purpose entity and the applicable
Account Owner for the sale of receivables to the special purpose entity if
such special purpose entity either transfers Receivables or a Collateral
Certificate secured by such receivables to the Issuer.
"Recoveries" means, with respect to any Asset Pool, all net amounts
received, including Insurance Proceeds, by the Servicer with respect to
Receivables in Defaulted Accounts, including amounts received by the Servicer
from the purchaser or transferee with respect to the sale or other disposition
of Receivables in Defaulted Accounts.
"Record Date" has the meaning specified in the Indenture.
"Registered Note" has the meaning specified in the Indenture.
"Registered Noteholder" has the meaning specified in the Indenture.
"Reinvestment Amount" means, with respect to any Asset Pool for any
Monthly Period, an amount which shall not be less than zero, equal to (A) the
sum of (i) the Principal Collections for such Asset Pool for such Monthly
Period, plus (ii) the Finance Charge Collections for such Asset Pool and
similar amounts applied with respect to the Default Amount for all Notes
secured by such Asset Pool and the Nominal Liquidation Amount Deficit for all
Series of Notes secured by such Asset Pool for such Monthly Period, plus (iii)
any other amounts specified in the related Asset Pool Supplement, minus (B)
the sum of (i) the aggregate Targeted Principal Deposit Amount for all Notes
secured by such Asset Pool for each Note Transfer Date related to such Monthly
Period plus (ii) the amount of Principal Collections reallocated to pay any
portion of the
Targeted Interest Deposit Amount and any portion of the Noteholder's share of
the Servicing Fee for Notes secured by such Asset Pool for such Monthly
Period.
"Related Agreements" means, with respect to any Series, Class or
Tranche of Notes, collectively, the Indenture, any applicable Indenture
Supplement, any applicable Asset Pool Supplement, any applicable Terms
Document and the Trust Agreement.
"Removal Date" has the meaning specified in subsection 2.13(a).
"Removal Notice Date" has the meaning specified in subsection 2.13(a).
"Removed Accounts" has the meaning specified in subsection 2.13(a).
"Required Transferor Amount" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"Requirements of Law" means, for any Person, the certificate of
incorporation or articles of association and by-laws or other organizational
or governing documents of such Person, and any law, treaty, rule or
regulation, or determination of an arbitrator or Governmental Authority,
whether federal, state or local (including usury laws, the Federal Truth in
Lending Act and Regulation B and Regulation Z of the Board of Governors of the
Federal Reserve System).
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Series" has the meaning specified in the Indenture.
"Series Supplement" has the meaning specified in the Indenture.
"Series 2002-CC Supplement" means the supplement to the First USA
Credit Card Master Trust Pooling and Servicing Agreement, whereby First USA,
as transferor, has authorized the issuance and authentication by the Master
Trust Trustee to First USA of one or more Investor Certificates.
"Service Transfer" has the meaning specified in Section 10.01.
"Servicer" means First USA, in its capacity as Servicer pursuant to
this Agreement, and, after any Service Transfer, the Successor Servicer.
"Servicer Default" has the meaning specified in Section 10.01.
"Servicer Rating Event" means the Servicer's failure to maintain a
short-term credit rating of at least "A-1" by Standard & Poor's and "P-1" by
Moody's and, if rated by Fitch, at least "F1" by Fitch (or such other rating
below "A-1" or "P-1," or to the extent rated by Fitch, "F1," as the case may
be, which is acceptable to the applicable Note Rating Agency).
"Servicing Fee" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement for such Asset Pool.
"SFAS 140" means Statement of Financial Accounting Standards No. 140,
Accounting for Transfers and Servicing of Financial Assets and Extinguishments
of Liabilities (or any replacement Financial Accounting Standards Board
statement, or amendment or interpretation thereof).
"Standard & Poor's" means Standard & Poor's Ratings Services, or its
successor.
"Sub-Account" has the meaning specified in the Indenture.
"Successor Servicer" has the meaning specified in subsection 10.02(a).
"Supplemental Bank Account" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"Supplemental Credit Enhancement" means any Supplemental Credit
Enhancement Agreement or Supplemental Liquidity Agreement entered into between
the Issuer and the applicable Supplemental Credit Enhancement Provider or
Supplemental Liquidity Provider.
"Supplemental Credit Enhancement Agreement" has the meaning specified
in the Indenture.
"Supplemental Credit Enhancement Provider" has the meaning specified
in the Indenture.
"Supplemental Liquidity Agreement" has the meaning specified in the
Indenture.
"Supplemental Liquidity Provider" has the meaning specified in the
Indenture.
"Targeted Interest Deposit Amount" has, with respect to any Series,
Class or Tranche of Notes, the meaning specified in the applicable Indenture
Supplement for such Series, Class or Tranche of Notes.
"Targeted Principal Deposit Amount" has, with respect to any Series,
Class or Tranche of Notes, the meaning specified in the applicable Indenture
Supplement for such Series, Class or Tranche of Notes.
"Termination Notice" has the meaning specified in Section 10.01.
"Terms Document" has the meaning specified in the Indenture.
"Tranche" has the meaning specified in the Indenture.
"Transaction Document" means the Trust Agreement, the applicable
Series Supplement, the applicable Asset Pool Supplement, the Indenture or the
related Indenture Supplement, as applicable.
"Transfer Agent" has the meaning specified in the Indenture.
"Transfer Restriction Event" has the meaning specified in Section
2.14.
"Transferor" means (a) First USA or its successor under this
Agreement and (b) any Additional Transferor or Transferors. References to
"each Transferor" shall refer to each entity mentioned in the preceding
sentence and references to "the Transferor" shall refer to all of such
entities.
"Transferor Amount" has, with respect to any Asset Pool, the meaning
specified in the applicable Asset Pool Supplement for such Asset Pool.
"Transferor Certificate" has, with respect to any Asset Pool, the
meaning specified in the applicable Asset Pool Supplement for such Asset Pool.
"Transferor Interest" means, with respect to any Asset Pool, the
interest in such Asset Pool not represented by issued and Outstanding Notes
secured by that Asset Pool.
"Transferor Percentage" means, with respect to any Asset Pool for any
Monthly Period, the percentage in such Asset Pool not represented by the
aggregate of the Noteholder Percentage for all Series secured by such Asset
Pool.
"Transferred Account" means (a) an Account with respect to which a
new credit account number has been issued by the Account Owner under
circumstances resulting from a lost or stolen credit card or from the transfer
from one affinity group to another affinity group or otherwise and not
requiring standard application and credit evaluation procedures under the
Credit Card Guidelines or (b) an Eligible Account resulting from a status
change, including the conversion of an Account that was a standard account to
a premium account or from a premium account to a standard account, and which
in the case of (a) or (b), can be traced or identified by reference to or by
way of the computer files delivered to the applicable Collateral Agent, as
designee of the Issuer, as an account into which an Account has been
transferred.
"Trust" means the Bank One Issuance Trust, a Delaware statutory
business trust.
"Trust Agreement" means the Amended and Restated Trust Agreement
relating to the Trust, dated as of May 1, 2002, between the Transferor and the
Owner Trustee, as the same may be amended, supplemented or otherwise modified
from time to time.
"Trust Assets" has the meaning specified in Section 2.01.
"Trust Servicing Fee" has the meaning specified in Section 4.02.
"Trust Termination Date" means the date on which the Trust is
dissolved in accordance with Section 8.01 of the Trust Agreement.
"UCC" means the Uniform Commercial Code, as amended from time to
time, as in effect in the relevant jurisdiction.
"Yield Factor" has the meaning specified in subsection 2.15(a).
Section 1.02 Other Definitional Provisions.
(a) The terms defined in this Article have the meanings
assigned to them in this Article, and, along with any other term defined in
any Section of this Agreement, include the plural as well as the singular.
(b) With respect to any Series, all terms used herein and not
otherwise defined herein shall have meanings ascribed to them in the
applicable Transaction Document.
(c) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.
(d) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
otherwise defined in this Agreement or in any such certificate or other
document, and accounting terms partly defined in this Agreement or in any such
certificate or other document to the extent not defined, shall have the
respective meanings assigned to them in accordance with generally accepted
accounting principles and, except as otherwise herein expressly provided, the
term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder means such accounting principles
as are generally accepted in the United States of America at the date of such
computation.
(e) The agreements, representations and warranties of First USA
in this Agreement in each of its capacities as Transferor, Servicer and
Administrator shall be deemed to be the agreements, representations and
warranties of First USA solely in each such capacity for so long as First USA
acts in each such capacity under this Agreement.
(f) Any reference to each Rating Agency shall only apply to any
specific rating agency if such rating agency is then rating any Outstanding
Series, Class or Tranche of Notes.
(g) Unless otherwise specified, references to any amount as on
deposit or outstanding on any particular date shall mean such amount at the
close of business on such day.
(h) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; references to any
subsection, Section, Schedule or Exhibit are references to subsections,
Sections, Schedules and Exhibits in or to this Agreement unless otherwise
specified; and the term "including" means "including without limitation."
[END OF ARTICLE I]
ARTICLE II
CONVEYANCE OF COLLATERAL
Section 2.01 Conveyance of Collateral. By execution of this
Agreement, the Transferor does hereby transfer, assign, set-over and otherwise
convey to the Trust, without recourse except as provided herein, all its
right, title and interest in, to and under the Initial Collateral Certificate.
The property of the Trust shall initially consist of the Initial Collateral
Certificate and on and after each applicable Addition Date, each Additional
Collateral Certificate and all Receivables arising in each Additional Account,
together with all monies and other property credited to the Bank Accounts
established pursuant to each Asset Pool Supplement and Indenture Supplement,
the rights of the Trust under this Agreement and the Trust Agreement and the
property conveyed to the Trust under any Asset Pool Supplement and any Series
Supplement (the "Trust Assets").
Each Transferor shall be under no obligation whatsoever to file
any financing or continuation statements or to make any other filing under the
UCC in connection with the transfer and assignment of a Collateral
Certificate.
Each Transferor further agrees, at its own expense, on or prior
to (x) the Initial Issuance Date, in the case of the Initial Collateral
Certificate and (y) the applicable Addition Date, in the case of Additional
Collateral Certificates and Additional Accounts with respect to such
Transferor, (a) to indicate in the appropriate official records or computer
files that Collateral Certificates or Receivables created in connection with
such Additional Accounts have been designated for inclusion in a particular
Asset Pool in the Trust pursuant to this Agreement and (b) to deliver to the
applicable Collateral Agent, as designee of the Issuer, one or more computer
files containing a true and complete list of all such Additional Accounts
specifying for each such Additional Account, the applicable Addition Date for
such Additional Accounts. In addition, such computer file or list shall, in
connection with each Additional Account, include its account number, the
aggregate Receivables outstanding in such Additional Account and state to
which Asset Pool such Additional Account belongs. Each such official record,
as supplemented, from time to time, to reflect Additional Collateral
Certificates and removed Collateral Certificates shall be marked as Schedule 1
to this Agreement, and each such computer file or list, as supplemented, from
time to time, to reflect Additional Accounts and Removed Accounts, shall be
marked as Schedule 2 to this Agreement and is hereby incorporated into and
made a part of this Agreement.
It is the intention of the parties hereto that all such transfers
be subject to, and be treated in accordance with, the Delaware Act and each of
the parties hereto agrees that this Agreement has been entered into by the
parties hereto in express reliance upon the Delaware Act. For purposes of
complying with the requirements of the Delaware Act, each of the parties
hereto hereby agrees that any property, assets or rights purported to be
transferred, in whole or in part, by the Transferor pursuant to this Agreement
shall be deemed to no longer be the property, assets or rights of the
Transferor. The parties hereto acknowledge and agree that the transactions
contemplated hereby shall constitute, and each such transfer is occurring in
connection with, a "securitization transaction" within the meaning of the
Delaware Act.
To the extent that any Transferor retains any interest in the Initial
Collateral Certificate, Additional Collateral Certificates or the Receivables,
it is the intention of the parties hereto that this Agreement shall constitute
a security agreement under applicable law, and therefor such Transferor hereby
grants to the Trust a first priority perfected security interest in all of
such Transferor's right, title and interest, in, to and under the Initial
Collateral Certificate, any Additional Collateral Certificates, the
Receivables and the other Trust Assets conveyed by such Transferor, and all
money, accounts, general intangibles, chattel paper, instruments, documents,
goods, investment property, deposit accounts, certificates of deposit, letters
of credit, letter-of- credit-rights and advices of credit consisting of,
arising from or related to the Trust Assets, and all proceeds thereof, to
secure a loan in an amount equal to the unpaid principal amount of the Notes
issued pursuant to the Indenture and the applicable Indenture Supplement and
interest accrued with respect thereto.
Section 2.02 Acceptance by Trust.
(a) The Trust hereby acknowledges its acceptance of all right,
title and interest to the property, now existing and hereafter created,
conveyed to the Trust pursuant to Section 2.01. The Trust further acknowledges
that, prior to or simultaneously with the execution and delivery of this
Agreement, the Transferor delivered to the applicable Collateral Agent, as
designee of the Issuer, Schedule 1 identifying the Initial Collateral
Certificate. The applicable Collateral Agent shall forward a copy of Schedule
1 to the Owner Trustee who shall maintain a copy of Schedule 1, as delivered
from time to time, at its Corporate Trust Office.
(b) The Trust hereby designates to the Servicer the right to
receive all payments to be made to the Trust hereunder.
(c) The Owner Trustee and the Trust each hereby agrees (and the
Indenture Trustee and each applicable Collateral Agent shall, pursuant to the
Indenture or applicable Asset Pool Supplement, agree) not to disclose to any
Person the identity of any of the account numbers or other information
contained in the computer files marked as Schedule 2 and delivered to the
applicable Collateral Agent, as designee of the Issuer, from time to time,
except (i) to a Successor Servicer or as required by a Requirement of Law
applicable to the Owner Trustee, (ii) in connection with the performance of
the Owner Trustee's or the Trust's duties hereunder, (iii) to the Indenture
Trustee in connection with its duties in enforcing the rights of Noteholders,
(iv) to the applicable Collateral Agent in connection with its duties under
the applicable Asset Pool Supplement or (v) to bona fide creditors or
potential creditors of any Account Owner, the Administrator or any Transferor
for the limited purpose of enabling any such creditor to identify applicable
Receivables or Accounts subject to this Agreement. The Owner Trustee and the
Trust each agrees to take such measures as shall be reasonably requested by
any Transferor to protect and maintain the security and confidentiality of
such information and, in connection therewith, shall allow each Transferor or
its duly authorized representatives to inspect the Owner Trustee's security
and confidentiality arrangements as they specifically relate to the
administration of the Trust from time to time during normal business hours
upon prior written notice. The Owner Trustee and the Trust shall provide the
applicable Transferor with notice five Business Days prior to disclosure of
any information of the type described in this subsection 2.02(c).
Section 2.03 Representations and Warranties of Each Transferor
Relating to Such Transferor. Each Transferor hereby severally represents and
warrants to the Trust (and agrees that the Owner Trustee, the Indenture
Trustee and the applicable Collateral Agent may conclusively rely on each such
representation and warranty in accepting the Receivables and Collateral
Certificates in trust, in authenticating the Notes and each as a secured
party) as of each Issuance Date, each Increase Date and each Addition Date
(but only if it was a Transferor on such date and only if it was a party to
the applicable Related Agreement on such date) that:
(a) Organization and Good Standing. Such Transferor is an
entity, duly organized and validly existing in good standing under the laws of
the jurisdiction of its organization or incorporation and has, in all material
respects, full power, authority and legal right to own its properties and
conduct its business as such properties are at present owned and such business
is at present conducted, and to execute, deliver and perform its obligations
under this Agreement, the applicable Receivables Purchase Agreement, if any,
and each applicable Series Supplement.
(b) Due Qualification. Such Transferor is duly qualified to do
business and is in good standing (or is exempt from such requirement) in any
state required in order to conduct business, and has obtained all necessary
licenses and approvals with respect to such Transferor required under federal
law; provided, however, that no representation or warranty is made with
respect to any qualifications, licenses or approvals which the Indenture
Trustee, the Owner Trustee or the applicable Collateral Agent would have to
obtain to do business in any state in which the Indenture Trustee or the Owner
Trustee seeks to enforce any Collateral Certificate or any Receivable.
(c) Due Authorization. The execution and delivery of this
Agreement, the applicable Receivables Purchase Agreement, if any, and each
applicable Series Supplement by such Transferor and the order to the Indenture
Trustee to have the Notes authenticated and delivered and the consummation by
such Transferor of the transactions provided for in this Agreement, the
applicable Receivables Purchase Agreement, if any, and each applicable Series
Supplement have been duly authorized by such Transferor by all necessary
corporate action on the part of such Transferor and this Agreement will
remain, from the time of its execution, an official record of such Transferor.
(d) No Conflict. The execution and delivery by such Transferor
of this Agreement, the applicable Receivables Purchase Agreement, if any, and
each applicable Series Supplement, and the performance of the transactions
contemplated by this Agreement, the applicable Receivables Purchase Agreement,
if any, and each applicable Series Supplement and the fulfillment of the terms
hereof and thereof applicable to such Transferor, will not conflict with,
result in any breach of any of the material terms and provisions of, or
constitute (with or without notice or lapse of time or both) a material
default under, any indenture, contract, agreement, mortgage, deed of trust or
other instrument to which such Transferor is a party or by which it or its
properties are bound.
(e) No Proceedings. There are no proceedings or investigations,
pending or, to the best knowledge of such Transferor, threatened against such
Transferor before any Governmental Authority (i) asserting the invalidity of
this Agreement, the applicable Receivables Purchase Agreement, if any, or any
applicable Series Supplement, (ii) seeking to prevent the consummation of any
of the transactions contemplated by this Agreement, the applicable Receivables
Purchase Agreement, if any, or any applicable Series Supplement, (iii) seeking
any determination or ruling that, in the reasonable judgment of such
Transferor, would materially and adversely affect the performance by such
Transferor of its obligations under this Agreement, the applicable Receivables
Purchase Agreement, if any, or any applicable Series Supplement, (iv) seeking
any determination or ruling that would materially and adversely affect the
validity or enforceability of this Agreement, the applicable Receivables
Purchase Agreement, if any, or any applicable Series Supplement or (v) seeking
to affect adversely the income tax attributes of the Trust under the United
States federal or any state income tax systems.
(f) All Consents. All appraisals, authorizations, consents,
orders or other actions of any Person or of any Governmental Authority
required in connection with the execution and delivery by such Transferor of
this Agreement, the applicable Receivables Purchase Agreement, if any, and
each applicable Series Supplement and the performance of the transactions
contemplated by this Agreement, the applicable Receivables Purchase Agreement,
if any, and each applicable Series Supplement by such Transferor have been
duly obtained, effected or given and are in full force and effect.
(g) No Violation. The execution and delivery of this Agreement,
the applicable Receivables Purchase Agreement, if any, and each applicable
Series Supplement, the performance of the transactions contemplated by this
Agreement, the applicable Receivables Purchase Agreement, if any, and each
applicable Series Supplement and the fulfillment of the terms hereof and
thereof will not conflict with or violate any Requirements of Law applicable
to such Transferor.
Section 2.04 Representations and Warranties of each Transferor
Relating to this Agreement and any Series Supplement and the Collateral.
(a) Representations and Warranties. Each Transferor hereby
severally represents and warrants to the Trust that:
(i) as of each day on which any new Receivable is
created, this Agreement and the applicable Receivables Purchase
Agreement, if any, and as of each Addition Date with respect to
Additional Accounts, this Agreement, the applicable Receivables
Purchase Agreement, if any, and the related Account Assignment, each
constitutes a legal, valid and binding obligation of such Transferor
enforceable against such Transferor in accordance with its terms,
except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally from time to time in
effect or general principles of equity;
(ii) as of each Issuance Date, this Agreement, the
applicable Receivables Purchase Agreement, if any, the applicable
Pooling and Servicing Agreement and the applicable Series Supplement,
each constitutes a legal, valid and binding obligation of such
Transferor enforceable against such Transferor in accordance with its
terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting creditors' rights generally from time to time in
effect or general principles of equity;
(iii) as of each Increase Date, this Agreement, the
applicable Pooling and Servicing Agreement and the applicable Series
Supplement and as of each Addition Date with respect to Collateral
Certificates, this Agreement, the applicable Pooling and Servicing
Agreement, the applicable Series Supplement and the related
Certificate Assignment, each constitutes a legal, valid and binding
obligation of such Transferor enforceable against such Transferor in
accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors' rights
generally from time to time in effect or general principles of
equity;
(iv) as of (A) the Initial Issuance Date, with
respect to the Initial Collateral Certificate, (B) the related
Addition Cut Off Date with respect to Additional Accounts (and the
Receivables arising therein) and (C) the Addition Date with respect
to an Additional Collateral Certificate, the portion of Schedule 1 or
Schedule 2, as applicable, to this Agreement under such Transferor's
name, as supplemented to such date, is an accurate and complete
listing or identification, as applicable, in all material respects of:
(1) with respect to Schedule 2, the Additional
Accounts the Receivables in which were transferred by such
Transferor as of such Addition Cut Off Date, or
(2) with respect to Schedule 1, the Initial
Collateral Certificate which was transferred by such Transferor
as of the Initial Issuance Date and each Additional Collateral
Certificate transferred thereafter that remains outstanding,
including any Additional Collateral Certificate transferred as
of an Addition Date, and the information contained therein with
respect to the identity of such Accounts and the Receivables
existing thereunder as of such Addition Cut Off Date or with
respect to the identity of such Collateral Certificate as of
the Initial Issuance Date or such Addition Date, is, in each
case, true and correct in all material respects;
(v) as of (A) each day on which any new Receivable
is created, (B) the Initial Issuance Date, with respect to the
Initial Collateral Certificate, (C) each Addition Cut Off Date with
respect to Additional Accounts (and the Receivables arising therein),
(D) each Addition Date with respect to Additional Collateral
Certificates and (E) each Increase Date with respect to an increase
in an existing Collateral Certificate, such Transferor owns and has
good marketable title to such Receivable, Initial Collateral
Certificate or Additional Collateral Certificate, as applicable, free
and clear of any Lien (other than any Lien for municipal or other
local taxes if such taxes are not then due and payable or if such
Transferor is then contesting the validity thereof in good faith by
appropriate proceedings and has set aside on its books and records
adequate reserves with respect thereto), claim or incumbrance of any
Person and such Receivable, Initial Collateral Certificate or
Additional Collateral Certificate, or such increase in the Invested
Amount of an existing Collateral Certificate, as applicable, is
conveyed to the Trust by such Transferor or increased by such
Transferor in compliance, in all material respects, with all
Requirements of Law applicable to such Transferor;
(vi) as of each Issuance Date and at the time of
the transfer and assignment of the Initial Collateral Certificate,
each Additional Collateral Certificate and each Additional Account
(and each Receivable arising therein) to the Trust by such Transferor
pursuant to this Agreement, such Transferor owned and had good and
marketable title to such Initial Collateral Certificate, Additional
Collateral Certificate or Receivable arising in an Additional Account
free and clear of any Lien (other than any Lien for municipal or
other local taxes if such taxes were not then due and payable or if
such Transferor was then contesting the validity thereof in good
faith by appropriate proceedings and had set aside on its books and
records adequate reserves with respect thereto), claim or
encumbrance of any Person;
(vii) as of (A) each day on which any new
Receivable is created, (B) the Initial Issuance Date, with respect to
the Initial Collateral Certificate, (C) each Addition Cut Off Date
with respect to Additional Accounts (and the Receivables arising
therein), (D) each Addition Date with respect to an Additional
Collateral Certificate and (E) each Increase Date with respect to an
increase in an existing Collateral Certificate, all authorizations,
consents, orders or approvals of or registrations or declarations
with any Governmental Authority required to be obtained, effected or
given by such Transferor in connection with the conveyance by such
Transferor of such Receivables or Additional Collateral Certificate
or the increase of the Invested Amount of any Collateral Certificate
previously conveyed to the Trust have been duly obtained, effected or
given and are in full force and effect;
(viii) as of (A) each Issuance Date, (B) each
Addition Cut Off Date with respect to Additional Accounts (and the
Receivables arising therein), (C) each Addition Date with respect to
an Additional Collateral Certificate and (D) each Increase Date with
respect to an increase in an existing Collateral Certificate, this
Agreement constitutes a valid sale, transfer and assignment to the
Trust of all right, title and interest of such Transferor in the
Initial Collateral Certificate, any Receivables existing on and after
an Addition Date, any Additional Collateral Certificate or any
increased amount of an existing Collateral Certificate, as
applicable, transferred to the Trust by such Transferor and the
proceeds thereof and Interchange and Recoveries identified as
relating to the Receivables transferred to the Trust by such
Transferor or, if this Agreement or, in the case of an Additional
Collateral Certificate or Additional Accounts, the related
Certificate Assignment or Account Assignment, as applicable, does not
constitute a sale of such property, it creates a valid and continuing
security interest (as defined in the applicable UCC) in such property
in favor of the Trust, which security interest is prior to all other
Liens, and is enforceable as such against creditors of and purchasers
from such Transferor;
(ix) as of (A) each Issuance Date, (B) each
Addition Cut Off Date with respect to Additional Accounts (and the
Receivables arising therein), (C) each Addition Date with respect to
an Additional Collateral Certificate and (D) each Increase Date with
respect to an increase in an existing Collateral Certificate, such
Transferor has caused or will have caused within ten days, the filing
of all appropriate financing statements in the proper filing office
in the appropriate jurisdictions under applicable law in order to
perfect the security interest in such property granted to the Trust
hereunder and upon the filing of all such appropriate financing
statements, the Trust shall have a first priority perfected security
or ownership interest in such property and proceeds;
(x) as of (A) each Issuance Date, (B) each Addition
Cut Off Date with respect to Additional Accounts (and the Receivables
arising therein), (C) each Addition Date with respect to an
Additional Collateral Certificate and (D) each Increase Date with
respect to an increase in an existing Collateral Certificate, other
than the security interest granted to the Trust pursuant to this
Agreement or any other security interest that has been terminated,
such Transferor has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed such property; such Transferor has
not authorized the filing of and is not aware of any financing
statements against such Transferor that include a description of
collateral covering such property other than any financing statement
relating to the security interest granted to the Trust hereunder or
that has been terminated; and such Transferor is not aware of any
judgment or tax lien filings against such Transferor. Upon the filing
of any applicable financing statements and, in the case of
Receivables hereafter created and the proceeds thereof, upon the
creation thereof, the Trust shall have a first priority perfected
security interest or ownership interest in such property and
proceeds;
(xi) as of (A) each Issuance Date, (B) each
Increase Date with respect to the existing Collateral Certificate
which is to have its Invested Amount increased on such date and (C)
each Addition Date with respect to an Additional Collateral
Certificate, such Initial Collateral Certificate, existing Collateral
Certificate or Additional Collateral Certificate, as applicable,
constitutes a "certificated security" within the meaning of the
applicable UCC; such Transferor has in its possession all original
copies of each certificates that constitutes or evidences such
Initial Collateral Certificate, existing Collateral Certificate or
Additional Collateral Certificate, as applicable; the certificates
that constitute or evidence such Initial Collateral Certificate,
existing Collateral Certificate or Additional Collateral Certificate
do not have any marks or notations indicating that they have been
pledged, assigned or otherwise conveyed to any Person other than the
Trust; and all financing statements filed or to be filed against such
Transferor in favor of the Trust in connection herewith describing
such Initial Collateral Certificate, existing Collateral Certificate
or Additional Collateral Certificate, as applicable, contain a
statement to the following effect: "A purchase of or security
interest in any collateral described in this financing statement will
violate the rights of the Trust";
(xii) as of each Addition Date with respect to an
Additional Collateral Certificate, such Additional Collateral
Certificate is an Eligible Collateral Certificate;
(xiii) as of the applicable Addition Cut Off Date,
each related Additional Account is an Eligible Account;
(xiv) as of (A) the applicable Addition Cut Off
Date with respect to each Receivable contained in the related
Additional Accounts to be conveyed to the Trust by
such Transferor on the applicable Addition Date, (B) the date of the
creation of each new Receivable transferred to the Trust by such
Transferor and (C) each Issuance Date with respect to all Receivables
contained in Additional Accounts which have been conveyed to the
Trust by such Transferor and each new Receivable subsequently
transferred to the Trust by such Transferor, such Receivable
constitutes an "account" within the meaning of the applicable UCC;
(xv) as of (A) the applicable Addition Cut Off Date
with respect to each Receivable contained in the related Additional
Accounts to be conveyed to the Trust by such Transferor on the
applicable Addition Date and (B) the date of the creation of any new
Receivable transferred to the Trust by such Transferor, such
Receivable is an Eligible Receivable;
(xvi) on the applicable Addition Cut Off Date, no
selection procedures believed by such Transferor to be materially
adverse to the interests of the Noteholders have been used in
selecting such Additional Accounts; and
(xvii) on the Initial Issuance Date and on each
applicable Increase Date, the Collateral Certificate which is to have
its Invested Amount increased is an Eligible Collateral Certificate.
