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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
The Securities Exchange Act of 1934
Date of Report (Date of earliest event reported) September 17, 1999
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FIRST USA BANK, NATIONAL ASSOCIATION
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(Exact name of registrant as specified in its charter)
(As Servicer on behalf of FIRST CHICAGO MASTER TRUST II)
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Laws of the United States 0-16337 51-0269396
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(State or other jurisdiction of (Commission File Number) (IRS Employer Identification
incorporation or organization) Number)
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201 North Walnut Street, Wilmington, Delaware 19801
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(Address of principal executive offices) (Zip Code)
302/594-4117
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Registrant's telephone number, including area code
N/A
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(Former name, former address and former fiscal year, if changed since last
report)
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Item 5. Other Events
Effective September 17, 1999, First USA Bank, National Association was
merged with and into FCC National Bank, an affiliated national banking
association, and the surviving entity. The surviving entity was renamed "First
USA Bank, National Association". At the time of such merger, the First Chicago
Master Trust II Pooling and Servicing Agreement, dated as of June 1, 1990 was
amended and restated as of September 1, 1999. A copy of the Amended and
Restated Pooling and Servicing Agreement is attached hereto as Exhibit 99.01.
Item 7. Financial Statements and Exhibits
(c) Exhibits.
Exhibit No. Description of Exhibit
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99.01 First Chicago Master Trust II Pooling and
Servicing Agreement dated as of June 1, 1990 as
amended and restated as of September 1, 1999.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
FIRST USA BANK, NATIONAL ASSOCIATION
As Servicer
By: /s/ Tracie H. Klein
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Name: Tracie H. Klein
Title: First Vice President
Date: February 29, 2000
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INDEX TO EXHIBITS
Exhibit Number Description of Exhibit
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99.01 First Chicago Master Trust II Pooling and Servicing
Agreement dated as of June 1, 1990 as amended and restated
as of September 1, 1999.
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Exhibit 99.01
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FIRST USA BANK, NATIONAL ASSOCIATION
Seller and Servicer,
and
NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
Trustee
on behalf of the Certificateholders
FIRST CHICAGO MASTER TRUST II
POOLING AND SERVICING AGREEMENT
Dated as of June 1, 1990
As Amended and Restated as of September 1, 1999
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.01 Definitions................................................................................................ 1
Section 1.02 Other Definitional Provisions.............................................................................. 22
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Receivables.................................................................................. 24
Section 2.02 Acceptance by Trustee...................................................................................... 25
Section 2.03 Representations and Warranties of the Seller Relating to the Seller........................................ 25
Section 2.04 Representations and Warranties of the Seller Relating to the Agreement
and any Supplement and the Receivables..................................................................... 27
Section 2.05 Addition of Accounts....................................................................................... 29
Section 2.06 Transfer of Ineligible Receivables......................................................................... 31
Section 2.07 Purchase of Certificates................................................................................... 33
Section 2.08 Covenants of the Seller.................................................................................... 34
Section 2.09 Authentication of Certificates............................................................................. 36
Section 2.10 Removal of Accounts........................................................................................ 37
Section 2.11 Repayment of Recoveries That Are Not Eligible Net Recoveries............................................... 38
ARTICLE III
ADMINISTRATION AND SERVICING OF RECEIVABLES
Section 3.01 Acceptance of Appointment and Other Matters Relating to the Servicer....................................... 39
Section 3.02 Servicing Compensation..................................................................................... 42
Section 3.03 Representations, Warranties and Covenants of the Servicer.................................................. 42
Section 3.04 Reports and Records for the Trustee; Bank Account Statements............................................... 45
Section 3.05 Annual Servicer's Certificate.............................................................................. 46
Section 3.06 Annual Independent Public Accountants' Servicing Report.................................................... 46
Section 3.07 Tax Treatment.............................................................................................. 47
Section 3.08 Notices to First USA....................................................................................... 47
Section 3.09 Adjustments................................................................................................ 47
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
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Section 4.01 Establishment of Collection Account and Allocations with Respect to the
Exchangeable Seller's Certificate........................................................................... 49
ARTICLE V
[ARTICLE V IS RESERVED AND MAY BE SPECIFIED IN
ANY SUPPLEMENT WITH RESPECT TO ANY SERIES]
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates............................................................................................ 54
Section 6.02 Authentication of Certificates.............................................................................. 54
Section 6.03 Registration of Transfer and Exchange of Certificates....................................................... 55
Section 6.04 Mutilated, Destroyed, Lost or Stolen Certificates........................................................... 58
Section 6.05 Persons Deemed Owners....................................................................................... 59
Section 6.06 Appointment of Paying Age................................................................................... 59
Section 6.07 Access to List of Certificateholders' Names and Addresses................................................... 60
Section 6.08 Authenticating Agent........................................................................................ 61
Section 6.09 Tender of Exchangeable Seller's Certificate................................................................. 62
Section 6.10 Global Certificate; Euro-Certificate Exchange Date.......................................................... 64
Section 6.11 Book-Entry Certificates..................................................................................... 66
Section 6.12 Notices to Clearing Agency.................................................................................. 67
Section 6.13 Definitive Certificates..................................................................................... 67
Section 6.14 Meetings of Certificateholders.............................................................................. 67
ARTICLE VII
OTHER MATTERS RELATING TO THE SELLER
Section 7.01 Liability of the Seller..................................................................................... 70
Section 7.02 Merger or Consolidation of, or Assumption of the Obligations of, the Seller................................. 70
Section 7.03 Limitation on Liability of the Seller....................................................................... 71
Section 7.04 Liabilities................................................................................................. 71
Section 7.05 Transfer or Conveyance of Accounts.......................................................................... 71
ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
Section 8.01 Liability of the Servicer................................................................................... 74
Section 8.02 Merger or Consolidation of, or Assumption of the Obligations of, the Servicer............................... 74
Section 8.03 Limitation on Liability of the Servicer and Others.......................................................... 74
Section 8.04 Servicer Indemnification of the Trust and the Trustee....................................................... 75
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Section 8.05 The Servicer Not to Resign.................................................................................. 75
Section 8.06 Access to Certain Documentation and Information Regarding the Receivables................................... 75
Section 8.07 Delegation of Duties........................................................................................ 76
Section 8.08 Examination of Records...................................................................................... 76
ARTICLE IX
LIQUIDATION EVENTS
Section 9.01 Liquidation Events.......................................................................................... 77
Section 9.02 Additional Rights Upon the Occurrence of Certain Events..................................................... 77
ARTICLE X
SERVICER DEFAULTS
Section 10.01 Servicer Defaults.......................................................................................... 79
Section 10.02 Trustee to Act; Appointment of Successor................................................................... 82
Section 10.03 Notification to Certificateholders......................................................................... 83
Section 10.04 Waiver of Past Defaults.................................................................................... 83
ARTICLE XI
THE TRUSTEE
Section 11.01 Duties of Trustee.......................................................................................... 85
Section 11.02 Rights of the Trustee...................................................................................... 87
Section 11.03 Trustee Not Liable for Recitals in Certificates............................................................ 88
Section 11.04 Trustee May Own Certificates............................................................................... 88
Section 11.05 The Servicer to Pay Trustee's Fees and Expenses............................................................ 88
Section 11.06 Eligibility Requirements for Trustee....................................................................... 89
Section 11.07 Resignation or Removal of Trustee.......................................................................... 89
Section 11.08 Successor Trustee.......................................................................................... 90
Section 11.09 Merger or Consolidation of Trustee......................................................................... 90
Section 11.10 Appointment of Co-Trustee or Separate Trustee.............................................................. 90
Section 11.11 Tax Returns................................................................................................ 92
Section 11.12 Trustee May Enforce Claims Without Possession of Certificates.............................................. 92
Section 11.13 Suits for Enforcement...................................................................................... 92
Section 11.14 Rights of Certificateholders to Direct Trustee............................................................. 93
Section 11.15 Representations and Warranties of Trustee.................................................................. 93
Section 11.16 Maintenance of Office or Agency............................................................................ 93
ARTICLE XII
TERMINATION
Section 12.01 Termination of Trust....................................................................................... 94
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Section 12.02 Optional Purchase and Final Termination Date of Investor Certificates of any Series....................... 94
Section 12.03 Final Payment with Respect to any Series.................................................................. 95
Section 12.04 Seller's Termination Rights............................................................................... 96
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment................................................................................................. 98
Section 13.02 Protection of Right, Title and Interest to Trust.......................................................... 99
Section 13.03 Limitation on Rights of Certificateholders................................................................ 100
Section 13.04 Governing Law............................................................................................. 101
Section 13.05 Notices................................................................................................... 101
Section 13.06 Severability of Provisions................................................................................ 102
Section 13.07 Assignment................................................................................................ 102
Section 13.08 Certificates Nonassessable and Fully Paid................................................................. 102
Section 13.09 Further Assurances........................................................................................ 103
Section 13.10 No Waiver; Cumulative Remedies............................................................................ 103
Section 13.11 Counterparts.............................................................................................. 103
Section 13.12 Third Party Beneficiaries................................................................................. 103
Section 13.13 Actions by Certificateholders............................................................................. 103
Section 13.14 Amendment and Ratification of Series Supplements.......................................................... 104
Section 13.15 Effectiveness of the Agreement............................................................................ 105
Section 13.16 Merger and Integration.................................................................................... 105
Section 13.17 Headings.................................................................................................. 105
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EXHIBITS
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Exhibit A: Form of Exchangeable Seller's Certificate
Exhibit B: Form of Assignment of Receivables in Additional Accounts
Exhibit C: Form of Reassignment of Receivables in Removed Accounts
Exhibit D: Form of Monthly Servicer's Certificate
Exhibit E: Form of Annual Servicer's Certificate
Exhibit F: Form of Opinion of Counsel with Respect To the Additional
Accounts Delivered Pursuant to Subsection 2.05(c)(vi)
Exhibit G: Credit Card Agreements
Exhibit H: Forms of Supplements
Exhibit I: Form of Depository Agreement
SCHEDULES
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Schedule 1: List of Accounts
Schedule 2: Identification of the Collection Account
Schedule 3: Curing Criteria
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Schedule 4: Designated Dealers
Schedule 5: Designated Portfolios
v
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AMENDED AND RESTATED POOLING AND SERVICING AGREEMENT, dated as of
September 1, 1999, between FIRST USA BANK, NATIONAL ASSOCIATION, a national
bank, as Seller and Servicer; and NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION,
a banking association organized and existing under the laws of the United States
of America, as Trustee.
WHEREAS, the Seller, the Servicer and the Trustee have heretofore
executed and delivered a Pooling and Servicing Agreement, dated as of June 1,
1990 (as amended, supplemented or otherwise modified and in effect through the
date hereof, the "Original Pooling and Servicing Agreement"), for the issuance
by First Chicago Master Trust II of the Investor Certificates and the
Exchangeable Seller's Certificate;
WHEREAS, Section 13.01(a) of the Original Pooling and Servicing
Agreement permits the amendment of the Original Pooling and Servicing Agreement
on the terms and conditions therein specified;
WHEREAS, the Seller, the Servicer and the Trustee desire to amend and
restate the Original Pooling and Servicing Agreement as set forth in this
Agreement;
WHEREAS, all conditions precedent to the execution of this Agreement
have been complied with;
NOW, THEREFORE, the Servicer, the Seller and the Trustee hereby agree
that effective on and as of the Effective Date provided in this Agreement, the
Original Pooling and Servicing Agreement shall be amended and restated in each
and every term and provision by this Agreement.
In consideration of the mutual agreements herein contained, each party
agrees as follows for the benefit of the other parties and for the benefit of
the Certificateholders to the extent provided herein:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. Whenever used in this Agreement, the
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following words and phrases shall have the following meanings:
"Account" shall mean (a) each consumer revolving credit card account
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which (i) was originated or purchased by FCCNB or FNBC and was included in one
of the ten Billing Cycles of FCCNB at any time since the Cut-Off Date to and
including the Merger Date or (ii) is included as part of a Designated Portfolio,
which is owned on the date hereof by the Seller, which was an Eligible Account
on its Cut-Off Date or Addition Notice Date, as the case may be,
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and in each of (i) and (ii) which is or was identified by (1) an account number,
(2) its collection status, (3) the amount of Receivables outstanding in such
account and (4) the Billing Cycle in which it is included as of the Merger Date
or Addition Notice Date, as the case may be, in the computer file, microfiche or
written list delivered to the Trustee by the Seller pursuant to Section 2.01 of
the Agreement; (b) subject to subsection 2.05(c)(ii) of the Agreement, as of
each Addition Date, each Additional Account identified in each list delivered to
the Trustee by the Seller pursuant to Section 2.05 of the Agreement and (c)
each Automatic Additional Account designated pursuant to subsection 2.05(b) of
the Agreement, subject to the right of the Seller to terminate such designation
pursuant to the penultimate sentence of such section. The definition of Account
shall include each Transferred Account into which an Account shall be
transferred provided that such transfer was made in accordance with the Credit
Card Guidelines. The term "Account" shall be deemed to refer to an Additional
Account only from and after the Addition Date with respect thereto.
"Addition Date" shall mean each date as of which Additional Accounts
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will be included as Accounts pursuant to Section 2.05 of the Agreement.
"Addition Notice Date" shall mean, with respect to (i) any Additional
--------------------
Account added prior to the Effective Date, the billing date for such Additional
Account in the month preceding the month in which the Addition Date for such
Additional Account occurred or occurs or, with respect to an Automatic
Additional Account added prior to the Effective Date, whose Addition Date
precedes its first billing date, the first billing date for such Automatic
Additional Account; (ii) any Automatic Additional Account included on and
between the Initial Closing Date and the end of the June 1990 Due Period
inclusive, the billing date for the July 1990 Due Period; and (iii) any
Additional Account added on or after the Effective Date, the Addition Date for
such Additional Account or, with respect to an Automatic Additional Account
added on or after the Effective Date, the first day of the calendar month
following the calendar month in which the Addition Date for such Automatic
Additional Account occurs.
"Additional Accounts" shall have the meaning set forth in Section 2.05
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of the Agreement.
"Adjustment Payment" shall have the meaning set forth in subsection
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3.09(a) of the Agreement.
"Affiliate" of any Person shall mean any other Person controlling,
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controlled by or under common control with such Person.
"Agreement" shall mean this Amended and Restated Pooling and Servicing
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Agreement and all amendments hereof and supplements hereto, including any
Supplement executed prior to or after the Effective Date.
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"Aggregate Addition Limit" shall mean the aggregate number of accounts
------------------------
that may be added as Additional Accounts without prior satisfaction of the
Rating Agency Condition, equal to the aggregate number of Accounts (exclusive of
the aggregate amount of Accounts that are Approved Accounts), which would, with
respect to any consecutive twelve-month period, equal 25% of the aggregate
number of Accounts (inclusive of the aggregate number of Accounts that are
Approved Accounts added during such period) as of the first day of such twelve-
month period.
"Aggregate Invested Amount" shall mean the sum of the Invested Amounts
-------------------------
(as defined in any related Supplement) with respect to all Series of Investor
Certificates then issued and outstanding.
"Aggregate Invested Percentage" shall mean the sum of the applicable
-----------------------------
Invested Percentages with respect to all Series of Investor Certificates then
issued and outstanding.
"Aggregate Principal Receivables" shall mean, for any Due Period, the
-------------------------------
aggregate amount of Principal Receivables at the end of the prior Due Period.
"Allocated Collections" shall have the meaning specified in subsection
---------------------
4.01(f) of the Agreement.
"Amortization Period" shall mean, with respect to any Series, the
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period following the Revolving Period which shall be either the Accumulation
Period (as defined in any related Supplement), Controlled Amortization Period,
Early Amortization Period or Rapid Amortization Period.
"Applicants" shall have the meaning specified in Section 6.07 of the
----------
Agreement.
"Appointment Date" shall have the meaning specified in Section 9.02 of
----------------
the Agreement.
"Approved Accounts" shall mean each Additional Account added to the
-----------------
Trust with respect to which the Rating Agency Condition has been satisfied.
"APR" shall mean the annual percentage rate or rates determined in the
---
manner described in the Credit Card Agreement applicable to each Account.
"Assignment" shall have the meaning set forth in Section 2.05(c)(ii)
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of the Agreement.
"Authorized Newspaper" shall mean any newspaper of general circulation
--------------------
in the Borough of Manhattan, the City of New York, or the City of Chicago,
Illinois, or in such other location as may be specified in a Supplement for a
particular Series, printed in the English
3
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language, or the official language of the country of publication, and
customarily published on each Business Day, whether or not published on
Saturdays, Sundays and holidays.
"Automatic Additional Account" shall mean those consumer revolving
----------------------------
credit card accounts coming into existence after the Cut-Off Date which meet the
following criteria:
(a) a "Classic VISA," "Standard MasterCard," "VISA Gold," "Gold
MasterCard," "Platinum VISA" or "Platinum MasterCard" consumer revolving credit
card account (or any successor credit card account designations used by the
Seller):
(i) which is originated by the Seller during the normal
operation of the Seller's credit card business and (x) is not acquired by
the Seller from another credit card issuer or (y) is not designated to be a
part of any affinity program or other special program the accounts of which
are not then currently included as Accounts;
(ii) which is included in a Designated Portfolio;
(iii) which was in existence and owned by the Seller on
the date on which such account is to be added to the Trust and is in
existence at the close of business on its Addition Notice Date;
(iv) the credit card or cards for which has not been
reported to the Seller as lost or stolen;
(v) which is payable in United States dollars;
(vi) the receivables in which have not been charged off
prior to its Addition Notice Date;
(vii) the receivables in which do not give rise to any
claim against any Governmental Authority;
(viii) which has not been assigned, pledged or sold by the
Seller;
(ix) the Obligor with respect to which has not been
identified on the computer files of the Seller as having commenced
bankruptcy or similar proceedings; or
(x) the Obligor with respect to which has provided, as
its most recent billing address, an address which is located in the United
States or its territories or possessions or a Military Address; or
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(b) any other consumer revolving credit card account which each
Rating Agency permits to be added automatically to the Trust.
"Average Principal Balance" shall mean, (a) for a Due Period in which
-------------------------
a Regular Addition Date or Removal Date occurs, the weighted average of the
Principal Receivables in the Trust at the end of the day on the last day of the
preceding Due Period and the Principal Receivables in the Trust at the end of
the day on the related Regular Addition Date or Removal Date, as the case may
be, after giving effect to such addition or removal weighted, respectively, by a
fraction, the numerator of which is the number of days from and including the
first day of such Due Period to but excluding the Regular Addition Date or the
Removal Date, as the case may be, and the denominator of which is the number of
days in such Due Period, and by a fraction, the numerator of which is the number
of days from and including the Regular Addition Date or Removal Date, as the
case may be, to and including the last day of such Due Period, and the
denominator of which is the number of days in such Due Period, and (b) for a Due
Period in which no Regular Addition Date or Removal Date occurs, the Aggregate
Principal Receivables for such Due Period.