(b) Notice of Breach. The representations and warranties set
forth in Section 2.03 and this Section 2.04 shall survive the transfers and
assignments of the Collateral Certificates and the Receivables to the Trust,
the pledge of the Collateral Certificates and the Receivables to the
Collateral Agent pursuant to the Asset Pool Supplement, and the issuance of
the Notes. Upon discovery by any Transferor, the Servicer, the Indenture
Trustee, the applicable Collateral Agent or the Owner Trustee of a breach of
any of the representations and warranties set forth in Section 2.03 or this
Section 2.04, the party discovering such breach shall give prompt written
notice to the other parties following such discovery.
Section 2.05 Transfer of Ineligible Receivables and Ineligible
Collateral Certificates.
(a) Automatic Removal. With respect to Receivables or
Collateral Certificates, in the event that (x)(1) any representation or
warranty contained in subsection 2.04(a)(v) is not true and correct in any
material respect as of the date specified therein, or in the event that a
Receivable is not an Eligible Receivable or a Collateral Certificate is not an
Eligible Collateral Certificate, and (2) any of the following two conditions
is met: (A) as a result of such breach or event such Receivable is charged off
as uncollectible or the Trust's rights in, to or under such Collateral
Certificate or Receivable or its proceeds are impaired or the proceeds of such
Collateral Certificate or Receivable are not available for any reason to the
Trust free and clear of any Lien; or (B) the Lien upon the subject Receivable
or Collateral Certificate (1) arises in favor of the United States of America
or any state or any agency or instrumentality thereof and involves taxes or
liens arising under Title IV of ERISA or (2) has been consented to by the
applicable Transferor or (y) with respect to Receivables, the applicable
Transferor has taken an action which causes a Receivable to be deemed to be an
Ineligible Receivable in accordance with subsection 2.08(a); then, upon the
earlier to occur of the discovery of such breach or event by the applicable
Transferor or the Servicer or receipt by the Transferor who conveyed such
Receivable or Collateral Certificate of written notice of such breach or event
given by the Indenture Trustee, the applicable Collateral Agent or the Owner
Trustee, then the applicable Transferor shall accept reassignment of all
applicable Receivables or of the applicable Collateral Certificate on the
terms and conditions set forth in paragraph (c) below.
(b) Removal After Cure Period. In the event any representation
or warranty contained in subsection 2.04(a)(iv), (vi), (vii), (ix), (x), (xi),
(xii), (xiii), (xiv), (xv), (xvi) and (xvii) is not true and correct in any
material respect as of the date specified therein with respect to (x) any
Collateral Certificate and such breach has a material adverse effect on such
Collateral Certificate or (y) any Receivable or the related Account and such
breach has a material and adverse effect on such Receivable, then, unless
cured within 60 days (or such longer period, not in excess of 120 days, as may
be agreed to by the Indenture Trustee, the applicable Collateral Agent and the
Servicer) after the earlier to occur of the discovery thereof by the
Transferor who conveyed such Collateral Certificate or Receivable to the Trust
or receipt by such Transferor of written notice thereof given by the Owner
Trustee, the Indenture Trustee, the applicable Collateral Agent or the
Servicer, then such Transferor shall accept reassignment of the Ineligible
Collateral Certificate or of the Ineligible Receivable, as the case may be, on
the terms and conditions set forth in paragraph (c) below.
(c) Procedures for Removal. When the provisions of subsection
2.05(a) or (b) above require (i) removal of a Collateral Certificate, the
applicable Collateral Agent shall deliver such Collateral Certificate (such
Collateral Certificate, an "Ineligible Collateral Certificate") to the
applicable Transferor with a valid assignment in the name of such Transferor
for cancellation by such Transferor and directing the Servicer to deduct the
Invested Amount of each such Ineligible Collateral Certificate from the Pool
Balance for the applicable Asset Pool and to decrease the Transferor Amount of
such Asset Pool by the Invested Amount of such Ineligible Collateral
Certificate or (ii) removal of a Receivable, the applicable Transferor shall
accept reassignment of such Receivable (each such Receivable, an "Ineligible
Receivable") by directing the Servicer to deduct the principal balance of each
such Ineligible Receivable from the Pool Balance for the applicable Asset Pool
and to decrease the Transferor Amount of such Asset Pool by the principal
balance of such Ineligible Receivable. On and after the date of such removal,
the Invested Amount of each Ineligible Collateral Certificate and the
principal balance of each Ineligible Receivable shall be deducted from the
Pool Balance and Transferor Amount for the applicable Asset Pool. In the event
that the exclusion of an Ineligible Collateral Certificate or an Ineligible
Receivable from the calculation of the Transferor Amount for an Asset Pool
would cause the Transferor Amount for such Asset Pool to be reduced below the
Required Transferor Amount for such Asset Pool or the Pool Balance for such
Asset Pool to be reduced below the Minimum Pool Balance for such Asset Pool or
would otherwise not be permitted by law, the Transferor who conveyed such
Ineligible Collateral Certificate or Ineligible Receivable shall immediately,
but in no event later than 10 Business Days after such event, make a deposit
in the Excess Funding Account for that Asset Pool in immediately available
funds in an amount equal to the amount by which (x) the Transferor Amount for
that Asset Pool would be reduced below the Required Transferor Amount for that
Asset Pool or (y) the Pool Balance for that Asset Pool would be reduced below
the Minimum Pool Balance for that Asset Pool.
Upon reassignment of any Ineligible Collateral Certificate or
Ineligible Receivable, the Trust shall automatically and without further
action be deemed to transfer, assign, set-over and otherwise convey to the
applicable Transferor or its designee, without recourse, representation or
warranty, all the right, title and interest of the Trust in and to such
Ineligible Collateral Certificate or Ineligible Receivable, all Interchange
and Recoveries related to any such Receivable, all monies and amounts due or
to become due and all proceeds thereof and such reassigned Ineligible
Collateral Certificate or Ineligible Receivable shall be treated by the Trust
as collected in full as of the date on which it was transferred. The
obligation of each Transferor to accept reassignment of any Ineligible
Collateral Certificate or Ineligible Receivable conveyed to the Trust by such
Transferor, and to make the deposits, if any, required to be made to the
applicable Excess Funding Account as provided in this Section, shall
constitute the sole remedy respecting the event giving rise to such obligation
available to the Trust or the Noteholders (or the Indenture Trustee or the
applicable Collateral Agent on behalf of the Noteholders). The Trust shall
execute such documents and instruments of transfer or assignment and take such
other actions as shall reasonably be requested and provided by the applicable
Transferor to effect the conveyance of such Ineligible Collateral Certificate
or Ineligible Receivable pursuant to this subsection 2.05(c), but only upon
receipt of an Officer's Certificate from such Transferor that states that all
conditions set forth in this Section 2.05 have been satisfied.
Section 2.06 Reassignment of Collateral. In the event any
representation or warranty of a Transferor set forth in subsection 2.03(a) or
(c) or subsection 2.04(a)(i), (ii), (iii) or (viii) is not true and correct in
any material respect and such breach has a material adverse effect on the
Receivables designated for inclusion in an Asset Pool or a particular
Collateral Certificate transferred to the Trust by such Transferor or the
availability of the proceeds thereof to the Trust then, either the Owner
Trustee, the Indenture Trustee, the applicable Collateral Agent or the Holders
of Notes secured by the applicable Asset Pool evidencing more than 662/3% of
the aggregate unpaid principal amount of all Outstanding Notes secured by the
applicable Asset Pool, by notice then given to the applicable Transferor, the
Administrator and the Servicer (and to the Owner Trustee, the Indenture
Trustee and the applicable Collateral Agent, if given by the Noteholders), may
direct such Transferor to accept a reassignment of the Receivables designated
for inclusion in such Asset Pool and/or any such Collateral Certificate
conveyed to the Trust by such Transferor and designated for inclusion in such
Asset Pool, pursuant to this Agreement, the applicable Receivables Purchase
Agreement, if any, the applicable Series Supplement, the applicable Account
Assignment or the applicable Certificate Assignment, if such breach and any
material adverse effect caused by such breach is not cured within 60 days of
such notice (or within such longer period as may be specified in such notice),
and upon those conditions such Transferor shall be obligated to accept such
reassignment on the terms set forth below; provided, however, that a
Transferor shall only be required to accept reassignment of Receivables or
Collateral Certificates transferred under an agreement with respect to which
the relevant representation and warranty was deemed to be breached; and
provided, further, the affected Receivables and the affected Collateral
Certificates will not be reassigned to such Transferor if, on any day during
such applicable period the relevant representation and warranty shall be true
and correct in all material respects as if made on such day. The applicable
Transferor shall deposit the portion of the Reassignment Amount attributable
to the applicable Notes in the Collection Account to be treated (i) in
connection with amounts determined under clause (a) of the definition of
"Reassignment Amount," as Principal Collections for each Series of Notes and
(ii) in connection with the amounts determined under clause (b) of the
definition of "Reassignment Amount," as Finance Charge Collections for each
Series of Notes, in either case, in immediately available funds not later than
1:00 p.m., New York City time, on the First Note Transfer Date following the
Monthly Period in which such reassignment obligation arises, in payment for
such reassignment.
If the Owner Trustee, the Indenture Trustee, the applicable
Collateral Agent or the Noteholders give notice directing the applicable
Transferor to accept a reassignment of any Receivables or any Collateral
Certificate as provided above, the obligation of such Transferor to accept
such reassignment pursuant to this Section 2.06 and to make the deposit
required to be made to the Collection Account for each Series of Notes as
provided in this Section 2.06 shall constitute the sole remedy respecting an
event of the type specified above in this Section 2.06 available to the
Noteholders (or the Indenture Trustee or any Collateral Agent on behalf of the
Noteholders). Upon reassignment of the affected Receivables and any affected
Collateral Certificate on the First Note Transfer Date following the Monthly
Period in which such obligation arises, the Trust shall automatically and
without further action be deemed to transfer, assign, set-over and otherwise
convey to the applicable Transferor, without recourse, representation or
warranty, all the right, title and interest of the Trust in and to the
affected Receivables and affected Collateral Certificates, all Interchange and
Recoveries allocable to the Trust with respect thereto, and all monies and
amounts due or to become due with respect thereto and all proceeds of the
Receivables and Insurance Proceeds relating thereto allocated to the
Receivables (and any costs or expenses incurred by the Indenture Trustee in
connection with such reassignment shall be reimbursed by the Servicer). The
Trust shall execute such documents and instruments of transfer or assignment
and take such other actions as shall reasonably be requested by the applicable
Transferor to effect the conveyance of such property pursuant to this Section.
Section 2.07 Additional Transferors. The Transferor may
designate Affiliates of the Transferor to be included as Transferors
("Additional Transferors") under this Agreement in an amendment hereto
pursuant to subsection 12.01(a) and, in connection with such designation, the
Transferor shall surrender the Transferor Certificate for the applicable Asset
Pool to the Owner Trustee in exchange for a newly issued Transferor
Certificate for such Asset Pool modified to reflect such Additional
Transferor's interest in the Transferor Interest of such Asset Pool; provided,
however, that each Additional Transferor shall agree in such amendment hereto
to assume all of the duties and obligations of the Transferor hereunder; and
provided, further, that prior to any such designation and exchange (i) the
Owner Trustee shall have received an Issuer Tax Opinion, (ii) the Note Rating
Agency Condition shall have been satisfied, (iii) the Master Trust Trustee
shall have received the Master Trust Tax Opinion and (iv) any additional
conditions to the transfer of a Beneficial Interest provided in Section 3.02
of the Trust Agreement shall have been satisfied.
Section 2.08 Covenants of each Transferor. Each Transferor
hereby severally covenants that:
(a) Receivables Not To Be Evidenced by Promissory Notes. Except
in connection with its enforcement or collection of an Account, such
Transferor will take no action to cause any Receivable conveyed by it to the
Trust to be evidenced by any instrument (as defined in the UCC) and if any
such Receivable is so evidenced it shall be deemed to be an Ineligible
Receivable in accordance with subsection 2.05(a) and shall be reassigned to
such Transferor in accordance with subsection 2.05(c). Each Receivable shall
be payable pursuant to a contract which does not create a Lien on any goods
purchased thereunder. Each Transferor will take no action to cause any
Receivable to be anything other than an "account" (as defined in the UCC).
(b) Security Interests. Except for the conveyances hereunder,
such Transferor will not sell, pledge, assign or transfer to any other Person,
or grant, create, incur, assume or suffer to exist any Lien on, any Receivable
or Collateral Certificate conveyed by it to the Trust, whether now existing or
hereafter created, or any interest therein; such Transferor will immediately
notify the Indenture Trustee, the applicable Collateral Agent and the Owner
Trustee of the existence of any Lien on any Receivable or Collateral
Certificate; and such Transferor shall defend the right, title and interest of
the Trust, the Indenture Trustee and the applicable Collateral Agent in, to
and under the Receivables and any Collateral Certificate, whether now existing
or hereafter created, against all claims of third parties claiming through or
under such Transferor; provided, however, that nothing in this subsection
2.08(b) shall prevent or be deemed to prohibit such Transferor from suffering
to exist upon any of the Receivables any Liens for municipal or other local
taxes if such taxes shall not at the time be due and payable or if such
Transferor shall currently be contesting the validity thereof in good faith by
appropriate proceedings and shall have set aside on its books adequate
reserves with respect thereto.
(c) Transferor Interest. Except for the conveyances hereunder,
in connection with any transaction permitted by subsection 6.02(a)(i) and as
provided in Section 2.07 of this Agreement, such Transferor agrees not to
transfer, sell, assign, exchange or otherwise convey or pledge, hypothecate or
otherwise grant a security interest in the Transferor Interest of any Asset
Pool or any Transferor Certificate for any Asset Pool and any such attempted
transfer, assignment, exchange, conveyance, pledge, hypothecation, grant or
sale shall be void, unless the Owner Trustee shall have received an Issuer Tax
Opinion.
(d) Delivery of Collections. In the event that such Transferor
receives Collections, such Transferor agrees to pay the Servicer all such
Collections as soon as practicable after receipt thereof.
(e) Notice of Liens. Such Transferor shall notify the Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent promptly
after becoming aware of any Lien on any Receivable or Collateral Certificate
conveyed by it to the Trust other than the conveyances hereunder and under the
applicable Receivables Purchase Agreement, if any, the applicable Pooling and
Servicing Agreement, the applicable Series Supplement, the Indenture and the
applicable Asset Pool Supplement.
(f) Credit Card Agreements and Guidelines. Each Transferor that
is an Account Owner covenants that it shall comply with and perform its
obligations under the Credit Card Agreements relating to the Accounts and the
Credit Card Guidelines and all applicable rules and regulations of the
applicable credit card company except insofar as any failure to comply or
perform would not materially and adversely affect the rights of the Trust or
the Noteholders; provided, however, the applicable Transferor may change the
terms and provisions of the applicable Credit Card Agreements or the
applicable Credit Card Guidelines in any respect (including the reduction of
the required minimum monthly payment, the calculation of the amount, or the
timing, of charge-offs and the Periodic Finance Charges and other fees to be
assessed thereon) only if such change (i) would not, in the reasonable belief
of such applicable Transferor, cause an Early Amortization Event or Event of
Default to occur, and (ii) is made applicable to any comparable segment of the
consumer revolving credit card accounts owned by such applicable Transferor
which have characteristics the same as, or substantially similar to, the
Accounts that are the subject of such change, except as otherwise restricted
by an endorsement, sponsorship, or other agreement between such applicable
Transferor and an unrelated third party or by the terms of the Credit Card
Agreements.
Section 2.09 Covenants of Each Transferor with Respect to Any
Applicable Receivables Purchase Agreement. Each Transferor, if such Transferor
is a party to a Receivables Purchase Agreement, in its capacity as purchaser
of Receivables from any Account Owner pursuant to any such Receivables
Purchase Agreement, hereby covenants that such Transferor will at all times
enforce the covenants and agreements of any Account Owner in such Receivables
Purchase Agreement, including covenants that the Account Owner shall at all
times enforce the covenants and agreements of it, as the case may be, in any
Receivables Purchase Agreement.
Section 2.10 Reinvestment in Collateral.
(a) On each First Note Transfer Date, the Reinvestment Amount
for the immediately preceding Monthly Period for each Asset Pool, as specified
in the applicable Asset Pool Supplement, shall be applied for each such Asset
Pool in the following order of priority:
(i) if the Collateral designated for inclusion in
such Asset Pool includes one or more Collateral Certificates, the
Servicer, on behalf of the Issuer, shall specify the amount of the
Reinvestment Amount for such Asset Pool to be applied in order to
increase the Invested Amount of each such Collateral Certificate
previously designated as part of the Collateral of such Asset Pool,
which amount shall be determined by the Servicer, on behalf of the
Issuer, in its own discretion, and no such reinvestment shall be
required; provided, however, that, subject to the restrictions
specified in subsection 2.11(c), the Servicer, on behalf of the
Issuer, shall be required to increase the Invested Amount of an
existing Collateral Certificate if Collateral is required to be added
pursuant to subsection 2.12(a) and the applicable Transferor elects
to increase the Invested Amount of one or more Collateral
Certificates as specified in such subsection (so long as the
applicable Series Supplement allows such reinvestment and the
transferor or seller for the related Master Trust agrees to such
reinvestment); and
(ii) the remainder of such amounts shall be paid to
the holder of the Transferor Certificate for such Asset Pool;
provided, however, that if the Transferor Amount for such Asset Pool
for the prior Monthly Period did not equal or exceed the Required
Transferor Amount for such Asset Pool for such prior Monthly Period
or the Pool Balance for such Asset Pool for the prior Monthly Period
did not equal or exceed the Minimum Pool Balance for such Asset Pool
for such prior Monthly Period (after application of the Reinvestment
Amount, if any, pursuant to this Section), such amount shall be
deposited by the Servicer in the Excess Funding Account for such
Asset Pool.
(b) Each Receivable designated for inclusion in an Asset Pool
shall be transferred to the Trust pursuant to this Agreement and, pursuant to
the Indenture, as supplemented by the applicable Asset Pool Supplement,
pledged to secure the Notes of such Asset Pool on the day that such Receivable
arises.
Section 2.11 Increases in the Invested Amount of an Existing
Collateral Certificate.
(a) In addition to the increases described in Section 2.10
above, the Invested Amount of any existing Collateral Certificate designated
for inclusion in an Asset Pool may be increased by the Issuer and the
applicable Transferor on any Business Day in connection with:
(i) the issuance of an additional Series, Class or
Tranche of Notes secured by such Asset Pool; or
(ii) the increase of the Transferor Amount for such
Asset Pool.
(b) In connection with any increase in the Invested Amount of
an existing Collateral Certificate, such increase shall either be funded from
the proceeds of the issuance of an additional Series, Class or Tranche of
Notes or funded by the applicable Transferor (which funding may be in cash or
through an increase in the Transferor Interest for such Asset Pool).
(c) Notwithstanding any other provision of this Agreement, with
respect to any Monthly Period, the Invested Amount of an existing Collateral
Certificate shall not be increased, including increases pursuant to Section
2.10 and this Section 2.11, if (i) an Early Amortization Event shall have
occurred with respect to any Notes as a result of a failure to add Collateral
to the Trust for inclusion in a specified Asset Pool or a failure to increase
the Invested Amount of an existing Collateral Certificate at a time when the
Pool Balance for such Asset Pool for the prior Monthly Period is less than the
Minimum Pool Balance for such Asset Pool for such prior Monthly Period and
(ii) increasing the Invested Amount of or reinvesting in an existing
Collateral Certificate would result in a reduction in the allocation
percentage applicable for principal collections for such existing Collateral
Certificate.
Section 2.12 Addition of Collateral.
(a) Required Additions.
(i) Required Additions. If, (A) as determined on
any Determination Date, the Transferor Amount for an Asset Pool for
the prior Monthly Period is less than the Required Transferor Amount
for such Asset Pool for such prior Monthly Period, the applicable
Transferor shall (1) designate Receivables in additional Accounts to
be transferred to the Trust (each, an "Additional Account") for
designation pursuant to the applicable Asset Pool Supplement, (2)
designate one or more additional Collateral Certificates
to be transferred to the Trust (each, an "Additional
Collateral Certificate") for designation pursuant to the applicable
Asset Pool Supplement or (3) increase the Invested Amount of one or
more existing Collateral Certificates pursuant to Section 2.10 or
Section 2.11 in a sufficient amount such that, after giving effect to
such addition or increase, the Transferor Amount for such Asset Pool
for the prior Monthly Period would have been at least equal to the
Required Transferor Amount for such Asset Pool for such prior Monthly
Period, or (B) as determined on any Determination Date, the Pool
Balance for such Asset Pool for the prior Monthly Period is less than
the Minimum Pool Balance for such Asset Pool for such prior Monthly
Period, the applicable Transferor shall (1) designate Receivables in
Additional Accounts to be transferred to the Trust for designation
pursuant to the applicable Asset Pool Supplement, (2) designate one
or more Additional Collateral Certificates to be transferred to the
Trust for designation pursuant to the applicable Asset Pool
Supplement or (3) increase the Invested Amount of one or more
existing Collateral Certificates pursuant to Section 2.10 or Section
2.11 in a sufficient amount such that, after giving effect to such
addition or increase, the Pool Balance for the applicable Asset Pool
would have been at least equal to the Minimum Pool Balance for such
Asset Pool for the prior Monthly Period; provided, however, that in
the event of a Servicer Rating Event, the Transferor Amount and the
Pool Balance for an Asset Pool will be determined on a daily basis in
accordance with a method to be determined by the Servicer, subject to
satisfaction of the Note Rating Agency Condition.
Any increase in the Invested Amount of one or more existing
Collateral Certificates shall occur and/or designation of Receivables
in any Additional Accounts and/or any Additional Collateral
Certificates to be transferred to the Trust for designation to a
particular Asset Pool shall be transferred to the Trust and
designated for inclusion in such Asset Pool on or before the
thirtieth Business Day following such Determination Date (such date,
in connection with the addition of Additional Accounts or Additional
Collateral Certificates, the "Addition Date" and in connection with
the increase of an existing Collateral Certificate, the "Increase
Date"); provided, however, that in the event of a Servicer Rating
Event, any such Addition Date or Increase Date shall be on or before
the tenth Business Date following such Determination Date. The
failure of the applicable Transferor to increase the Pool Balance or
the Transferor Amount for the applicable Asset Pool as provided in
this clause (i) solely as a result of the unavailability to the
applicable Transferor of a sufficient amount of Additional Accounts
and/or Additional Collateral Certificates and/or the inability to
increase the Invested Amount of one or more existing Collateral
Certificates shall not constitute a breach of this Agreement;
provided that any such failure which has not been timely cured may
nevertheless result in the occurrence of an Early Amortization Event.
(ii) Any Additional Accounts or Additional
Collateral Certificates designated to be included as Trust Assets
pursuant to clause (i) above may only be so included if the applicable
conditions specified in subsection (c) below have been satisfied.
(b) Permitted Additions.
(i) In addition to its obligation under subsection
2.12(a), each Transferor may, but shall not be obligated to, subject
to the conditions in paragraph (c) below, (x) designate from time to
time Receivables in Additional Accounts to be included as Trust
Assets, and/or Additional Collateral Certificates to be included as
Trust Assets and (y) increase the Invested Amount of an existing
Collateral Certificate. Such additional Collateral shall be
transferred to the Issuer on the Addition Date or Increase Date, as
applicable.
(ii) On any Business Day, consideration in the form
of cash will be applied or an increase in the Transferor Interest
will be effected in connection with any increase in the Trust Assets
pursuant to Section 2.10 or 2.11 or this Section 2.12, as applicable.
(c) Conditions to Additions. On each Addition Date with respect
to any Additional Accounts and/or Additional Collateral Certificates, the
applicable Receivables in Additional Accounts (and such Additional Accounts
shall be deemed to be Accounts for purposes of this Agreement) or the
applicable Additional Collateral Certificates existing as of the close of
business on the applicable Addition Date shall be designated as additional
Trust Assets, subject to the satisfaction of the following conditions (which
shall not apply with respect to any increase in the Invested Amount of any
existing Collateral Certificate except as specified in clause (i) below):
(i) on or before the third Business Day prior to
the Addition Date or Increase Date with respect to additions or
increases pursuant to subsection 2.12(a) and on or before the fifth
Business Day prior to the Addition Date with respect to additions
pursuant to subsection 2.12(b) (the "Notice Date"), the applicable
Transferor shall have delivered to the Owner Trustee, the Indenture
Trustee, the Servicer, the applicable Collateral Agent and each Note
Rating Agency written notice (unless such notice requirement is
otherwise waived) that the Additional Accounts and/or Additional
Collateral Certificates will be included in the Trust Assets or an
increased Invested Amount of an existing Collateral Certificate will
be included in the Trust Assets (the latter notice requirement shall
only apply to increases made pursuant to subsection 2.12(a);
provided, however, that notice shall be delivered to the applicable
Collateral Agent in connection with any increase in the Invested
Amount of an existing Collateral Certificate), which notice shall
specify, as applicable, (x) the approximate aggregate amount of the
Principal Receivables to be pledged, (y) the Invested Amount of the
43
Collateral Certificates to be pledged or (z) the amount by which the
Invested Amount of an existing Collateral Certificate is to be
increased, as well as the applicable Addition Date or Increase Date
and, in connection with the Additional Accounts, the Addition Cut Off
Date;
(ii) the applicable Transferor shall represent and
warrant as of the applicable Addition Cut Off Date, each Additional
Account is an Eligible Account;
(iii) the applicable Transferor shall represent and
warrant as of the applicable Addition Date, each Additional
Collateral Certificate is an Eligible Collateral Certificate;
(iv) on or before the Addition Date with respect to
Additional Accounts and the Receivables arising thereunder, the
applicable Transferor shall have delivered to the Owner Trustee, on
behalf of the Issuer, and the Servicer a written assignment in
substantially the form of Exhibit A-2 (the "Account Assignment") and
the applicable Transferor shall have delivered to the Owner Trustee,
on behalf of the Issuer, a computer file containing a true and
complete list of all Additional Accounts designated by such Account
Assignment, identified by account number and the aggregate amount of
the Receivables in each Additional Account as of the Addition Cut Off
Date, and stating to which Asset Pool such Additional Accounts
belong, which computer file shall be as of the date of such Account
Assignment, incorporated into and made a part of such Account
Assignment and this Agreement;
(v) on or before the Addition Date with respect to
Additional Collateral Certificates, the applicable Transferor shall
have delivered to the Owner Trustee, on behalf of the Issuer, a
written assignment in substantially the form of Exhibit A-1 (the
"Certificate Assignment") and each Collateral Certificate shall be
registered in the name of the Owner Trustee, on behalf of the Issuer;
(vi) as of each of the Addition Cut Off Date and
the Addition Date, no Insolvency Event with respect to the Account
Owner, as applicable, or such Transferor shall have occurred nor
shall the transfer to the Trust of the Receivables arising in the
Additional Accounts or of the Additional Collateral Certificate have
been made in contemplation of the occurrence thereof;
(vii) the acquisition by the Trust of the
Receivables arising in the Additional Accounts or of the Additional
Collateral Certificate shall not, in the reasonable belief of the
applicable Transferor, result in an Adverse Effect;
(viii) as of (i) the Addition Cut Off Date, the
Assignment constitutes a valid sale, transfer and assignment to the
Trust of all right, title and interest, whether owned on the Addition
Cut Off Date or thereafter acquired, of the Transferor in the
Receivables existing on the Addition Cut Off Date or thereafter
created in the Additional Accounts, all Interchange and Recoveries
related thereto, all monies due or to become due and all amounts
received or receivable with respect thereto and the "proceeds"
(including "proceeds" as defined in the applicable UCC) thereof, or,
if this Assignment does not constitute a sale of such property, it
constitutes a grant of a "security interest" (as defined in the
applicable UCC) in such property to the Trust, which, in the case of
existing Receivables and the proceeds thereof, is enforceable upon
execution and delivery of this Assignment, and which will be
enforceable with respect to such Receivables hereafter created and
the proceeds thereof upon such creation or (ii) the Addition Date in
connection with an Additional Collateral Certificate, the Assignment
constitutes either (x) a valid sale, transfer and assignment to the
Trust of all right, title and interest of the Transferor in the
Additional Collateral Certificate designated on the Addition Date and
such Additional Collateral Certificate will be held by the Owner
Trustee, on behalf of the Trust, free and clear of any Lien of any
Person claiming through or under the Transferor or any of its
Affiliates, or (y) a valid transfer for security of all of the
Transferor's right, title and interest in such Additional Collateral
Certificate to the Owner Trustee, on behalf of the Trust, which is
enforceable upon execution and delivery of this Assignment. Upon the
filing of all such appropriate financing statements, the Trust shall
have a first priority perfected security or ownership interest in
such property and proceeds;
(ix) if, with respect to any three-month period or
with respect to any twelve-month period, the aggregate number of
Additional Accounts designated to have their Receivables added to the
Trust and designated for inclusion in any Asset Pool, shall exceed
the applicable Aggregate Addition Limit for such Asset Pool, the
applicable Transferor shall have received notice from each Note
Rating Agency that the inclusion pursuant to subsection 2.12(b) of
such Additional Accounts in excess of the applicable Aggregate
Addition Limit will not result in the reduction or withdrawal of its
then existing rating of any Series, Class or Tranche of Notes then
issued and Outstanding and shall have delivered such notice to the
Owner Trustee, on behalf of the Issuer;
(x) if so notified by any Note Rating Agency on or
before the second Business Day prior to the Addition Date with
respect to additions of Additional Collateral Certificates pursuant
to subsection 2.12(a) or on or before the fourth Business Day prior
to the Addition Date with respect to additions of Additional
Collateral Certificates pursuant to subsection 2.12(b) that such Note
Rating Agency has elected to impose a Note Rating Agency Condition
with respect to the addition of an Additional Collateral Certificate,
the applicable Transferor shall have received notice from such Note
Rating Agency on or prior to the applicable Addition Date that the
Note Rating Agency Condition shall have been satisfied with respect to
such Note Rating Agency and the Transferor shall have delivered such
notice to the Owner Trustee, on behalf of the Issuer; and
(xi) such Transferor shall have delivered to the
Owner Trustee, on behalf of the Issuer, an Officer's Certificate,
dated the Addition Date, confirming, to the extent applicable, the
items set forth in clauses (ii) through (x) above.
Section 2.13 Removal of Accounts. (a) Subject to the conditions
set forth below, each Transferor may, but shall not be obligated to, designate
Receivables for removal from the Trust (the "Removed Accounts"). On or before
the fifth Business Day (the "Removal Notice Date") prior to the date on which
the Receivables from the designated Removed Accounts will be reassigned to the
applicable Transferor (the "Removal Date"), the Issuer shall give the Owner
Trustee, the Indenture Trustee, the Servicer, the applicable Collateral Agent
and each Note Rating Agency written notice that the Receivables from such
Removed Accounts are to be reassigned to the applicable Transferor.
(b) The applicable Transferor shall be permitted to designate
and require reassignment to it of Receivables from Removed Accounts only upon
satisfaction of the following conditions:
(i) all of the requirements for the removal of
Accounts under the applicable Asset Pool Supplement have been
satisfied;
(ii) the Servicer shall represent and warrant that
(x) a random selection procedure was used by the Servicer in
selecting the Removed Accounts and only one such removal of randomly
selected Accounts shall occur in the then current Monthly Period, (y)
the Removed Accounts arose pursuant to an affinity, private-label,
agent-bank, co- branding or other arrangement with a third party that
has been cancelled by such third party or has expired without renewal
and which by its terms permits the third party to repurchase the
Removed Accounts subject to such arrangement, upon such cancellation
or non-renewal and the third party has exercised such repurchase
right or (z) the Removed Accounts were selected using another method
that will not preclude transfers from being accounted for as sales
under generally accepted accounting principles or prevent the
applicable Transferor from continuing to qualify as a qualifying
special purpose entity in accordance with SFAS No. 140 (or any
relevant replacement statement);
(iii) the removal of any Receivable of any Removed
Accounts on any Removal Date shall not, in the reasonable belief of
the applicable Transferor, cause, with respect to the Asset Pool in
which such Receivables had been designated for inclusion, an Adverse
Effect or the Transferor Amount for such Asset Pool to be less than
the Required Transferor Amount for that Asset Pool or the Pool Balance
for that Asset Pool to be less than the Minimum Pool Balance for such
MonthlyPeriod in which such removal occurs;
(iv) on or prior to the Removal Date, the
applicable Transferor shall have delivered to the Owner Trustee, on
behalf of the Issuer, for execution, a written assignment in
substantially the form of Exhibit B (the "Reassignment") and, within
five Business Days thereafter, or as otherwise agreed upon between
the applicable Transferor and the Owner Trustee, on behalf of the
Issuer, the applicable Transferor shall have delivered to the Owner
Trustee, on behalf of the Issuer, a computer file containing a true
and complete list of all Removed Accounts identified by account
number and the aggregate amount of Receivables outstanding in each
Removed Account as of the Removal Date, and stating from which Asset
Pool such Accounts are to be removed, which computer file shall as of
the Removal Date modify and amend and be made a part of this
Agreement;
(v) on or before the tenth Business Day prior to
the Removal Date, each Note Rating Agency shall have received notice
from the Servicer of such proposed removal of the Receivables of such
Accounts and, if such removal is pursuant to subclause (ii)(y) or (z)
above, the Note Rating Agency Condition shall have been satisfied;
and
(vi) (A) the Issuer shall have delivered to the
Owner Trustee an Officer's Certificate confirming the items set forth
in clause (i), (B) the Servicer shall have delivered to the Owner
Trustee, on behalf of the Issuer, an Officer's Certificate confirming
the items set forth in clause (ii) above and (C) the applicable
Transferor shall have delivered to the Owner Trustee, on behalf of
the Issuer, an Officer's Certificate confirming the items set forth
in clauses (iii) through (v) above. The Owner Trustee, the Indenture
Trustee and the applicable Collateral Agent may each conclusively
rely on each 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 Owner Trustee,
on behalf of the Issuer, shall execute and deliver the Reassignment to such
Transferor, and the Receivables from the Removed Accounts shall no longer
constitute a part of the Collateral.
Section 2.14 Account Allocations. In the event that any
Transferor is unable for any reason to transfer Receivables to the Trust in
accordance with the provisions of this Agreement (including, without
limitation, by reason of the application of the provisions of Section 9.01 or
any order of any Governmental Authority (a "Transfer Restriction Event")),
then, in any such event, (a) such Transferor and the Servicer agree (except as
prohibited by any such order) to allocate and pay to the Trust, after the date
of such inability, all Collections, including Collections of Principal
Receivables and Finance Charge Receivables transferred to the Trust prior to
the occurrence of such event, and all amounts which would have constituted
Collections with respect to Principal Receivables and Finance Charge
Receivables but for such Transferor's inability to transfer such Receivables
(up to the lesser of the amount of such insufficiency or an aggregate amount
equal to the amount of Principal Receivables and Finance Charge Receivables in
the Trust on such date transferred to the Trust by such Transferor), (b) such
Transferor and the Servicer agree that such amounts will be applied as
Collections in accordance with the terms of the applicable Asset Pool
Supplement and the terms of each Indenture Supplement and (c) for only so long
as the allocation and application of all Collections and all amounts that
would have constituted Collections are made in accordance with clauses (a) and
(b) above, Principal Receivables and Finance Charge Receivables (and all
amounts which would have constituted Principal Receivables and Finance Charge
Receivables but for such Transferor's inability to transfer Receivables to the
Trust) which are charged off as uncollectible in accordance with this
Agreement shall continue to be allocated in accordance with the terms of the
applicable Asset Pool Supplement and each Indenture Supplement and all amounts
that would have constituted Principal Receivables but for such Transferor's
inability to transfer Receivables to the Trust shall be deemed to be Principal
Receivables for the purpose of calculating the applicable Noteholder
Percentage with respect to Principal Receivables with respect to any Series,
Class or Tranche secured by the Receivables designated for inclusion in any
Asset Pool. For the purpose of the immediately preceding sentence, such
Transferor and the Servicer shall treat the first received Collections with
respect to the Accounts as allocable to the Trust until the Trust shall have
been allocated and paid Collections in an amount equal to the aggregate amount
of Principal Receivables in the Trust as of the date of the occurrence of such
event. If such Transferor and the Servicer are unable pursuant to any
Requirements of Law to allocate Collections as described above, such
Transferor and the Servicer agree that, after the occurrence of such event,
payments on each Account with respect to the principal balance of such Account
shall be allocated first to the oldest principal balance of such Account and
shall have such payments applied as Collections in accordance with the terms
of the applicable Asset Pool Supplement and each Indenture Supplement. The
parties hereto agree that Finance Charge Receivables, whenever created,
accrued in respect of Principal Receivables which have been conveyed to the
Trust, or that would have been conveyed to the Trust but for the above
described inability to transfer such Receivables, shall continue to be a part
of the Trust notwithstanding any cessation of the transfer of additional
Principal Receivables to the Trust and Collections with respect thereto shall
continue to be allocated and paid in accordance with the terms of the
applicable Asset Pool Supplement and each Indenture Supplement.
Section 2.15 Discount Receivables.
(a) The Transferor shall have the option to designate at any
time and from time to time a fixed percentage or percentages, which may be a
fixed percentage or a variable percentage based on a formula (the "Yield
Factor"), currently zero, of all or any specified portion of Gross Principal
Receivables outstanding that have been designated for inclusion in a specified
Asset Pool on any date of determination and subsequently created to be treated
as Discount Receivables and included as Finance Charge Receivables. Subject to
the conditions specified below, the Transferor may, without notice to or the
consent of any Noteholder whose notes are secured by a specified Asset Pool,
from time to time, increase, reduce or eliminate the Yield Factor on or after
such initial date of determination and any other specified date (each, a
"Discount Option Date"). The Transferor shall provide 30 days prior written
notice of any such change in a Yield Factor with respect to a specified Asset
Pool and the related Discount Option Date to the Servicer, the Owner Trustee,
the Indenture Trustee, the applicable Collateral Agent and any Note Rating
Agency and such change in the Yield Factor shall become effective on such
Discount Option Date unless such designation in the reasonable belief of the
Transferor would cause an Early Amortization Event or Event of Default with
respect to any Series, Class or Tranche to occur, or an event which, with
notice or lapse of time or both, would constitute an Early Amortization Event
or Event of Default with respect to any Series, Class or Tranche. In addition,
on each Discount Option Date after a change in Yield Factor, the Transferor
shall apply the new Yield Factor to all or the portion of the Gross Principal
Receivables outstanding that have been designated for inclusion in a specified
Asset Pool which are to be treated as Discount Receivables.
(b) After the Discount Option Date, Discount Receivables
Collections with respect to Receivables designated for inclusion in an Asset
Pool shall be treated as Finance Charge Collections to be allocated to such
Asset Pool.
[END OF ARTICLE II]
ARTICLE III
COLLECTIONS, ALLOCATIONS, DEPOSITS AND PAYMENTS
Section 3.01 Collections and Allocations.
The Servicer (or, if the authority of the Servicer has been
revoked pursuant to Section 10.01 hereof, or, if a Successor Servicer has been
appointed, the Successor Servicer) shall receive from time to time funds from
each Transferor in respect of Receivables and from each applicable Master
Trust with respect to the Collateral Certificates pledged to the Trust. Upon
receipt of any funds in respect of a Collateral Certificate or Receivables,
unless otherwise specified herein, the Servicer shall deposit such amounts in
the Collection Account for the Asset Pool in which such Collateral Certificate
or Receivables have been designated for inclusion, which amounts shall be
applied by the applicable Collateral Agent, on behalf of the Indenture
Trustee, for such Asset Pool pursuant to the Asset Pool Supplement for such
Asset Pool. Except as otherwise provided below, the Servicer shall deposit
Collections with respect to Receivables into the Collection Account for the
applicable Asset Pool as promptly as possible after the Date of Processing of
such Collections, but in no event later than the second Business Day following
the Date of Processing and shall deposit Collections received with respect to
Collateral Certificates with respect to any Monthly Period into the Collection
Account for the applicable Asset Pool no later than the First Note Transfer
Date for the applicable Asset Pool in the next succeeding Monthly Period. In
the event of the insolvency of the Servicer, then, immediately upon the
occurrence of such event and thereafter, the Servicer shall deposit all
Collections into the Collection Account for each applicable Asset Pool and in
no such event shall the Servicer deposit any Collections thereafter into any
account established, held or maintained with the Servicer.
For as long as First USA remains the Servicer hereunder and (i)
no Servicer Rating Event shall have occurred and be continuing or (ii) First
USA obtains a guarantee or letter of credit covering risk of collection with
respect to its deposit and payment obligations under this Agreement (in form
and substance satisfactory to each Note Rating Agency) from a guarantor having
a short-term credit rating of at least "A-1" from Standard & Poor's or "P-1"
from ▇▇▇▇▇'▇ or "F1" from Fitch (or such other rating below "A-1" or "P-1," or
to the extent rated by Fitch, "F1," as the case may be, which is acceptable to
such Note Rating Agency), or (iii) the Note Rating Agency Condition will have
been satisfied despite the Servicer's inability to satisfy the rating
requirement specified in clause (i) or (ii) above, or (iv) for five Business
Days following any reduction of any such rating or failure to satisfy the
conditions specified in clause (i) or (ii) above, the Servicer need not make
daily deposits of Collections into the Collection Account as provided in the
preceding paragraph, but may make deposits in an amount equal to the net
amount of such deposits and payments which would have been made with respect
to Notes to receive payments on the related Payment Dates had the conditions
of this sentence not applied, in the Collection Account in immediately
available funds not later than 1:00 p.m., New York City time, on each
applicable Note Transfer Date following the Monthly Period with respect to
which such deposit relates. To the extent that, in accordance with this
Section 3.01, the Servicer has retained amounts which would otherwise be
required to be deposited into a Collection Account or any Supplemental Bank
Account with respect to any Monthly Period, the Servicer shall be required to
deposit such amounts in the applicable Collection Account or such applicable
Supplemental Bank Account on the related Note Transfer Date to the extent
necessary to make required distributions on the related Payment Date for such
Asset Pool.
Section 3.02 Allocations of Finance Charge Collections, the
Default Amount and the Trust Servicing Fee.
(a) With respect to each Monthly Period, the Servicer shall
allocate to each Asset Pool an amount equal to the Finance Charge Collections
from the Trust Assets identified in the applicable Asset Pool Supplement to be
included in the Collateral for such Asset Pool for such Monthly Period.
(b) With respect to each Monthly Period, the Servicer shall
allocate to each Asset Pool an amount equal to the Default Amount with respect
to the Trust Assets identified in the applicable Asset Pool Supplement to be
included in the Collateral for such Asset Pool for such Monthly Period.
(c) With respect to each Monthly Period, the Servicer shall
allocate to each Asset Pool an amount equal to the Servicing Fee for that
Asset Pool with respect to such Monthly Period.
Section 3.03 Allocations of Principal Collections. With respect
to each Monthly Period, the Servicer shall allocate to each Asset Pool an
amount equal to the Principal Collections from the Trust Assets identified in
the applicable Asset Pool Supplement to be included in the Collateral for such
Asset Pool for such Monthly Period.
Section 3.04 Allocations of Finance Charge Collections, the
Default Amount, the Servicing Fee and Principal Collections Allocable to the
Transferor Interest of an Asset Pool.
(a) With respect to each Monthly Period, unless otherwise
stated in any Indenture Supplement, the Servicer shall allocate to the holder
of the Transferor Interest for an Asset Pool an amount equal to the product of
(i) the Transferor Percentage for that Asset Pool with respect to such Monthly
Period and (ii) the Finance Charge Collections allocable to that Asset Pool
with respect to such Monthly Period. If so specified in any Indenture
Supplement, such amounts may be applied to cover certain shortfalls in the
amount of investment earnings on investments of funds in certain Supplemental
Bank Accounts.
(b) With respect to each Monthly Period, the Servicer shall
allocate to the holder of the Transferor Interest for an Asset Pool an amount
equal to the product of (i) the Transferor Percentage for that Asset Pool with
respect to such Monthly Period and (ii) the Default Amount allocable to that
Asset Pool with respect to such Monthly Period.
(c) With respect to each Monthly Period, the Servicer shall
allocate to the holder of the Transferor Interest for an Asset Pool an amount
equal to the product of (i) the Transferor Percentage for that Asset Pool with
respect to such Monthly Period and (ii) the Servicing Fee for that Asset Pool
with respect to such Monthly Period.
(d) With respect to each Monthly Period, unless otherwise
stated in any Asset Pool Supplement or any Indenture Supplement, the Servicer
shall allocate to the holder of the Transferor Interest for an Asset Pool an
amount equal to the product of (i) the Transferor Percentage for that Asset
Pool with respect to such Monthly Period and (ii) the Principal Collections
allocable to that Asset Pool with respect to such Monthly Period; provided,
however, that amounts payable to the holder of the Transferor Interest for an
Asset Pool pursuant to this subsection 3.04(d) shall instead be deposited in
the Excess Funding Account for such Asset Pool to the extent that (i) the
Transferor Amount for such Asset Pool is, or as a result of such payment would
become, less than the Required Transferor Amount for such Asset Pool or (ii)
the Pool Balance for such Asset Pool is, or as a result of such payment would
become, less than the Minimum Pool Balance for such Asset Pool.
(e) To the extent there is more than one Transferor for an
Asset Pool, the Asset Pool Supplement for that Asset Pool shall describe the
distribution among the various Transferors of Collections, the Default Amount
and the Trust Servicing Fee allocated to the Transferor Interest for that
Asset Pool.
(f) Notwithstanding anything in this Agreement to the contrary,
unless otherwise specified in the Indenture, any applicable Asset Pool
Supplement or any applicable Indenture Supplement, the Servicer need not
deposit any amount allocated to be paid to any Transferor pursuant to this
Agreement, the Indenture, any applicable Asset Pool Supplement or any
applicable Indenture Supplement into the Collection Account or any
Supplemental Bank Account, but shall pay such amounts as collected to the
applicable Transferor.
Section 3.05 Transfer of Defaulted Accounts. Unless otherwise
provided in any Series Supplement, in consideration of receiving Recoveries as
provided in subsection 3.07(a), on the date on which an Account becomes a
Defaulted Account, the Trust shall automatically and without further action or
consideration be deemed to transfer, set over, and otherwise convey to the
applicable Transferor, without recourse, representation, or warranty, all the
right, title and interest of the Trust in and to the Receivables in such
Defaulted Account, all monies due or to become due with respect thereto, all
proceeds thereof allocable to the Trust with respect to such Receivables,
excluding Recoveries relating thereto, which shall remain a Trust Asset.
Section 3.06 Adjustments for Miscellaneous Credits and
Fraudulent Charges.
(a) The Servicer shall be obligated to reduce on a net basis
for each Monthly Period the aggregate amount of Principal Receivables (a
"Credit Adjustment") with respect to any Principal Receivable (i) which was
created in respect of merchandise refused or returned by the Obligor
thereunder or as to which the Obligor thereunder has asserted a counterclaim
or defense, (ii) which is reduced by the Servicer by any rebate, refund,
charge-back or adjustment (including Servicer errors) or (iii) which was
created as a result of a fraudulent or counterfeit charge.