"BANK ONE" shall mean BANK ONE CORPORATION, the successor corporation
--------
to First Chicago, and its successors.
"Base Rate" shall mean, with respect to any Series of Certificates,
---------
the amount stated in the applicable Supplement.
"Bearer Certificates" shall have the meaning specified in Section
-------------------
6.01.
"Bearer Rules" shall mean the provisions of the Code, in effect from
------------
time to time, governing the treatment of bearer obligations, including sections
163(f), 871, 881, 1441, 1442, and 4701, and any regulations thereunder
including, to the extent applicable to any Series, Proposed or Temporary
regulations.
"Billing Cycle" shall mean, with respect to any Account, the monthly
-------------
billing cycle for such Account as determined in accordance with the Credit Card
Guidelines as in effect on the date of this Agreement.
"Book-Entry Certificates" shall mean certificates evidencing a
-----------------------
beneficial interest in the Investor Certificates, ownership and transfers of
which shall be made through book entries by a Clearing Agency or Foreign
Clearing Agency as described in Section 6.11 of the Agreement; provided that
after the occurrence of a condition whereupon book-entry registration and
transfer are no longer permitted and Definitive Certificates are to be issued to
the Certificate Owners, such certificates shall no longer be "Book-Entry
Certificates."
"Business Day" shall mean any day other than (a) a Saturday or a
------------
Sunday, or (b) another day on which banking institutions or trust companies in
the State of New York
5
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generally or the City of Chicago, Illinois, or the City of New York, New York,
or the City of Wilmington, Delaware, or, as specified in a Supplement for a
particular Series, any other place where payment on the Certificates is
authorized for such Series, are authorized or obligated by law, executive order
or governmental decree to be closed.
"Cash Advance Fees" shall have the meaning specified in the Credit
-----------------
Card Agreement applicable to each Account for cash advance fee or similar term.
"Cedelbank" shall mean Cedelbank, societe anonyme.
---------
"Certificate" shall mean one of any Series of Investor Certificates or
-----------
the Exchangeable Seller's Certificate.
"Certificate Owner" shall mean, with respect to a Book-Entry
-----------------
Certificate, the Person who is the owner of such Book-Entry Certificate, as
reflected on the books of the Clearing Agency or Foreign Clearing Agency, or on
the books of a Person maintaining an account with such Clearing Agency or
Foreign Clearing Agency (directly or as an indirect participant, in accordance
with the rules of such Clearing Agency or Foreign Clearing Agency).
"Certificate Rate" shall mean, with respect to any Series of
----------------
Certificates, the percentage (or formula on the basis of which such rate shall
be determined) stated in the applicable Supplement.
"Certificate Register" shall mean the register maintained pursuant to
--------------------
Section 6.03 of the Agreement, providing for the registration of the applicable
Certificates and transfer and exchange thereof.
"Certificateholder" or "Holder" shall mean the Person in whose name a
-----------------------------
Certificate is registered in the Certificate Register and, if applicable, the
bearer of any Bearer Certificate or Coupon, as the case may be.
"Certificateholders' Interest" shall have the meaning specified in
----------------------------
Article IV of any Supplement for the related Series.
"Class" shall mean, with respect to any Series, any one of the Classes
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of Certificates of that Series as specified in the related Supplement.
"Clearing Agency" shall mean an organization registered as a "clearing
---------------
agency" pursuant to Section 17A of the Securities Exchange Act of 1934, as
amended.
"Clearing Agency Participant" shall mean a broker, dealer, bank, other
---------------------------
financial institution or other Person for whom from time to time a Clearing
Agency effects book-entry transfers and pledges of securities deposited with the
Clearing Agency.
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"Closing Date" shall mean, with respect to any Series, the date of
------------
issuance of such Series of Certificates, as specified in the related Supplement.
"Collection Account" shall have the meaning specified in Section 4.01
------------------
of the Agreement.
"Collections" shall mean all payments by or on behalf of Obligors
-----------
(excluding Recoveries generally, but including Eligible Net Recoveries) received
by the Servicer in respect of the Receivables, in the form of cash, checks, wire
transfers, ATM transfers or any other form of payment in accordance with the
Credit Card Agreement in effect from time to time.
"Common Depositary" shall mean the Person appointed as such as
-----------------
specified in the related Supplement, in its capacity as common depositary for
the respective accounts of a Foreign Clearing Agency.
"Corporate Trust Office" shall mean the principal office of the
----------------------
Trustee at which at any particular time its corporate trust business shall be
administered, which office at the date of the execution of this Agreement is
located at Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479-0069
(Attn: Corporate Trust Department) and, if applicable, with respect to Bearer
Certificates and Holders of Bearer Certificates, the principal office of the
Trustee in such other city, if any, designated in the applicable Supplement at
which at any particular time its corporate trust business shall be administered.
"Coupons" shall have the meaning specified in Section 6.01.
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"Credit Card Agreement" shall mean, with respect to each Account, and
---------------------
collectively with respect to all Accounts, the agreements between the Seller and
each Obligor, governing the terms and conditions of the "Classic VISA,"
"Standard MasterCard," "VISA Gold," "Gold MasterCard," "Platinum VISA" or
"Platinum MasterCard" account, as the case may be, or any successor credit card
account designations used by the Seller, attached as Exhibit G (or in a form
substantially similar to an agreement so attached), 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 consumer
revolving credit card accounts.
"Credit Card Guidelines" shall mean the Seller's written policies and
----------------------
procedures relating to the operation of its credit card business, including,
without limitation, the written policies and procedures for determining the
creditworthiness of credit card customers, the extension of credit to credit
card customers, and relating to the maintenance of credit card accounts and
collection of credit card receivables, as such policies and procedures may be
amended from time to time in conformance with all Requirements of Law, the
failure to comply with which would have a material adverse effect on Investor
Certificateholders.
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"Cut-Off Date" for any Original Account shall mean the close of
------------
business on the billing date for the Billing Cycle for such Account occurring in
May, 1990. The Cut-off Dates for the Accounts are sometimes collectively
referred to as the "Cut-Off Date."
"Date of Processing" shall mean, with respect to any transaction, the
------------------
business day after such transaction is first output in written form, under the
Servicer's customary and usual servicing practices, from the Servicer's computer
file of consumer revolving credit card accounts (without regard to the effective
date of such recordation).
"Defaulted Amount" shall mean, with respect to any Distribution Date,
----------------
the sum for all the Accounts of the amount of Receivables which became Defaulted
Receivables in the Due Period for such Distribution Date, less the full amount
of such Defaulted Receivables which are subject to a transfer obligation of the
Seller under Section 2.06 of the Agreement or of the Servicer under Section 3.03
of the Agreement with respect to such Distribution Date; provided, however, that
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if any of the events described in subsection 9.01(a) of the Agreement occurs
with respect to the Seller, the amount of such Defaulted Receivables which are
subject to transfer pursuant to Section 2.06 of the Agreement shall not be so
subtracted and if any of the events described in subsection 10.01(d) of the
Agreement occur with respect to the Servicer, the amount of such Defaulted
Receivables which are subject to transfer pursuant to Section 3.03 of the
Agreement shall not be so subtracted.
"Defaulted Receivables" shall mean, with respect to any Due Period,
---------------------
all Receivables in any Account which are written off as uncollectible in such
Due Period, 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. A Receivable shall become a Defaulted Receivable
on the day on which such Receivable is recorded as written off on the Servicer's
computer master file of consumer revolving credit card accounts but, in any
event, shall be deemed a Defaulted Receivable no later than the last day of the
Due Period following the Due Period in which it becomes 180 days delinquent (210
days after the date of the billing statement) unless the Obligor hat made a
partial payment with respect to the Account which satisfies the criteria for
curing delinquencies set forth in Schedule 3 hereto.
"Definitive Bearer Certificates" shall mean Definitive Certificates
------------------------------
issued in bearer form with Coupons attached.
"Definitive Certificates" shall have the meaning specified in Section
-----------------------
6.11 of the Agreement.
"Definitive Euro-Certificates" shall have the meaning specified in
----------------------------
Section 6.10 of the Agreement .
"Definitive Registered Certificates" shall mean Definitive
----------------------------------
Certificates issued in registered form.
8
<PAGE>
"Depository Agreement" shall mean the agreement among the Seller, the
--------------------
Trustee and the Clearing Agency, in the form attached hereto as Exhibit I.
"Designated Portfolio" shall mean each Portfolio identified on
--------------------
Schedule V hereto, as such schedule may be updated from time to time as
permitted by each Rating Agency.
"Determination Date" shall mean the third Business Day preceding each
------------------
Distribution Date.
"Distribution Date" shall mean, unless otherwise specified in any
-----------------
Supplement for the related Series, August 15, 1990 and the 15th day of each
calendar month thereafter, or, if such 15th day is not a Business Day, the next
succeeding Business Day.
"Dollars", "$" or "U.S.$" shall mean United States dollars.
------- - -----
"Due Period" shall mean, with respect to any Account unless otherwise
----------
specified in any Supplement, the period from and including the first day of a
calendar month to and including the last day of the calendar month. When used
with respect to a Distribution Date, "Due Period" shall mean, unless otherwise
provided in a Supplement, the calendar month period preceding such Distribution
Date.
"Effective Date" shall mean September 17, 1999.
--------------
"Eligible Account" shall mean a "Classic VISA," "Standard MasterCard,"
----------------
"VISA Gold," "Gold MasterCard," "Platinum VISA" or "Platinum MasterCard"
consumer revolving credit card account (or any successor credit card account
designations used by the Seller) originated or purchased by the Seller: (a)
which was in existence and owned by (i) FCCNB at the close of business on its
Cut-Off Date or (ii) by the Seller on its Addition Notice Date and the date on
which such account is to be added to the Trust; (b) which is payable in United
States dollars; (c) the credit card or cards for which has not been reported to
the Seller as lost or stolen; (d) the Receivables in which have not been charged
off prior to its Cut-Off Date or Addition Notice Date, as the case may be; and
(e) which is not part of an affinity program between the Seller and Military
Professional Services, Inc.
"Eligible Additional Account" shall mean, as of the relevant Addition
---------------------------
Notice Date:
(a) a "Classic VISA," "Standard MasterCard," "VISA Gold," "Gold
MasterCard," "Platinum VISA" or "Platinum MasterCard" consumer revolving credit
card account (or any successor credit card account designations used by the
Seller):
9
<PAGE>
(i) which was in existence and owned by the Seller on
the date on which such account is to be added to the Trust and is in
existence at the close of business on its Addition Notice Date;
(ii) the credit card or cards for which has not been
reported to the Seller as lost or stolen;
(iii) which is payable in United States dollars;
(iv) the receivables in which have not been charged off
prior to its Addition Notice Date;
(v) the receivables in which do not give rise to any
claim against any Governmental Authority;
(vi) which has not been assigned, pledged or sold by the
Seller;
(vii) the Obligor with respect to which has not been
identified on the computer files of the Seller as having commenced
bankruptcy or similar proceedings; and
(viii) the Obligor with respect to which has provided, as
its most recent billing address, an address which is located in the United
States or its territories or possessions or a Military Address;
(b) an Automatic Additional Account; or
(c) any other consumer revolving credit card account which each
Rating Agency permits to be added to the Trust.
"Eligible Institution" shall mean a depository institution (which may
--------------------
be the Trustee or the Seller or an Affiliate of either) organized under the laws
of the United States or any one of the states thereof, including the District of
Columbia, which at all times has a short-term rating of at least P-1 by Moody's
and at least A-l+ (or A-1 if such institution is an Affiliate of the Servicer)
by Standard & Poor's and which is a member of the FDIC; provided, however, that
-------- -------
an institution which maintains the Collection Account, any principal funding
account, any interest funding account or any other account maintained for the
benefit of Certificateholders as a fully segregated trust account with the trust
department of such institution shall not be required to meet the foregoing
rating requirements, and need only at all times have a long-term unsecured debt
rating of at least Baa3 by Moody's.
"Eligible Investments" shall mean (a) negotiable instruments or
--------------------
securities represented by instruments in bearer or registered form which
evidence (i) obligations fully
10
<PAGE>
guaranteed as to timely payment by the United States of America; (ii)
certificates of deposit of, or bankers' acceptances issued by, any depository
institution or trust company organized under the laws of the United States of
America or any state thereof (or any domestic branch or agency of any foreign
bank) and subject to supervision and examination by federal or state banking or
depository institution authorities; provided, however, that at the time of the
-------- -------
Trust's investment or contractual commitment to invest therein, such depository
institution or trust company shall have the highest short-term rating granted by
the applicable Rating Agency; (iii) commercial paper having, at the time of the
Trust's investment or contractual commitment to invest therein, a rating from
the applicable Rating Agency in the highest category granted by such Rating
Agency (which may be the Trustee or the Seller or an Affiliate of either); (iv)
investments in money market funds having the highest short-term rating granted
by the applicable Rating Agency; and (v) any other investment, if the applicable
Rating Agency confirms in writing that such investment will not adversely affect
any ratings with respect to any Series of Investor Certificates, and (b) demand
deposits or time deposits in the name of the Trust or the Trustee in any
depository institution or trust company referred to in (a)(ii) above.
"Eligible Net Recoveries" shall mean those Net Recoveries with respect
-----------------------
to Receivables which became Defaulted Receivables on and after July 1, 1992 but
only if such Receivables were Trust Assets at the time of charge-off.
"Eligible Receivable" shall mean each Receivable:
-------------------
(a) which has arisen under an Eligible Account or an Eligible
Additional Account;
(b) which was created in compliance with all Requirements of Law
applicable to the Seller the failure to comply with which would have a material
adverse affect upon Investor Certificateholders and pursuant to a Credit Card
Agreement which complies with all Requirements of Law applicable to the Seller
the failure to comply with which would have a material adverse effect on
Investor Certificateholders;
(c) with respect to which all consents, licenses, approvals or
authorizations of, or registrations or declarations with, any Governmental
Authority required to be obtained, effected or given by the Seller in connection
with the creation of such Receivable or the execution, delivery and performance
by the Seller of the Credit Card Agreement pursuant to which such Receivable was
created, have been duly obtained, effected or given and are in full force and
effect as of such date of creation;
(d) as to which at all times following the transfer of such
Receivable to the Trust, the Trust will have good and marketable title thereto
free and clear of all Liens arising prior to the transfer or arising at any time
under or through the Seller or its Affiliates (which Affiliates shall not
include the Trust) other than Liens permitted pursuant to subsection 2.08(b) of
the Agreement;
11
<PAGE>
(e) which will at all times be 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 either an "account" or a "general
intangible" under and as defined in Article 9 of the UCC as then in effect in
the State of Delaware;
(g) which, at the time of transfer to the Trust, has not been
waived or modified except as permitted in accordance with subsection 3.03(i) of
the Agreement;
(h) which is not subject to any right of rescission, setoff,
counterclaim or any other defense (including defenses arising out of violations
of usury laws) of the Obligor, other than defenses arising out of applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
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 equity) or as to which the Seller may, as
described in subsection 3.03(i) of the Agreement, make an adjustment;
(i) as to which, at the time of transfer of such Receivable to
the Trust, the Seller has satisfied all obligations on its part with respect to
such Receivable required to be fulfilled; and
(j) as to which, at the time of transfer of such Receivable to
the Trust, the Seller has not taken any action which would impair or failed to
take any action necessary to avoid impairing the rights of the Trust or the
Certificateholders therein.
"Eligible Servicer" shall mean the Trustee or an entity which, at the
-----------------
time of its appointment as Servicer, (i) is servicing a portfolio of consumer
revolving credit card accounts, (ii) is legally qualified and has the capacity
to service the Accounts, (iii) has demonstrated the ability to service
professionally and completely a portfolio of similar accounts in accordance with
high standards of skill and care and (iv) is qualified to use the software that
First USA is then currently using 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.
"Enhancement" shall mean, with respect to any Series, the letter of
-----------
credit, guaranteed rate agreement, maturity guaranty facility, tax protection
agreement, interest rate swap or any other contract or agreement for the benefit
of Certificateholders of such Series as designated in the applicable Supplement.
12
<PAGE>
"Enhancement Provider" shall mean, with respect to any Series, that
--------------------
Person designated as such in the applicable Supplement.
"ERISA" shall mean the Employee Retirement Income Security Act of
-----
1974, as amended.
"Euro-Certificate Exchange Date" shall mean, with respect to any
------------------------------
Series, the date specified in the applicable Supplement.
"Euro-clear Operator" shall mean Morgan Guaranty Trust Company of New
-------------------
York, Brussels office, as operator of the Euro-clear System.
"Excess Amount Principal Allocation" shall have the meaning specified
----------------------------------
in subsection 4.01(f).
"Exchange" shall mean either of the procedures described under Section
--------
6.09 of the Agreement.
"Exchange Date" shall have the meaning, with respect to any Series
-------------
issued pursuant to an Exchange, specified in Section 6.09 of the Agreement.
"Exchange Notice" shall have the meaning, with respect to any Series
---------------
issued pursuant to an Exchange, specified in Section 6.09 of the Agreement.
"Exchangeable Seller's Certificate" shall mean the certificate
---------------------------------
executed by the Seller and authenticated by the Trustee, substantially in the
form of Exhibit A and exchangeable as provided in Section 6.09 of the Agreement.
"FCCNB" shall mean FCC National Bank, the legal name of the Seller
-----
prior to the Merger Date, and its successors including, but not limited to,
First USA on and after the Merger Date.
"FDIC" shall mean the Federal Deposit Insurance Corporation.
----
"Final Trust Termination Date" shall have the meaning specified in
----------------------------
Section 12.01 of the Agreement.
"Finance Charge Receivables" shall mean amounts billed to the Obligor
--------------------------
on any Account in respect of (i) Periodic Rate Finance Charges, (ii) Cash
Advance Fees, (iii) Late Fees, (iv) Overlimit Fees, (v) annual fees with respect
to the Accounts, (vi) Returned Check Fees and (vii) all other fees and charges.
13
<PAGE>
"First Chicago" shall mean First Chicago NBD Corporation (formerly
-------------
First Chicago Corporation), one of the predecessor corporations to BANK ONE.
"First Chicago Amount" shall mean the Seller Amount.
--------------------
"First Chicago Interest" shall mean the Seller Interest.
----------------------
"First USA" shall mean, effective with the Merger Date, the national
---------
banking association known as First USA Bank, National Association, which is the
successor legal entity to FCCNB.
"Fitch" shall mean Fitch IBCA, Inc.
-----
"FNBC" shall mean The First National Bank of Chicago, a national
----
banking association, and shall include any different legal name by which such
entity may be known including but not limited to Bank One, National Association.
"Foreign Clearing Agency" shall mean, with respect to any Series,
-----------------------
Cedelbank or the Euro-clear Operator or any other established central clearing
agency for securities outside the United States designated in the applicable
Supplement.
"Global Certificate" shall have the meaning specified in Section 6.10.
------------------
"Governmental Authority" shall mean the United States of America, any
----------------------
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Ineligible Receivable" shall have the meaning specified in Section
---------------------
2.06 of the Agreement.
"Initial Closing Date" shall mean June 28, 1990.
--------------------
"Initial Invested Amount" shall mean, with respect to any Series of
-----------------------
Certificates, the amount stated in the applicable Supplement.
"Insurance Proceeds" shall mean any amounts received by the Servicer
------------------
pursuant to any credit life, credit disability or unemployment insurance
policies covering any Obligor with respect to Receivables under such Obligor's
Account.
"Interest Accrual Period" shall mean, with respect to any Series of
-----------------------
Certificates, the period during which interest accrues on such Series of
Certificates as specified in the related Supplement.
14
<PAGE>
"Internal Revenue Code" shall mean the Internal Revenue Code of 1986,
---------------------
as amended from time to time.
"Invested Amount" shall have, with respect to any Series, the meaning
---------------
specified in the applicable Supplement.
"Invested Percentage" shall have, with respect to any Series, the
-------------------
meaning specified in the applicable Supplement.
"Investor Certificate" shall mean any one of the certificates
--------------------
(including, without limitation, the Bearer Certificates, the Registered
Certificates or any Global Certificate) executed by the Seller and authenticated
by or on behalf of the Trustee, substantially in the form attached to the
applicable Supplement.
"Investor Certificateholder" shall mean the Holder of record of an
--------------------------
Investor Certificate.
"Investor Default Amount" shall have, with respect to any Series, the
-----------------------
meaning specified in the applicable Supplement.
"Investor Exchange" shall have the meaning specified in Section 6.09.
-----------------
"Issuance Date" shall mean, with respect to any Series of
-------------
Certificates, the date of issuance of such Series of Certificates as specified
in the related Supplement.
"Late Fees" shall have the meaning specified in the Credit Card
---------
Agreement applicable to each Account for late fees or similar terms.
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
----
assignment, 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 or comparable law of any jurisdiction to
evidence any of the foregoing; provided, however, that any assignment permitted
-------- -------
by Section 7.02 of the Agreement shall not be deemed to constitute a Lien;
provided, further, however, that the Lien created by the Agreement shall not be
- -------- ------- -------
deemed to constitute a Lien.
"Liquidation Event" shall have, with respect to each Series, the
-----------------
meaning specified in Section 9.01 of the Agreement and in any Supplement for the
related Series.
"Manager" shall mean the lead manager, manager or co-manager or Person
-------
performing a similar function with respect to an offering of Definitive Euro-
Certificates.
15
<PAGE>
"Merger Cut-Off Date" shall mean the close of business on August 31,
-------------------
1999.
"Merger Date" shall mean the effective date of the merger of Old First
-----------
USA, with and into FCCNB to create First USA.
"Military Address" shall mean any mailing address on any United States
----------------
armed forces military base of operations, including APO and IPO addresses.
"Minimum Aggregate Principal Receivables" shall have the meaning
---------------------------------------
specified in the applicable Supplement.
"Minimum First Chicago Interest Percentage" shall mean the Minimum
-----------------------------------------
Seller Interest Percentage.
"Minimum Seller Interest Percentage" shall mean, with respect to any
----------------------------------
Due Period with respect to any Series, the percentage specified in the
Supplement in respect of such Series of Certificates.
"Monthly Periodic Rate" shall mean the APR divided by 12.
---------------------
"Monthly Servicing Fee" shall have, with respect to each Series, the
---------------------
meaning specified in Section 3.02.
"Moody's" shall mean Moody's Investors Service, Inc.
-------
"Net Recoveries" shall mean all Recoveries net of any out-of-pocket
--------------
costs and expenses of collection (including attorneys' fees and expenses
deducted therefrom) and certain post-charge off adjustments.
"Net Recoveries Amount" shall mean, for any Distribution Date, the
---------------------
amount of Eligible Net Recoveries received by the Servicer with respect to the
calendar month preceding the month in which the Distribution Date occurs.
"Obligor" shall mean, with respect to any Account, the Person or
-------
Persons obligated to make payments with respect to such Account, including any
guarantor thereof, but excluding any merchants.
"Officers' Certificate" shall mean, unless otherwise specified in the
---------------------
Agreement, a certificate signed by a Chairman of the Board, President or any
Vice President and a Treasurer, Cashier, Assistant Cashier, Secretary, Assistant
Secretary, or Assistant Treasurer or, in the case of a Successor Servicer, a
certificate signed by a Vice President and the financial controller (or an
officer holding an office with equivalent or more senior responsibilities) of
such Successor Servicer, and delivered to the Trustee.
16
<PAGE>
"Old First USA" shall mean the national banking association known
-------------
prior to the Merger Date as First USA Bank, National Association.
"Opinion of Counsel" shall mean a written opinion of counsel, who may
------------------
be counsel of the Seller and who shall be reasonably acceptable to the Trustee.
"Original Account" shall mean those Accounts the Receivables of which
----------------
were originally sold, transferred and conveyed to the Trust upon the execution
of the Original Pooling and Servicing Agreement.
"Outstanding Series" shall have the meaning specified in subsection
------------------
4.01(f) of the Agreement.
"Overlimit Fees" shall have the meaning specified in the Credit Card
--------------
Agreement applicable to each Account for overlimit fees or similar terms.
"Paying Agent" shall mean any paying agent appointed pursuant to
------------
Section 6.06 of the Agreement and shall initially be FNBC.
"Periodic Rate Finance Charges" shall have the meaning specified in
-----------------------------
the Credit Card Agreement applicable to each Account for finance charges (due to
periodic rate) or similar term.
"Person" shall mean any legal person, including any individual,
------
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, governmental entity or other entity of
similar nature.
"Pool Factor" shall mean, unless any Series is issued in more than one
-----------
Class as stated in any related Supplement with respect to any Series and any
Record Date, a number carried out to eight decimals representing the ratio of
the applicable Invested Amount as of such Record Date (determined after taking
into account any reduction in the applicable Invested Amount which will occur on
the following Distribution Date) to the applicable Initial Invested Amount.
"Portfolio" shall mean any affinity program credit card accounts or
---------
other type of benefit program credit card accounts or other group of credit card
accounts having similar characteristics or features which are designated as a
Portfolio by the Seller and are permitted to be so designated by each Rating
Agency, and shall include the Designated Portfolios.
"Portfolio Yield" shall mean, with respect to any Due Period, the
---------------
annualized percentage equivalent of a fraction the numerator of which is the
amount of Finance Charge Receivables collected during such Due Period,
calculated on a cash basis after subtracting the Defaulted Amount, and the
denominator of which is the Aggregate Principal Receivables.
17
<PAGE>
"Principal Receivables" shall mean amounts shown on the Servicer's
---------------------
records as amounts payable by Obligors on any Account for purchases of goods or
services and for cash advances. Any Principal Receivables which the Seller is
unable to transfer as provided in subsection 2.08(f) of the Agreement shall not
be included in calculating the amount of Principal Receivables.
"Principal Terms" shall have the meaning, with respect to any Series
---------------
issued pursuant to an Exchange, specified in Section 6.09 of the Agreement.
"Rating Agency" shall mean, with respect to each Series, the rating
-------------
agency or rating agencies that rated the Series of Certificates, including
Moody's and Standard & Poor's.
"Rating Agency Condition" shall mean, at any time with respect to a
-----------------------
Series, the written confirmation of the Rating Agency that a specified event or
modification of the terms of such Series will not result in the reduction or
withdrawal of the rating of the Certificates of any Series then in effect.
"Reassignment" shall have the meaning specified in Section 2.10 of the
------------
Agreement.
"Receivables" shall mean all amounts shown on the Servicer's records
-----------
as amounts payable by Obligors on any Account, from time to time, including,
without limitation, amounts payable for purchases of goods or services and for
cash advances and amounts payable for Finance Charge Receivables. Receivables
which become Defaulted Receivables shall not be shown on the Servicer's records
as amounts payable (and will cease to be included as Receivables) on the day on
which they become Defaulted Receivables.
"Record Date" shall mean with respect to any Distribution Date, unless
-----------
otherwise provided in any Supplement for the related Series, the last day of the
preceding calendar month.
"Recoveries" shall mean all amounts received, including Insurance
----------
Proceeds and the proceeds of any bulk sale by the Servicer with respect to
Receivables which have previously become Defaulted Receivables; provided,
however, that "Recoveries" shall not include any amounts received by the
Servicer with respect to the Receivables in any Account if, and after, such
Account has been "reaffirmed" by the Obligor thereon consistent with
Requirements of Law applicable to a re-affirmation of indebtedness by a bankrupt
Person.
"Registered Certificates" shall have the meaning specified in Section
-----------------------
6.01 of the Agreement.
"Regular Addition Date" shall mean any Addition Date for Additional
---------------------
Accounts which are not Automatic Additional Accounts.
18
<PAGE>
"Removal Date" shall have the meaning specified in Section 2.10 of the
------------
Agreement.
"Removal Notice Date" shall mean, with respect to any Removed Account,
-------------------
the billing date for such Removed Account in the month preceding the month in
which the Removal Date for such Removed Account occurs.
"Removed Accounts" shall have the meaning specified in Section 2.10 of
----------------
the Agreement.
"Repurchase Terms" shall mean, with respect to any Series issued
----------------
pursuant to an Exchange, the terms and conditions under which the Seller may
repurchase such Series of Certificates pursuant to Section 12.02 of the
Agreement as modified by the related Supplement.
"Requirements of Law" for any Person shall mean the certificate of
-------------------
incorporation and by-laws or other organizational or governing documents of such
Person, and any law, treaty, rule or regulation, or determination of an
arbitrator or Governmental Authority, in each case applicable to or binding upon
such Person or to which such Person is subject, whether Federal, state or local
(including, without limitation, usury laws, the Federal Truth in Lending Act and
Regulation Z and Regulation B of the Board of Governors of the Federal Reserve
System).
"Responsible Officer" when used with respect to the Trustee shall mean
-------------------
any officer within the Corporate Trust Department (or any successor group of the
Trustee) including any vice president, assistant vice president, assistant
secretary or any other officer or assistant officer of the Trustee customarily
performing functions similar to those performed by the persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred at the Trustee's Corporate Trust Office because of his knowledge of and
familiarity with the particular subject.
"Retired Series" shall have the meaning specified in subsection
--------------
4.01(f) of the Agreement.
"Returned Check Fee" shall have the meaning specified in the Credit
------------------
Card Agreement applicable to each Account for returned check fees, returned cash
advance check fees or similar terms.
"Seller" shall mean prior to the Merger Date, FCCNB, and on and after
------
the Merger Date, First USA.
"Seller Amount" shall mean, with respect to any Due Period, Aggregate
-------------
Principal Receivables for such Due Period, minus the Aggregate Invested Amount
-----
as of the close of business on the Distribution Date related to the prior Due
Period.
19
<PAGE>
"Seller Exchange" shall have the meaning specified in Section 6.09 of
---------------
the Agreement.
"Seller Interest" shall have the meaning specified in subsection
---------------
4.01(a) of the Agreement.
"Seller's Percentage" shall mean 100% minus the Aggregate Invested
-------------------
Percentage.
"Series" shall mean any Series of Investor Certificates.
------
"Series Termination Date" shall mean, with respect to any Series of
-----------------------
Certificates, the date stated in the related Supplement.
"Service Transfer" shall have the meaning specified in Section 10.01
----------------
of the Agreement.
"Servicer" shall initially mean the Seller and thereafter any Person
--------
appointed as successor as herein provided to service the Receivables.
"Servicer Default" shall have the meaning specified in Section 10.01
----------------
of the Agreement.
"Servicing Fee" shall have the meaning specified in Section 3.02 of
-------------
the Agreement.
"Servicing Fee Percentage" shall mean, with respect to any Series of
------------------------
Certificates, the percentage specified in the related Supplement.
"Servicing Officer" shall mean any officer of the Servicer involved
-----------------
in, or responsible for, the administration and servicing of the Receivables
whose name appears on a list of servicing officers furnished to the Trustee by
the Servicer, as such list may from time to time be amended.
"Standard & Poor's" shall mean Standard & Poor's Ratings Services.
-----------------
"Successor Servicer" shall have the meaning specified in Section 10.02
------------------
of the Agreement.
"Supplement" shall mean, with respect to any Series, a supplement to
----------
this Agreement complying with the terms of Section 6.09 of the Agreement,
executed in conjunction with any issuance of any Series of Certificates.
20
<PAGE>
"Termination Notice" shall have, with respect to any Series, the
------------------
meaning specified in Section 10.01 of the Agreement.
"Transfer Agent and Registrar" shall have the meaning specified in
----------------------------
Section 6.03 of the Agreement and shall initially be FNBC.
"Transfer Date" shall mean, with respect to any Distribution Date, the
-------------
Business Day next preceding such Distribution Date.
"Transfer Deposit Amount" shall mean, with respect to any Receivable
-----------------------
for any Distribution Date, an amount equal to the amount of the Receivable at
the end of the Due Period for such Distribution Date, plus finance charges at
the APR on the finance charge balance for such Receivable from the last date
billed through the end of such Due Period to the extent not included in the
amount of the Receivables.
"Transferred Account" shall mean a consumer revolving credit card
-------------------
account with respect to which a new credit card account number has been issued
by the Servicer under circumstances not requiring standard application and
credit evaluation procedures under the Credit Card Guidelines and which can be
traced or identified by reference to or by way of the computer files or
microfiche lists delivered to the Trustee pursuant to Sections 2.01 and 2.05 of
the Agreement, as an account into which an Account has been transferred.
"Trust" shall mean the trust created by this Agreement.
-----
"Trust Assets" shall have the meaning specified in Section 2.01 of the
------------
Agreement.
"Trustee" shall mean the institution executing this Agreement as
-------
trustee, or its successor in interest, or any successor trustee appointed as
herein provided.
"UCC" shall mean the Uniform Commercial Code, as amended from time to
---
time, as in effect in any specified or applicable jurisdiction.
"Unallocated Principal Collections" shall have the meaning described
---------------------------------
in subsection 4.01(f) of the Agreement.
"Undivided Interest" shall mean the undivided interest of any
------------------
Certificateholder in the Trust.
"U.S. Alien" or "United States Alien" shall mean, unless otherwise
---------- -------------------
stated in any Supplement, any corporation, partnership, individual or fiduciary
that, as to the United States, and for United States income tax purposes, is (i)
a foreign corporation, (ii) a foreign partnership one or more of the members of
which is, as to the United States, a foreign corporation, a
21
<PAGE>
nonresident alien individual or a nonresident alien fiduciary of a foreign
estate or trust, (iii) a nonresident alien individual or (iv) a nonresident
alien fiduciary of a foreign estate or trust,
"U.S. person" or "United States person" shall mean, unless otherwise
----------- --------------------
stated in any Supplement, a citizen or resident of the United States, a
corporation, partnership or other entity created or organized in or under the
laws of the United States, or an estate or trust the income of which is subject
to United States Federal income taxation regardless of its source; provided,
--------
however, that the term "U.S. person" or "United States person" shall not include
- -------
a branch or agency of a United States bank or insurance company that is
operating outside the United States for valid business reasons as a locally
regulated branch or agency engaged in the banking or insurance business and not
principally for the purpose of investing in securities not registered under the
Securities Act of 1933.
"Vice President" when used with respect to the Seller shall mean any
--------------
vice president whether or not designated by a word or number of words added
before or after the title "vice president."
Section 1.02 Other Definitional Provisions.
-----------------------------
(a) All terms defined in any Supplement or this Agreement
shall have the defined meanings when used in any certificate or other document
made or delivered pursuant hereto unless otherwise defined therein.
(b) As used herein and in any certificate or other document
made or delivered pursuant hereto or thereto, accounting terms not defined in
Section 1.01 of the Agreement, and accounting terms partly defined in Section
1.01 of the Agreement to the extent not defined, shall have the respective
meanings given to them under generally accepted accounting principles or
regulatory accounting principles, as applicable. To the extent that the
definitions of accounting terms herein are inconsistent with the meanings of
such terms under generally accepted accounting principles or regulatory
accounting principles, the definitions contained herein shall control.
(c) The agreements, representations and warranties of
FCCNB, or after the Merger Date, First USA, in this Agreement in each of its
capacities as Seller and Servicer shall be deemed to be the agreements,
representations and warranties of FCCNB or First USA, as the case may be, solely
in each such capacity for so long as FCCNB or First USA, as the case may be,
acts in each such capacity under this Agreement.
(d) The words "hereof", "herein", and "hereunder" and words
of similar import when used in this Agreement shall refer to any Supplement or
this Agreement as a whole and not to any particular provision of such Supplement
or this Agreement, as the case may be; and Section, subsection, Schedule and
Exhibit references contained in this Agreement or any
22
<PAGE>
Supplement are references to Sections, subsections, Schedules and Exhibits in or
to this Agreement or any Supplement unless otherwise specified.
[END OF ARTICLE I]
23
<PAGE>
ARTICLE II
CONVEYANCE OF RECEIVABLES; ISSUANCE OF CERTIFICATES
Section 2.01 Conveyance of Receivables. By execution of this
-------------------------
Agreement, the Seller does hereby transfer, assign, set over and otherwise
convey to the Trust for the benefit of the Certificateholders, without recourse
(except as specifically provided herein), all of its right, title and interest
in, to and under the Receivables now existing and hereafter created and arising
in connection with the Accounts and any other Accounts that meet the definition
of Automatic Additional Accounts, all monies due or to become due and all
amounts received with respect thereto after the applicable Cut-Off Date or
Addition Notice Date, as the case may be, and all proceeds thereof. Such
property, together with all monies on deposit in the Collection Account and any
other account or accounts maintained for the benefit of the Certificateholders
and available under any Enhancement to be provided by an Enhancement Provider
for any Series for payment to Certificateholders shall constitute the assets of
the Trust (the "Trust Assets"). The foregoing transfer, assignment, set-over
and conveyance does not constitute and is not intended to result in a creation
or an assumption by the Trust, the Trustee or any Investor Certificateholder of
any obligation of the Servicer, the Seller or any other Person in connection
with the Accounts, the Receivables or under any agreement or instrument relating
thereto, including, without limitation, any obligation to any obligors, merchant
banks, merchants clearance systems, VISA USA, Inc., MasterCard International
Incorporated or insurers.