In the event that the inclusion of the amount of a Credit
Adjustment in (x) the calculation of the Transferor Amount for the applicable
Asset Pool would cause the Transferor Amount for such Asset Pool to be an
amount less than the Required Transferor Amount for such Asset Pool or (y) the
calculation of the Pool Balance for such Asset Pool would cause the Pool
Balance for such Asset Pool to be an amount less than the Minimum Pool Balance
for such Asset Pool, the applicable Transferor shall make a deposit, no later
than (a) the First Note Transfer Date following the Monthly Period with
respect to which such Credit Adjustment occurs or (b) in the event of a
Servicer Rating Event, 10 Business Days after the inclusion of the Credit
Adjustment that caused the Transferor Amount for such Asset Pool to be less
than the Required Transferor Amount for such Asset Pool or the Pool Balance
for such Asset Pool to be less than the Minimum Pool Balance for such Asset
Pool, into the Excess Funding Account in immediately available funds in an
amount equal to the greater of the amount by which (i) the Transferor Amount
for the applicable Asset Pool would be less than the Required Transferor
Amount or (ii) the Pool Balance for the applicable Asset Pool would be an
amount less than the Minimum Pool Balance for such Asset Pool, due to Credit
Adjustments with respect to Receivables conveyed by such Transferor (each such
deposit, an "Adjustment Payment").
(b) If (i) the Servicer makes a deposit into the Collection
Account in respect of a Collection of a Receivable and such Collection was
received by the Servicer in the form of a check which is not honored for any
reason or (ii) the Servicer makes a mistake with respect to the amount of any
Collection and deposits an amount that is less than or more than the actual
amount of such Collection, the Servicer shall appropriately adjust the amount
subsequently deposited into the Collection Account to reflect such dishonored
check or mistake. Any Receivable in respect of which a dishonored check is
received shall be deemed not to have been paid. Notwithstanding the first two
sentences of this paragraph, adjustments made pursuant to this Section 3.06
shall not require any change in any report previously delivered pursuant to
subsection 4.04(a).
Section 3.07 Recoveries and Interchange.
(a) Recoveries. On or prior to the second Business Day
following the end of each Monthly Period, the Transferor shall notify the
Servicer of the amount of Recoveries to be included as Collections for each
Asset Pool with respect to the preceding Monthly Period. On the First Note
Transfer Date following the applicable Monthly Period, the Transferor shall
pay to the Servicer and the Servicer shall deposit into the Collection Account
for each Asset Pool, in immediately available funds, the amount of Recoveries
to be so included as Collections for that Asset Pool with respect to the
preceding Monthly Period; provided, however, that such deposit need be made
only to the extent that such funds are required to be retained in the
applicable Bank Accounts for the benefit of any Series, Class or Tranche of
Notes for that Asset Pool pursuant to the provisions of this Article III of
this Agreement, any applicable Asset Pool Supplement or any applicable
Indenture Supplement provided that any such amount that is not so deposited
shall be paid to the applicable Transferor.
(b) Interchange. On or prior to the second Business Day
following the end of each Monthly Period, each Account Owner shall notify the
Servicer of the Interchange Amount, if any, which is required to be included
as Finance Charge Collections with respect to the preceding Monthly Period. On
the First Note Transfer Date following the applicable Monthly Period, each
Account Owner shall pay to the Servicer and the Servicer shall deposit into
the Collection Account, in immediately available funds, the Interchange Amount
to be so included as Finance Charge Collections with respect to the preceding
Monthly Period; provided, however, that such deposit need be made only to the
extent that such funds are required to be retained in the applicable Bank
Accounts for the benefit of any Series, Class or Tranche of Notes pursuant to
the provisions of this Article III of this Agreement, any applicable Asset
Pool Supplement or any applicable Indenture Supplement and any such amount
that is not so deposited shall be paid to the applicable Transferor.
[END OF ARTICLE III]
ARTICLE IV
SERVICING
OF RECEIVABLES
Section 4.01 Acceptance of Appointment and Other Matters
Relating to the Servicer.
(a) First USA agrees to act as the Servicer under this
Agreement.
(b) The Servicer shall service and administer the Receivables
and shall collect payments due under the Receivables in accordance with its
customary and usual servicing procedures for servicing credit card receivables
comparable to the Receivables and in accordance with the Credit Card
Guidelines. The Servicer shall service and administer the Collateral
Certificates and shall collect payments due under the Collateral Certificates
in accordance with the terms and provisions of each such Collateral
Certificate. The Servicer shall have full power and authority, acting alone or
through any party properly designated by it hereunder, to do any and all
things in connection with such servicing and administration which it may deem
necessary or desirable. Without limiting the generality of the foregoing and
subject to Section 10.01, the Servicer is hereby authorized and empowered
unless such power is revoked by the Indenture Trustee on account of the
occurrence of a Servicer Default pursuant to Section 10.01, (i) to instruct
the applicable Collateral Agent, the Indenture Trustee or the Owner Trustee to
make allocations, withdrawals and payments to or from the Collection Account,
the Excess Funding Account and any Supplemental Bank Account or Sub-Account as
set forth in this Agreement, the Indenture, the applicable Asset Pool
Supplement or any Indenture Supplement, (ii) to take any action required or
permitted under any Supplemental Credit Enhancement or Derivative Agreement,
as set forth in this Agreement, the applicable Asset Pool Supplement, the
Indenture or any Indenture Supplement, (iii) to instruct the applicable
Collateral Agent, the Indenture Trustee or the Owner Trustee in writing, as
set forth in this Agreement, (iv) to execute and deliver, on behalf of the
Trust any and all instruments of satisfaction or cancellation, or of partial
or full release or discharge, and all other comparable instruments, with
respect to the Receivables or the Collateral Certificates and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable Requirements of Law, to commence enforcement
proceedings with respect to such Receivables, (v) to execute and deliver, on
behalf of the Trust, any and all instruments deemed necessary or appropriate
by it to take any action or fulfill any obligation with respect to the
Collateral Certificates and (vi) to make any filings, reports, notices,
applications, registrations with, and to seek any consents or authorizations
from the Commission and any state securities authority on behalf of the Trust
as may be necessary or advisable to comply with any federal or state
securities or reporting requirements. Each of the Collateral Agents, the
Indenture Trustee and the Owner Trustee agree that it shall promptly follow
the instructions of the Servicer to withdraw funds from the applicable Bank
Account and to take any action required under any Supplemental Credit
Enhancement or Derivative Agreement at such time as required under this
Agreement, the applicable Asset Pool Supplement, the Indenture or any
Indenture Supplement. Each of the Collateral Agents, the Indenture Trustee and
the Owner Trustee shall execute at the Servicer's written request such
documents prepared by any Transferor and acceptable to the applicable
Collateral Agent or the Indenture Trustee, as may be necessary or appropriate
to enable the Servicer to carry out its servicing and administrative duties
hereunder.
(c) The Servicer shall not, and no Successor Servicer shall, be
obligated to use separate servicing procedures, offices, employees or accounts
for servicing the Receivables from the procedures, offices, employees and
accounts used by the Servicer or such Successor Servicer, as the case may be,
in connection with servicing other credit card receivables.
(d) The Servicer shall comply with and perform its servicing
obligations with respect to the Accounts and Receivables in accordance with
the Credit Card Agreements relating to the Accounts and the Credit Card
Guidelines and all applicable rules and regulations of the applicable credit
card company, except insofar as any failure to so comply or perform would not
materially and adversely affect the Trust or the Noteholders.
(e) The Servicer shall, on and after such time as Receivables
are included as Trust Assets, pay out of its own funds, without reimbursement,
all expenses incurred in connection with the Trust and the servicing
activities hereunder including expenses related to enforcement of the
Collateral Certificates and the Receivables. Prior to the inclusion of
Receivables as Trust Assets, such expenses shall be paid by each Transferor in
accordance with Section 12.03.
(f) The Servicer shall maintain fidelity bond coverage insuring
against losses through wrongdoing of its officers and employees who are
involved in the servicing of credit card accounts covering such actions and in
such amounts as the Servicer believes to be reasonable from time to time.
Section 4.02 Servicing Compensation. As compensation for its
servicing activities hereunder and under each Asset Pool Supplement and as
reimbursement for any expense incurred by it in connection therewith, the
Servicer shall be entitled to receive a servicing fee (the "Trust Servicing
Fee") with respect to each Monthly Period prior to the termination of the
Trust pursuant to Article VIII of the Trust Agreement, payable monthly on the
related Payment Date. For each Monthly Period, the Trust Servicing Fee shall
be equal to the sum of the Servicing Fees for each Asset Pool for such Monthly
Period. The Issuer, as holder of each Collateral Certificate, agrees to pay
the portion of the Trust Servicing Fee owed to each Master Trust Servicer as
servicer of the Receivables underlying such Collateral Certificate; provided,
however, in no event shall the Owner Trustee (as such or in its individual
capacity), the Indenture Trustee, the Administrator, any Collateral Agent or
the Noteholders of any Series be liable for the share of the Trust Servicing
Fee with respect to any Monthly Period to be paid by the holder of any
Collateral Certificates.
Section 4.03 Representations, Warranties and Covenants of the
Servicer. First USA, as initial Servicer, hereby makes, and any Successor
Servicer by its appointment hereunder shall make, with respect to itself, on
each Issuance Date, each Addition Date and each Increase Date (and on the date
of any such appointment), the following representations, warranties and
covenants on which the Trust, the Owner Trustee, the applicable Collateral
Agent and the Indenture Trustee shall be deemed to have relied in accepting
each Collateral Certificate, any increase in an existing Collateral
Certificate and each Receivable in trust and in entering into the Indenture
and the applicable Asset Pool Supplement:
(a) Organization and Good Standing. The Servicer is a national
banking association duly organized and validly existing in good standing under
the laws of the United States and has full corporate power, authority and
legal right to own its properties and conduct its credit card business as such
properties are presently owned and such business is presently conducted, and
to execute, deliver and perform its obligations under this Agreement.
(b) Due Qualification. The Servicer is not required to qualify
nor register as a foreign corporation in any state in order to service the
Receivables as required by this Agreement and has obtained all licenses and
approvals necessary in order to so service the Receivables as required under
federal law. If the Servicer shall be required by any Requirement of Law to so
qualify or register or obtain such license or approval, then it shall do so.
(c) Due Authorization. The execution, delivery, and performance
of this Agreement and the other agreements and instruments executed or to be
executed by the Servicer as contemplated hereby, have been duly authorized by
the Servicer by all necessary action on the part of the Servicer and this
Agreement will remain, from the time of its execution, an official record of
the Servicer.
(d) Binding Obligation. This Agreement constitutes a legal,
valid and binding obligation of the Servicer, enforceable in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights in general and the rights of creditors of national
banking associations.
(e) No Violation. The execution and delivery of this Agreement
by the Servicer, and the performance of the transactions contemplated by this
Agreement and the fulfillment of the terms hereof applicable to the Servicer,
will not conflict with, violate, result in any breach of any of the material
terms and provisions of, or constitute (with or without notice or lapse of
time or both) a default under, any Requirement of Law applicable to the
Servicer or any indenture, contract, agreement, mortgage, deed of trust or
other instrument to which the Servicer is a party or by which it is bound.
(f) No Proceedings. There are no proceedings or investigations
pending or, to the best knowledge of the Servicer, threatened against the
Servicer before any Governmental Authority seeking to prevent the consummation
of any of the transactions contemplated by this Agreement, seeking any
determination or ruling that, in the reasonable judgment of the Servicer,
would materially and adversely affect the performance by the Servicer of its
obligations under this Agreement or seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of this
Agreement.
(g) Compliance with Requirements of Law. The Servicer shall
duly satisfy all obligations on its part to be fulfilled under or in
connection with each Receivable and the related Account, will maintain in
effect all qualifications required under Requirements of Law in order to
service properly each Receivable and the related Account and will comply in
all material respects with all other Requirements of Law in connection with
servicing each Receivable and the related Account the failure to comply with
which would have an Adverse Effect.
(h) No Rescission or Cancellation. The Servicer shall not
permit any rescission or cancellation of any Collateral Certificate or any
Receivable except as ordered by a court of competent jurisdiction or other
Governmental Authority or in accordance with the normal operating procedures
of the Servicer.
(i) Protection of Rights. The Servicer shall take no action
which, nor omit to take any action the omission of which, would impair the
rights of the Trust, the applicable Collateral Agent, the Indenture Trustee or
the Noteholders in any Collateral Certificate or any Receivable or the related
Account, if any, nor shall it reschedule, revise or defer payments due on any
Receivable except in accordance with the Credit Card Guidelines.
(j) Receivables Not To Be Evidenced by Promissory Notes. Except
in connection with its enforcement or collection of an Account, the Servicer
will take no action to cause any Receivable to be evidenced by any instrument
(as defined in the UCC as in effect in the State of Delaware) and if any
Receivable is so evidenced it shall be reassigned or assigned to the Servicer
as provided in this Section.
(k) All Consents. All authorizations, consents, orders or
approvals of or registrations or declarations with any Governmental Authority
required to be obtained, effected or given by the Servicer in connection with
the execution and delivery of this Agreement by the Servicer and the
performance of the transactions contemplated by this Agreement by the
Servicer, have been duly obtained, effected or given and are in full force and
effect.
Section 4.04 Reports and Records for the Owner Trustee, the
Indenture Trustee and the Applicable Collateral Agent.
(a) Daily Records. On each Business Day, the Servicer shall
prepare or cause to be made available at the office of the Servicer for
inspection by the Owner Trustee, the Indenture Trustee and the applicable
Collateral Agent upon request a record setting forth (i) the aggregate amount
of Collections processed by the Servicer on the second preceding Business Day,
(ii) if the Trust Assets include Receivables, the aggregate amount of
Receivables as of the close of business on the second preceding Business Day
in the Accounts and (iii) the Invested Amount of each Collateral Certificate
as of the close of business on the second preceding Business Day.
(b) Monthly Servicer's Certificate. Unless otherwise stated in
the related Asset Pool Supplement, on each Determination Date, the Servicer
shall, with respect to each outstanding Series, deliver to the Owner Trustee,
the Indenture Trustee, the applicable Collateral Agent and each Note Rating
Agency a certificate of an Authorized Officer in substantially the form set
forth in the related Asset Pool Supplement.
Section 4.05 Annual Certificate of Servicer. Within four months
after the end of each fiscal year of the Servicer beginning with the end of
fiscal year 2002, the Servicer will deliver to the Owner Trustee, the
Indenture Trustee, the applicable Collateral Agent and each Note Rating
Agency, an Officer's Certificate substantially in the form of Exhibit C
stating that (a) a review of the activities of the Servicer during the prior
twelve-month period and of its performance under this Agreement was made under
the supervision of the officer signing such certificate, (b) to the best of
such officer's knowledge, based on such review, the Servicer has fully
performed all its obligations under this Agreement, the Indenture, the Asset
Pool Supplements and the Indenture Supplements throughout such period, or, if
there has been a default in the performance of any such obligation, specifying
each such default known to such officer and the nature and status thereof and
(c) the report required to be delivered to the Servicer by the independent
certified public accountants pursuant to subsection 4.06(b) of this Agreement
has been delivered to the Servicer, and such report contains no exceptions,
except for such exceptions as the independent certified public accountants
believe to be immaterial and such other exceptions as may be set forth in such
report and listed in such Officer's Certificate. A copy of such certificate
may be obtained by any Noteholder or Note Owner by a request in writing to the
Owner Trustee addressed to the Corporate Trust Office.
Section 4.06 Annual Servicing Report of Independent Certified
Public Acc
(a) Within four months after the end of each fiscal year of the
Servicer beginning with the end of fiscal year 2002, if Receivables were
included in the Trust Assets during the preceding year, the Servicer shall
cause a firm of nationally recognized independent public accountants (who may
also render other services to the Servicer or any Transferor) to furnish a
report to the Indenture Trustee, the Owner Trustee, the applicable Collateral
Agent and each Note Rating Agency, to the effect that such firm has examined
the assertion of the Servicer that it has maintained effective internal
control over the servicing of Accounts under this Agreement and has completed
such examination in accordance with standards established by the American
Institute of Certified Public Accountants and that, on the basis of such
examination, such firm is of the opinion (assuming the accuracy of any reports
generated by the Servicer's third party agents) that such assertion is fairly
stated in all material respects.
(b) Within four months after the end of each fiscal year of the
Servicer beginning with the end of fiscal year 2002, the Servicer shall cause
a firm of nationally recognized independent public accountants (who may also
render other services to the Servicer or the applicable Transferor) to furnish
a report to the Indenture Trustee, the Owner Trustee, the applicable
Collateral Agent and the Servicer to the effect that they have applied certain
procedures agreed upon with the Servicer to compare the mathematical
calculations of each amount set forth in the Servicer's certificates delivered
pursuant to subsection 4.04(b) during the period covered by such report with
the Servicer's computer reports that were the source of such amounts and that
on the basis of such agreed-upon procedures and comparison, such accountants
are of the opinion that such amounts are in agreement, except for such
exceptions as they believe to be immaterial and such other exceptions as shall
be set forth in such statement. Such report shall set forth the agreed-upon
procedures performed.
(c) A copy of each certificate and report provided pursuant to
subsection 4.04(b), Section 4.05 or subsection 4.06(a) may be obtained by any
Noteholder or Note Owner by a request in writing to the Owner Trustee
addressed to the Corporate Trust Office.
(d) In the event such independent public accountants require
the Indenture Trustee to agree to the procedures to be performed by such firm
in any of the reports required to be prepared pursuant to this Section 4.06,
the Servicer shall direct the Indenture Trustee in writing to so agree; it
being understood and agreed that the Indenture Trustee will deliver such
letter of agreement in conclusive reliance upon the direction of the Servicer,
and the Indenture Trustee has not made any independent inquiry or
investigation as to, and shall have no obligation or liability in respect of,
the sufficiency, validity or correctness of such procedures.
Section 4.07 Tax Treatment. Unless otherwise specified in the
Indenture or an Indenture Supplement with respect to a particular Series,
Class or Tranche, each Transferor has entered into this Agreement, and the
Notes will be issued, with the intention that, for federal, state and local
income and franchise tax purposes, (i) the Notes of each Series, Class or
Tranche which are characterized as indebtedness at the time of their issuance
will qualify as indebtedness secured by the Trust Assets and (ii) the Trust
shall not be treated as an association or publicly traded partnership taxable
as a corporation. Each Transferor, by entering into this Agreement, and each
Noteholder, by the acceptance of any such Note (and each Note Owner, by its
acceptance of an interest in the applicable Note), agree to treat such Note
for federal, state and local income and franchise tax purposes as indebtedness
of the Transferor. Each Holder of such Note agrees that it will cause any Note
Owner acquiring an interest in a Note through it to comply with this Agreement
as to treatment as indebtedness under applicable tax law, as described in this
Section 4.07. The parties hereto agree that they shall not cause or permit the
making, as applicable, of any election under Treasury Regulation Section
301.7701-3 whereby the Trust or any portion thereof would be treated as a
corporation for federal income tax purposes and, except as required by Section
7.15 of the Indenture, shall not file tax returns or obtain any federal
employer identification number for the Trust but shall treat the Trust as a
security device for federal income tax purposes. The provisions of this
Agreement shall be construed in furtherance of the foregoing intended tax
treatment.
Section 4.08 Notices to First USA. In the event that First USA
is no longer acting as Servicer, any Successor Servicer shall deliver or make
available to First USA each certificate and report required to be provided
thereafter pursuant to subsection 4.04(b) and Sections 4.05 and subsections
4.06(a) and (b).
Section 4.09 Reports to the Commission. The Servicer shall, on
behalf of the Trust, cause to be filed with the Commission any periodic
reports required to be filed under the provisions of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Commission
thereunder. The applicable Transferor shall, at its own expense, cooperate in
any reasonable request of the Servicer in connection with such filings.
[END OF ARTICLE IV]
ARTICLE V
ADMINISTRATION OF THE TRUST; DUTIES
OF THE ADMINISTRATOR
Section 5.01 Appointment of Administrator; Duties of
Administrator.
(a) The Issuer hereby appoints First USA to act as initial
administrator (the "Administrator"), subject to Section 5.08.
(b) Duties of Administrator with Respect to the Related
Agreements. The Administrator shall consult with the Owner Trustee
regarding the duties of the Issuer and the Owner Trustee under the
Related Agreements. The Administrator shall monitor the performance
of the Issuer and shall advise the Owner Trustee when action is
necessary to comply with the Issuer's or the Owner Trustee's duties
under the Related Agreements. The Administrator shall prepare for
execution by the Issuer or the Owner Trustee or shall cause the
preparation by other appropriate Persons of all such documents,
reports, filings, instruments, certificates and opinions as it shall
be the duty of the Issuer or the Owner Trustee to prepare, file or
deliver pursuant to any Related Agreement. In furtherance of the
foregoing, the Administrator shall take all appropriate action that
it is the duty of the Issuer or the Owner Trustee to take pursuant to
the Indenture, any Indenture Supplement and any Asset Pool Supplement
including, such of the foregoing as are required with respect to the
following matters under the Indenture, any Indenture Supplement and
any Asset Pool Supplement (parenthetical references are to Articles
or Sections of the Indenture):
(A) the duty to cause the Note Register to be kept, and
notifying the Indenture Trustee of any appointment of a new Note
Registrar and the location, or change in location, of the Note
Registrar (subsection 3.05(a));
(B) preparing or obtaining the documents, legal opinions and
instruments required for execution, authentication and delivery of
the Notes, and delivery of the same to the Indenture Trustee for
authentication (Sections 3.03, 3.04 and 3.10), providing for the
replacement of mutilated, destroyed, lost or stolen Notes (Section
3.06), providing for the exchange or transfer of Notes (Section 3.05)
and, to the extent set forth in the related Indenture Supplement,
notifying each Note Rating Agency in writing of the issuance of any
Tranche, Class or Series of Notes;
(C) directing the Collateral Agent with respect to the
investment of funds in the Bank Accounts (Section 4.03);
(D) preparing or obtaining the documents, legal opinions and
instruments required to be delivered to the Indenture Trustee with
respect to the satisfaction and discharge of the Indenture
(subsection 5.01(c)) and preparing the documents necessary for the
Indenture Trustee to acknowledge the same (subsection 5.01(a));
(E) on the resignation or removal of any Indenture Trustee,
appointing a successor Indenture Trustee (subsection 7.10(e)) and
giving written notice of such resignation or removal and appointment
to each Noteholder (subsection 7.10(f));
(F) preparing or causing to be prepared tax returns for the
Issuer (if required) and the reporting information for the
Noteholders (Section 7.15);
(G) preparing on behalf of the Issuer written instructions
regarding any action proposed to be taken or omitted by the Indenture
Trustee upon the Indenture Trustee's application therefor (Section
7.18);
(H) furnishing to the Indenture Trustee a list of the names
and addresses of the Registered Noteholders not more than 15 days
after each Record Date or at such other times as the Indenture
Trustee may request in writing (Section 8.01);
(I) establishing reasonable rules for matters relating to
Action by or a meeting of Noteholders not otherwise set forth in
Section 8.04 of the Indenture (subsection 8.04(g));
(J) preparing for the Issuer such filings for filing with
the Commission, and providing the Indenture Trustee with copies
thereof once filed, as required by the Securities Exchange Act of
1934, as amended, or otherwise as in accordance with rules and
regulations prescribed from time to time by the Commission (Section
8.05);
(K) preparing, completing and delivering to the Indenture
Trustee and the trustee for the applicable Master Trust (with a copy
to each Note Rating Agency), a Monthly Noteholders' Statement
(Section 8.06);
(L) preparing for the Issuer the Payment Instruction after
the Issuer receives each Monthly Servicer's Certificate under the
applicable Series Supplement, delivering a copy thereof to the
Indenture Trustee and the trustee for the applicable Master Trust and
compiling such other information for the Issuer (subsection 8.07(a));
(M) preparing or obtaining any necessary Opinion of Counsel,
Issuer Tax Opinion, Officer's Certificate, or other document or
instrument as may be required in connection with any supplemental
indenture or amendment to the Indenture, any Indenture Supplement
or any Asset Pool Supplement (Article IX);
(N) giving notice to each Note Rating Agency and collecting
the vote of Noteholders, as necessary, in connection with any
supplemental indenture or amendment to the Indenture, any Indenture
Supplement or any Asset Pool Supplement (Article IX);
(O) appointing Paying Agents (Section 10.02) and causing any
such Paying Agents to execute and deliver to the Indenture Trustee an
instrument pursuant to which it agrees to act as Paying Agent as set
forth in Section 10.03 of the Indenture;
(P) preparing Officer's Certificates of the Issuer directing
the Paying Agent to pay to the Indenture Trustee sums held in trust
by the Issuer or such Paying Agent for the purpose of discharging the
Indenture (Section 10.03);
(Q) preparing written statements for execution by an
Authorized Officer as required by Section 10.04 of the Indenture;
(R) performing or causing to be performed all things
necessary to preserve and keep in full force and effect the legal
existence of the Issuer (Section 10.05) and comply with applicable
law (Section 10.07);
(S) giving prompt written notice to the Indenture Trustee
and each Note Rating Agency of each Event of Default under the
Indenture, each breach on the part of the applicable Master Trust
Servicer or the applicable Master Trust Transferor of its respective
obligations under the applicable Pooling and Servicing Agreement or
any default of a Derivative Counterparty (Section 10.08);
(T) providing to Noteholders and prospective Noteholders
information required to be provided by the Issuer pursuant to Rule
144A under the Securities Act (Section 10.12);
(U) performing and observing all of the Issuer's obligations
under the Indenture, any Indenture Supplement, any Asset Pool
Supplement, the Trust Agreement and any other instrument or agreement
relating to the Collateral including, without limitation, preparing
and causing the Issuer to file UCC financing statements and
continuation statements (Section 10.13);
(V) preparing or obtaining the instruments, documents,
agreements and legal opinions required to be delivered by the Issuer
and preparing any notice required to be given to the Note Rating
Agencies, in connection with the merger or consolidation of the
Issuer with any other Person (subsection 10.14(a)) or the conveyance
or transfer of any of the Issuer's property or assets (subsection
10.14(b));
(W) giving written notice to the affected Noteholders of any
optional repurchase by the Servicer (Section 11.02) and to the
Indenture Trustee and each Note Rating Agency with respect to any
such optional repurchase or Early Amortization Event (Section 11.03);
(X) to the extent set forth herein or in the related Asset
Pool Supplement, preparing or obtaining the instruments, documents,
agreements and legal opinions required to be delivered by the Issuer
and/or the Collateral Agent and preparing any notice required to be
given by the Issuer to the Note Rating Agencies, the Indenture
Trustee, the applicable Collateral Agent and the Servicer in
connection with addition or removal of Collateral, and designating
such Collateral to be added or removed, as the case may be;
(Y) to the extent set forth herein or in the related Asset
Pool Supplement, taking, or assisting the Issuer and/or the
Collateral Agent in taking, all actions necessary and advisable to
obtain, maintain and enforce a perfected lien on and security
interest in the Collateral in favor of the Collateral Agent and
preparing for execution and delivery or filing by the Issuer all such
supplements and amendments to this Agreement and any Asset Pool
Supplement and all such financing statements, continuation
statements, instruments of further assurance and other instruments;
(Z) to the extent set forth herein or in the related Asset
Pool Supplement, obtaining legal opinions with respect to the
security interest in the Collateral;
(AA) to the extent set forth in the related Asset Pool
Supplement, assisting the Issuer in appointing a suitable successor
Collateral Agent as necessary, and giving written notice to each Note
Rating Agency with respect to the removal of the Collateral Agent and
the appointment of a successor;
(BB) to the extent set forth in the related Asset Pool
Supplement, establishing and maintaining or causing to be established
and maintained certain Bank Accounts; and
(CC) to the extent set forth in the related Asset Pool
Supplement, directing the Collateral Agent with respect to the
investment of funds in the Bank Accounts.