In connection with such conveyance, the Seller agrees to record and
file, at its own expense, any financing statements (and continuation statements
with respect to such financing statements when applicable) with respect to the
Receivables now existing and hereafter created for the transfer of accounts
meeting the requirements of applicable state law in such manner and in such
jurisdictions as are necessary to perfect the transfer and assignment of the
Receivables to the Trust, and to deliver a file-stamped copy of such financing
statements or other evidence of such filings to the Trustee on or prior to the
date of issuance of the Certificates. The Trustee shall be under no obligation
whatsoever to file such financing statements or make any other filings under the
UCC in connection with such conveyance. The Trustee shall be entitled to rely
upon the filings made by the Seller.
In connection with such conveyance, the Seller further agrees, at its
own expense, (a) on or prior to the Effective Date to indicate in its books and
records that all Receivables created in connection with the Accounts have been
conveyed to the Trust pursuant to this Agreement for the benefit of the
Certificateholders and (b) to deliver to the Trustee a computer file or
microfiche list containing a true and complete list of all such Accounts
specifying for each such Account, as of the Effective Date, (i) its account
number, (ii) its collection status, and (iii) the aggregate amount outstanding
in such Account. Such file or list shall be marked as Schedule 1 to this
Agreement and is hereby incorporated into and made a part of this Agreement.
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<PAGE>
Section 2.02 Acceptance by Trustee.
---------------------
(a) The Trustee hereby acknowledges its acceptance on
behalf of the Trust of all right, title and interest to the property, now
existing and hereafter created, conveyed to the Trust pursuant to Section 2.01
of the Agreement, declares that it shall maintain such right, title and
interest, upon the trust herein set forth, for the benefit of all
Certificateholders. The Trustee further acknowledges that, prior to or
simultaneously with the execution and delivery of this Agreement, the Seller
delivered to the Trustee the computer file or microfiche list described in the
last paragraph of Section 2.01 of the Agreement.
(b) The Trustee hereby agrees not to disclose, except as
may be required by law, to any Person any of the account numbers or other
information contained in the computer files or microfiche lists marked as
Schedule 1 delivered to the Trustee by the Seller pursuant to Section 2.01 of
the Agreement or subsection 2.05(c)(ii) of the Agreement, except as is required
in connection with the performance of its duties hereunder or in enforcing the
rights of the Certificateholders or to a Successor Servicer appointed pursuant
to Section 10.02 of the Agreement. The Trustee agrees to take such measures as
shall be reasonably requested by the Seller to protect and maintain the security
and confidentiality of such information, and, in connection therewith, shall
allow the Seller to inspect the Trustee's security and confidentiality
arrangements from time to time during normal business hours. The Trustee shall
provide the Seller with written notice five days prior to any disclosure
pursuant to this subsection 2.02(b).
(c) The Trustee shall have no power to create, assume or
incur indebtedness, beneficial interests or other liabilities in the name of the
Trust other than as contemplated in this Agreement.
(d) The parties hereto intend that the Seller shall be
deemed hereunder to have transferred and assigned to the Trust all right, title
and interest of the Seller in the Receivables and the proceeds thereof
(including the Recoveries relating thereto); or if this Agreement does not
constitute a valid transfer and assignment of all right, title and interest of
the Seller in such property, the parties hereto intend that this Agreement,
which constitutes a security agreement under the UCC, is a grant of a "security
interest" (as defined in the UCC as in effect in the State of Delaware) in such
property to the Trust. The parties hereto intend to treat such transfer and
assignment as a sale, and not as a secured borrowing, for accounting purposes.
Section 2.03 Representations and Warranties of the Seller Relating
-----------------------------------------------------
to the Seller. The Seller hereby represents and warrants to the Trustee, on
- -------------
behalf of the Trust, with respect to any Series of Certificates, as of the date
of its Closing Date, unless otherwise stated in such Supplement, that:
(a) Organization and Good Standing. The Seller is a
------------------------------
national bank duly organized and validly existing in good standing under the
laws of the United States of America, and has full corporate power, authority
and legal right to execute, deliver and perform
25
<PAGE>
its obligations under this Agreement and any Supplement and to execute and
deliver to the Trustee pursuant hereto the Certificates and, in all material
respects, to own its property and conduct its business as such properties are
presently owned and such business is presently conducted.
(b) Due Qualification. The Seller is duly qualified to do
-----------------
business and is in good standing as a foreign corporation (or is exempt from
such requirements), and has obtained all necessary licenses and approvals with
respect to the Seller, in each jurisdiction in which failure to so qualify or to
obtain such licenses and approvals would render any Credit Card Agreement
relating to an Account or any Receivable unenforceable by the Seller or the
Trust or would have a material adverse effect on the Certificateholders;
provided that no representation or warranty is made with respect to any
qualifications, licenses or approvals which the Trustee would have to obtain to
do business in any state in which the Trustee seeks to enforce any Account or
any Receivable.
(c) Due Authorization. The execution and delivery of this
-----------------
Agreement and any Supplement and the execution and delivery to the Trustee of
the Certificates by the Seller and the consummation of the transactions provided
for in this Agreement and any Supplement have been duly authorized by the Seller
by all necessary corporate action on the part of the Seller.
(d) Binding Obligation. This Agreement and any Supplement
------------------
constitute a legal, valid and binding obligation of the Seller, enforceable in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereinafter in effect affecting the enforcement of creditors' rights
in general and the rights of creditors of national banks under United States law
and except as such enforceability may be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(e) No Violation. The execution and delivery of this
------------
Agreement and any Supplement and the Certificates, the performance of the
transactions contemplated by this Agreement and any Supplement and the
fulfillment of the terms hereof 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 material default under, any
Requirement of Law applicable to the Seller or any indenture, contract,
agreement, mortgage, deed of trust, or other instrument to which the Seller is a
party or by which it or its properties is bound.
(f) No Proceedings. There are no proceedings or
--------------
investigations, pending or, to the best knowledge of the Seller, threatened
against the Seller, before any court, regulatory body, administrative agency, or
other tribunal or governmental instrumentality (i) asserting the invalidity of
this Agreement or any Supplement or the Certificates, (ii) seeking to prevent
the issuance of the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any Supplement or the Certificates, (iii)
seeking any determination
26
<PAGE>
or ruling that, in the reasonable judgment of the Seller, would materially and
adversely affect the performance by the Seller of its obligations under this
Agreement or any Supplement, (iv) seeking any determination or ruling that would
materially and adversely affect the validity or enforceability of this Agreement
or any Supplement or the Certificates, or (v) seeking to affect adversely the
income tax attributes of the Trust under the United States Federal, Illinois,
New York or Delaware income tax systems.
(g) FDIC Insurance. The Seller is an insured institution
--------------
for the purposes of the Federal Deposit Insurance Act.
(h) All Consents Required. All approvals, authorizations,
---------------------
consents, orders or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery by the Seller of
this Agreement and the Certificates, the performance by the Seller of the
transactions contemplated by this Agreement and the fulfillment by the Seller of
the terms hereof have been obtained; provided, however, that the Seller makes no
-------- -------
representation or warranty regarding state securities or "Blue Sky" laws in
connection with the distribution of the Certificates.
The representations and warranties set forth in this Section 2.03
shall survive the transfer and assignment of the Trust Assets to the Trust, and
the termination of the rights and obligations of the Servicer pursuant to
Section 10.01 of the Agreement. Upon discovery by the Seller, the Servicer or
the Trustee of a breach of any of the foregoing representations and warranties,
the party discovering such breach shall give prompt written notice to the
others.
Section 2.04 Representations and Warranties of the Seller Relating
-----------------------------------------------------
to the Agreement and any Supplement and the Receivables.
- -------------------------------------------------------
(a) Representations and Warranties. The Seller hereby
------------------------------
represents and warrants to the Trustee, on behalf of the Trust, with respect to
any Series of Certificates, as of the date of its related Supplement and Closing
Date, unless otherwise stated in such Supplement, and, with respect to any
Series and matters involving Additional Accounts, as of the related Addition
Date that:
(i) this Agreement and any Supplement and, in the
case of Additional Accounts, the related Assignment, each constitute legal,
valid and binding obligations of the Seller enforceable against the Seller
in accordance with their 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 banks
under United States law and except as such enforceability may be limited by
general principles of equity (whether considered in a suit at law or in
equity);
27
<PAGE>
(ii) as of the Effective Date, Schedule 1 to this
Agreement and, as of the applicable Addition Date with respect to
Additional Accounts added pursuant to subsections 2.05(a) and 2.05(b)(i),
and as of the applicable Determination Date with respect to Automatic
Additional Accounts, the related list referred to in subsection 2.05(c)(ii)
of the Agreement, is and will be an accurate and complete listing of all
the Accounts in all material respects as of the Effective Date or the
applicable Addition Notice Date, as the case may be, and the information
contained therein with respect to the identity of such Accounts and the
Receivables existing thereunder is and will be true and correct in all
material respects as of such applicable Effective Date or Addition Notice
Date
(iii) each Receivable existing on the Effective Date
or, in the case of Additional Accounts, on the later of the Addition Date
or the date on which the Account with respect to such Receivable comes into
existence, has been conveyed to the Trust free and clear of any Lien other
than Liens permitted by subsection 2.08(b) of the Agreement;
(iv) with respect to each Receivable existing on the
Effective Date or, in the case of Additional Accounts, on the later of the
Addition Date or the date on which the Account with respect to such
Receivable comes into existence, all consents, licenses, approvals or
authorizations of or registrations or declarations with any Governmental
Authority required to be obtained, affected or given by the Seller in
connection with the conveyance of such Receivable to the Trust have been
duly obtained, effected or given and are in full force and effect;
(v) this Agreement and in the case of Additional
Accounts, the related Assignment of Receivables either constitutes a valid
transfer and assignment to the Trust of all right, title and interest of
the Seller in the Receivables and the proceeds thereof, including
Recoveries relating thereto or, if this Agreement and, in the case of
Additional Accounts, the related Assignment of Receivables, does not
constitute a valid transfer and assignment of such property, it constitutes
a grant of a "security interest" (as defined in the UCC as in effect in the
State of Delaware) in such property to the Trust, which, in the case of
existing Receivables and the proceeds thereof, is enforceable upon
execution and delivery of this Agreement, and which will be enforceable
with respect to such Receivables hereafter created and the proceeds thereof
upon such creation and which will be enforceable with respect to Additional
Accounts upon execution and delivery of the related Assignment of
Receivables. Upon the filing of any financing statements described in
Section 2.01 of the Agreement and, in the case of the Receivables hereafter
created or transferred to the Trust and the proceeds thereof, upon the
creation or transfer thereof, the Trust shall have a first priority
perfected security or ownership interest in such property except for Liens
permitted under subsection 2.08(b) of the Agreement; provided, however,
-------- -------
that such security interest in proceeds shall remain perfected after 10
days from their receipt by the Servicer (so long as First USA is Servicer)
or the Seller
28
<PAGE>
only to the extent that such proceeds are identifiable cash proceeds or
come into the Trust's possession within the applicable 10- or 20-day
period; and provided, further, that the Seller makes no representation or
-------- -------
warranty with respect to the effect of Section 9-306(4) of the UCC on the
rights of the Trust to proceeds held by the Seller at the time insolvency
proceedings are instituted by or against the Seller. Except as otherwise
provided in this Agreement, neither the Seller nor any Person claiming
through or under the Seller has any claim to or interest in the Collection
Account; and
(vi) as of the Effective Date, each Receivable
existing on such date is to the best knowledge of the Seller an Eligible
Receivable in all material respects and, in the case of Additional
Accounts, as of the later of the Addition Date or the date on which such
Account comes into existence, each Receivable with respect to such
Additional Account is to the best knowledge of the Seller an Eligible
Receivable.
(b) Notice of Breach. The representations and warranties
----------------
set forth in this Section 2.04 shall survive the transfer and assignment of the
Trust Assets to the Trust. Upon discovery by the Seller, the Servicer or the
Trustee of a breach of any of the representations and warranties set forth in
this Section 2.04, the party discovering such breach shall give prompt written
notice to the others.
Section 2.05 Addition of Accounts.
--------------------
(a) If, with respect to any Series, (1) on any
Determination Date, the Seller Amount for the related Due Period is less than
the Minimum Seller Interest Percentage of Aggregate Principal Receivables for
such Due Period, the Seller shall designate additional "Classic VISA," "VISA
Gold," "Standard MasterCard," "Gold MasterCard," "Platinum VISA" or "Platinum
MasterCard" accounts or any successor credit card account designation (the
"Additional Accounts") to be included as Accounts in a sufficient amount such
that the Seller Amount as a percentage of Aggregate Principal Receivables for
such Due Period would have been at least equal to the Minimum Seller Interest
Percentage or (2) on any Determination Date Aggregate Principal Receivables is
less than the Minimum Aggregate Principal Receivables, the Seller shall
designate Additional Accounts to be included as Accounts in a sufficient amount
such that Aggregate Principal Receivables will be equal to or greater than
Minimum Aggregate Principal Receivables. On or before the third Business Day
prior to the date on which the Receivables in the designated Additional
Accounts will be assigned to the Trust by the Seller (the "Addition Date") or
immediately if such Additional Accounts are required pursuant to subsection
2.05(a)(2), the Seller shall give the Trustee, the Servicer and each Rating
Agency written notice that the Receivables from such Additional Accounts are to
be assigned to the Trust.
(b) In addition to its obligation under subsection 2.05(a)
of the Agreement, (i) the Seller may upon three Business Days' notice to the
Trustee and each Rating Agency, but shall not be obligated to, designate from
time to time Additional Accounts of the Seller to be included as Accounts and
(ii) at any time that a substantial portion of the Receivables
29
<PAGE>
in the Eligible Accounts or Eligible Additional Accounts in any Portfolio have
been transferred to the Trust, the Seller may, at its option, designate
Automatic Additional Accounts in such Portfolio to be included automatically as
Additional Accounts effective as of the date of the inclusion of any such
Automatic Additional Account in a Billing Cycle. The Seller hereby designates
all Eligible Additional Accounts in the Designated Portfolios that meet the
definition of Automatic Additional Accounts to be included automatically as
Additional Accounts and, pursuant to Section 2.01 hereof, conveys the
Receivables now existing or hereafter arising in such Accounts to the Trust. The
Seller may terminate the addition of Automatic Additional Accounts to the Trust
at any time by giving 5 days' prior written notice to the Trustee. On each
Determination Date following the Addition Date or the Closing Date with respect
to which the Seller shall have added Automatic Additional Accounts to the Trust,
the Seller shall submit to the Trustee an updated computer file or microfiche or
written list containing all Accounts in the Trust showing for each Account the
information required in 2.05(c)(ii) as of the end of the Due Period relating to
such Determination Date.
(c) The Seller shall be permitted to designate and assign
Receivables from Additional Accounts only upon satisfaction of the following
conditions:
(i) The Seller shall designate only Eligible
Additional Accounts;
(ii) On or prior to each Addition Date in respect of
Additional Accounts, the Seller shall have delivered to the Trustee a
written assignment (including an acceptance by the Trustee for the benefit
of the Certificateholders) in substantially the form of Exhibit B (the
"Assignment") and, in respect of additions made pursuant to subsections
2.05(a) and 2.05(b)(i), a computer file, microfiche or written list
containing a true and complete schedule identifying all such Additional
Accounts specifying for each such Account, as of the Addition Notice Date,
its account number, its collection status and the aggregate amount
outstanding in such Account. Such computer file, microfiche or written list
shall be as of the Addition Date with respect to such Assignment
incorporated into and made part of such Assignment and this Agreement;
(iii) The Seller represents and warrants (x) as of
each Addition Date with respect to Additional Accounts added pursuant to
subsections 2.05(a) and 2.05(b)(i) that (a) the list of Additional
Accounts, as of the Addition Notice Date, complies in all material respects
with the requirements of paragraph (ii) above and (b) no selection
procedure was utilized by the Seller in selecting the Eligible Additional
Accounts which is materially adverse to the interests of the Investor
Certificateholders; (y) as of the Determination Date, with respect to
Additional Accounts added pursuant to subsection 2.05(b)(ii), that no
selection procedure was used by the Seller in adding Automatic Additional
Accounts to any Billing Cycle which is materially adverse to the interests
of the Investor Certificateholders and (z) as of the Addition Notice Date
and as of the Addition Date, the Seller is not insolvent;
30
<PAGE>
(iv) The Trustee shall not have received written
notice from any Rating Agency that such Rating Agency will reduce or
withdraw its rating on any outstanding Series as a result of such addition;
(v) On or before each Addition Date, the Seller
shall deliver a certificate of a Vice President or more senior officer
confirming the items set forth in paragraphs (ii), (iii) and (iv) above.
The Trustee may conclusively rely on such certificate, shall have no duty
to make inquiries with regard to matters set forth therein and shall incur
no liability in so relying;
(vi) On or before each Addition Date the Seller
shall deliver to the Trustee an Opinion of Counsel with respect to the
Receivables in the Additional Accounts substantially in the form of Exhibit
F; and
(vii) if with respect to any twelve-month period, the
aggregate number of Accounts designated to have their Receivables added to
the Trust shall exceed the applicable Aggregate Addition Limit, the Seller
shall have received notice from Standard & Poor's, Moody's and Fitch that
the inclusion pursuant to subsection 2.05(b) of accounts as 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
outstanding Series and shall have delivered such notice to the Trustee.
Upon satisfaction of the above conditions, the Seller shall execute
and deliver the Assignment to the Trustee, and the Receivables from the
Additional Accounts shall be conveyed to the Trust as provided in Section 2.01
of the Agreement.
(d) Notice of Breach. The representations and warranties
----------------
set forth in subsection 2.05(c)(iii) of the Agreement shall survive the transfer
and assignment of the respective Receivables to the Trust. Upon discovery by the
Seller, the Servicer or the Trustee of a breach of any of the covenants,
representations and warranties set forth in Articles II or III, the party
discovering the breach shall give prompt written notice to the others.
Section 2.06 Transfer of Ineligible Receivables.
----------------------------------
(a) In the event of a breach with respect to a Receivable
of any representations and warranties set forth in subsection 2.04(a)(iii) of
the Agreement or in the event that a Receivable is not an Eligible Receivable as
a result of the failure to satisfy the conditions set forth in clause (d) of the
definition of Eligible Receivable:
(i) if (A) the long-term unsecured debt rating of
the Seller is at least A2 by Moody's or (B) the Seller does not meet the
foregoing rating requirement and the Lien of the subject Receivable is not
of the type otherwise described in clause (ii)
31
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below, and as a result of such breach or event such Receivable becomes a
Defaulted Receivable or the Trust's rights in, to or under such Receivable
or its proceeds are impaired or the proceeds of such Receivable are not
available for any reason to the Trust free and clear of any Lien, then each
such Receivable shall be automatically removed from the Trust on the terms
and conditions set forth below; or
(ii) if (A) the Seller does not meet the rating
requirements in the foregoing clause (i) above and if (B) such Lien ranks
prior to the Lien created pursuant to this Agreement or such Lien meets any
of the following conditions (1) such Lien 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) such Lien
has been consented to by the Seller, then upon the earlier to occur of the
discovery of such breach or event by the Seller or the Servicer or receipt
by the Seller and the Servicer of written notice of such breach or event
given by the Trustee, each such Receivable shall be automatically removed
from the Trust on the terms and conditions set forth below.
(b) In the event of a breach of any representations and
warranties set forth in subsection 2.04(a)(iv) or 2.04(a)(v) of the Agreement or
in the event any Receivable is not an Eligible Receivable for any reason other
than the failure to satisfy the conditions set forth in clause (d) of the
definition of Eligible Receivable, and as a result of such breach or event such
Receivable becomes a Defaulted Receivable or the Trust's rights in, to or under
such Receivable or its proceeds are impaired or the proceeds of such Receivable
are not available for any reason to the Trust free and clear of any Lien, then,
upon the expiration of 60 days from the earlier to occur of the discovery of any
such event by the Seller, or receipt by the Seller of written notice of any such
event given by the Trustee or the Servicer, each such Receivable shall be
removed from the Trust on the terms and conditions set forth below; provided,
--------
however, that no such removal shall be required to be made with respect to a
- -------
Receivable which is not an Eligible Receivable to be removed pursuant to this
sentence if, on any day within such applicable period, such representations and
warranties with respect to such Receivable shall then be true and correct in all
material respects as if such Receivable had been created on such day.
(c) When required with respect to a Receivable (an
"Ineligible Receivable") by the provisions of subsection 2.06(a) or 2.06(b) of
the Agreement, such Receivable shall be automatically removed from the Trust by
deducting the principal balance of each such Ineligible Receivable from the
Principal Receivables in the Trust. On and after the date of such removal, each
Ineligible Receivable so removed shall not be included in the calculation of any
Invested Percentage, the Seller's Percentage or the Seller Amount. In the event
that the exclusion of an Ineligible Receivable from the calculation of the
Seller Amount would cause the Seller Amount to be a negative number or would
otherwise not be permitted by law, the Seller shall immediately, but in no event
later than 10 days after such event, make a deposit in the Collection Account in
immediately available funds by the next Transfer Date in an amount equal to the
Transfer Deposit Amount. Such deposit shall be considered a payment in full of
the
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<PAGE>
Ineligible Receivable and shall be applied as a Collection of Finance Charge
Receivables or Principal Receivables, as applicable, in accordance with Article
IV. Upon each removal of an Ineligible Receivable from the Trust, the Trust
shall automatically and without further action be deemed to transfer, assign,
set-over and otherwise convey to the Seller, without recourse, representation or
warranty, all the right, title and interest of the Trust in and to such
Ineligible Receivable, all monies due or to become due with respect thereto and
all proceeds thereof, provided that any Finance Charge Receivables relating to
such Ineligible Receivable accrued through the date of removal of such
Ineligible Receivable and not otherwise included in the Transfer Deposit Amount
shall continue to be property of the Trust. The Trustee shall execute such
documents and instruments of transfer or assignment and take such other actions
as shall reasonably be requested by the Seller to effect the conveyance of such
Ineligible Receivable pursuant to this subsection. In the event that on any day
within 60 days of the date on which the removal of an Ineligible Receivable from
the Trust pursuant to this Section is effected, the applicable representations
and warranties shall be true and correct in all material respects on such date,
the Seller may, but shall not be required to, direct the Servicer to include
such Receivable in the Trust by adding the principal balance of such Receivable
to the Principal Receivables in the Trust. Upon addition of a Receivable to the
Trust pursuant to this subsection, the Seller shall have been deemed to have
made the applicable representations and warranties in subsection 2.04(a) of the
Agreement as of the date of such addition, as if the Receivable had been created
on such date, and shall execute all such necessary documents and instruments of
transfer or assignment and take such other actions as shall be necessary to
effect and perfect the reconveyance of such Receivable to the Trust. The
obligation of the Seller set forth in this subsection, or the automatic removal
of such Receivable from the Trust, as the case may be, shall constitute the sole
remedy respecting any breach of the representations and warranties set forth in
the above-referenced subsections with respect to such Receivable available to
Certificateholders or the Trustee on behalf of Certificateholders.
(d) For the purposes of subsections 2.06(a) and 2.06(b)
above, proceeds of a Receivable shall not be deemed to be impaired hereunder
solely because such proceeds are held by the Servicer (if the Servicer is First
USA) for more than the applicable period under Section 9-306(3) of the UCC.
Section 2.07 Purchase of Certificates. In the event (x) of any breach
------------------------
of any of the representations and warranties set forth in subsection 2.04(a)(i)
or 2.04(a)(ii) or 2.05(c)(iii) of the Agreement or (y) a material amount of
Receivables are Ineligible Receivables, and such event has a material adverse
effect on Investor Certificateholders, either the Trustee, or the Holders of
Investor Certificates evidencing Undivided Interests aggregating more than 50%
of the Aggregate Invested Amount, by notice then given in writing to the Seller
(and to the Trustee and the Servicer if given by the Investor
Certificateholders), may direct the Seller to purchase all Series of
Certificates within 60 days of such notice, or within such longer period as may
be specified in such notice, and the Seller shall be obligated to make such
purchase on a Distribution Date occurring within such 60-day period on the terms
and conditions set forth below; provided, however, that no such purchase shall
-------- -------
be required to be made if, during such 60-day
33
<PAGE>
period, the representations and warranties contained in subsections 2.04(a)(i)
and 2.04(a)(ii) and 2.05(c)(iii) of the Agreement shall be satisfied in all
material respects or there shall no longer be a material amount of Ineligible
Receivables, as the case may be, and any material adverse effect on the Investor
Certificateholders caused thereby shall have been cured. The Seller shall
deposit in the Collection Account on a Transfer Date occurring within such 60-
day period an amount equal to the purchase price (as described in the next
succeeding sentence) for the Investor Certificates. The purchase price for any
such purchase will be equal to the sum of (x) the Aggregate Invested Amount at
the end of the day on the Record Date preceding the date such deposit is made,
plus (y) an amount equal to all Monthly Interest accrued but unpaid on the
- ----
Investor Certificates for the related Interest Accrual Period for the
Distribution Date on which the distribution of such deposit is scheduled to be
made pursuant to Section 12.03 of the Agreement and all prior Distribution
Dates. Notwithstanding anything to the contrary in this Agreement or any
Supplement, the entire amount of the purchase price deposited in the Collection
Account shall be distributed to the Investor Certificateholders on such
Distribution Date pursuant to Section 12.03 of the Agreement. Payment of such
purchase price into the Collection Account in immediately available funds shall
otherwise be considered a prepayment in full of the Receivables. If the Trustee
or the Investor Certificateholders give notice directing the Seller to purchase
the Investor Certificates as provided above, the obligation of the Seller to
purchase the Investor Certificates pursuant to this Section 2.07 shall
constitute the sole remedy respecting an event of the type specified in the
first sentence of this Section 2.07 available to the Investor Certificateholders
(or the Trustee on behalf of the Investor Certificateholders).
Section 2.08 Covenants of the Seller. The Seller hereby covenants
-----------------------
that:
(a) Receivables Not to be Evidenced by Promissory Notes or
------------------------------------------------------
Chattel Paper. The Seller will take no action to cause any Receivable to be
- -------------
evidenced by any instrument (as defined in the UCC as in effect in the State of
Delaware). Each Receivable shall be payable pursuant to a contract which does
not create a Lien on any goods purchased thereunder.
(b) Security Interests. Except for the conveyances
------------------
hereunder, the Seller will not sell, pledge, assign or transfer to any other
Person, or grant, create, incur, assume or suffer to exist any Lien on any
Receivable, whether now existing or hereafter created, or any interest therein,
and the Seller shall defend the right, title and interest of the Trust in, to
and under the Receivables, whether now existing or hereafter created, against
all claims of third parties claiming through or under the Seller; provided,
--------
however, that nothing in this subsection 2.08(b) shall prevent or be deemed to
- -------
prohibit the Seller from suffering to exist upon any of the Receivables any
Liens for municipal or other local taxes if such taxes shall not at the time be
due and payable or if the Seller 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) Periodic Rate Finance Charges. The Seller hereby agrees
-----------------------------
that, except as otherwise required by any Requirement of Law applicable to the
Seller or as is deemed
34
<PAGE>
by the Seller to be necessary in order for the Seller to maintain the credit
card business on a competitive basis based on a good faith assessment by the
Seller of the nature of its competition in the credit card business, it shall
not at any time reduce (x) the APR of the Periodic Rate Finance Charges assessed
on the Receivables with respect to which a fixed rate APR is assessed, (y) in
the case of Receivables as to which a variable rate APR is assessed, the
percentage charged in excess of the index rate used in calculating the Periodic
Rate Finance Charge, and/or (z) any fees charged on any of the Accounts, if as a
result of any such reduction, the Seller's reasonable expectation of the
Portfolio Yield as of such date would be less than the Base Rate.
(d) Credit Card Agreements and Guidelines. The Seller shall
-------------------------------------
comply with and perform its obligations under the Credit Card Agreements
relating to the Accounts and the Credit Card Guidelines and all applicable rules
and regulations of VISA U.S.A., Inc., and MasterCard International Incorporated,
except insofar as any failure so to comply or perform would not materially and
adversely affect the rights of the Trust or the Certificateholders hereunder or
under the Certificates. Subject to compliance with all Requirements of Law the
failure to comply with which would have a material adverse effect on the
Investor Certificateholders, the Seller may change the terms and provisions of
the Credit Card Agreement or the Credit Card Guidelines in any respect
(including, without limitation, the calculation of the amount, or the timing, of
charge-offs and the periodic rate finance charge to be assessed thereon) only if
in the reasonable judgment of the Seller (a) if it owns a comparable segment of
consumer revolving credit card accounts, then such change is made applicable to
such comparable segment which has characteristics the same as, or substantially
similar to, the Accounts which are the subject of such change and (b) if it does
not own such a comparable segment, it will not make any such change with the
intent to materially benefit the Seller over the Investor Certificateholders.
(e) Accounts with Foreign Addresses. The Seller shall not
-------------------------------
permit Principal Receivables of Accounts the Obligor with respect to which has
provided, as its most recent billing address, an address which is not either
located in the United States or its territories or possessions or a Military
Address to exceed 1% of Aggregate Principal Receivables.
(f) Account Allocations. In the event that the Seller is
-------------------
unable for any reason to transfer Receivables to the Trust in accordance with
the provisions of this Agreement (including, without limitation, by reason of
the application of the provisions of Section 9.02 of the Agreement or any
Governmental Authority having regulatory authority over the Seller or any court
of competent jurisdiction ordering that the Seller not transfer any additional
Principal Receivables to the Trust) then, in any such event, (A) the Seller
agrees (except as prohibited by any such order) to allocate and pay to the
Trust, after the date of such inability, all Collections, including Collections
with respect to Finance Charge Receivables, with respect to Principal
Receivables transferred to the Trust prior to the occurrence of such event, and
all amounts which would have constituted Collections, including Collections with
respect to Finance Charge Receivables, with respect to such Receivables which
would have been Principal Receivables but for the Seller's inability to
transfer such Receivables (up to an aggregate amount equal to the
35
<PAGE>
amount of Receivables in the Trust on such date), (B) the Seller agrees to have
such amounts applied as Collections in accordance with Article IV and (C) for
only so long as the allocation and application of all Collections and all
amounts which would have constituted Collections are made in accordance with
clauses (A) and (B) above, Principal Receivables (and all amounts which would
have constituted Principal Receivables but for the Seller's inability to
transfer Receivables to the Trust) which are written off as uncollectible in
accordance with this Agreement shall be allocated in accordance with the related
Supplement and all amounts which would have constituted Principal Receivables
but for the Seller's inability to transfer Receivables to the Trust shall be
deemed to be Principal Receivables for purposes of calculating the applicable
Invested Percentage thereunder. For the purpose of the immediately preceding
sentence of this subsection 2.08(f), the Seller 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. The parties hereto agree that Finance Charge
Receivables, whenever created, accrued in respect of Principal Receivables which
have been conveyed to the Trust shall continue to be a part of the Trust
notwithstanding any cessation of the transfer of additional Principal
Receivables to the Trust and Collections with respect thereto shall continue to
be allocated and paid in accordance with Article IV.
(g) Delivery of Collections. In the event that the Seller
-----------------------
receives Collections, the Seller agrees to pay the Servicer or any Successor
Servicer all payments received by the Seller in respect of the Receivables as
soon as practicable after receipt thereof by the Seller, but in no event later
than five days after the receipt by the Seller thereof.
(h) MasterCard International and VISA U.S.A. The Seller
---------------------------------------
shall use its best efforts to remain a member in good standing of the MasterCard
International Incorporated System or its substantial equivalent and to be or
cause BANK ONE to remain a member in good standing of the VISA U.S.A. Inc.
system or its substantial equivalent.
(i) Notice of Liens. The Seller shall notify the Trustee
---------------
promptly after becoming aware of any Lien on any Receivable other than the
conveyances hereunder and as provided in Exhibit D.
(j) Status of Accounts and Receivables. The Seller hereby
----------------------------------
agrees to comply in all respects with all Requirements of Law applicable to the
Seller the failure to comply with which would have a material adverse effect on
the Investor Certificateholders.
Section 2.09 Authentication of Certificates. Pursuant to the request
------------------------------
of the Seller, the Trustee shall cause Certificates in authorized denominations
evidencing the entire ownership of the Trust to be duly authenticated and
delivered to or upon the order of the Seller pursuant to Section 6.02 of the
Agreement.
36
<PAGE>
Section 2.10 Removal of Accounts.
-------------------
(a) On each Determination Date that the Seller Amount for
the related Due Period exceeds 15% of Aggregate Principal Receivables in the
Trust with respect to such Determination Date, the Trustee shall be deemed to
have offered to the Seller automatically and without any notice to or action by
or on behalf of the Trustee, as of such Determination Date, the right to remove
from the Trust all of the Trust's right, title and interest in, to and under the
Receivables now existing and hereafter created, all monies due or to become due
and all amounts received with respect thereto and all proceeds thereof in or
with respect to those Accounts designated by the Seller (the "Removed Accounts")
in an aggregate amount not greater than the lesser of (x) the excess of the
Seller Amount over the Minimum Seller Interest Percentage of Aggregate Principal
Receivables and (y) the excess of Aggregate Principal Receivables over the
Minimum Aggregate Principal Receivables. To accept such offer, the Seller is
required to furnish to the Trustee and each Rating Agency written notice by the
fifth Business Day after the Determination Date specifying the approximate
aggregate amount of Principal Receivables covered by the offer that the Seller
intends to accept.
(b) In addition to the foregoing provisions, the Seller
shall be permitted to accept reassignment to it of the Receivables from Removed
Accounts only upon satisfaction of the following conditions:
(i) On each date specified by the Seller for removal
of the Removed Accounts (a "Removal Date"), the Trustee shall deliver to
the Seller a written reassignment in substantially the form of Exhibit C
(the "Reassignment") and the Seller shall deliver to the Trustee a computer
file, microfiche or written list containing a true and complete schedule
identifying all Accounts the Receivables of which remain in the Trust
specifying for each such Account, as of the Removal Notice Date, its
account number, its collection status and the aggregate amount outstanding
in such Account. Such computer file, microfiche or written list shall be
incorporated into and made part of this Agreement as of the date of such
Reassignment;
(ii) The Seller represents and warrants as of each
Removal Date that (a) the list of the Accounts not removed from the Trust,
as of the Removal Notice Date, complies in all material respects with the
requirements of paragraph (i) above; and (b) no selection procedure used by
the Seller which is adverse to the interests of the Investor
Certificateholders was utilized in selecting the Removed Accounts;
(iii) The removal of any Receivables in any Removed
Accounts on any Removal Date shall not, in the reasonable belief of the
Seller, cause a Liquidation Event to occur;
(iv) The Seller shall have delivered 10 days' prior
written notice (which may be given prior to the Determination Date in
expectation that the Trustee will
37
<PAGE>
make the offer described in subsection 2.10(a)) of such removal to each
Rating Agency which has rated any outstanding Series and the Trustee shall
not have received written notice from any Rating Agency that such Rating
Agency will reduce or withdraw its rating on any outstanding Series as a
result of such removal; and
(v) The Seller shall have delivered to the Trustee a
certificate of a Vice President or more senior officer confirming the items
set forth in paragraphs (i) through (iv) above. The Trustee may
conclusively rely on such certificate, shall have no duty to make inquiries
with regard to the matters set forth therein and shall incur no liability
in so relying.
Upon satisfaction of the above conditions, the Trustee shall execute
and deliver the Reassignment to the Seller, and the Receivables from the Removed
Accounts shall no longer constitute a part of the Trust.
Section 2.11 Repayment of Recoveries That Are Not Eligible Net
-------------------------------------------------
Recoveries. The Trust shall pay to the Seller all Recoveries received by the
- ----------
Trust which are not applied as Eligible Net Recoveries pursuant to Article IV.
[END OF ARTICLE II]
38
<PAGE>
ARTICLE III
ADMINISTRATION AND SERVICING
OF RECEIVABLES
Section 3.01 Acceptance of Appointment and Other Matters Relating to
-------------------------------------------------------
the Servicer.
- ------------
(a) First USA agrees to act as the Servicer under this
Agreement and any Investor Certificateholders and the Seller by its acceptance
of the Certificates consents to First USA acting as Servicer.