(c) Additional Duties.
(i) In addition to the duties of the Administrator
set forth above, the Administrator shall perform all duties and
obligations of the Issuer under the Related Agreements and shall
perform such calculations and shall prepare for execution by the
Issuer and shall cause the preparation by other appropriate Persons
of all such documents, reports, filings, instruments, certificates
and opinions as it shall be the duty of the Issuer or the Owner
Trustee to prepare, file or deliver pursuant to the Related
Agreements, and at the request of the Issuer shall take all
appropriate action that it is the duty of the Issuer or the Owner
Trustee to take pursuant to the Related Agreements. Subject to
Section 5.05 of this Agreement, and in accordance with the directions
of the Issuer, the Administrator shall administer, perform or
supervise the performance of such other activities in connection with
the Collateral (including the Related Agreements) as are not covered
by any of the foregoing provisions and as are expressly requested by
the Owner Trustee and are reasonably within the capability of the
Administrator.
(ii) The Administrator shall perform the duties of
the Administrator specified in Section 5.02 of the Trust Agreement
required to be performed in connection with the resignation or
removal of the Owner Trustee, and any other duties expressly required
to be performed by the Administrator under the Trust Agreement.
(iii) In carrying out the foregoing duties or any
of its other obligations under this Agreement, the Administrator may
enter into transactions with or otherwise deal with any of its
Affiliates; provided, however, that the terms of any such
transactions or dealings shall be in accordance with any directions
received from the Issuer and shall be, in the Administrator's
opinion, no less favorable to the Issuer than would be available from
unaffiliated parties.
(iv) It is the intention of the parties hereto that
the Administrator shall, and the Administrator hereby agrees to,
execute on behalf of the Issuer all such documents, reports, filings,
instruments, certificates and opinions as it shall be the duty of the
Issuer to prepare, file or deliver pursuant to the Related
Agreements. In furtherance thereof, the Owner Trustee shall, on
behalf of the Issuer, execute and deliver to the Administrator and
its agents, and to each successor Administrator appointed pursuant to
the terms hereof, one or more powers of attorney substantially in the
form of Exhibit E, appointing the Administrator the attorney-in-fact
of the Issuer for the purpose of executing on behalf of the Issuer
all such documents, reports, filings, instruments, certificates and
opinions.
(d) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable
judgment of the Administrator are non-ministerial, the Administrator
shall not take any action unless within a reasonable time before the
taking of such action, the Administrator shall have notified the
Owner Trustee of the proposed action and the Owner Trustee shall not
have withheld consent or provided an alternative direction. For the
purpose of the preceding sentence, "non-ministerial matters" shall
include:
(1) the amendment of or any supplement to
the Indenture;
(2) the initiation of any claim or lawsuit
by the Issuer and the compromise of any
action, claim or lawsuit brought by or
against the Issuer;
(3) the amendment, change or modification
of the Related Agreements;
(4) the appointment of successor Note
Registrars, successor Paying Agents and
successor trustees pursuant to the
Indenture or the appointment of successor
Administrators, or the consent to the
assignment by the Note Registrar, Paying
Agent or trustee of its obligations under
the Indenture; and
(5) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall
not, (x) make any payments to the Noteholders or any Transferor under
the Related Agreements or (y) take any other action that the Issuer
directs the Administrator not to take on its behalf.
Section 5.02 Records. The Administrator shall maintain
appropriate books of account and records relating to services performed
hereunder, which books of account and records shall be accessible for
inspection by the Issuer, the Owner Trustee, the Indenture Trustee, the
applicable Collateral Agent and any Transferor at any time during normal
business hours.
Section 5.03 Compensation. As compensation for the performance
of the Administrator's obligations under this Agreement, the Administrator
shall be entitled to an amount not to exceed $5,000 per month, in addition to
reimbursement for its liabilities and extra out-of-pocket expenses related to
its performance hereunder or under any Related Agreement. Such amounts shall
be paid by the Transferor in accordance with Section 12.03.
Section 5.04 Additional Information To Be Furnished to Issuer.
The Administrator shall furnish to the Issuer, the Indenture Trustee or the
applicable Collateral Agent from time to time such additional information
regarding the Related Agreements and the Trust as each of them shall
reasonably request.
Section 5.05 Independence of Administrator. For all purposes of
this Agreement, the Administrator shall be an independent contractor and shall
not be subject to the supervision of the Issuer or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or
the Owner Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
Section 5.06 No Joint Venture. Nothing contained in this
Agreement shall (i) constitute the Administrator and either of the Issuer or
the Owner Trustee as members of any partnership, joint venture, association,
syndicate, unincorporated business or other separate entity, (ii) be construed
to impose any liability as such on any of them or (iii) be deemed to confer on
any of them any express, implied or apparent authority to incur any obligation
or liability on behalf of the others.
Section 5.07 Other Activities of Administrator. Nothing herein
shall prevent the Administrator or its Affiliates from engaging in other
businesses or, in its sole discretion, from acting in a similar capacity as an
administrator for any other person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Owner
Trustee, the Collateral Agent or the Indenture Trustee.
Section 5.08 Termination, Resignation and Removal of
Administrator.
(a) Subject to subsection 5.08(d), the Administrator may resign
its duties hereunder by providing the Issuer with at least 60 days prior
written notice.
(b) Subject to subsection 5.08(d), the Issuer may, with written
notice to each Note Rating Agency, remove the Administrator without cause by
providing the Administrator with at least 60 days prior written notice.
(c) Subject to subsection 5.08(d), at the sole option of the
Issuer and with written notice to each Note Rating Agency, the Administrator
may be removed immediately upon written notice of termination from the Issuer
to the Administrator if any of the following events shall occur:
(i) the Administrator shall default in the
performance of any of its duties under this Agreement and, after
notice of such default, shall not cure such default within
10 days (or, if such default cannot be cured in such time, shall not
give within 10 days such assurance of cure as shall be reasonably
satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises
shall enter a decree or order for relief, and such decree or order
shall not have been vacated within 60 days, in respect of the
Administrator in any involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in
effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or
any substantial part of its property or order the winding-up or
liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, shall consent to the entry of an order
for relief in an involuntary case under any such law, or shall
consent to the appointment of a receiver, liquidator, assignee,
trustee, custodian, sequestrator or similar official for the
Administrator or any substantial part of its property, shall consent
to the taking of possession by any such official of any substantial
part of its property, shall make any general assignment for the
benefit of its creditors or shall fail generally to pay its debts as
they become due.
The Administrator agrees that if any of the events specified in
clause (ii) or (iii) of this subsection 5.08(c) shall occur, it shall give
written notice thereof to the Issuer, the Owner Trustee, the Indenture Trustee
and the applicable Collateral Agent within seven days after the happening of
such event.
(d) No termination, resignation or removal of the Administrator
pursuant to this Section shall be effective until (i) a successor
Administrator shall have been appointed by the Issuer and (ii) such successor
Administrator shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the Administrator is bound hereunder.
Section 5.09 Action upon Termination, Resignation or Removal.
Promptly upon the effective date of termination of the Administrator pursuant
to subsection 5.08(c) or the resignation or removal of the Administrator
pursuant to subsection 5.08(a) or (b), respectively, the Administrator shall
be entitled to be paid all fees and reimbursable expenses accruing to it to
the date of such resignation or removal. The Administrator shall forthwith
upon such termination pursuant to subsection 5.08(c) deliver to the Issuer all
property and documents of or relating to the Collateral then in the custody of
the Administrator. In the event of the resignation or removal of the
Administrator pursuant to subsection 5.08(a), (b) or (d), respectively, the
Administrator shall cooperate with the Issuer and take all reasonable steps
requested to assist the Issuer in making an orderly transfer of the duties of
the Administrator.
[END OF ARTICLE V]
ARTICLE VI
OTHER MATTERS RELATING TO EACH TRANSFEROR
Section 6.01 Liability of each Transferor. Each Transferor
shall be severally, and not jointly, liable for all obligations, covenants,
representations and warranties of such Transferor arising under or related to
this Agreement. Except as provided in the preceding sentence, each Transferor
shall be liable only to the extent of the obligations specifically undertaken
by it in its capacity as a Transferor.
Section 6.02 Merger or Consolidation of, or Assumption of the
Obligations of, a Transferor.
(a) No Transferor shall dissolve, liquidate, consolidate with
or merge into any other Person or convey, transfer or sell its properties and
assets substantially as an entirety to any Person unless:
(i) (x) the Person formed by such consolidation or
into which such Transferor is merged or the Person which acquires by
conveyance, transfer or sale the properties and assets of such
Transferor substantially as an entirety shall be, if such Transferor
is not the surviving entity, organized and existing under the laws of
the United States of America or any state or the District of
Columbia, and shall be a savings association, a national banking
association, a bank or other entity which is not eligible to be a
debtor in a case under Title 11 of the United States Code or is a
special purpose entity whose powers and activities are limited and,
if such Transferor is not the surviving entity, shall expressly
assume, by an agreement supplemental hereto, executed and delivered
to the Owner Trustee, the Indenture Trustee and the applicable
Collateral Agent, in form reasonably satisfactory to the Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent,
the performance of every covenant and obligation of such Transferor
hereunder and shall benefit from all the rights granted to such
Transferor, as applicable hereunder; and (y) such Transferor or the
surviving entity, as the case may be, has delivered to the Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent
(with a copy to each Note Rating Agency) an Officer's Certificate and
an Opinion of Counsel each stating that such consolidation, merger,
conveyance, transfer or sale and such supplemental agreement comply
with this Section, that such supplemental agreement is a valid and
binding obligation of such surviving entity enforceable against such
surviving entity in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors'
rights generally from time to time in effect or general principles of
equity, and that all conditions precedent herein provided for
relating to such transaction have been complied with;
(ii) to the extent that any right, covenant or
obligation of such Transferor, as applicable hereunder, is
inapplicable to the successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit from such right,
as would apply, to the extent practicable, to such successor entity;
and
(iii) such Transferor shall have given the Note
Rating Agencies notice of such consolidation, merger or transfer of
assets.
(b) Except as permitted by subsection 2.08(c), the obligations,
rights or any part thereof of each Transferor hereunder shall not be
assignable nor shall any Person succeed to such obligations or rights of any
Transferor hereunder except (i) for conveyances, mergers, consolidations,
assumptions, sales or transfers in accordance with the provisions of the
foregoing paragraph and (ii) for conveyances, mergers, consolidations,
assumptions, sales or transfers to other entities (1) which such Transferor
and the Servicer determine will not result in an Adverse Effect, (2) which
meet the requirements of clause (ii) of the preceding paragraph and (3) for
which such purchaser, transferee, pledgee or entity shall expressly assume, in
an agreement supplemental hereto, executed and delivered to the Owner Trustee,
the Indenture Trustee and the applicable Collateral Agent in writing in form
satisfactory to the Owner Trustee, the Indenture Trustee and the applicable
Collateral Agent, the performance of every covenant and obligation of such
Transferor thereby conveyed.
Section 6.03 Limitations on Liability of Each Transferor.
Subject to Section 6.01, no Transferor nor any of the directors, officers,
members, managers, employees, incorporators or agents of any Transferor acting
in such capacities shall be under any liability to the Trust, the Owner
Trustee, the Indenture Trustee, the applicable Collateral Agent, the
Noteholders or any other Person for any action taken, or for refraining from
the taking of any action, in good faith in such capacities pursuant to this
Agreement, it being expressly understood that all such liability is expressly
waived and released as a condition of, and consideration for, the execution of
this Agreement, the Indenture and any Indenture Supplement and the issuance of
the Notes; provided, however, that this provision shall not protect any
Transferor, any director, officer, employee, incorporator or agent of any
Transferor or, if applicable, any manager or member of any Transferor against
any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties or by
reason of reckless disregard of obligations and duties hereunder. Each
Transferor and, any director, officer, employee, incorporator or agent of such
Transferor and, if applicable, any member or manager of such Transferor may
rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person (other than such Transferor) respecting any
matters arising hereunder.
[END OF ARTICLE VI]
ARTICLE VII
OTHER MATTERS RELATING TO THE SERVICER
Section 7.01 Liability of the Servicer. The Servicer shall
be liable under this Article VII only to the extent of the obligations
specifically undertaken by the Servicer in its capacity as Servicer.
Section 7.02 Merger or Consolidation of, or Assumption of
the Obligations of, the Servicer. The Servicer shall not consolidate with or
merge into any other Person or convey, transfer or sell its properties and
assets substantially as an entirety to any Person, unless:
(a) (i) the Person formed by such consolidation or into
which the Servicer is merged or the Person which acquires by
conveyance, transfer or sale the properties and assets of the
Servicer substantially as an entirety shall be, if the Servicer is
not the surviving entity, a corporation or a national banking
association organized and existing under the laws of the United
States of America or any state or the District of Columbia or is a
special purpose entity whose powers and activities are limited, and,
if the Servicer is not the surviving entity, such entity shall
expressly assume, by an agreement supplemental hereto, executed and
delivered to the Owner Trustee, the Indenture Trustee and the
applicable Collateral Agent, in form satisfactory to the Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent,
the performance of every covenant and obligation of the Servicer
hereunder (to the extent that any right, covenant or obligation of
the Servicer, as applicable hereunder, is inapplicable to the
successor entity, such successor entity shall be subject to such
covenant or obligation, or benefit from such right, as would apply,
to the extent practicable, to such successor entity);
(ii) the Servicer has delivered to the Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent an
Officer's Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance, transfer or sale comply with
this Section 7.02 and that all conditions precedent herein provided
for relating to such transaction have been complied with;
(iii) the Servicer shall have given the Note Rating
Agencies notice of such consolidation, merger or transfer or assets;
and
(b) the corporation formed by such consolidation or into
which the Servicer is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Servicer substantially as an
entirety shall be an Eligible Servicer.
Section 7.03 Limitation on Liability of the Servicer and
Others. Except as provided in Section 7.04, neither the Servicer nor any of
the directors, officers, employees or agents of the Servicer in its capacity
as Servicer shall be under any liability to the Trust, the Owner Trustee, the
Indenture Trustee, any Collateral Agent, the Noteholders or any other Person
for any action taken, or for refraining from the taking of any action, in good
faith in its capacity as Servicer pursuant to this Agreement; provided,
however, that this provision shall not protect the Servicer or any directors,
officers, employees or agents of the Servicer against any liability which
would otherwise be imposed by reason of willful misfeasance, bad faith or
gross negligence in the performance of duties or by reason of reckless
disregard of obligations and duties hereunder. The Servicer and any director,
officer, employee or agent of the Servicer may rely in good faith on any
document of any kind prima facie properly executed and submitted by any Person
(other than the Servicer) respecting any matters arising hereunder. The
Servicer shall not be under any obligation to appear in, prosecute or defend
any legal action which is not incidental to its duties as Servicer in
accordance with this Agreement and which in its reasonable judgment may
involve it in any expense or liability. The Servicer may, in its sole
discretion, undertake any such legal action which it may deem necessary or
desirable for the benefit of the Noteholders with respect to this Agreement
and the rights and duties of the parties hereto and the interests of the
Noteholders hereunder.
Section 7.04 Servicer Indemnification of the Trust, the
Owner Trustee and the Indenture Trustee. To the fullest extent permitted by
applicable law, the Servicer shall indemnify and hold harmless each of the
Trust, the Owner Trustee (as such and in its individual capacity), the
Indenture Trustee and any trustees predecessor thereto (including the
Indenture Trustee in its capacity as Transfer Agent and Note Registrar or as
Paying Agent), any Collateral Agent and their respective directors, officers,
employees and agents from and against any and all reasonable loss, liability,
claim, expense, damage or injury suffered or sustained by reason of (a) any
acts or omissions of the Servicer with respect to the Trust pursuant to this
Agreement or (b) the administration of the Trust by the Owner Trustee, the
issuance by the Trust of the Notes, any Servicer Default, or any termination
of the rights and obligations of the Servicer, including, but not limited to,
any judgment, award, settlement, reasonable attorneys' fees and other costs or
expenses incurred in connection with the defense of any actual or threatened
action, proceeding or claim; provided, however, that the Servicer shall not
indemnify the Owner Trustee, the Indenture Trustee, each Collateral Agent or
the Noteholders if such acts, omissions or alleged acts or omissions
constitute or are caused by fraud, negligence, or willful misconduct by the
Owner Trustee, the Indenture Trustee or the applicable Collateral Agent;
provided further, that the Servicer shall not indemnify the Trust, the
Noteholders or the Note Owners for any liabilities, costs or expenses of the
Trust with respect to any action taken by the Owner Trustee, the Indenture
Trustee or the applicable Collateral Agent at the request of the Noteholders;
provided further, that the Servicer shall not indemnify the Trust, the
Noteholders or the Note Owners as to any losses, claims or damages incurred by
any of them in their capacities as investors, including without limitation
losses incurred as a result of Defaulted Accounts or Receivables which are
written off as uncollectible or losses suffered by the Collateral
Certificates; and provided further, that the Servicer shall not indemnify the
Trust, the Noteholders or the Note Owners for any liabilities, costs or
expenses of the Trust, the Noteholders or the Note Owners arising under any
tax law, including without limitation, any federal, state, local or foreign
income or franchise taxes or any other tax imposed on or measured by income
(or any interest or penalties with respect thereto or arising from a failure
to comply therewith) required to be paid by the Trust, the Noteholders or the
Note Owners in connection herewith to any taxing authority. Any such
indemnification shall not be payable from the Trust Assets. The provisions of
this indemnity shall run directly to and be enforceable by an injured party
subject to the limitations hereof and shall survive the resignation or removal
of the Servicer, the resignation or removal of the Owner Trustee, the
Indenture Trustee and the applicable Collateral Agent and the termination of
the Trust.
Section 7.05 Resignation of the Servicer. The Servicer shall
not resign from the obligations and duties hereby imposed on it except (a)
upon determination that (i) the performance of its duties hereunder is no
longer permissible under applicable law and (ii) there is no reasonable action
which the Servicer could take to make the performance of its duties hereunder
permissible under applicable law or (b) upon the assumption, by an agreement
supplemental hereto, executed and delivered to the Owner Trustee, the
Indenture Trustee and the applicable Collateral Agent, in form satisfactory to
the Owner Trustee, the Indenture Trustee and the applicable Collateral Agent,
of the obligations and duties of the Servicer hereunder by any of its
Affiliates or by any entity the appointment of which shall have satisfied the
Note Rating Agency Condition and, in either case, qualifies as an Eligible
Servicer. Any determination permitting the resignation of the Servicer shall
be evidenced as to clause (a) above by an Opinion of Counsel to such effect
delivered to the Owner Trustee, the Indenture Trustee and the applicable
Collateral Agent. No resignation shall become effective until the Indenture
Trustee or a Successor Servicer shall have assumed the responsibilities and
obligations of the Servicer in accordance with Section 7.02 hereof. If within
120 days of the date of the determination that the Servicer may no longer act
as Servicer under clause (a) above the Indenture Trustee is unable to appoint
a Successor Servicer, the Indenture Trustee shall serve as Successor Servicer
(but shall have continued authority to appoint another Person as Successor
Servicer). Notwithstanding the foregoing, the Indenture Trustee shall, if it
is legally unable so to act, petition a court of competent jurisdiction to
appoint any established institution qualifying as an Eligible Servicer as the
Successor Servicer hereunder. The Trust shall give prompt notice to each Note
Rating Agency upon the appointment of a Successor Servicer. Notwithstanding
anything in this Agreement to the contrary, First USA may assign part or all
of its obligations and duties as Servicer under this Agreement to an Affiliate
of First USA so long as First USA shall have fully guaranteed the performance
of such obligations and duties under this Agreement.
Section 7.06 Delegation of Duties. In the ordinary course of
business, the Servicer may at any time delegate certain of its duties
hereunder to First Data Resources, Inc., a Delaware corporation. In the
ordinary course of business, the Servicer may at any time delegate any duties
hereunder to any Person that agrees to conduct such duties in accordance with
the Credit Card Guidelines and this Agreement. Any such delegation shall not
relieve the Servicer of its liability and responsibility with respect to such
duties, and shall not constitute a resignation within the meaning of Section
7.05. If any such delegation is to a party other than First Data Resources,
Inc., notification thereof shall be given to each Note Rating Agency.
Section 7.07 Examination of Records. Each Transferor and the
Servicer shall indicate generally in their computer files or other records
that the Receivables arising in the Accounts have been conveyed to the Trust,
pursuant to this Agreement. Each Transferor and the Servicer shall, prior to
the sale or transfer to a third party of any receivable held in its custody,
examine its computer records and other records to determine that such
receivable is not, and does not include, a Receivable. Each Transferor and the
Servicer shall also indicate generally in their computer files or other
records that each applicable Collateral Certificate has been conveyed to the
Trust, pursuant to this Agreement.
[END OF ARTICLE VII]
ARTICLE VIII
ACQUISITION OF TRUST ASSETS
Section 8.01 Acquisition of Trust Assets. If the Master
Trust Transferor exercises its option to accept retransfer of any Collateral
Certificate pursuant to the terms of the related Series Supplement, the Master
Trust Transferor shall (a) acquire the Collateral Certificate, which
acquisition shall be effective as of the date on which such retransfer occurs,
(b) deliver notice of such acquisition to the Owner Trustee, the Indenture
Trustee, the applicable Collateral Agent and the Servicer on or prior to the
Determination Date following the applicable Monthly Period for which the
option is deemed exercised, (c) deposit in the Collection Account for the
relevant Asset Pool on or prior to the First Note Transfer Date following the
applicable Monthly Period an amount equal to the lesser of (1) (x) the amount
required so that the Transferor Amount for such Asset Pool is equal to or
greater than the Required Transferor Amount for such Asset Pool and (y) the
amount required so that the Pool Balance for such Asset Pool is equal to or
greater than the Minimum Pool Balance for such Asset Pool and (2) the Invested
Amount of the Collateral Certificate on such date and all other amounts
payable to the Noteholders of each Outstanding Series of Notes including
accrued interest on the Notes. Upon the completion of the foregoing condition,
the applicable Master Trust shall succeed to all interests in and to the Trust
with respect to such Collateral Certificate.
[END OF ARTICLE VIII]
ARTICLE IX
INSOLVENCY EVENTS
Section 9.01 Rights upon the Occurrence of an Insolvency
Event. If any Transferor shall consent to the appointment of a bankruptcy
trustee or conservator or receiver or liquidator for the winding-up or
liquidation of its affairs, or a decree or order of a court or agency or
supervisory authority having jurisdiction in the premises for the appointment
of a bankruptcy trustee or conservator or receiver or liquidator for the
winding-up or liquidation of its affairs shall have been entered against such
Transferor (an "Insolvency Event"), each Transferor shall on the day of such
Insolvency Event (the "Appointment Day") immediately cease to (i) transfer
Principal Receivables or additional Collateral Certificates to the Trust and
(ii) increase any Invested Amount of a Collateral Certificate transferred to
the Trust by such Transferor and shall promptly give notice to the Owner
Trustee, the Indenture Trustee and the applicable Collateral Agent of such
Insolvency Event. Notwithstanding any cessation of the transfer to the Trust
of additional Principal Receivables, Finance Charge Receivables, whenever
created, accrued in respect of Principal Receivables which have been
transferred to the Trust shall continue to be a part of the Trust, and
Collections with respect thereto shall continue to be allocated to Noteholders
in accordance with the terms of the Indenture and each Indenture Supplement.