(b) The Servicer shall service and administer the
Receivables and shall collect payments due under the Receivables in accordance
with its customary and usual servicing procedures for servicing credit card
receivables comparable to the Receivables and in accordance with the Credit Card
Guidelines and shall have full power and authority, acting alone or through any
party properly designated by it hereunder, to do any and all things in
connection with such servicing and administration which it may deem necessary or
desirable. Without limiting the generality of the foregoing and subject to
Section 10.01 of the Agreement, the Servicer is hereby authorized and empowered
(i) to make withdrawals and payments and to instruct the Trustee to make
withdrawals and payments from the Collection Account or any other account or
accounts maintained for the benefit of Certificateholders as set forth in this
Agreement or any Supplement, (ii) unless such power and authority is revoked by
the Trustee on account of the occurrence of a Servicer Default pursuant to
Section 10.01 of the Agreement, to instruct the Trustee to take any action
permitted or required under any Enhancement at such time as set forth in this
Agreement and any Supplement, (iii) to execute and deliver, on behalf of the
Trust for the benefit of the Certificateholders, any and all instruments of
satisfaction or cancellation, or of partial or full release or discharge, and
all other comparable instruments, with respect to the Receivables and, after the
delinquency of any Receivable and to the extent permitted under and in
compliance with applicable law and regulations, to commence enforcement
proceedings with respect to such Receivables, (iv) to make any filings, reports,
notices, applications, registrations with, and to seek any consent or
authorizations from the Securities and Exchange Commission and any state
securities authority on behalf of the Trust as may be necessary or advisable to
comply with any Federal or state securities or reporting requirements or laws,
(v) to delegate certain of its service, collection, enforcement and
administrative duties hereunder with respect to the Accounts and the Receivables
to [First Data Resources, Inc.] or any other Person who agrees to conduct such
duties in accordance with the Credit Card Guidelines; provided, however, that
-------- -------
the Servicer shall notify each Rating Agency in writing of any significant
delegation of its duties to a Person other than [First Data Resources, Inc.] and
which is not in the ordinary course of the Servicer's business and that no
delegation will relieve the Servicer of its liability and responsibility with
respect to such duties, (vi) to take any and all actions which it may deem
necessary, appropriate or desirable with respect to the servicing of Defaulted
Receivables and the management and supervision of Recoveries, including, but not
limited to, the entering into of one or more
39
<PAGE>
transactions for the sale or transfer of Defaulted Receivables at such prices
and upon such terms as the Servicer, in its sole discretion, shall deem to be
appropriate and (vii) to enter into such contracts, agreements or other
documents which it may deem necessary, appropriate or desirable to effectuate
any of the foregoing authorizations or empowerments. The Trustee agrees that it
shall follow the instructions of the Servicer with regard to any Enhancement.
(c) In the event that the Servicer is unable for any reason
to transfer Receivables to the Trust in accordance with the provisions of this
Agreement (including, without limitation, by reason of the application of the
provisions of Section 9.02 of the Agreement or any Governmental Authority having
regulatory authority over the Servicer or any court of competent jurisdiction
ordering that the Servicer not transfer any additional Principal Receivables to
the Trust) then, in any such event (except as prohibited by such order), (A) the
Servicer agrees to allocate, after such date, all Collections (including
Collections of Finance Charge Receivables) with respect to Principal Receivables
transferred to the Trust prior to the occurrence of such event, and all amounts
which would have constituted Collections (including Collections of Finance
Charge Receivables) with respect to such Receivables which would have been
Principal Receivables but for the Servicer's inability to transfer such
Receivables (up to an aggregate amount equal to the amount of Receivables in
the Trust as of such date) in accordance with subsection 2.08(f) of the
Agreement, (B) the Servicer agrees to have such amounts applied as Collections
in accordance with Article IV and (C) for only so long as all Collections and
all amounts which would have constituted Collections are allocated and applied
in accordance with clause (B) above, Principal Receivables and all amounts which
would have constituted Principal Receivables but for the Servicer's inability to
transfer Principal Receivables to the Trust which are written off as
uncollectible in accordance with this Agreement shall continue to be allocated
in accordance with the related Supplement and all amounts which would have
constituted Principal Receivables but for the Servicer's inability to transfer
Principal Receivables to the Trust shall be deemed to be Principal Receivables
for purposes of calculating the Invested Percentage thereunder. For the purpose
of the immediately preceding sentence of this subsection 3.01(c) of the
Agreement, the Seller 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 sufficient to
pay the agreement amount of Principal Receivables in the Trust as of the date of
occurrence of such event.
(d) So long as there is no Successor Servicer 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.
(e) The Servicer shall maintain fidelity bond coverage
insuring against losses through wrongdoing of its officers and employees who are
involved in the servicing of credit card receivables covering such actions and
in such amounts as the Servicer believes to be reasonable from time to time.
40
<PAGE>
(f) The Servicer hereby agrees that, except as otherwise
required by any Requirement of Law applicable to the Servicer or as is deemed by
the Seller to be necessary in order for the Seller to maintain its credit card
business on a competitive basis based on a good faith assessment by the Seller
of the nature of its competition in the credit card business, it shall not at
any time reduce (x) the APR of the Periodic Rate Finance Charges assessed on the
Receivables with respect to which a fixed rate APR is assessed, (y) in the case
of Receivables as to which a variable rate APR is assessed, the percentage
charged in excess of the index rate used in calculating the Periodic Rate
Finance Charge, and/or (z) any fees charged on any of the Accounts, if as a
result of any such reduction, the Servicer's reasonable expectation of the
Portfolio Yield as of such date would be less than the Base Rate.
(g) 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 VISA USA, Inc. and MasterCard
International Incorporated or any substantial equivalent complying with the
provisions of subsection 2.08(h) of the Agreement, except insofar as any failure
to so comply or perform would not materially and adversely affect the rights of
the Trust or the Certificateholders hereunder or under the Certificates. The
Servicer may change the terms and provisions of the Credit Card Agreement or the
Credit Card Guidelines with respect to any Account in any respect (including,
without limitation, the calculation of the amount, or the timing, of charge-offs
and the Periodic Rate Finance Charge assessed thereon) only if in the reasonable
judgment of the Servicer (a) if the Seller owns a comparable segment of consumer
revolving credit card accounts, then such change is made applicable to such
comparable segment which has characteristics the same as, or substantially
similar to, the Accounts which are the subject of such change and (b) if it does
not own such a comparable segment, then the Servicer will not make any such
change with the intent to materially benefit the Seller over the Investor
Certificateholders.
(h) The Servicer agrees that, upon a request by the Seller
or the Trustee, it will use its best efforts to obtain and maintain the listing
of any Series of Investor Certificates on the Luxembourg Stock Exchange or other
stock exchange designated in the Supplement relating to such Series. If any such
request is made, the Servicer shall give written notice to the Seller and the
Trustee on the date on which such Series of Investor Certificates are approved
for such listing and within three Business Days following receipt of notice by
the Servicer of any actual, proposed or contemplated delisting of such Series of
Investor Certificates by the Luxembourg Stock Exchange or such other stock
exchange. The Trustee or the Servicer, each in its sole discretion, may
terminate any listing on the Luxembourg Stock Exchange or such other stock
exchange at any time subject to the notice requirements set forth in the
preceding sentence.
41
<PAGE>
Section 3.02 Servicing Compensation. As compensation for its
----------------------
servicing activities hereunder and reimbursement for its expenses as set forth
in the immediately following paragraph, the Servicer shall be entitled to
receive a monthly servicing fee in respect of any calendar month (or portion
thereof) prior to the termination of the Trust pursuant to Section 12.01 of the
Agreement (the "Servicing Fee"), payable in arrears on each Distribution Date,
equal to the sum of, with respect to all Series, one-twelfth of the product of
the applicable Servicing Fee Percentages and the sum of an allocable portion of
the amount of the Seller Interest and the applicable Invested Amount as of the
Record Date for such Distribution Date (or, in the case of the first
Distribution Date, the amount of Principal Receivables on the Cut-Off Date). The
share of the Servicing Fee allocable to each Series of Investor
Certificateholders with respect to any Distribution Date shall be equal to one-
twelfth of the product of (A) related Servicing Fee Percentage and (B) the
Invested Amount of such Series on the prior Distribution Date after giving
effect to any payment of principal on such prior Distribution Date (or, in the
case of the first Distribution Date, the Initial Invested Amount) (with respect
to any such Series, "Monthly Servicing Fee"). The remainder of the Servicing Fee
shall be paid by the Holder of the Exchangeable Seller's Certificate and in no
event shall the Trust, the Trustee or the Investor Certificateholders be liable
for the share of the Servicing Fee to be paid by the Holder of the Exchangeable
Seller's Certificate. Any Monthly Servicing Fees shall be payable to the
Servicer solely pursuant to the term of, and to the extent amounts are available
for payment under, Article IV.
The Servicer's expenses include the amounts due to the Trustee
pursuant to Section 11.05 of the Agreement and the reasonable fees and
disbursements of independent accountants and all other expenses incurred by the
Servicer in connection with its activities hereunder, and including all other
fees and expenses of the Trust not expressly stated herein to be for the account
of the Certificateholders; provided that in no event shall the Servicer be
liable for any Federal, state or local income or franchise tax, or any interest
or penalties with respect thereto, assessed on the Trust, the Trustee or the
Certificateholders except as expressly provided herein. So long as First USA is
acting as Servicer hereunder, in the event that the Servicer fails to pay the
amounts due to the Trustee pursuant to Section 11.05 of the Agreement, the
Trustee shall be entitled to receive such amounts from the Servicing Fee, prior
to the payment thereof to the Servicer. The Servicer shall be required to pay
expenses for its own account and shall not be entitled to any payment therefor
other than the Servicing Fee.
Section 3.03 Representations, Warranties and Covenants of the
------------------------------------------------
Servicer. First USA, as initial Servicer, hereby makes, and any Successor
- --------
Servicer by its appointment hereunder shall make, the following representations,
warranties and covenants with respect to any Series of Certificates as of the
date of the related Supplement and its Closing Date, unless otherwise stated in
such Supplement, on which the Trustee shall be deemed to have relied upon in
accepting the Receivables in trust and in authenticating the Certificates:
(a) Organization and Good Standing. The Servicer is a
------------------------------
national bank duly organized, validly existing and in good standing under the
laws of the United States of
42
<PAGE>
America, and has full corporate power, authority and legal right to execute,
deliver and perform its obligations under this Agreement and any Supplement and,
in all material respects, to own its property and conduct its business as such
properties are presently owned and as such business is presently conducted.
(b) Due Qualification. The Servicer is duly qualified to do
-----------------
business and is in good standing as a foreign corporation (or is exempt from
such requirements), and has obtained all necessary licenses and approvals in
each jurisdiction in which the failure to obtain such license or approval would
have a material adverse affect upon the Certificateholders.
(c) Due Authorization. The execution, delivery, and
-----------------
performance of this Agreement and any Supplement, and the consummation of the
transactions provided in this Agreement and any Supplement, have been duly
authorized by the Servicer by all necessary corporate action on the part of the
Servicer.
(d) Binding Obligation. This Agreement and any Supplement
------------------
constitute a legal, valid, and binding obligation of the Servicer, enforceable
in accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws now or hereinafter in effect affecting the enforcement of creditors' rights
in general and the rights of creditors of national banks under United States law
and except as such enforceability may be limited by general principles of equity
(whether considered in a proceeding at law or in equity).
(e) No Violation. The execution and delivery of this
------------
Agreement and any Supplement by the Servicer, and the performance of the
transactions contemplated by this Agreement and any Supplement 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 material
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 Proceeding. There are no proceedings or
-------------
investigations, pending or, to the best knowledge of the Servicer, threatened
against the Servicer before any court, regulatory body, administrative agency or
other tribunal or governmental instrumentality (i) seeking to prevent the
issuance of the Certificates or the consummation of any of the transactions
contemplated by this Agreement or any Supplement, (ii) 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 any Supplement, or (iii) seeking any determination or ruling that
would materially and adversely affect the validity or enforceability of this
Agreement or any Supplement.
43
<PAGE>
(g) Compliance with Requirements of Law. The Servicer shall
-----------------------------------
duly satisfy all obligations on its part to be fulfilled under or in connection
with the Receivables or Accounts, will maintain in effect all qualifications
required under Requirements of Law in order to properly service the Receivables
and the Accounts and will comply in all material respects with all Requirements
of Law in connection with servicing the Receivables and the Accounts the failure
to comply with which would have a material adverse effect on Investor
Certificateholders.
(h) No Recission or Cancellation. Subject to the provision
----------------------------
set forth in subsection 3.03(i) of the Agreement, the Servicer shall not permit
any rescission or cancellation of a Receivable except as ordered by a court of
competent jurisdiction or other Governmental Authority.
(i) Protection of Certificateholders' Rights. The Servicer
----------------------------------------
shall not take any action which would substantially impair or omit to take any
action necessary to avoid impairment of the rights of Certificateholders in the
Receivables, nor shall it reschedule, revise or defer Collections due on the
Receivables; provided, however, the Servicer may, in accordance with its Credit
-------- -------
Card Guidelines, the curing criteria specified in Schedule 3 and with prudent
servicing practices, make customer service adjustments and adjustments in
payment schedules in the ordinary course of business.
(j) All Consents Required. All approvals, authorizations,
---------------------
consents, orders or other actions of any Person or of any governmental body or
official required in connection with the execution and delivery by the Servicer
of this Agreement, the performance by the Servicer of the transactions
contemplated by this Agreement and the fulfillment by the Servicer of the terms
hereof, have been obtained; provided, however, that the Servicer makes no
-------- -------
representation or warranty regarding state securities or "Blue Sky" laws in
connection with the distribution of the Certificates.
In the event (x) there is any breach of any of the representations,
warranties or covenants of the Servicer contained in subsection 3.03(g), (h) or
(i) of the Agreement with respect to any Receivable or (y) the Servicer has
failed to comply in all material respects with all Requirements of Law
applicable to any Receivable or the Account relating to any Receivable, and as a
result of such breach or failure such Receivable becomes a Defaulted Receivable
or the rights of the Trust in, to or under such Receivable or its proceeds are
impaired or the proceeds of such Receivable are not available to the Trust, then
within 60 days (or with the prior consent of a Responsible Officer of the
Trustee, such longer period specified in such consent but not to exceed an
additional 60 days) of the earlier to occur of the discovery of such event by
the Servicer, or receipt by the Servicer of written notice of such event given
by the Trustee or the Seller, the Servicer shall accept the transfer of all the
Receivables in each Account as to which such event relates on the terms and
conditions set forth below; provided, however, proceeds shall not be deemed to
-------- -------
be impaired hereunder solely as a result of such proceeds being held by the
Servicer (if the Servicer is First USA) for more than the applicable period
under Section 9-306(3) of the UCC; provided, further, however, that no such
-------- ------- -------
transfer shall be required to be made with
44
<PAGE>
respect to such Receivable if, within such 60-day period, the event giving rise
to the obligation to accept the transfer of such Receivable and any material
adverse effect on the interests of Investor Certificateholders in such
Receivable shall be cured by the Servicer. The Servicer shall accept the
transfer of a Receivable by making a deposit into the Collection Account in
immediately available funds by the Transfer Date following the expiration of the
60-day period set forth in this Section in an amount equal to the Transfer
Deposit Amount for such Receivable. Upon each such transfer to the Servicer, the
Trustee shall automatically and without further action be deemed to transfer,
assign, and set over, and otherwise convey to the Servicer, without recourse,
representation or warranty, all right, title and interest of the Trust in and to
such Receivable, all monies due or to become due with respect thereto and all
proceeds thereof; and such Receivable shall be treated by the Trustee as
collected in full as of the Due Period to which such Transfer Deposit Amount
relates. The Trustee shall execute such documents and instruments of transfer or
assignment and take such other actions as shall be reasonably requested by the
Servicer to effect the conveyance of any Receivable pursuant to this Section.
The obligation of the Servicer to accept the transfer of any such Receivables
shall constitute the sole remedy respecting any breach of the representations,
warranties and covenants set forth in subsection 3.03(g), (h) or (i) of the
Agreement with respect to such Receivables available to Certificateholders or
the Trustee on behalf of Certificateholders.
Section 3.04 Reports and Records for the Trustee; Bank Account
-------------------------------------------------
Statements.
- ----------
(a) Daily Records. Upon prior notice by the Trustee, the
-------------
Servicer shall make available at an office of the Servicer selected by the
Servicer for inspection by the Trustee on a business day during the Servicer's
normal business hours a record setting forth (i) the Collections processed by
the Servicer on the preceding Business Day on each Account and (ii) the amount
of Receivables as of the close of business on the second preceding Business Day
in all Accounts. The Servicer shall, at all times, maintain its computer files
with respect to the Accounts in such a manner so that the Accounts may be
specifically identified and, upon prior request of the Trustee, shall make
available to the Trustee at an office of the Servicer selected by the Servicer
on any Business Day during the Servicer's normal business hours any computer
programs necessary to make such identification.
(b) Monthly Servicer's Certificate. Unless otherwise stated
------------------------------
in the related Supplement with respect to any Series, on the Determination Date
preceding each Distribution Date, the Servicer shall forward by facsimile or
electronic delivery (to be followed by original confirmation in writing) or
overnight delivery service to the Trustee, the Paying Agent and each Rating
Agency a certificate of a Servicing Officer substantially in the form of Exhibit
D setting forth (i) the aggregate amount of Collections processed for the Due
Period for such Distribution Date and the aggregate amount of such Collections
allocated to Principal Receivables and Finance Charge Receivables for such Due
Period, (ii) the applicable Invested Percentages with respect to such
Distribution Date of each Series of Certificates then outstanding with respect
to Principal Receivables, Finance Charge Receivables and the Investor Default
Amount, (iii) the amount, if any, of drawings or payments made or payments
received under an
45
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Enhancement, if any, for each such Series required to be made on such
Distribution Date, (iv) for each Series any statement required by Section 5.02
in the form indicated in the Supplement relating to such Series, (v) for each
Series all amounts payable to such Series on such Distribution Date in respect
of interest and in respect of principal, (vi) the excess, if any, of Aggregate
Principal Receivables over Aggregate Principal Receivables required to be
maintained pursuant to this Agreement and any Supplement as of the Determination
Date, and (vii) whether, with respect to each Series, a Liquidation Event or
other similar event is deemed to have occurred with respect to the Due Period
for such Distribution Date. Such certificate shall also include a certification
that to the best of such officer's knowledge, the Servicer has fully performed
all of its obligations under the Agreement throughout such preceding month, 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.
(c) Rating Agency Requests for Information. The Servicer
--------------------------------------
shall provide each Rating Agency such information with respect to the Trust as
such Rating Agency shall reasonably request.
Section 3.05 Annual Servicer's Certificate. The Servicer will
-----------------------------
deliver to the Trustee and each Rating Agency on or before March 31 (or for
calendar years commencing after December 31, 1999, on or before April 30) of
each calendar year, an Officers' Certificate substantially in the form of
Exhibit E stating that (a) a review of the activities of the Servicer during the
preceding calendar year and of its performance under this Agreement was made
under the supervision of the officers signing such certificate and (b) to the
best of such officers' knowledge, based on such review, the Servicer has fully
performed all of its obligations under this Agreement throughout such year, or,
if there has been a default in the performance of any such obligation,
specifying each such default known to each such officer and the nature and
status thereof. A copy of such certificate may be obtained by any
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Officer.
Section 3.06 Annual Independent Public Accountants' Servicing
------------------------------------------------
Report.
- ------
(a) On or before March 31 (or for calendar years commencing
after December 31, 1999, on or before April 30) of each calendar year, the
Servicer shall cause a firm of nationally recognized independent public
accountants (who may also render other services to the Servicer or the Seller)
to furnish a report (which report shall cover the period from January 1 to and
including December 31 of the prior calendar year or for the calendar year ending
December 31, 1990 from the Initial Closing Date to December 31, 1990) to the
Trustee, each Rating Agency and, as required, any Enhancement Provider to the
effect that they have applied certain procedures agreed upon with the Servicer
and examined certain documents and records relating to the servicing of Accounts
under this Agreement, and that, based upon such agreed upon procedures, nothing
has come to the attention of such accountants that caused them to believe the
servicing (including, without limitation, the allocation of Collections) has not
been conducted in compliance with the terms and conditions set forth in Sections
3.01, 3.04, 3.05, 3.09 and 12.01
46
<PAGE>
and Article IV of this Agreement and any Supplement, except for such exceptions
as they believe to be immaterial and such other exceptions as shall be set forth
in such statement. In addition, each report shall set forth the agreed upon
procedures performed. A copy of such report may be obtained by any
Certificateholder by a request in writing to the Trustee addressed to the
Corporate Trust Office.
(b) On or before March 31 (or for calendar years commencing
after December 31, 1999, on or before April 30) of each calendar year, the
Servicer shall cause a firm of nationally recognized independent public
accountants (who may also render other services to the Servicer or the Seller)
to furnish a report to the Trustee, each Rating Agency and, as required, any
Enhancement Provider to the effect that they have compared the mathematical
calculations of each amount set forth in the monthly certificates forwarded by
the Servicer pursuant to subsection 3.04(b) of the Agreement during the period
covered by such report (which shall be the period from January 1 to and
including December 31 of the prior calendar year or for the calendar year ending
December 31, 1990 from the Initial Closing Date to December 31, 1990) with the
Servicer's computer reports which were the source of such amounts and that on
the basis of such 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. A
copy of such report may be obtained by any Certificateholder by a request in
writing to the Trustee addressed to the Corporate Trust Office.
Section 3.07 Tax Treatment. The Seller has entered into this
-------------
Agreement and the Investor Certificates have been (or will be) issued with the
intention that the Investor Certificates will qualify under applicable tax law
as indebtedness of the Seller and the Seller, each Investor Certificateholder by
acceptance of its Certificate and each Certificate Owner by acquiring an
interest in a Certificate agrees to treat the Investor Certificates for purposes
of Federal, state and local income or franchise taxes and any other tax imposed
on or measured by income, as indebtedness of the Seller.
Section 3.08 Notices to First USA. In the event that First USA is no
--------------------
longer acting as Servicer, any Successor Servicer appointed pursuant to Section
10.02 of the Agreement shall deliver or make available to FCCNB each certificate
and report required to be prepared, forwarded or delivered thereafter pursuant
to Sections 3.04, 3.05 and 3.06 of the Agreement.
Section 3.09 Adjustments.
-----------
(a) If the Servicer adjusts downward the amount of any
Receivable because of a rebate, refund, unauthorized charge or billing error to
a cardholder, or because such Receivable was created in respect of merchandise
which was refused or returned by a cardholder, or if the Servicer otherwise
adjusts downward the amount of any Receivable without receiving Collections
therefor or charging off such amount as uncollectible, then, in any such case,
the amount of Principal Receivables used to calculate the Seller Amount, the
Seller Interest and the Seller's Percentage will be reduced by the amount of the
adjustment. Similarly, the amount of
47
<PAGE>
Principal Receivables used to calculate the Seller Amount, the Seller Interest
and the Seller's Percentage will be reduced by the amount of any Receivable
which was discovered as having been created through a fraudulent or counterfeit
charge. Any adjustment required pursuant to either of the preceding two
sentences in the amount of Principal Receivables used in the calculation of the
Seller Amount, the Seller Interest and the Seller's Percentage shall be made on
or prior to the end of the Due Period in which such adjustment obligation
arises. In the event that the exclusion of such Principal Receivables from the
calculation of the Seller Amount would cause the Seller Amount to be a negative
number, the Seller shall make a deposit into the Collection Account in
immediately available funds in an amount equal to the amount by which the Seller
Amount would be reduced below zero on the Transfer Date following the Due Period
in which such adjustment obligation arises. Any deposit into the Collection
Account in connection with the adjustment of a Receivable shall be considered an
"Adjustment Payment," shall be treated as Collections of Finance Charge
Receivables or Principal Receivables, as applicable, and shall be applied in
accordance with Article IV.
(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 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
subsection 3.09(b), no adjustments shall be made pursuant to this subsection
3.09(b) that will change any amount previously reported pursuant to subsection
3.04(b).
[END OF ARTICLE III]
48
<PAGE>
ARTICLE IV
RIGHTS OF CERTIFICATEHOLDERS AND ALLOCATION
AND APPLICATION OF COLLECTIONS
Section 4.01 Establishment of Collection Account and Allocations
---------------------------------------------------
with Respect to the Exchangeable Seller's Certificate.
- -----------------------------------------------------
(a) The Collection Account. The Trustee, for the benefit of
----------------------
the Certificateholders, shall establish and maintain or cause to be established
and maintained in the name of the Trustee, on behalf of the Trust, with an
Eligible Institution (which initially shall be FNBC) a segregated account (the
"Collection Account"), bearing a designation clearly indicating that the funds
deposited therein are held for the benefit of the Certificateholders. The
Trustee shall possess all right, title and interest in all funds on deposit from
time to time in the Collection Account and in all proceeds thereof. The
Collection Account shall be under the sole dominion and control of the Trustee
for the benefit of the Investor Certificateholders. If, at any time, the
institution holding the Collection Account ceases to be an Eligible Institution,
the Trustee (or the Servicer on its behalf) shall within 20 Business Days (or
within 5 Business Days if such institution is an Affiliate of BANK ONE)
establish a new Collection Account meeting the conditions specified above with
an Eligible Institution, transfer any cash and/or any investments to such new
Collection Account and from the date such new Collection Account is established,
it shall be the "Collection Account." Pursuant to the authority granted to the
Servicer in subsection 3.01(b), the Servicer shall have the power, revocable by
the Trustee, to make withdrawals and payments from the Collection Account and to
instruct the Trustee to make withdrawals and payments from the Collection
Account for the purposes of carrying out the Servicer's or Trustee's duties
hereunder.
Each Series of Investor Certificates shall represent interests in the
Trust, including the benefits of any Enhancement to be provided by an
Enhancement Provider issued with respect to such Series as indicated in the
Supplement relating to such Series and the right to receive Collections and
other amounts at the times and in the amounts specified in this Article IV to be
deposited in the Collection Account and any other accounts maintained for the
benefit of the Certificateholders or paid to the Investor Certificateholders.
The Exchangeable Seller's Certificate shall represent the interest in the Trust
not represented by any Series of Investor Certificates then outstanding,
including the right to receive Collections and other amounts at the times and in
the amounts specified in this Article IV to be paid to the Seller (the "Seller
Interest"), provided, however, that such certificate shall not represent any
-------- -------
interest in the Collection Account and any other accounts maintained for the
benefit of the Certificateholders or the benefits of any Enhancement to be
provided by an Enhancement Provider issued with respect to any Series, except as
specifically provided in this Article IV.
49
<PAGE>
Unless otherwise agreed by each Rating Agency then rating an
outstanding Series, if at any time neither First USA nor any affiliate of First
USA is the Servicer, the Collection Account will be moved from First USA if then
maintained there.
(b) Administration of the Collection Account. At the
----------------------------------------
direction of the Servicer, funds on deposit in the Collection Account to be so
invested shall be invested by the Trustee in Eligible Investments. All such
Eligible Investments shall be held by the Trustee for the benefit of the
Certificateholders. Investments of funds representing Collections collected
during any Due Period shall be invested in Eligible Investments that will mature
so that such funds will be available at the close of business on the Transfer
Date following such Due Period. Any funds on deposit in the Collection Account
to be so invested shall be invested solely in Eligible Investments. Funds
deposited in the Collection Account on a Transfer Date with respect to the next
following Distribution Date are not required to be invested overnight. The
Trustee shall maintain possession of the negotiable instruments or securities,
if any, evidencing the Eligible Investments described in clause (a) of the
definition thereof from the time of purchase thereof until the time of sale or
maturity. On each Distribution Date, all interest and other investment earnings
(net of losses and investment expenses) on funds on deposit in the Collection
Account shall be paid to the Holder of the Exchangeable Seller's Certificate.
(c) Identification of Account. Schedule 2, which is hereby
-------------------------
incorporated into and made a part of this Agreement, identifies the Collection
Account by setting forth the account number of such account, the account
designation of such account and the name of the institution with which such
account has been established.
(d) Allocations For the Exchangeable Seller's Certificate.
-----------------------------------------------------
Throughout the existence of the Trust, the Servicer shall allocate to the Holder
of the Exchangeable Seller's Certificate an amount equal to the product of (A)
the Seller's Percentage and (B) the aggregate amount of such Collections
allocated to Principal Receivables and Finance Charge Receivables, respectively,
for such Due Period. The Servicer need not deposit this amount, and any other
amounts so allocated to the Exchangeable Seller's Certificate pursuant to any
Supplement into the Collection Account and shall pay, or be deemed to pay, such
amounts as collected to the Holder of the Exchangeable Seller's Certificate.
(e) Allocations of Collections Between Finance Charge
-------------------------------------------------
Receivables and Principal Receivables. At all times and for all purposes of this
- -------------------------------------
Agreement, the Servicer shall allocate Collections processed on any Account for
any Due Period to Finance Charge Receivables to the extent of the sum of (i) the
amount of then current Finance Charge Receivables billed on such Account and
(ii) the amount of any Finance Charge Receivables for prior Due Periods which
were not covered by Collections for such Account allocated to Finance Charge
Receivables for such prior Due Period or by Collections thereafter allocated to
Finance Charge Receivables. The balance of the Collections processed on any
Account for any Due Period shall be allocated to Principal Receivables.
Notwithstanding anything to the contrary contained
50
<PAGE>
herein, for purposes of this Agreement and any Supplement, the Net Recoveries
Amount shall be treated as collections of Finance Charge Receivables.
(f) Unallocated Principal Collections. If, pursuant to any
---------------------------------
provisions of Article IV, Collections allocated to Principal Receivables with
respect to any Series would cause such Series (a "Retired Series") to be paid in
full or if, pursuant to such provisions, Collections of Principal Receivables
allocated to the Holder of the Exchangeable Seller's Certificate would cause the
Seller Amount, after taking into account the increase in such Seller Amount
resulting from the transfer of any new Receivables to the Trust with respect to
such Due Period, to be zero (any such Collections being referred to as
"Allocated Collections"), any Collections of Principal Receivables allocated to
a Retired Series or to the Seller Amount in the excess of Allocated Collections
(with respect to each Series, "Unallocated Principal Collections") shall be
reallocated to any other Series which would not have been allocated additional
Principal Receivables but for the application of this subparagraph (any such
allocation, an "Excess Amount Principal Allocation," and any such Series, an
"Outstanding Series"). Any Excess Amount Principal Allocation shall be performed
assuming that (a) the character of Unallocated Principal Collections as
Principal Receivables shall not be altered, (b) the Invested Percentages with
respect to any Outstanding Series shall be recalculated assuming that the
Retiring Series has been retired and that only the Outstanding Series are
outstanding, (c) Allocated Collections have been paid to the Retiring Series,
and (d) if the payment of Allocated Collections as described above causes a
Liquidation Event to occur, Unallocated Principal Collections shall be allocated
as if such Liquidation Event has occurred.
(g) Collections. First USA, as Servicer, will apply all
-----------
Collections with respect to the Receivables for each Due Period as described in
this Article IV. Subject to subsection 4.01(h), the Servicer shall deposit into
the Collection Account on the Transfer Date Collections with respect to the Due
Period for the related Distribution Date to the extent such Collections are
allocated to any Series of Investor Certificateholders in accordance with
Article IV and the Servicer shall pay such Collections to the Holder of the
Exchangeable Seller's Certificate to the extent such Collections are allocated
to the Exchangeable Seller's Certificate under subsection 4.01(d) and as
otherwise provided in Article IV. To the extent that Collections are being
deposited in the Collection Account on a daily basis pursuant to subsection
4.01(h), subject to subsection 4.01(d), the Servicer on the Determination Date
shall cause and, on any earlier date agreed to by the Seller and the Servicer,
may cause, the Trustee to pay to the Holder of the Exchangeable Seller's
Certificate from the Collection Account the Collections with respect to the Due
Period for such Distribution Date to the extent such Collections are allocated
to the Exchangeable Seller's Certificate in accordance with Article IV.
(h) Daily Collections. If:
-----------------
(i) the short-term deposit rating of the Servicer
by Standard & Poor's is below A-1 or the short-term deposit rating of the
Servicer by Moody's is below P-1; or
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<PAGE>
(ii) First USA is not the Servicer;
then within 5 Business Days of the occurrence of such event and thereafter, as
promptly as possible after the Date of Processing of Collections with respect to
the Receivables, but in no event later than two Business Days following such
Date of Processing, the Servicer shall deposit all Collections directly into the
Collection Account and the Collection Account shall be moved from the Servicer
if then maintained with it. The Servicer shall notify the Trustee of any such
event and shall provide the Trustee with the account number, account designation
of such account and name of the institution with which such account has been
established.
Should the Servicer be required to make daily deposits of Collections
into the Collection Account pursuant to this subsection, the Servicer may, upon
the approval of each Rating Agency then rating any outstanding Series, make an
estimated allocation of Collections between Finance Charge Receivables and
Principal Receivables for the purposes of determining the amount of Collections
to be so deposited; provided, however, that as soon as practical thereafter, the
-------- -------
Servicer shall reconcile the estimated allocation of Collections with the actual
allocation required under this Agreement.
(i) Net Recoveries Amount. On or prior to each
---------------------
Determination Date, the Servicer shall determine the Net Recoveries Amount to be
included in Collections of Finance Charge Receivables with respect to the
related Distribution Date. Subject to subsection 4.01(g) hereof, not later than
12:00 noon, Chicago, Illinois time, on each Transfer Date, the Seller or
Servicer, as the case may be, shall deposit into the Collection Account in
immediately available funds the Net Recoveries Amount to be included as Finance
Charge Receivables for the related Distribution Date.
[THE REMAINDER OF ARTICLE IV IS RESERVED
AND MAY BE SPECIFIED IN ANY SUPPLEMENT
WITH RESPECT TO ANY SERIES]
52
<PAGE>
ARTICLE V
[ARTICLE V IS RESERVED AND MAY BE SPECIFIED IN
ANY SUPPLEMENT WITH RESPECT TO ANY SERIES]
53
<PAGE>
ARTICLE VI
THE CERTIFICATES
Section 6.01 The Certificates. Subject to Sections 6.10 and 6.11 of
----------------
the Agreement, the Investor Certificates of each Series and any class thereof
may be issued in bearer form (the "Bearer Certificates") with attached interest
coupons and a special coupon (collectively, the "Coupons") or in fully
registered form (the "Registered Certificates"), and shall be substantially in
the form of the exhibits with respect thereto attached to the applicable
Supplement. The Exchangeable Seller's Certificate shall be substantially in the
form of Exhibit A. The Investor Certificates and the Exchangeable Seller's
Certificate shall, upon issue pursuant hereto or to Section 6.09 or Section 6.11
of the Agreement, be executed and delivered by the Seller to the Trustee for
authentication and redelivery as provided in Sections 2.09 and 6.02 of the
Agreement. Any Investor Certificates shall be issued in minimum denominations of
$1,000 and in integral multiples of $1,000 in excess thereof, unless otherwise
specified in any Supplement. If specified in the related Supplement for any
Series, the Investor Certificates shall be issued upon initial issuance as a
single certificate in an original principal amount equal to the Initial Invested
Amount as described in Section 6.10 of the Agreement. The Exchangeable Seller's
Certificate shall also be issued as a single certificate. Each Certificate shall
be executed by manual or facsimile signature on behalf of the Seller by its
Chairman of the Board, its President, Vice Chairman of the Board or any
Executive Vice President. Certificates bearing the manual or facsimile signature
of the individual who was, at the time when such signature was affixed,
authorized to sign on behalf of the Seller or the Trustee shall not be rendered
invalid, notwithstanding that such individual has ceased to be so authorized
prior to the authentication and delivery of such Certificates or does not hold
such office at the date of such Certificates. No Certificate shall be entitled
to any benefit under this Agreement or any applicable Supplement, or be valid
for any purpose, unless there appears on such Certificate a certificate of
authentication substantially in the form provided for herein executed by or on
behalf of the Trustee by the manual signature of a duly authorized signatory,
and such certificate upon any Certificate shall be conclusive evidence, and the
only evidence, that such Certificate has been duly authenticated and delivered
hereunder. All Certificates shall be dated the date of their authentication,
except Bearer Certificates which shall be dated the Issuance Date.
Section 6.02 Authentication of Certificates. Contemporaneously with
------------------------------
the original assignment and transfer of the Receivables, whether now existing or
hereafter created, and the other components of the Trust to the Trust pursuant
to the Original Pooling and Servicing Agreement, the Trustee authenticated and
delivered the initial Series of Investor Certificates distributed to investors
and the Exchangeable Seller's Certificate to the Seller. Upon an Exchange as
provided in Section 6.09 of the Agreement and the satisfaction of certain other
conditions specified therein, the Trustee has authenticated and delivered the
Investor Certificates of additional Series issued prior to the Effective Date,
and shall authenticate and deliver the Investor Certificates of additional
Series (with the designation provided in the applicable Supplement), upon the
order of the Seller, to the persons designated in such Supplement. Upon
54
<PAGE>
the order of the Seller, the Certificates of any Series shall be duly
authenticated by or on behalf of the Trustee, in authorized denominations equal
to (in the aggregate) the Initial Invested Amount of such Series of Investor
Certificates. If specified in the related Supplement for any Series, the Trustee
shall authenticate and deliver outside the United States the Global Certificate
that is issued upon original issuance thereof, upon the written order of the
Seller, to the Common Depositary as provided in Section 6.10 of the Agreement
against payment of the purchase price therefor. If specified in the related
Supplement for any Series, the Trustee shall authenticate Book-Entry
Certificates that are issued upon original issuance thereof, upon the written
order of the Seller, to a Clearing Agency or its nominee as provided in Section
6.11 of the Agreement against payment of the purchase price thereof.
Section 6.03 Registration of Transfer and Exchange of Certificates.
-----------------------------------------------------
(a) The Trustee shall cause to be kept at the office or
agency to be maintained by a transfer agent and registrar (which may be the
Trustee) (the "Transfer Agent and Registrar") in accordance with the provisions
of subsection 6.03(c) of the Agreement a register (the "Certificate Register")
in which, subject to such reasonable regulations as it may prescribe, the
Transfer Agent and Registrar shall provide for the registration of the
Registered Certificates and of transfers and exchanges of the Registered
Certificates as herein provided. FNBC is hereby initially appointed Transfer
Agent and Registrar for the purpose of registering the Registered Certificates
and transfers and exchanges of the Registered Certificates as herein provided.