[END OF ARTICLE IX]
ARTICLE X
SERVICER DEFAULTS
Section 10.01 Servicer Defaults. If any one of the following
events (a "Servicer Default") shall occur and be continuing:
(a) any failure by the Servicer to make any payment,
transfer or deposit or to give notice or instructions to the Indenture Trustee
to make any required withdrawal or payment, transfer or deposit on the date
the Servicer is required to do so under the terms of this Agreement, the
Indenture or any Indenture Supplement, or within the applicable grace period,
which will not exceed 35 Business Days;
(b) failure on the part of the Servicer duly to observe or
perform in any material respect any other covenants or agreements of the
Servicer set forth in this Agreement which has an Adverse Effect on the
Noteholders of any Series, Class or Tranche and which continues unremedied for
a period of 60 days after the date on which written notice of such failure,
requiring the same to be remedied, shall have been given to the Servicer by
the Owner Trustee, the Indenture Trustee or the applicable Collateral Agent or
to the Servicer, the Owner Trustee, the Indenture Trustee and the applicable
Collateral Agent by Holders of Notes evidencing not less than 50% of the
aggregate unpaid principal amount of all Notes sustaining such Adverse Effect
(or, with respect to any such failure that does not relate to all Series,
Classes or Tranches, not less than 50% of the aggregate unpaid principal
amount of all Series, Classes or Tranches to which such failure related); or
the Servicer shall assign or delegate its duties under this Agreement, except
as permitted by Sections 7.02, 7.05 and 7.06;
(c) any representation, warranty or certification made by
the Servicer in this Agreement or in any certificate delivered pursuant to
this Agreement shall prove to have been incorrect when made, which has an
Adverse Effect on the rights of the Noteholders of any Series, Class or
Tranche and which Adverse Effect continues for a period of 60 days after the
date on which written notice thereof, requiring the same to be remedied, shall
have been given to the Servicer by the Owner Trustee, the Indenture Trustee or
the applicable Collateral Agent, or to the Servicer, the Owner Trustee, the
Indenture Trustee and the applicable Collateral Agent by the Holders of Notes
evidencing not less than 50% of the aggregate unpaid principal amount of all
Notes (or, with respect to any such representation, warranty or certification
that does not relate to all Series, Classes or Tranches, not less than 50% of
the aggregate unpaid principal amount of all Series, Classes or Tranches to
which such representation, warranty or certification relates);
(d) the Servicer shall consent to the appointment of a
bankruptcy trustee or conservator or receiver or liquidator in any bankruptcy
proceeding or other insolvency, readjustment of debt, marshalling of assets
and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all its property, or a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a bankruptcy trustee or a
conservator or receiver or liquidator in any bankruptcy, insolvency,
readjustment of debt, marshalling of assets and liabilities or similar
proceedings, or the winding-up or liquidation of its affairs, shall have been
entered against the Servicer and such decree or order shall have remained in
force undischarged or unstayed for a period of 60 days; or the Servicer shall
admit in writing its inability to pay its debts generally as they become due,
file a petition to take advantage of any applicable bankruptcy, insolvency or
reorganization statute, make any assignment for the benefit of its creditors
or voluntarily suspend payment of its obligations; or
(e) any other Servicer Default described in any Indenture
Supplement.
Then, in the event of any Servicer Default, so long as the
Servicer Default shall not have been remedied, either the Indenture Trustee or
the Holders of Notes evidencing more than 50% of the aggregate unpaid
principal amount of all affected Notes, by notice then given in writing to the
Servicer and the Owner Trustee (and to the Indenture Trustee if given by the
Noteholders) (a "Termination Notice"), may terminate all but not less than all
the rights and obligations of the Servicer as Servicer under this Agreement;
provided, however, if within 60 days of receipt of a Termination Notice the
Indenture Trustee does not receive any bids from Eligible Servicers in
accordance with subsection 10.02(a) to act as a Successor Servicer and
receives an Officer's Certificate of the Servicer to the effect that the
Servicer cannot in good faith cure the Servicer Default which gave rise to the
Termination Notice, the Indenture Trustee shall assume the role of Successor
Servicer.
After receipt by the Servicer of a Termination Notice, and
on the date that a Successor Servicer is appointed by the Indenture Trustee
pursuant to Section 10.02, all authority and power of the Servicer under this
Agreement shall pass to and be vested in the Successor Servicer (a "Service
Transfer") and, without limitation, the Indenture Trustee is hereby authorized
and empowered (upon the failure of the Servicer to cooperate) to execute and
deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, all
documents and other instruments upon the failure of the Servicer to execute or
deliver such documents or instruments, and to do and accomplish all other acts
or things necessary or appropriate to effect the purposes of such Service
Transfer. The Servicer agrees to cooperate with the Indenture Trustee and such
Successor Servicer in effecting the termination of the responsibilities and
rights of the Servicer to conduct servicing hereunder, including the transfer
to such Successor Servicer of all authority of the Servicer to service the
Collateral provided for under this Agreement, including, without limitation,
all authority over all Collections which shall on the date of transfer be held
by the Servicer for deposit, or which have been deposited by the Servicer, in
the Collection Account for the applicable Asset Pool, or which shall
thereafter be received with respect to the Collateral, and in assisting the
Successor Servicer and in enforcing all rights to Insurance Proceeds and
Interchange (if any) applicable to the Trust. The Servicer shall within 20
Business Days transfer its electronic records or electronic copies thereof
relating to the Receivables to the Successor Servicer in such electronic form
as the Successor Servicer may reasonably request and shall promptly transfer
to the Successor Servicer all other records, correspondence and documents
necessary for the continued servicing of the Collateral in the manner and at
such times as the Successor Servicer shall reasonably request. To the extent
that compliance with this Section shall require the Servicer to disclose to
the Successor Servicer information of any kind which the Servicer deems to be
confidential, the Successor Servicer shall be required to enter into such
customary licensing and confidentiality agreements as the Servicer shall deem
reasonably necessary to protect its interests.
Notwithstanding the foregoing, a delay in or failure of
performance referred to in paragraph (a) above for a period of 10 Business
Days after the applicable grace period or under paragraph (b) or (c) above for
a period of 60 Business Days after the applicable grace period, shall not
constitute a Servicer Default if such delay or failure could not be prevented
by the exercise of reasonable diligence by the Servicer and such delay or
failure was caused by an act of God or the public enemy, acts of declared or
undeclared war, public disorder, rebellion or sabotage, epidemics, landslides,
lightning, fire, hurricanes, earthquakes, floods or similar causes. The
preceding sentence shall not relieve the Servicer from using all commercially
reasonable efforts to perform its obligations in a timely manner in accordance
with the terms of this Agreement and the Servicer shall provide the Indenture
Trustee, the Owner Trustee, the applicable Collateral Agent and each
Transferor with an Officer's Certificate giving prompt notice of such failure
or delay by it, together with a description of its efforts so to perform its
obligations.
Section 10.02 Indenture Trustee To Act; Appointment of
Successor.
(a) On and after the receipt by the Servicer of a
Termination Notice pursuant to Section 10.01, the Servicer shall continue to
perform all servicing functions under this Agreement until the date specified
in the Termination Notice or otherwise specified by the Indenture Trustee or
until a date mutually agreed upon by the Servicer and the Indenture Trustee.
The Indenture Trustee shall as promptly as possible after the giving of a
Termination Notice appoint an Eligible Servicer as a successor servicer (the
"Successor Servicer"), and such Successor Servicer shall accept its
appointment by a written assumption in a form acceptable to the Indenture
Trustee. The Indenture Trustee may obtain bids from any potential successor
Servicer. In the event that a Successor Servicer has not been appointed or has
not accepted its appointment at the time when the Servicer ceases to act as
Servicer, the Indenture Trustee without further action shall automatically be
appointed the Successor Servicer. The Indenture Trustee may delegate any of
its servicing obligations to an Affiliate or agent in accordance with
subsection 4.01(b) and Section 7.06.
Notwithstanding the foregoing, the Indenture Trustee shall,
if it is legally unable so to act, petition at the expense of the Servicer a
court of competent jurisdiction to appoint any established institution
qualifying as an Eligible Servicer as the Successor Servicer hereunder. The
Indenture Trustee shall notify each Note Rating Agency and the Administrator
upon the removal of the Servicer and upon the appointment of a Successor
Servicer.
(b) Upon its appointment, the Successor Servicer shall be
the successor in all respects to the Servicer with respect to servicing
functions under this Agreement and shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof, and all references in this
Agreement to the Servicer shall be deemed to refer to the Successor Servicer;
provided, however, that the Successor Servicer shall have (i) no liability
with respect to any obligation which was required to be performed by the
terminated Servicer prior to the date that the Successor Servicer becomes the
Servicer or any claim of a third party based on any alleged action or inaction
of the terminated Servicer and (ii) no liability or obligation with respect to
any Servicer indemnification obligations of any prior servicer including the
original Servicer.
(c) In connection with such appointment and assumption, the
Indenture Trustee shall be entitled to such compensation, or may make such
arrangements for the compensation of the Successor Servicer out of
Collections, as it and such Successor Servicer shall agree; provided, however,
that no such compensation shall be in excess of the Trust Servicing Fee
permitted to the Servicer pursuant to Section 4.02. Each Transferor agrees
that if the Servicer is terminated hereunder, it will agree to deposit a
portion of the Collections in respect of Finance Charge Receivables that it is
entitled to receive pursuant to this Agreement to pay its share of the
compensation of the Successor Servicer.
(d) All authority and power granted to the Servicer under
this Agreement shall automatically cease and terminate upon termination of the
Trust pursuant to Article VIII of the Trust Agreement, and shall pass to and
be vested in the applicable Transferor and, without limitation, the applicable
Transferor is hereby authorized and empowered to execute and deliver, on
behalf of the Servicer as attorney-in-fact or otherwise, all documents and
other instruments, and to do and accomplish all other acts or things necessary
or appropriate to effect the purposes of such transfer of servicing rights.
The Servicer agrees to cooperate with the applicable Transferor in effecting
the termination of the responsibilities and rights of the Servicer to conduct
servicing on the Receivables. The Servicer shall transfer its electronic
records relating to the Receivables to the applicable Transferor or its
designee in such electronic form as it may reasonably request and shall
transfer all other records, correspondence and documents to it in the manner
and at such times as it shall reasonably request. To the extent that
compliance with this Section shall require the Servicer to disclose to the
applicable Transferor information of any kind which the Servicer deems to be
confidential, the applicable Transferor shall be required to enter
into such customary licensing and confidentiality agreements as the Servicer
shall deem necessary to protect its interests.
Section 10.03 Notification to Noteholders. Within five
Business Days after the Servicer becomes aware of any Servicer Default, the
Servicer shall give written notice thereof to the Owner Trustee, the Indenture
Trustee, the applicable Collateral Agent, each Note Rating Agency and the
Indenture Trustee shall give notice to the Noteholders. Upon any termination
or appointment of a Successor Servicer pursuant to this Article, the Indenture
Trustee shall give prompt written notice thereof to the Noteholders.
Section 10.04 Waiver of Past Defaults. The Holders of Notes
evidencing more than 662/3% of the aggregate unpaid principal amount of all
Notes sustaining an Adverse Effect by any default by the Servicer may, on
behalf of all Noteholders of such Series, Class or Tranche, waive any default
by the Servicer in the performance of its obligations hereunder and its
consequences, except a default in the failure to make any required deposits or
payments of interest or principal relating to such Series, Class or Tranche
pursuant to Article III. Upon any such waiver of a past default, such default
shall cease to exist, and any default arising therefrom shall be deemed to
have been remedied for every purpose of this Agreement. No such waiver shall
extend to any subsequent or other default or impair any right consequent
thereon except to the extent expressly so waived.
[END OF ARTICLE X]
ARTICLE XI
TERMINATION
Section 11.01 Termination of Agreement. This Agreement and
the respective obligations and responsibilities of the Trust, each Transferor,
the Administrator and the Servicer under this Agreement shall terminate,
except with respect to the indemnification obligations described in Section
7.04, on the Trust Termination Date.
[END OF ARTICLE XI]
ARTICLE XII
MISCELLANEOUS PROVISIONS
Section 12.01 Amendment; Waiver of Past Defaults.
(a) This Agreement may be amended from time to time by the
Servicer, the Transferor, the Administrator and the Issuer, by a written
instrument signed by each of them, without the consent of the Indenture
Trustee, any Collateral Agent or any of the Noteholders; provided that (i)
each Transferor shall have delivered to the Indenture Trustee and the Owner
Trustee an Officer's Certificate, dated the date of any such amendment,
stating that such Transferor reasonably believes that such amendment will not
have an Adverse Effect and (ii) the Note Rating Agency Condition shall have
been satisfied. Additionally, notwithstanding the preceding sentence, this
Agreement will be amended by the Servicer, the Administrator and the Issuer at
the direction of the Transferor without the consent of the Indenture Trustee
or any of the Noteholders to add, modify or eliminate such provisions as may
be necessary or advisable in order to enable all or a portion of the Trust (i)
to qualify as, and to permit an election to be made to cause the Trust to be
treated as, a "financial asset securitization investment trust" as described
in the provisions of Section 860L of the Internal Revenue Code, and (ii) to
avoid the imposition of state or local income or franchise taxes imposed on
the Trust's property or its income; provided, however, that (i) each
Transferor delivers to the Indenture Trustee, the Owner Trustee and the
applicable Collateral Agent an Officer's Certificate to the effect that the
proposed amendments meet the requirements set forth in this subsection and
(ii) such amendment does not affect the rights, duties, benefits, protections,
privileges or immunities of the Indenture Trustee, the Owner Trustee (as such
or in its individual capacity) or the applicable Collateral Agent hereunder.
This Agreement may also be amended from time to time by the
Servicer, the Transferor, the Administrator and the Issuer by a written
instrument signed by each of them, without the consent of the Indenture
Trustee or any of the Noteholders and without satisfaction of the Note Rating
Agency Condition to add, modify or eliminate such provisions as may be
necessary to satisfy accounting requirements under SFAS 140 and any related or
successor accounting interpretations or requirements hereto for off-balance
sheet treatment for the Collateral of the Issuer.
Any amendments regarding the addition to or removal of
Collateral Certificates or Receivables from the Trust as provided in Sections
2.12 and 2.13, executed in accordance with the provisions hereof, shall not be
considered amendments to this Agreement for the purpose of subsections
12.01(a) and (b).
(b) This Agreement may also be amended in writing from time
to time by the Servicer, the Transferor, the Administrator, the Indenture
Trustee, the Collateral Agent and the Trust, with the consent of the Holders
of Notes evidencing more than 662/3% of the aggregate unpaid principal amount
of the Notes of all affected Series, Classes or Tranches for which the
Transferor has not delivered an Officer's Certificate stating that there is no
Adverse Effect, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement or of modifying
in any manner the rights of the Noteholders; provided, however, that no such
amendment shall (i) reduce in any manner the amount of or delay the timing of
any distributions (changes in Early Amortization Events or Events of Default
that decrease the likelihood of the occurrence thereof shall not be considered
delays in the timing of distributions for purposes of this clause) to be made
to Noteholders or deposits of amounts to be so distributed or the amount
available under any Supplemental Credit Enhancement and any Derivative
Agreement without the consent of each affected Noteholder, (ii) change the
definition of or the manner of calculating the interest of any Noteholder
without the consent of each affected Noteholder or (iii) reduce the aforesaid
percentage required to consent to any such amendment without the consent of
each Noteholder without the consent of the Holders of Notes of such Series,
Class or Tranche evidencing more than 662/3% of the aggregate unpaid principal
amount of the Notes of such Series, Class or Tranche.
(c) Promptly after the execution of any such amendment or
consent (other than an amendment pursuant to paragraph (a)), the Trust shall
furnish notification of the substance of such amendment to the Indenture
Trustee and each Noteholder, and the Servicer shall furnish notification of
the substance of such amendment to each Note Rating Agency.
(d) It shall not be necessary for the consent of Noteholders
under this Section 12.01 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Noteholders shall be subject to such
reasonable requirements as the Indenture Trustee may prescribe.
(e) Any Indenture Supplement executed in accordance with the
provisions of Article IX of the Indenture shall not be considered an amendment
of this Agreement for the purposes of this Section 12.01.
(f) The Owner Trustee may, but shall not be obligated to,
enter into any such amendment which affects the Owner Trustee's rights,
duties, benefits, protections, privileges or immunities under this Agreement
or otherwise. In connection with the execution of any amendment hereunder, the
Owner Trustee shall be entitled to receive the Opinion of Counsel described in
subsection 12.02(d).
Section 12.02 Protection of Right, Title and Interest in and
to Trust Assets.
(a) Each Transferor shall cause this Agreement, all
amendments and supplements hereto and all financing statements and
continuation statements and any other necessary documents covering the
Indenture Trustee's and the Trust's right, title and interest to the Trust
Assets to be promptly recorded, registered and filed, and at all times to be
kept recorded, registered and filed, all in such manner and in such places as
may be required by law fully to preserve and protect the right, title and
interest of the Indenture Trustee, Noteholders and the Trust hereunder to all
property comprising the Trust Assets. Each Transferor shall deliver to the
Owner Trustee and Indenture Trustee file-stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing. Each Transferor
shall cooperate fully with the Servicer in connection with the obligations set
forth above and will execute any and all documents reasonably required to
fulfill the intent of this paragraph.
(b) Within 30 days after any Transferor makes any change in
its name, identity or corporate structure which would make any financing
statement or continuation statement filed in accordance with paragraph (a)
seriously misleading within the meaning of Section 9-506 (or any comparable
provision) of the UCC, such Transferor shall give the Owner Trustee and the
Indenture Trustee notice of any such change and shall file such financing
statements or amendments as may be necessary to continue the perfection of the
Trust's security interest or ownership interest in the Receivables and
Collateral Certificates and the proceeds thereof.
(c) Each Transferor and the Servicer shall give the Owner
Trustee and the Indenture Trustee prompt written notice of any relocation of
its chief executive office or any change in the jurisdiction under whose laws
it is organized and whether, as a result of such relocation or change, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new
financing statement and shall file such financing statements or amendments as
may be necessary to perfect or to continue the perfection of the Trust's
security interest in each Collateral Certificate and the Receivables and the
proceeds thereof. Each Transferor shall at all times maintain its chief
executive offices within the United States and shall at all times be organized
under the laws of a jurisdiction located within the United States.
(d) Each Transferor shall deliver to the Owner Trustee and
the Indenture Trustee (i) upon the execution and delivery of each amendment of
this Agreement, an Opinion of Counsel to the effect specified in Exhibit D-1;
(ii) on each date specified in subsection 2.12(c) with respect to the addition
of Additional Accounts to be designated as Accounts, an Opinion of Counsel
substantially in the form of Exhibit D-2, (iii) on each Addition Date on which
any Collateral Certificates are to be included in the Trust pursuant to
subsection 2.12(a) or (b), an Opinion of Counsel covering the same substantive
legal issues addressed by Exhibits D-1 and D-2, but conformed to the extent
appropriate to relate to Collateral Certificates; and (iv) on or
before April 30 of each year, beginning with April 30, 2003, an Opinion of
Counsel substantially in the form of Exhibit D-3.
Section 12.03 Fees Payable by the Transferor.
Notwithstanding anything contained in any other Transaction Document (unless
such document specifically refers to this Section), the Transferor shall pay
out of its own funds, without reimbursement, all expenses incurred, fees and
disbursements of the Owner Trustee (as such and in its individual capacity),
the Administrator, the Indenture Trustee and the applicable Collateral Agent
(including, in each case, the reasonable fees and expenses of its outside
counsel) and independent accountants and all other fees and expenses,
including the costs of filing UCC continuation statements, the costs and
expenses relating to obtaining and maintaining the listing of any Notes on any
stock exchange, the costs and expenses relating to maintaining Bank Accounts,
and any stamp, documentary, excise, property (whether on real, personal or
intangible property) or any similar tax levied on the Trust or the Trust's
assets that are not expressly stated in this Agreement to be payable by any
Transferor or the Trust (other than federal, state, local and foreign income
and franchise taxes, if any, or any interest or penalties with respect
thereto, assessed on the Trust). In addition, the Transferor shall, until such
time as Receivables are included as Trust Assets, pay the expenses incurred by
the Servicer in connection with the Trust and the servicing activities
hereunder including expenses related to enforcement of the Collateral
Certificates and the Receivables, as set forth in subsection 4.01(e). In the
event an Additional Transferor is added, the existing Transferor or
Transferors and the new Additional Transferor will, at such time, determine
how the expenses described in this Section 12.03 shall be allocated.
Section 12.04 GOVERNING LAW. THIS AGREEMENT SHALL BE
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT
REFERENCE TO ITS CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND
REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH
LAWS.
Section 12.05 Notices; Payments.
(a) All demands, notices, instructions, directions and
communications (collectively, "Notices") under this Agreement shall
be in writing and shall be deemed to have been duly given if
personally delivered at, mailed by registered mail, return receipt
requested, or sent by facsimile transmission:
(i) in the case of First USA, as Transferor, the Servicer or
the Administrator, to:
First USA Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
First USA Bank, National Association
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Gavra Flood
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
BANK ONE CORPORATION
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
BANK ONE CORPORATION
▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) in the case of the Trust or the Owner Trustee, to:
Wilmington Trust Company
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Corporate Trust Administration
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(iii) in the case of the Indenture Trustee or the Collateral
Agent, to:
▇▇▇▇▇ Fargo Bank Minnesota, National Association
6th & Marquette
MAC ▇▇▇▇▇-▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Trust Services Asset
Backed Administration
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(iv) in the case of the Note Rating Agency for a particular
Series, the address, if any, specified in the Indenture Supplement
relating to such Series, and
(v) to any other Person as specified in the Indenture or any
Indenture Supplement; or, as to each party, at such other address or
facsimile number as shall be designated by such party in a written
notice to each other party.
(b) Any Notice required or permitted to be given to a Holder
of Registered Notes shall be given by first-class mail, postage
prepaid, at the address of such Holder as shown in the Note Register.
No Notice shall be required to be mailed to a Holder of Bearer Notes
but shall be given as provided below. Any Notice so mailed within the
time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Noteholder receives such
Notice. In addition, (a) if and so long as any Series, Class or
Tranche is listed on the Luxembourg Stock Exchange and such stock
exchange shall so require, any Notice to Noteholders shall be
published in an Authorized Newspaper of general circulation in
Luxembourg within the time period prescribed in this Agreement and
(b) in the case of any Series, Class or Tranche with respect to which
any Bearer Notes are Outstanding, any Notice required or permitted to
be given to Noteholders of such Series, Class or Tranche shall be
published in an Authorized Newspaper within the time period
prescribed in this Agreement.
Section 12.06 Severability of Provisions. If any one or more
of the covenants, agreements, provisions or terms of this Agreement shall for
any reason whatsoever be held invalid, then such provisions shall be deemed
severable from the remaining provisions of this Agreement and shall in no way
affect the validity or enforceability of the remaining provisions or of the
Notes or the rights of the Noteholders.
Section 12.07 Further Assurances. Each Transferor and the
Servicer agree to do and perform, from time to time, any and all acts and to
execute any and all further instruments required or reasonably requested by
the Owner Trustee and the Indenture Trustee more fully to effect the purposes
of this Agreement, including the execution of any financing statements or
continuation statements relating to the Receivables for filing under the
provisions of the UCC of any applicable jurisdiction.
Section 12.08 No Waiver; Cumulative Remedies. No failure to
exercise and no delay in exercising, on the part of the Trust, the Owner
Trustee, the Indenture Trustee or the Noteholders, any right, remedy, power or
privilege under this Agreement shall operate as a waiver thereof; nor shall
any single or partial exercise of any right, remedy, power or privilege under
this Agreement preclude any other or further exercise thereof or the exercise
of any other right, remedy, power or privilege. The rights, remedies, powers
and privileges provided under this Agreement are cumulative and not exhaustive
of any rights, remedies, powers and privileges provided by law.
Section 12.09 Counterparts. This Agreement may be executed
in two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 12.10 Third-Party Beneficiaries. This Agreement will
inure to the benefit of and be binding upon the parties hereto, the Owner
Trustee, the Indenture Trustee, the Noteholders and their respective
successors and permitted assigns. Except as otherwise expressly provided in
this Agreement, no other Person will have any right or obligation hereunder.
Section 12.11 Actions by Noteholders.
(a) Wherever in this Agreement a provision is made that an
action may be taken or a Notice, demand or instruction given by Noteholders,
such action, Notice or instruction may be taken or given by any Noteholder,
unless such provision requires a specific percentage of Noteholders.
(b) Any Notice, request, demand, authorization, direction,
consent, waiver or other act by the Holder of a Note shall bind such Holder
and every subsequent Holder of such Note and of any Note issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or omitted to be done by the Owner Trustee, any
Transferor or the Servicer in reliance thereon, whether or not notation of
such action is made upon such Note.
Section 12.12 Rule 144A Information. For so long as any of
the Notes of any Series or Class are "restricted securities" within the
meaning of Rule 144(a)(3) under the Securities Act, each Transferor and each
of the Owner Trustee, the Indenture Trustee and the Servicer agree to
cooperate with each other to provide to any Noteholders of such Series or
Class and to any prospective purchaser of Notes designated by such Noteholder,
upon the request of such Noteholder or prospective purchaser, any information
required to be provided to such Holder or prospective purchaser to satisfy the
condition set forth in Rule 144A(d)(4) under the Securities Act.
Section 12.13 Merger and Integration. Except as specifically
stated otherwise herein, this Agreement sets forth the entire understanding of
the parties relating to the subject matter hereof, and all prior
understandings, written or oral, are superseded by this Agreement. This
Agreement may not be modified, amended, waived or supplemented except as
provided herein.
Section 12.14 Headings. The headings herein are for purposes
of reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
Section 12.15 Limitation of Liability. Notwithstanding any
other provision herein or elsewhere, this Agreement has been executed and
delivered by Wilmington Trust Company, not in its individual capacity, but
solely in its capacity as Owner Trustee of the Trust. In no event shall
Wilmington Trust Company in its individual capacity have any liability in
respect of the representations, warranties, or obligations of the Trust
hereunder or under any other document, as to all of which recourse shall be
had solely to the Trust Assets, and for all purposes of this Agreement and
each other document, the Owner Trustee (as such or in its individual capacity)
shall be subject to, and entitled to the benefits of, the terms and provisions
of the Trust Agreement.
Section 12.16 No Petition. To the fullest extent permitted
by applicable law, the Indenture Trustee, Collateral Agent, Servicer,
Transferor and Administrator, by entering into this Agreement, and each
Noteholder, by accepting a Note, agrees that it will not at any time institute
against First USA, any Master Trust or the Issuer, or join in any institution
against First USA, any Master Trust or the Issuer of any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Notes and this Agreement.
[END OF ARTICLE XII]
IN WITNESS WHEREOF, the Transferor, the Servicer, the
Administrator, the Indenture Trustee, the Collateral Agent and the Trust have
caused this Transfer and Servicing Agreement to be duly executed by their
respective officers as of the day and year first above written.
FIRST USA BANK, NATIONAL ASSOCIATION,
as Transferor, Servicer and Administrator
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: First Vice President
BANK ONE ISSUANCE TRUST,
as Issuer
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee on behalf of the Trust
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇ FARGO BANK MINNESOTA,
NATIONAL ASSOCIATION,
as Indenture Trustee and Collateral Agent
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Assistant Vice President
Acknowledged and Accepted:
WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
Exhibit A-1
-----------
FORM OF ASSIGNMENT OF AN ADDITIONAL COLLATERAL CERTIFICATE
(as required by section 2.12(c)(v) of the Transfer and Servicing Agreement)
ASSIGNMENT No. __ OF AN ADDITIONAL COLLATERAL CERTIFICATE
dated as of _____________,(1) by and among FIRST USA BANK, NATIONAL ASSOCIATION,
a national banking association (the "Bank"), as Transferor (the "Transferor"),
and BANK ONE ISSUANCE TRUST (the "Trust"), pursuant to the Transfer and
Servicing Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Bank, as Transferor, Servicer and
Administrator, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Indenture
Trustee and Collateral Agent, and the Trust are parties to the Transfer and
Servicing Agreement, dated as of May 1, 2002 (hereinafter as such agreement
may have been, or may from time to time be, amended, supplemented or otherwise
modified, the "Agreement");
WHEREAS, pursuant to subsection 2.12(a) or 2.12(b) of the
Agreement, the Transferor wishes to designate an Additional Collateral
Certificate and to convey hereby such Additional Collateral Certificate (as
such term is defined in the Agreement) to the Trust for designation pursuant
to the applicable Asset Pool Supplement; and
WHEREAS, the Owner Trustee, on behalf of the Trust is
willing to accept such designation and conveyance subject to the terms and
conditions hereof;
NOW, THEREFORE, the Transferor and the Owner Trustee, on
behalf of the Trust hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall
have the meanings ascribed to them in the Agreement unless otherwise defined
herein.
"Addition Cut Off Date" shall mean, with respect to the
Additional Collateral Certificate designated hereby, ____________, ____.
________________
(1) To be dated as of the applicable Addition Date.
"Addition Date" shall mean, with respect to the Additional
Collateral Certificate designated on Schedule 1 hereto, ____________, ____.
"Notice Date" shall mean, with respect to the Additional
Collateral Certificate designated on Schedule 1 hereto, , (which shall be a
date on or prior to the third Business Day prior to the Addition Date with
respect to additions pursuant to subsection 2.12(a) of the Agreement and the
fifth Business Day prior to the Addition Date with respect to additions
pursuant to subsection 2.12(b) of the Agreement).
2. Conveyance of Additional Collateral Certificates. (a) The
Transferor does hereby transfer, assign, set over and otherwise convey,
without recourse except as set forth in the Agreement, to the Trust, all its
right, title and interest in, to and under the Additional Collateral
Certificate existing as of the close of business on the Addition Cut Off Date.
The foregoing does not constitute and is not intended to result in the
creation or assumption by the Trust, the Owner Trustee (as such or in its
individual capacity), the Indenture Trustee, the applicable Collateral Agent,
any Noteholders, any Supplemental Credit Enhancer or any Derivative
Counterparty of any obligation of the Transferor or any other Person in
connection with the Additional Collateral Certificate or under any agreement
or instrument relating thereto, including any obligation to Obligors, merchant
banks, merchants clearance systems, VISA, MasterCard or insurers.
(b) If necessary, the Transferor agrees to record and file,
at its own expense, financing statements (and continuation statements
when applicable) with respect to the Additional Collateral
Certificate existing on the Addition Cut Off Date meeting the
requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect, and maintain perfection
of, the sale and assignment of its interest in such Additional
Collateral Certificate to the Trust, and to deliver a file-stamped
copy of each such financing statement or other evidence of such
filing to the Owner Trustee on or prior to the Addition Date. None of
the Owner Trustee, the Indenture Trustee or the applicable Collateral
Agent shall be under any obligation whatsoever to file such financing
or continuation statements or to make any filing under the UCC in
connection with such sale and assignment.
(c) The Transferor does hereby grant to the Trust a security
interest in all of its right, title and interest, whether now owned
or hereafter acquired, in and to the Additional Collateral
Certificate designated for sale on the Addition Cut Off Date. This
Assignment constitutes a security agreement under the UCC.
(d) It is the intention of the parties hereto that all
transfers of Additional Collateral Certificates to the Trust pursuant
to this Assignment be subject to, and be treated in accordance with,
the Delaware Act and each of the parties hereto agrees that this
Assignment has been entered into by the parties hereto in express
reliance upon the Delaware Act. For purposes of complying with the
requirements of the Delaware Act, each of the parties hereto hereby
agrees that any property, assets or rights purported to be
transferred, in whole or in part, by the Transferor pursuant to this
Assignment shall be deemed to no longer be the property, assets or
rights of the Transferor. The parties hereto acknowledge and agree
that each such transfer is occurring in connections with a
"securitization transaction" within the meaning of the Delaware Act.
3. Acceptance by Owner Trustee. The Owner Trustee hereby
acknowledges its acceptance on behalf of the Trust of all right, title and
interest to the property existing on the Addition Cut Off Date which has been
conveyed to the Trust pursuant to Section 2(a) of this Assignment.
4. Conditions Precedent. The designation and conveyance
hereunder of the Additional Collateral Certificate and the Amendment of the
Agreement pursuant to Section 6 of this Assignment are each subject to the
satisfaction, on or prior to the Addition Date, of the conditions set forth in
Section 2.12(c) of the Agreement.
5. Representations and Warranties of the Transferor. The
Transferor hereby represents and warrants to the Trust, as of the Addition
Date, that:
(a) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Transferor
enforceable against the Transferor 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);
(b) Eligibility of Additional Collateral Certificate. As of
the Addition Cut Off Date, the Additional Collateral Certificate
designated hereby is an Eligible Collateral Certificate;
(c) Insolvency. As of each of the Addition Cut Off Date and
the Addition Date, no Insolvency Event with respect to the Transferor
has occurred and the transfer by the Transferor of Additional
Collateral Certificates to the Trust has not been made in
contemplation of the occurrence thereof;
(d) No Adverse Effect. The acquisition by the Trust of the
Additional Collateral Certificate shall not, in the reasonable belief
of the applicable Transferor, result in an Adverse Effect;
(e) Security Interest. This Assignment constitutes either
(i) a valid sale, transfer and assignment to the Trust of all right,
title and interest of the Transferor in the Additional Collateral
Certificate designated on the Addition Cut Off Date and such
Additional Collateral Certificate will be held by the Owner Trustee,
on behalf of the Trust, free and clear of any Lien of any Person
claiming through or under the Transferor or any of its Affiliates, or
(ii) a valid transfer for security of all of the Transferor's right,
title and interest in such Additional Collateral Certificate to the
Owner Trustee, on behalf of the Trust, which is enforceable upon
execution and delivery of this Assignment. Upon the filing of all
such appropriate financing statements, the Trust shall have a first
priority perfected security or ownership interest in such property
and proceeds;
(f) No Conflict. The execution and delivery by the
Transferor of this Assignment, the performance of the transactions
contemplated by this Assignment and the fulfillment of the terms
hereof applicable to the Transferor, will not conflict with or
violate any Requirements of Law applicable to the Transferor or
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 its properties are bound;
(g) 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 Assignment, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Assignment, (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 Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect
the validity or enforceability of this Assignment; and
(h) All Consents. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be
obtained by the Transferor in connection with the execution and
delivery of this Assignment by the Transferor and the performance of
the transactions contemplated by this Assignment by the Transferor,
have been obtained.
6. Conditions Precedent. The acceptance by the Trustee set
forth in Section 3 and the amendment of the Transfer 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 Transferor shall have
delivered to the Trust a certificate of a Vice President or more
senior officer substantially in the form of Schedule 2 hereto,
certifying that (i) all requirements set forth in subsection 2.12(c)
of the Transfer and Servicing Agreement for designating and conveying
Additional Collateral Certificates have been satisfied and (ii) each
of the representations and warranties made by the Transferor in
Section 5 is true and correct as of the Addition Date. The Trust may
conclusively rely on such Officer's Certificate, shall have no duty
to make inquiries with regard to the matters set forth therein, and
shall incur no liability in so relying.
7. Amendment of the Transfer and Servicing Agreement. The
Agreement is hereby amended to provide that all references therein to the
"Transfer and Servicing Agreement," to "this Agreement" and "herein" shall be
deemed from and after the Addition Date to be a dual reference to the
Agreement as supplemented by this Assignment and all references therein to
Additional Collateral Certificates shall be deemed to include the Additional
Collateral Certificate designated hereby. Except as expressly amended hereby,
all of the representations, warranties, terms, covenants and conditions of the
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 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 shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS ASSIGNMENT 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.
10. Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Assignment has been executed and delivered
by Wilmington Trust Company on behalf of the Trust, not in its individual
capacity, but solely in its capacity as Owner Trustee, in no event shall
Wilmington Trust Company in its individual capacity have any liability in
respect of the representations, warranties, or obligations of the Trust
hereunder or under any other document, as to all of which recourse shall be
had solely to the assets of the Trust, and for all purposes of this Assignment
and each other document, the Owner Trustee (as such or in its individual
capacity) shall be subject to, and entitled to the benefits of, the terms and
provisions of the Trust Agreement.
11. Removal Upon Breach. In the event of a breach of any of
the warranties set forth in subsection 5(B) other than a breach or event set
forth in subsection 2.05(a) of the Agreement, if as a result of such breach
the related Collateral Certificate is no longer an Eligible Collateral
Certificate or the Trust's rights in, to or under such Collateral Certificate
or its proceeds are impaired, then upon the expiration of 60 days (or such
longer period as may be agreed to by the Indenture Trustee, the applicable
Collateral Agent and the Servicer, but in no event later than 120 days) after
the earlier to occur of the discovery thereof by the Transferor who conveyed
such Collateral Certificate to the Trust or receipt by such Transferor of
written notice thereof given by the Owner Trustee, the Indenture Trustee, the
applicable Collateral Agent or the Servicer, such Collateral Certificate shall
be removed from the Trust on the terms and conditions set forth in subsection
2.05(b) of the Agreement and the Transferor shall accept reassignment of such
Collateral Certificate; 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 Collateral Certificate
shall then be true and correct in all material respects as if such Collateral
Certificate had been designated for inclusion in the Trust on such day.
IN WITNESS WHEREOF, the Transferor and the Owner Trustee, on
behalf of the Trust, have caused this Assignment to be duly executed by their
respective officers as of the day and year first above written.
FIRST USA BANK, NATIONAL ASSOCIATION,
as Transferor
By:_____________________________________
Name:
Title:
BANK ONE ISSUANCE TRUST
By:_____________________________________
not in its individual capacity,
but solely as Owner Trustee
on behalf of the Trust
Schedule 1 (to Exhibit A-1)
---------------------------
List of Additional Collateral Certificates
Schedule 2 (to Exhibit A-1)
---------------------------
First USA Bank, National Association
Officer's Certificate
____________________, a duly authorized officer of First USA Bank,
National Association ("First USA"), a national banking association, as
transferor (the "Transferor"), hereby certifies and acknowledges on behalf of
the Transferor that to the best of [her/his] knowledge the following
statements are true on , (the "Addition Date"), and acknowledges on behalf of
the Transferor that this Officer's Certificate will be relied upon by
Wilmington Trust Company, as Owner Trustee on behalf of the Trust, in
connection with the Trust entering into Assignment No. of Additional
Collateral Certificates, dated as of the related Addition Date (the
"Assignment"), by and between the Transferor and the Trust, in connection with
the Transfer and Servicing Agreement, dated as of May 1, 2002 (as heretofore
supplemented and amended, the "Transfer and Servicing Agreement"), by and
between First USA, as Transferor, Servicer and Administrator, the Bank One
Issuance Trust, as Issuer, and ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as Indenture Trustee and Collateral Agent. The undersigned hereby
certifies and acknowledges on behalf of the Transferor that:
(a) Delivery of Assignment. On or prior to the Addition
Date, (i) the Transferor has delivered to the Trust the Assignment
and (ii) the Transferor shall deliver to the Trust the Additional
Collateral Certificate.
(b) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Transferor
enforceable against the Transferor 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).
(c) Eligibility of Additional Collateral Certificate. As of
the Addition Cut Off Date, the Additional Collateral Certificate
designated hereby is an Eligible Collateral Certificate;
(d) Insolvency. As of each of the Addition Cut Off Date and
the Addition Date, no Insolvency Event with respect to the Transferor
has occurred and the transfer by the Transferor of Additional
Collateral Certificates to the Trust has not been made in
contemplation of the occurrence thereof;
(e) No Adverse Effect. The acquisition by the Trust of the
Additional Collateral Certificate shall not, in the reasonable belief
of the Transferor, result in an Adverse Effect; and
(f) No Conflict. All requirements set forth in subsection
2.12(c) of the Transfer and Servicing Agreement for designating
Additional Collateral Certificates have been satisfied.
(g) 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 Assignment, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Assignment, (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 Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect
the validity or enforceability of this Assignment; and
(h) All Consents. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be
obtained by the Transferor in connection with the execution and
delivery of this Assignment by the Transferor and the performance of
the transactions contemplated by this Assignment by the Transferor,
have been obtained.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Asset Pool One Supplement.
IN WITNESS WHEREOF, I have hereunto set my hand this _____
day of ________ ____.
BANK ONE ISSUANCE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee on behalf
of the Trust
By:________________________
Name:
Title:
Exhibit A-2
-----------
FORM OF ASSIGNMENT OF RECEIVABLES IN ADDITIONAL ACCOUNTS (as
required by section 2.12(c)(iv) of the Transfer and Servicing Agreement)
ASSIGNMENT No. __ OF RECEIVABLES IN ADDITIONAL ACCOUNTS
dated as of _____________,(2) by and among FIRST USA BANK, NATIONAL
ASSOCIATION, a national banking association (the "Bank"), as Transferor (the
"Transferor"), and BANK ONE ISSUANCE TRUST (the "Trust"), pursuant to the
Transfer and Servicing Agreement referred to below , and acknowledged by FIRST
USA BANK, NATIONAL ASSOCIATION, a national banking association organized under
the laws of the United States of America, in its capacity as servicer under
the Transfer and Servicing Agreement referred to below (in such capacity, the
"Servicer").
W I T N E S S E T H:
WHEREAS, the Bank, as Transferor, Servicer and
Administrator, ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Indenture
Trustee and Collateral Agent, and the Trust are parties to the Transfer and
Servicing Agreement, dated as of May 1, 2002 (hereinafter as such agreement
may have been, or may from time to time be, amended, supplemented or otherwise
modified, the "Agreement");
WHEREAS, pursuant to the Agreement, the Transferor wishes to
designate Additional Accounts to be included as Accounts and to convey hereby
the Receivables of such Additional Accounts (as each such term is defined in
the Agreement), whether now existing or hereafter created, to the Trust; and
WHEREAS, the Owner Trustee, on behalf of the Trust is
willing to accept such designation and conveyance subject to the terms and
conditions hereof;
NOW, THEREFORE, the Transferor and the Owner Trustee, on
behalf of the Trust hereby agree as follows:
1. Defined Terms. All capitalized terms used herein shall
have the meanings ascribed to them in the Agreement unless otherwise defined
herein.
______________
(2) To be dated as of the applicable Addition Date.
"Addition Cut Off Date" shall mean, with respect to the
Additional Accounts designated hereby, ____________, ____.
"Addition Date" shall mean, with respect to the Additional
Accounts designated on Schedule 1 hereto, ____________, ____.
"Notice Date" shall mean, with respect to the Additional
Accounts designated on Schedule 1 hereto, , (which shall be a date on or prior
to the third Business Day prior to the Addition Date with respect to additions
pursuant to subsection 2.12(a) of the Agreement and the fifth Business Day
prior to the Addition Date with respect to additions pursuant to subsection
2.12(b) of the Agreement).
2. Designation of Additional Accounts. The Transferor shall
deliver to the Owner Trustee not later than five Business Days after the
Addition Date a computer file containing a true and complete list of each
VISA(R) and MasterCard(R) account, which as of the Addition Date shall be
deemed to be an Additional Account, such accounts being identified by account
number and by the amount of Receivables in such Account as of the close of
business on the related Addition Cut Off Date, which shall be marked as
Schedule 1 to this Agreement. Such list shall be delivered not later than five
Business Days after the date of this Agreement and, as of the Addition Date,
shall be incorporated into and made a part of this Assignment.
3. Conveyance of Receivables. (a) The Transferor does hereby
transfer, assign, set over and otherwise convey to the Trust for the benefit
of the Noteholders, without recourse on and after the Addition Date, all its
right, title and interest in, to and under the Receivables of such Additional
Accounts existing at the close of business on the Addition Date and thereafter
created from time to time until the termination of the Trust, all Interchange
and Recoveries related thereto, all monies due or to become due and all
amounts received or receivable with respect thereto and all proceeds
(including "proceeds" as defined in the UCC) thereof. The foregoing does not
constitute and is not intended to result in the creation or assumption by the
Trust, the Owner Trustee (as such or in its individual capacity), the
Indenture Trustee, the applicable Collateral Agent, any Noteholders, any
Supplemental Credit Enhancer or any Derivative Counterparty of any obligation
of the Transferor or any other Person in connection with the Accounts, the
Receivables or under any agreement or instrument relating thereto, including
any obligation to Obligors, merchant banks, merchants clearance systems, VISA,
MasterCard or insurers.
(b) If necessary, the Transferor agrees to record and file,
at its own expense, financing statements (and continuation statements
when applicable) with respect to the Receivables in Additional
Accounts existing on the Addition Cut Off Date and thereafter created
meeting the requirements of applicable state law in such manner and
in such jurisdictions as are necessary to perfect, and maintain
perfection of, the sale and assignment of its interest in such
Receivables to the Trust, and to deliver a file-stamped copy of each
such financing statement or other evidence of such filing to the
Owner Trustee on or prior to the Addition Date. The Owner Trustee
shall be under no obligation whatsoever to file such financing or
continuation statements or to make any filing under the UCC in
connection with such sale and assignment.
(c) In connection with such transfers, the Transferor
further agrees, at its own expense, on or prior to the date of this
Assignment, to indicate in the appropriate computer files that
Receivables created in connection with the Additional Accounts and
designated hereby have been conveyed to the Trust pursuant to this
Assignment for the benefit of the Noteholders.
(d) The Transferor does hereby grant to the Trust a security
interest in all of its right, title and interest, whether now owned
or hereafter acquired, in and to the Receivables in the Additional
Accounts existing on the Addition Cut Off Date and thereafter
created, all Interchange and Recoveries related thereto, all monies
due or to become due and all amounts received or receivable with
respect thereto, all money, accounts, general intangibles, chattel
paper, instruments, documents, goods, investment property, deposit
accounts, certificates of deposit, letters of credit, and advices of
credit consisting of, arising from or related to the foregoing, and
all "proceeds" (including "proceeds" as defined in the UCC) thereof.
This Assignment constitutes a security agreement under the UCC.
(e) It is the intention of the parties hereto that all
transfers of Receivables to the Trust pursuant to this Assignment be
subject to, and be treated in accordance with, the Delaware Act and
each of the parties hereto agrees that this Assignment has been
entered into by the parties hereto in express reliance upon the
Delaware Act. For purposes of complying with the requirements of the
Delaware Act, each of the parties hereto hereby agrees that any
property, assets or rights purported to be transferred, in whole or
in part, by the Transferor pursuant to this Assignment shall be
deemed to no longer be the property, assets or rights of the
Transferor. The parties hereto acknowledge and agree that each such
transfer is occurring in connections with a "securitization
transaction" within the meaning of the Delaware Act.
4. Acceptance by Owner Trustee on Behalf of the Trust. The
Owner Trustee, on behalf of the Trust hereby acknowledges its acceptance of
all right, title and interest in and to the Receivables in the Additional
Accounts now existing and hereafter created, conveyed to the Trust pursuant to
Section 3(a) of this Assignment and declares that it shall maintain such
right, title and interest, upon the trust herein set forth, for the benefit of
the Noteholders.
5. Representations and Warranties of the Transferor.
(a) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Transferor
enforceable against the Transferor 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);
(b) Eligibility of Accounts. As of the Addition Cut Off
Date, each Additional Account designated hereby is an Eligible
Account;
(c) Insolvency. As of each of the Addition Cut Off Date and
the Addition Date, no Insolvency Event with respect to the Transferor
has occurred and the transfer by the Transferor of Receivables
arising in the Additional Accounts to the Trust has not been made in
contemplation of the occurrence thereof;
(d) No Adverse Effect. The acquisition by the Trust of the
Receivables arising in the Additional Accounts shall not, in the
reasonable belief of the applicable Transferor, result in an Adverse
Effect;
(e) Security Interest. This Assignment constitutes a valid
sale, transfer and assignment to the Trust of all right, title and
interest, whether owned on the Addition Cut Off Date or thereafter
acquired, of the Transferor in the Receivables existing on the
Addition Cut Off Date or thereafter created in the Additional
Accounts, all Interchange and Recoveries related thereto, all monies
due or to become due and all amounts received or receivable with
respect thereto and the "proceeds" (including "proceeds" as defined
in the applicable UCC) thereof, or, if this Assignment does not
constitute a sale of such property, it constitutes a grant of a
"security interest" (as defined in the applicable UCC) in such
property to the Trust, which, in the case of existing Receivables and
the proceeds thereof, is enforceable upon execution and delivery of
this Assignment, and which will be enforceable with respect to such
Receivables hereafter created and the proceeds thereof upon such
creation. Upon the filing of the financing statements described in
Section 3 of this Assignment and, in the case of the Receivables
hereafter created and the proceeds thereof, upon the creation
thereof, the Trust shall have a first priority perfected security or
ownership interest in such property;
(f) No Conflict. The execution and delivery by the
Transferor of this Assignment, the performance of the transactions
contemplated by this Assignment and the fulfillment of the terms
hereof applicable to the Transferor, will not conflict with or
violate any Requirements of Law applicable to the Transferor or
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 its properties are bound;
(g) 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 Assignment, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Assignment, (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 Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect
the validity or enforceability of this Assignment; and
(h) All Consents. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be
obtained by the Transferor in connection with the execution and
delivery of this Assignment by the Transferor and the performance of
the transactions contemplated by this Assignment by the Transferor,
have been obtained.
6. Conditions Precedent. The designation of Additional
Accounts under Section 2 of this Assignment, the conveyance of Receivables
pursuant to Section 3 of this Assignment and the Amendment of the Agreement
pursuant to Section 6 of this Assignment are each subject to the satisfaction,
on or prior to the Addition Date, of the conditions set forth in Section
2.12(c) of the Agreement.
7. The acceptance by the Trustee set forth in Section 3 and
the amendment of the Transfer and Servicing Agreement set forth in Section 7
are subject to the satisfaction, on or prior to the Addition Date, of the
following condition precedent:
(a) Officer's Certificate. The Transferor shall have
delivered to the Trust a certificate of a Vice President or more
senior officer substantially in the form of Schedule 2 hereto,
certifying that (i) all requirements set forth in subsection 2.12(c)
of the Transfer and Servicing Agreement for designating and conveying
Receivables in Additional Accounts have been satisfied and (ii) each
of the representations and warranties made by the Transferor in
Section 5 is true and correct as of the Addition Date. The Trust 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.
Amendment of the Transfer and Servicing Agreement. The
Agreement is hereby amended to provide that all references therein to the
"Transfer and Servicing Agreement," to "this Agreement" and "herein" shall be
deemed from and after the Addition Date to be a dual reference to the
Agreement as supplemented by this Assignment. All references therein to
Additional Accounts shall be deemed to include the Additional Accounts
designated hereby and all references therein to Receivables shall be deemed to
include the Receivables conveyed hereby. Except as expressly amended hereby,
all of the representations, warranties, terms, covenants and conditions of the
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 Agreement.