FNBC shall be permitted to resign as Transfer Agent and Registrar upon 30 days'
written notice to the Seller, the Servicer and the Trustee; provided, however,
-------- -------
that such resignation shall not be effective and FNBC shall continue to perform
its duties as Transfer Agent and Registrar until the Servicer has appointed a
successor Transfer Agent and Registrar acceptable to the Seller and the Trustee.
If specified in the related Supplement for any Series of Certificates, the
Seller shall appoint any co-transfer agent and co-registrar chosen by the
Seller, and acceptable to the Trustee, including, if and so long as the
Registered Certificates are listed on the Luxembourg Stock Exchange or other
stock exchange and such exchange shall so require, a co-transfer agent and co-
registrar in Luxembourg or the location required by such other stock exchange.
If specified in such related Supplement, so long as the Registered Certificates
relating to such Supplement are outstanding, the Seller shall maintain a co-
transfer agent and co-registrar in New York City or any other city designated in
such Supplement and any reference in this Agreement to the Transfer Agent and
Registrar shall include any co-transfer agent and co-registrar unless the
context requires otherwise.
Upon surrender for registration of transfer of any Registered
Certificate at any office or agency of the Transfer Agent and Registrar
maintained for such purpose, the Seller shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Certificates in authorized denominations
of the same Series representing like aggregate Undivided Interests in the Trust;
provided, however, that the provisions of this paragraph shall not apply to
- -------- -------
Bearer Certificates.
55
<PAGE>
At the option of any Registered Certificateholder, Registered
Certificates may be exchanged for other Registered Certificates of the same
Series in authorized denominations of like aggregate Undivided Interests in the
Trust, upon surrender of the Registered Certificates to be exchanged at any
office or agency of the Transfer Agent and Registrar maintained for such
purpose. At the option of a Bearer Certificateholder, subject to applicable laws
and regulations, Bearer Certificates may be exchanged for other Bearer
Certificates or Registered Certificates of the same Series in authorized
denominations of like aggregate Undivided Interests in the Trust, upon surrender
of the Bearer Certificates to be exchanged at an office or agency of the
Transfer Agent and Registrar located outside the United States. Each Bearer
Certificate surrendered pursuant to this Section 6.03 shall have attached
thereto all unmatured Coupons, provided that any Bearer Certificate so
surrendered after the close of business on the Record Date preceding the
relevant Distribution Date after the related Series Termination Date need not
have attached the Coupon relating to such Distribution Date.
The preceding provisions of this Section 6.03 notwithstanding, the
Trustee or the Transfer Agent and Registrar, as the case may be, shall not be
required to register the transfer of or exchange any Certificate of any Series
for a period of 15 days preceding the due date for any payment with respect to
the Certificates of such Series.
Whenever any Investor Certificates of any Series are so surrendered
for exchange, the Seller shall execute, and the Trustee shall authenticate and
(unless the Transfer Agent and Registrar is different than the Trustee, in which
case the Transfer Agent and Registrar shall) deliver (in the case of Bearer
Certificates, outside the United States), the Investor Certificates of such
Series which the Certificateholder making the exchange is entitled to receive.
Every Investor Certificate presented or surrendered for registration of transfer
or exchange shall be accompanied by a written instrument of transfer in a form
satisfactory to the Trustee and the Transfer Agent and Registrar duly executed
by the Certificateholder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Investor Certificates, but the Transfer Agent and Registrar and the
Trustee or any co-transfer agent and co-registrar or co-trustee may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer or exchange of Investor Certificates.
All Investor Certificates (together with any Coupons attached to
Bearer Certificates) surrendered for registration of transfer or exchange shall
be cancelled by the Transfer Agent and Registrar and disposed of in a manner
satisfactory to the Trustee and the Seller. The Trustee shall cancel and destroy
the Global Certificate upon its exchange in full for Definitive Certificates and
shall deliver a certificate of destruction to the Seller. Such certificate shall
also state that a certificate or certificates of each Foreign Clearing Agency to
the effect referred to in Section 6.10 of the Agreement was received with
respect to each portion of the Global Certificate exchanged for Definitive
Certificates.
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The Seller shall execute and deliver to the Trustee or the Transfer
Agent and Registrar, as applicable, Bearer Certificates and Registered
Certificates in such amounts and at such times as are necessary to enable the
Trustee to fulfill its responsibilities under this Agreement and the
Certificates.
(b) It is the understanding of the parties to this
Agreement that First USA has particular expertise in performing the functions
given by this Agreement to the Servicer and that the Investor Certificateholders
will be purchasing the Certificates relying on First USA's exercising such
expertise in performing such functions. As provided in Sections 8.05 and 8.07 of
the Agreement, the Servicer is not permitted to resign and the parties
understand that the Servicer's performance of its servicing functions and the
quality of the Receivables will best be ensured if First USA retains through the
Exchangeable Seller's Certificate a substantial portion of the Seller Interest.
Accordingly, except as provided in any Supplement or in Sections 6.09, 7.02 and
7.05 of the Agreement, the Seller's interest in the Exchangeable Seller's
Certificate shall not be transferred, assigned, exchanged, pledged, participated
or otherwise conveyed, in whole or in part (any of the foregoing, a "transfer"),
unless (i) if such transfer is to an entity which is not an Affiliate of the
Seller, such transfer, assignment, exchange, pledge or conveyance would not
reduce the Seller's retained interest in the Exchangeable Seller's Certificate
below the Minimum Seller Interest Percentage for any Series then outstanding and
(ii) the Trustee receives prior to such transfer, assignment, exchange, pledge,
participation or conveyance (A) if such transfer is to an entity which is not an
Affiliate of the Seller, written confirmation from each Rating Agency that such
transfer, assignment, exchange, pledge, participation or conveyance will not
result in the Rating Agency's reducing or withdrawing its then-existing rating
on any outstanding Series rated by it and (B) an opinion of counsel which shall
be independent outside counsel to the effect that the conveyed interest in the
Seller's Exchangeable Certificate will be treated as either indebtedness or an
interest in a partnership for Federal income tax purposes and that the
conveyance of such interest will not cause the Trust to be characterized for
Federal income tax purposes as an association taxable as a corporation or
otherwise have any material adverse impact on the Federal or applicable state
income taxation of any outstanding Series of Investor Certificates or any
Certificate Owner.
(c) The Transfer Agent and Registrar will maintain at its
expense in the Borough of Manhattan, the City of New York and in Chicago,
Illinois (and, if specified in the related Supplement for any Series, Luxembourg
(or subject to Section 6.03(a) of the Agreement any other city designated in
such Supplement)), an office or offices or agency or agencies where Investor
Certificates may be surrendered for registration of transfer or exchange (except
that Bearer Certificates may not be surrendered for exchange at any such office
or agency in the United States).
(d) Unless otherwise provided in any related Supplement,
registration of transfer of Registered Certificates containing a legend relating
to the restrictions on transfer of such Registered Certificates (which legend
shall be set forth in the Supplement relating to such Investor Certificates)
shall be effected only if:
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(i) (a) the sale is of at least U.S. $500,000
principal amount of such Certificates and (b) a letter from the purchaser
satisfactory to counsel to the Servicer is executed and received; or
(ii) (a) the Registered Certificates are transferred
in compliance with Rule 144 (or any amendment thereto) or Rule 144A (or any
amendment thereto) under the United States Securities Act of 1933, as
amended, and (b) a letter from the purchaser satisfactory to counsel to the
Servicer is executed and received; or
(iii) the Registered Certificates are sold or
otherwise transferred in any other transaction that does not require
registration under the United States Securities Act of 1933, as amended,
and, if the Seller, the Servicer, the Trustee, the Transfer Agent or
Registrar so request, an Opinion of Counsel satisfactory to it, in form and
substance satisfactory to it, is furnished to such effect.
Registered Certificates issued upon registration of transfer of, or
Registered Certificates issued in exchange for, Registered Certificates bearing
the legend referred to above shall also bear such legend unless the Seller, the
Servicer, the Trustee and the Transfer Agent and Registrar receive an Opinion of
Counsel satisfactory to each of them, to the effect that such legend may be
removed.
Whenever a Registered Certificate containing the legend set forth in
the related Supplement is presented to the Transfer Agent and Registrar for
registration of transfer, the Transfer Agent and Registrar shall promptly seek
instructions from the Servicer regarding such transfer. The Transfer Agent and
Registrar and the Trustee shall be entitled to receive written instructions
signed by a Servicing Officer prior to registering any such transfer or
authenticating new Registered Certificates, as the case may be. The Servicer
hereby agrees to indemnify the Transfer Agent and Registrar and the Trustee and
to hold each of them harmless against any loss, liability or expense incurred
without negligence or bad faith on their part arising out of or in connection
with actions taken or emitted by them in reliance on any such written
instructions furnished pursuant to subsection 6.03(d) of the Agreement.
Section 6.04 Mutilated, Destroyed, Lost or Stolen Certificates. If
-------------------------------------------------
(a) any mutilated Certificate (together, in the case of Bearer Certificates,
with all unmatured Coupons (if any) appertaining thereto) is surrendered to the
Transfer Agent and Registrar, or the Transfer Agent and Registrar receives
evidence to its satisfaction of the destruction, loss or theft of any
Certificate and (b) there is delivered to the Transfer Agent and Registrar, the
Trustee and the Seller such security or indemnity as may be required by them to
save each of them harmless, then, in the absence of notice to the Trustee that
such Certificate has been acquired by a bona fide purchaser, the Seller shall
execute and the Trustee shall authenticate and (unless the Transfer Agent and
Registrar is different than the Trustee, in which case the Transfer Agent and
Registrar shall) deliver (in the case of Bearer Certificates, outside the United
States), in exchange for or in
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lieu of any such mutilated, destroyed, lost or stolen Certificate, a new
Certificate of like tenor and aggregate Undivided Interest, if applicable. In
connection with the issuance of any new Certificate under this Section 6.04, the
Trustee or the Transfer Agent and Registrar may require the payment by the
Certificateholder of a sum sufficient to cover any tax or other governmental
expenses (including the fees and expenses of the Trustee and Transfer Agent and
Registrar) connected therewith. Any duplicate Certificate issued pursuant to
this Section 6.04 shall constitute complete and indefeasible evidence of
ownership in the Trust, as if originally issued, whether or not the lost, stolen
or destroyed Certificate shall be found at any time.
Section 6.05 Persons Deemed Owners. Prior to due presentation of a
---------------------
Certificate (other than a Bearer Certificate) for registration of transfer, the
Trustee, the Paying Agent, the Transfer Agent and Registrar and any agent of any
of them may treat the person in whose name any Certificate is registered as the
owner of such Certificate for the purpose of receiving distributions pursuant to
Article IV hereof and for all other purposes whatsoever, and neither the
Trustee, the Paying Agent, the Transfer Agent and Registrar nor any agent of any
of them shall be affected by any notice to the contrary. In the case of a Bearer
Certificate, the Trustee, the Paying Agent, the Transfer Agent and Registrar and
any agent of any of them may treat the bearer of a Bearer Certificate or Coupon
as the owner of such Bearer Certificate or Coupon for the purpose of receiving
distributions pursuant to Article IV and for all other purposes whatsoever, and
neither the Trustee, the Paying Agent, the Transfer Agent and Registrar nor any
agent of any of them shall be affected by any notice to the contrary.
Notwithstanding the foregoing provisions of this Section 6.05, in determining
whether the holders of the requisite Undivided Interests have given any request,
demand, authorization, direction, notice, consent or waiver hereunder,
Certificates owned by the Seller, the Servicer or any affiliate thereof (as
defined in Rule 405 under the Securities Act of 1933, as amended), shall be
disregarded and deemed not to be outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Certificates which the
Trustee knows to be so owned shall be so disregarded. Certificates so owned
which have been pledged in good faith shall not be disregarded and may be
regarded as outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Certificates and that
the pledgee is not the United States, the Seller, the Servicer or an affiliate
thereof (as defined above).
Section 6.06 Appointment of Paying Agent. The Paying Agent shall
---------------------------
make distributions to Investor Certificateholders from the Collection Account
(or any other account or accounts maintained for the benefit of
Certificateholders as specified in the related Supplement for any Series)
pursuant to Articles IV and V hereof. Any Paying Agent shall have the revocable
power to withdraw funds from the Collection Account (or any other account or
accounts maintained for the benefit of Certificateholders as specified in the
related Supplement for any Series) for the purpose of making distributions
referred to above. The Trustee may revoke such power and remove the Paying Agent
if the Trustee determines in its sole discretion that the Paying Agent shall
have failed to perform its obligations under this Agreement in any material
respect. The Paying Agent shall initially be FNBC and any co-paying agent chosen
by FNBC
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and acceptable to the Trustee, including, if and so long as any Series of
Investor Certificates is listed on the Luxembourg Stock Exchange or other stock
exchange and such exchange so requires, a co-paying agent in Luxembourg or the
location of such other stock exchange. FNBC shall be permitted to resign as
Paying Agent upon 30 days' written notice to the Trustee and the Seller. In the
event that FNBC shall no longer be the Paying Agent, the Trustee shall appoint a
successor to act as Paying Agent. The Trustee shall cause the initial Paying
Agent and each successor Paying Agent or any additional Paying Agent appointed
by the Trustee to execute and deliver to the Trustee an instrument in which such
initial or successor Paying Agent or additional Paying Agent shall agree with
the Trustee that, as Paying Agent, such initial or successor Paying Agent or
additional Paying Agent will hold all sums, if any, held by it for payment to
the Investor Certificateholders in trust for the benefit of the Investor
Certificateholders entitled thereto until such sums shall be paid to such
Certificateholders. The Paying Agent shall return all unclaimed funds to the
Trustee and upon removal of a Paying Agent shall also return all funds in its
possession to the Trustee. The provisions of Sections 11.01, 11.02 and 11.03 of
the Agreement shall apply to FNBC also in its role as Paying Agent, for so long
as FNBC shall act as Paying Agent. Any reference in this Agreement to the Paying
Agent shall include any co-paying agent unless the context requires otherwise.
If specified in the related Supplement for any Series, so long as the
Investor Certificates of such Series are outstanding, the Seller shall maintain
a co-paying agent in New York City (for Registered Certificates only) or any
other city designated in such Supplement which, if and so long as any Series of
Investor Certificates is listed on the Luxembourg Stock Exchange or other stock
exchange and such exchange so requires, shall be in Luxembourg or the location
required by such other stock exchange.
Section 6.07 Access to List of Certificateholders' Names and
-----------------------------------------------
Addresses. The Trustee will furnish or cause to be furnished by the Transfer
- ---------
Agent and Registrar to the Servicer or the Paying Agent (or any agent thereof),
within five Business Days after receipt by the Trustee of a request therefor
from the Servicer or the Paying Agent, respectively, in writing, a list in such
form as the Servicer or the Paying Agent may reasonably require, of the names
and addresses of the Investor Certificateholders (other than Bearer
Certificateholders). If three or more Holders of Investor Certificates of any
Series or holders representing Undivided Interests in the Trust aggregating not
less than 5% of the Invested Amount of the Investor Certificates of any Series
(the "Applicants") apply in writing to the Trustee, and such application states
that the Applicants desire to communicate with other Investor Certificateholders
of any Series with respect to their rights under this Agreement or under the
Investor Certificates and is accompanied by a copy of the communication which
such Applicants propose to transmit, then the Trustee, after having been
adequately indemnified by such Applicants for its costs and expenses, shall
afford or shall cause the Transfer Agent and Registrar to afford such Applicants
access during normal business hours to the most recent list of
Certificateholders (other than Bearer Certificateholders) held by the Trustee,
within five Business Days after the receipt of such application. Such list shall
be as of a date no more than 30 days prior to the date of receipt of such
Applicants' request. The Trustee shall give prompt notice of such a request by
the Applicants to the Servicer.
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Every Certificateholder agrees with the Trustee that neither the
Trustee, the Transfer Agent and Registrar, nor any of their respective agents
shall be held accountable by reason of the disclosure of any such information as
to the names and addresses of the Certificateholders (other than Bearer
Certificateholders) hereunder, regardless of the sources from which such
information was derived.
Section 6.08 Authenticating Agent.
--------------------
(a) The Trustee may appoint one or more authenticating
agents with respect to the Certificates which shall be authorized to act on
behalf of the Trustee in authenticating the Certificates in connection with the
issuance, delivery, registration of transfer, exchange or repayment of the
Certificates. Whenever reference is made in this Agreement to the authentication
of Certificates by the Trustee or the Trustee's certificate of authentication,
such reference shall be deemed to include authentication on behalf of the
Trustee by an authenticating agent and a certificate of authentication executed
on behalf of the Trustee by an authenticating agent. Each authenticating agent
must be reasonably acceptable to the Seller.
(b) Any institution succeeding to the corporate agency
business of an authenticating agent shall continue to be an authenticating agent
without the execution or filing of any paper or any further act on the part of
the Trustee or such authenticating agent.
(c) An authenticating agent may at any time resign by
giving written notice of resignation to the Trustee and to the Seller. The
Trustee may at any time terminate the agency of an authenticating agent by
giving notice of termination to such authenticating agent and to the Seller.
Upon receiving such a notice of resignation or upon such a termination, or in
case at any time an authenticating agent shall cease to be acceptable to the
Trustee or the Seller, the Trustee promptly may appoint a successor
authenticating agent. Any successor authenticating agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
authenticating agent. No successor authenticating agent shall be appointed
unless acceptable to the Trustee and the Seller.
(d) The Servicer agrees to pay, on behalf of the Trust, to
each authenticating agent from time to time reasonable compensation for its
services under this Section 6.08.
(e) The provisions of Sections 11.01, 11.02 and 11.03 of
the Agreement shall be applicable to any authenticating agent.
(f) Pursuant to an appointment made under this Section
6.08, the Certificates may have endorsed thereon, in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
substantially the following form:
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This is one of the Certificates described in the Pooling and Servicing
Agreement.
_____________________________
_____________________________
as Authenticating Agent
for the Trustee,
by
____________________________
Authorized Officer
Section 6.09 Tender of Exchangeable Seller's Certificate.
-------------------------------------------
(a) Upon any Exchange, the Trustee shall issue to the
Seller under Section 6.01 of the Agreement for execution and redelivery to the
Trustee for authentication under Section 6.02 of the Agreement one or more new
Series of Investor Certificates. Any such Series of Investor Certificates shall
be substantially in the form specified in the applicable Supplement and shall
bear, upon its face, the designation for such Series to which it belongs so
selected by the Seller. Except as specified in any Supplement for a related
Series, all Investor Certificates of any Series shall be equally and ratably
entitled as provided herein to the benefits hereof without preference, priority
or distinction on account of the actual time or times of authentication and
delivery, all in accordance with the terms and provisions of this Agreement and
the applicable Supplement.
(b) The Seller may tender the Exchangeable Seller's
Certificate to the Trustee in exchange for (i) one or more newly issued