9. 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 shall constitute one and the same
instrument.
10. GOVERNING LAW. THIS ASSIGNMENT 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.
11. Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Assignment has been executed and delivered
by Wilmington Trust Company, not in its individual capacity, but solely in its
capacity as Owner Trustee, acting of the Trust, in no event shall Wilmington
Trust Company in its individual capacity have any liability in respect of the
representations, warranties, or obligations of the Trust hereunder or under
any other document, as to all of which recourse shall be had solely to the
assets of the Trust, and for all purposes of this Assignment and each other
document, the Owner Trustee (as such or in its individual capacity) shall be
subject to, and entitled to the benefits of, the terms and provisions of the
Trust Agreement.
12. Removal Upon Breach. In the event of a breach of any of
the warranties set forth in subsection 5(B) other than a breach or event set
forth in subsection 2.05(a) of the Agreement, if as a result of such breach
the related Receivable is no longer an Eligible Receivable or the Trust's
rights in, to or under such Receivable or its proceeds are impaired, then upon
the expiration of 60 days (or such longer period as may be agreed to by the
Indenture Trustee, the applicable Collateral Agent and the Servicer, but in no
event later than 120 days) after the earlier to occur of the discovery thereof
by the Transferor who conveyed such Receivable to the Trust or receipt by such
Transferor of written notice thereof given by the Owner Trustee, the Indenture
Trustee, the applicable Collateral Agent or the Servicer, such Receivable
shall be removed from the Trust on the terms and conditions set forth in
subsection 2.05(b) of the Agreement and the Transferor shall accept
reassignment of such Receivable; 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
designated for inclusion in the Trust on such day.
IN WITNESS WHEREOF, the Transferor and the Owner Trustee, on
behalf of the Trust, have caused this Assignment to be duly executed by their
respective officers as of the day and year first above written.
FIRST USA BANK, NATIONAL ASSOCIATION,
as Transferor
By:_____________________________________
Name:
BANK ONE ISSUANCE TRUST
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as Owner
Trustee on behalf of the Trust
By:_____________________________________
Name:
Title:
Schedule 1 (to Exhibit A-1)
---------------------------
List of Additional Accounts
Schedule 2 (to Exhibit A-1)
---------------------------
First USA Bank, National Association
Officer's Certificate
____________________, a duly authorized officer of First USA Bank,
National Association ("First USA"), a national banking association, as
transferor (the "Transferor"), hereby certifies and acknowledges on behalf of
the Transferor that to the best of [her/his] knowledge the following
statements are true on , (the "Addition Date"), and acknowledges on behalf of
the Transferor that this Officer's Certificate will be relied upon by
Wilmington Trust Company, as Owner Trustee on behalf of the Trust, in
connection with the Trust entering into Assignment No. of Additional
Collateral Certificates, dated as of the related Addition Date (the
"Assignment"), by and between the Transferor and the Trust, in connection with
the Transfer and Servicing Agreement, dated as of May 1, 2002 (as heretofore
supplemented and amended, the "Transfer and Servicing Agreement"), by and
between First USA, as Transferor, Servicer and Administrator, the Bank One
Issuance Trust, as Issuer, and ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as Indenture Trustee and Collateral Agent. The undersigned hereby
certifies and acknowledges on behalf of the Transferor that:
(a) Delivery of Assignment. On or prior to the Addition
Date, (i) the Transferor has delivered to the Trust the Assignment
and (ii) the Transferor has indicated in its computer files that the
Receivables created in connection with the Additional Accounts have
been transferred to the Trust and (iii) shall deliver to the Trust a
computer file containing a true and complete list of all Additional
Accounts identified by account number and the aggregate amount of the
Receivables in such Additional Accounts as of the related Addition
Cut-Off Date, which computer file or microfiche list shall be as of
the date of such Assignment, incorporated into and made a part of
such Assignment and the Transfer and Servicing Agreement.
(b) Legal Valid and Binding Obligation. This Assignment
constitutes a legal, valid and binding obligation of the Transferor
enforceable against the Transferor 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).
(c) Eligibility of Additional Collateral Certificate. As of
the Addition Cut Off Date, each Additional Account designated thereby
is an Eligible Account;
(d) Insolvency. As of each of the Addition Cut Off Date and
the Addition Date, no Insolvency Event with respect to the Transferor
has occurred and the transfer by the Transferor of Receivables
arising in the Additional Accounts to the Trust has not been made in
contemplation of the occurrence thereof;
(e) No Adverse Effect. The acquisition by the Trust of the
Receivables arising in the Additional Accounts shall not, in the
reasonable belief of the Transferor, result in an Adverse Effect; and
(f) No Conflict. All requirements set forth in subsection
2.12(c) of the Transfer and Servicing Agreement for designating
Receivables arising in the Additional Accounts have been satisfied.
(g) 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 Assignment, (ii)
seeking to prevent the consummation of any of the transactions
contemplated by this Assignment, (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 Assignment or (iv) seeking any
determination or ruling that would materially and adversely affect
the validity or enforceability of this Assignment; and
(h) All Consents. All authorizations, consents, orders or
approvals of any court or other governmental authority required to be
obtained by the Transferor in connection with the execution and
delivery of this Assignment by the Transferor and the performance of
the transactions contemplated by this Assignment by the Transferor,
have been obtained.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Asset Pool One Supplement.
IN WITNESS WHEREOF, I have hereunto set my hand this _____
day of ________ ____.
BANK ONE ISSUANCE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but
solely as Owner Trustee on behalf
of the Trust
By:__________________________________
Name:
Title:
Exhibit B
---------
FORM OF REASSIGNMENT OF RECEIVABLES IN REMOVED ACCOUNTS
(as required by section 2.13 of the Transfer and Servicing Agreement)
REASSIGNMENT No. _______ OF RECEIVABLES dated as of
_________,(3) by and among FIRST USA BANK, NATIONAL ASSOCIATION, a national
banking association (the "Bank"), as Transferor (the "Transferor") and BANK
ONE ISSUANCE TRUST (the "Trust"), pursuant to the Transfer and Servicing
Agreement referred to below.
W I T N E S S E T H:
WHEREAS the Bank, as Transferor, Servicer and Administrator,
▇▇▇▇▇ Fargo Bank Minnesota, National Association, as Indenture Trustee and as
Collateral Agent, and the Trust are parties to the Transfer and Servicing
Agreement, dated as of May 1, 2002 (as amended and supplemented, the
"Agreement");
WHEREAS pursuant to the Agreement, the Transferor wishes to
remove from the Trust all Receivables owned by the Trust in certain designated
Accounts (the "Removed Accounts") and to cause the Trust to reconvey the
Receivables of such Removed Accounts, whether now existing or hereafter
created, from the Trust to the Transferor; and
WHEREAS the Owner Trustee, on behalf of the Trust, 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 Transferor and the Owner Trustee, on
behalf of the Trust, hereby agree as follows:
1. Defined Terms. All terms defined in the 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, ___________, ____
__________________
(3) To be dated as of the Removal Date.
"Removal Notice Date" shall mean, with respect to the
Removed Accounts, ___________, ____
2. Designation of Removed Accounts. On or before the Removal
Date, the Transferor will deliver to the Owner Trustee a computer file
containing a true and complete schedule identifying all Accounts the
Receivables of which are being removed from the Trust, specifying for each
such Account, as of the Removal Notice Date, its account number, the aggregate
amount outstanding in such Account and the aggregate amount of Principal
Receivables in such Account, which computer file shall supplement Schedule 1
to the Agreement.
3. Conveyance of Receivables. (a) The Trust does hereby
transfer, assign, set over and otherwise reconvey to the Transferor, without
recourse, on and after the Removal Date, all right, title and interest of the
Trust in, to and under the Receivables existing at the close of business on
the Removal Notice Date and thereafter created from time to time in the
Removed Accounts identified on Schedule 1-A hereto, all Interchange and
Recoveries related thereto, all monies due or to become due (including all
Finance Charge Receivables) and all amounts received or receivable with
respect thereto and all proceeds (as defined in the UCC as in effect in the
applicable jurisdiction) thereof.
(b) In connection with such transfer, the Trust agrees to
execute and deliver to the Transferor on or prior to the date
this Reassignment is delivered, applicable termination
statements prepared by the Transferor with respect to the
Receivables existing at the close of business on the Removal
Date and thereafter created from time to time in the Removed
Accounts reassigned hereby and the proceeds thereof evidencing
the release by the Trust of its in the Receivables in the
Removed Accounts, and meeting the requirements of applicable
state law, in such manner and such jurisdictions as necessary to
terminate such interest.
4. Representations and Warranties of the Transferor. The
Transferor 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
Transferor enforceable against the Transferor, 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);
(b) Satisfaction of Additional Requirements. All of the
requirements for the removal of Accounts under the applicable
Asset Pool Supplement have been satisfied; and
(c) Required Transferor Amount. The removal of any
Receivable of any Removed Accounts on any Removal Date shall
not, in the reasonable belief of the applicable Transferor,
cause, with respect to the Asset Pool in which such Receivables
had been designated for inclusion, an Adverse Effect or the
Transferor Amount for such Asset Pool to be less than the
Required Transferor Amount for that Asset Pool or the Pool
Balance for that Asset Pool to be less than the Minimum Pool
Balance for such Monthly Period in which such removal occurs.
5. Conditions Precedent. The reassignment hereunder of the
Receivables in the Removed Accounts and the amendment of the Agreement
pursuant to Section 7 of this Reassignment are each subject to:
(a) the satisfaction, on or prior to the Removal Date, of
the conditions set forth in Section 2.13(b) of the Agreement;
and
(b) the delivery, on or prior to the Removal Date, to the
Owner Trustee by the Transferor of an Officer's Certificate in
the form of Schedule 2-A to this Reassignment certifying that
(i) as of the Removal Date, all requirements set forth in
Section 2.13(b) of the 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 Transferor in Section 5 of this Reassignment is true
and correct as of the Removal Date. The Owner 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. Representations and Warranties of the Trust. Since the
date of the transfer by the Transferor under the Agreement, the Owner Trustee,
on behalf of the Trust, has not sold, transferred or encumbered any Receivable
in any Removed Account or any interest therein.
7. Amendment of the Transfer and Servicing Agreement. The
Agreement is hereby amended to provide that all references therein to the
"Transfer and Servicing Agreement," to "this Agreement" and "herein" shall be
deemed from and after the Removal Date to be a dual reference to the Agreement
as supplemented by this Reassignment. All references therein to the Accounts
shall be deemed not to include the Removed Accounts designated hereunder and
all references to Receivables shall be deemed not to include the Receivables
reconveyed hereunder.
Except as expressly amended hereby, all of the representations, warranties,
terms, covenants and conditions of the 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 Agreement.
8. 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 shall constitute one and the same
instrument.
9. GOVERNING LAW. THIS REASSIGNMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
10. Limitation of Liability. Notwithstanding any other
provision herein or elsewhere, this Reassignment has been executed and
delivered by Wilmington Trust COmpany, not in its individual capacity, but
solely in its capacity as Owner Trustee of the Trust, in no event shall
Wilmington Trust Company in its individual capacity have any liability in
respect of the representations, warranties, or obligations of the Trust
hereunder or under any other document, as to all of which recourse shall be
had solely to the assets of the Trust, and for all purposes of this
Reassignment and each other document, the Owner Trustee (as such or in its
individual capacity) shall be subject to, and entitled to the benefits of, the
terms and provisions of the Trust Agreement.
IN WITNESS WHEREOF, the Transferor and the Owner Trustee, on
behalf of the Trust, have caused this Assignment to be duly executed by their
respective officers as of the day and year first above written.
FIRST USA BANK, NATIONAL ASSOCIATION,
as Transferor and Servicer
By:_____________________________________
Name:
Title:
BANK ONE ISSUANCE TRUST
By: WILMINGTON TRUST COMPANY, not in
its individual capacity but solely as Owner
Trustee on behalf of the Trust
By:_____________________________________
Name:
Title:
Schedule 1-A
to Reassignment
of Receivables
--------------
REMOVED ACCOUNTS
----------------
Schedule 2-A
to Reassignment
of Receivables
--------------
First USA Bank, National Association
Officers Certificate
____________________, a duly authorized officer of First USA
Bank, National Association, a national banking association (the "Transferor"),
hereby certifies and acknowledges on behalf of the Transferor that to the best
of [her/his] knowledge the following statements are true on , (the "Removal
Date"), and acknowledges on behalf of the Transferor that this Officer's
Certificate will be relied upon by Wilmington Trust Company, as Owner Trustee
(the "Owner Trustee") of the Bank One Issuance Trust in connection with the
Owner Trustee entering into Reassignment No. of Receivables in Additional
Accounts, dated as of the related Removal Date (the "Reassignment"), among the
Transferor and the Owner Trustee, on behalf of the Trust, in connection with
the Transfer and Servicing Agreement, dated as of May 1, 2002 (as heretofore
supplemented and amended, the "Transfer and Servicing Agreement"), by and
among First USA Bank, National Association, as Transferor, Servicer and
Administrator and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
Indenture Trustee and Collateral Agent. The undersigned hereby certifies and
acknowledges on behalf of the Transferor that:
(a) On or prior to the Removal Date, the Transferor has
delivered to the Owner Trustee on behalf of the Trust, for execution, the
Reassignment and within five Business Days after the Removal Date, the
Transferor shall deliver to the Owner Trustee, on behalf of the Trust, a
computer list as of , with respect to the Removed Accounts identified on
Schedule 1-A, containing a true and complete list of such Removed Accounts
identified by account number and the aggregate amount of the Receivables in
such Removed Accounts incorporated into and made a part of such Reassignment
and the Transfer and Servicing Agreement.
(c) The Reassignment constitutes a legal, valid and binding
obligation of the Transferor enforceable against the Transferor in accordance
with its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect affecting the enforcement of creditors' rights in
general and the rights of creditors of national banking associations and
except as such enforceability may be limited by general principles of equity
(whether considered in a suit at law or in equity).
(d) On or before the fifth Business Day prior to the Removal
Date, the Transferor gave the Owner Trustee, on behalf of the Trust, and the
Servicer written notice that the Receivables from the Removed Accounts are to
be reassigned to the Transferor or its designee, specifying the date for
removal of the Removed Accounts.
(e) After giving effect to the removal of such Removed
Accounts, the Transferor Interest shall not be less than the Minimum
Transferor Interest and the amount of Principal Receivables in the Trust shall
not be less than the Minimum Aggregate Principal Receivables.
(f) All requirements set forth in Section 2.13 of the
Transfer and Servicing Agreement for designating Removed Accounts and
conveying the Principal Receivables of such Accounts, whether now existing or
hereafter created, have been satisfied.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Transfer and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of
the ___ day of ________, ____.
FIRST USA BANK, NATIONAL ASSOCIATION,
as Transferor
By: ______________________________
Name:
Title:
Schedule 2-B
to Reassignment
of Receivables
--------------
First USA Bank, National Association
Officer's Certificate of the
Servicer
____________________, a duly authorized officer of First USA
Bank, National Association, a national banking association (the "Servicer"),
hereby certifies and acknowledges on behalf of the Servicer that to the best
of [her/his] knowledge the following statements are true on , (the "Removal
Date"), and acknowledges on behalf of the Servicer that this Officer's
Certificate will be relied upon by Wilmington Trust Company, as Owner Trustee
(the "Owner Trustee") of the Bank One Issuance Trust in connection with the
Owner Trustee entering into Reassignment No. of Receivables in Additional
Accounts, dated as of the related Removal Date (the "Reassignment"), among the
Transferor and the Owner Trustee, on behalf of the Trust, in connection with
the Transfer and Servicing Agreement, dated as of May 1, 2002 (as heretofore
supplemented and amended, the "Transfer and Servicing Agreement"), by and
among First USA Bank, National Association, as Transferor, Servicer and
Administrator, and ▇▇▇▇▇ Fargo Bank Minnesota, National Association, as
Indenture Trustee and Collateral Agent. The undersigned hereby certifies and
acknowledges on behalf of the Transferor that:
(a) (x) a random selection procedure was used by the
Servicer in selecting the Removed Accounts and only one such removal of
randomly selected Accounts shall occur in the then current Monthly Period, (y)
the Removed Accounts arose pursuant to an affinity, private- label,
agent-bank, co-branding or other arrangement with a third party that has been
cancelled by such third party or has expired without renewal and which by its
terms permits the third party to repurchase the Removed Accounts subject to
such arrangement, upon such cancellation or non- renewal and the third party
has exercised such repurchase right or (z) the Removed Accounts were selected
using another method that will not preclude transfers from being accounted for
as sales under generally accepted accounting principles or prevent the
Transferor from continuing to qualify as a qualifying special purpose entity
in accordance with SFAS No. 140 (or any relevant replacement statement).
Initially capitalized terms used herein and not otherwise
defined are used as defined in the Transfer and Servicing Agreement.
IN WITNESS WHEREOF, I have hereunto set my hand as of
the ___ day of ________, ____.
FIRST USA BANK, NATIONAL ASSOCIATION,
as Servicer
By: _________________________________
Name:
Title:
Exhibit C
---------
FORM OF ANNUAL SERVICER'S CERTIFICATE
(To be delivered on or before April 30 of each
calendar year beginning with April 30, 2003,
pursuant to Section 4.05 of the Transfer and
Servicing Agreement referred to below)
BANK ONE ISSUANCE TRUST
The undersigned, a duly authorized representative of First
USA Bank, National Association ("First USA"), pursuant to the Transfer and
Servicing Agreement, dated as of ________, 2002 (as amended and supplemented,
the "Agreement"), among First USA, as Transferor, Servicer and Administrator,
Bank One Issuance Trust (the "Trust") and ▇▇▇▇▇ Fargo Bank Minnesota, National
Association, as Indenture Trustee and Collateral Agent, does hereby certify
that:
1. First USA is, as of the date hereof, the Servicer under
the Agreement. Capitalized terms used in this Certificate have their
respective meanings as set forth in the Agreement.
2. The undersigned is an Authorized Officer who is duly
authorized pursuant to the Agreement to execute and deliver this Certificate
to the Trust.
3. A review of the activities of the Servicer during the
year ended December 31, ____, and of its performance under the Agreement was
conducted under my supervision.
4. Based on such review, the Servicer has, to the best of my
knowledge, performed in all material respects its obligations under the
Agreement throughout such year and no default in the performance of such
obligations has occurred or is continuing except as set forth in paragraph 5
below.
5. The following is a description of each default in the
performance of the Servicer's obligations under the provisions of the
Agreement known to me to have been made by the Servicer during the year ended
December 31, ____ 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 __________________, 20__.
FIRST USA BANK, NATIONAL ASSOCIATION,
as Servicer
By: _____________________________________
Name:
Title:
Exhibit D-1
-----------
FORM OF OPINION OF COUNSEL
WITH RESPECT TO AMENDMENTS
Provisions to be included in
Opinion of Counsel to be delivered pursuant
to subsection 12.02(d)(i)
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
Opinions Of Counsel delivered on any applicable Closing Date.
(i) The amendment to the Transfer and Servicing Agreement,
attached hereto as Schedule 1 (the "Amendment"), has been duly
authorized, executed and delivered by the Transferor and constitutes
the legal, valid and binding agreement of the Transferor, enforceable
in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws from time to time in effect affecting
creditors' rights generally. The enforceability of the Transferor's
obligations is also subject to general principles of equity
(regardless of whether such enforceability is considered in a
proceeding in equity or at law).
(ii) The Amendment has been entered into in accordance with
the terms and provisions of Section 12.01 of the Transfer and
Servicing Agreement.
Exhibit D-2
-----------
FORM OF OPINION OF COUNSEL
WITH RESPECT TO COLLATERAL CERTIFICATES
Provisions to be included in
Opinion of Counsel to be
delivered pursuant to
subsections 12.02(d)(ii) or (iii)
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
Opinions of Counsel delivered on any applicable Closing Date.
1. To the extent that the transfer of the Collateral
Certificate to the Owner Trustee on behalf of the Owner Trust is characterized
as a transfer for security, the provisions of the Transfer and Servicing
Agreement are effective under the Delaware UCC to create a valid security
interest in the Owner Trustee's rights, on behalf of the Owner Trust, in the
Collateral Certificate and the proceeds thereof to secure a loan in an amount
equal to the unpaid principal amount of the Notes and accrued and unpaid
interest with respect thereto.
2. The Bank has authorized the filing of the financing
statement (the "Bank Financing Statement") identifying "First USA Bank,
National Association," as debtor, and "Wilmington Trust Company, as Owner
Trustee on behalf of the Bank One Issuance Trust," as secured party, for
purposes of Section 9-509 of the Delaware UCC.
3. The Bank Financing Statement includes not only all types
of information required by Section 9-502(a) of the Delaware UCC but also all
of the types of information without which the office of the Secretary of State
of the State of Delaware (the "Filing Office") may refuse to accept the Bank
Financing Statement pursuant to Section 9-516 of the Delaware UCC.
4. Under the Delaware UCC, the security interest of the
Owner Trustee, for the benefit of the Owner Trust, will be perfected in the
Collateral Certificate and proceeds thereof upon the later of the attachment
of the security interest and the filing of the Bank Financing Statement in the
Filing Office.
5. To the extent that the transfer of the Collateral
Certificate to the Collateral Agent is characterized as a transfer for
security, the provisions of the Asset Pool One Supplement are effective under
the Delaware UCC to create, in favor of the Collateral Agent for the benefit
of the Asset Pool One Noteholders under the Asset Pool One Supplement, a valid
security interest in the Collateral Agent's rights in the Collateral
Certificate and the proceeds thereof to secure a loan in an amount equal to
the unpaid principal amount of the Notes and accrued and unpaid interest with
respect thereto.
6. The Owner Trustee, on behalf of the Owner Trust, has
authorized the filing of the financing statement (the "Owner Trust Financing
Statement") identifying "Bank One Issuance Trust," as debtor, and "▇▇▇▇▇ Fargo
Bank Minnesota, National Association, as Collateral Agent," as secured party,
for purposes of Section 9-509 of the Delaware UCC.
7. The Owner Trust Financing Statement includes not only all
types of information required by Section 9-502(a) of the Delaware UCC but also
all of the types of information without which the Filing Office may refuse to
accept the Owner Trust Financing Statement pursuant to Section 9-516 of the
Delaware UCC.
8. Under the Delaware UCC, the security interest of the
Collateral Agent, as secured party, will be perfected in the Collateral
Certificate and proceeds thereof upon the later of the attachment of the
security interest and the filing of the Owner Trust Financing Statement in the
Filing Office.
Exhibit D-3
-----------
PROVISIONS TO BE INCLUDED IN
ANNUAL OPINION OF COUNSEL
The opinions set forth below may be subject to all the
qualifications, assumptions, limitations and exceptions taken or made in the
Opinions of Counsel delivered on any applicable Closing Date with respect to
similar matters. Unless otherwise indicated, all capitalized terms used herein
shall have the meanings ascribed to them in the Transfer and Servicing
Agreement.
1. No filing or other action, other than such filing or
other action described in such opinion, is necessary from the date of such
opinion through April 30 of the following year to continue the perfected
status of the security interest of the Trust in the Receivables described in
the financing statements referenced in such opinion.
2. No filing or other action, other than such filing or
other action described in such opinion, is necessary from the date of such
opinion through April 30 of the following year to continue the perfected
status of the security interest of the relevant Transferor in the Receivables
described in the financing statements referenced in such opinion.
3. No filing or other action, other than such filing or
other action described in such opinion, is necessary from the date of such
opinion through April 30 of the following year to continue the perfected
status of the security interest of First USA in the Receivables described in
the financing statements referenced in such opinion.
Schedule 1 (to Exhibit D-3)
---------------------------
List of Accounts
[Original list delivered to Owner Trustee]
Exhibit E
---------
FORM OF POWER OF ATTORNEY
POWER OF ATTORNEY
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
KNOW ALL MEN BY THESE PRESENTS, that Bank One Issuance Trust, a Delaware
statutory business trust (the "Trust") does hereby make, constitute and
appoint First USA Bank, National Association, as Administrator under the
Transfer and Servicing Agreement (as defined below), and its agents and
attorneys, as Attorneys in Fact to execute on behalf of the Trust all such
documents, reports, filings, instruments, certificates and opinions as it
shall be the duty of the Trust to prepare, file or deliver pursuant to the
Related Agreements (as defined in the Transfer and Servicing Agreement)
including, without limitation, to appear for and represent the Trust in
connection with the preparation, filing and audit of federal, state and local
tax returns pertaining to the Trust, and with full power to perform any and
all acts associated with such returns and audits that the Trust could perform
including, without limitation, the right to distribute and receive
confidential information, defend and assert positions in response to
deficiencies, consents to the extension of any statutory or regulatory time
limit, and settlements. For the purpose of this Power of Attorney, the term
"Transfer and Servicing Agreement" means the Transfer and Servicing Agreement,
dated as of May 1, 2002, among the Trust, First USA Bank, National
Association, as Transferor, Servicer and Administrator, and ▇▇▇▇▇ Fargo Bank
Minnesota, National Association, as Indenture Trustee and Collateral Agent, as
such may be amended from time to time.
All powers of attorney for this purpose heretofore filed or executed by the
Trust are hereby revoked.
EXECUTED this ____ day of __________, 2002.
BANK ONE ISSUANCE TRUST
By: ▇▇▇▇▇ FARGO BANK MINNESOTA, NATIONAL ASSOCIATION,
as Owner Trustee
By: _________________________
Name:
Title: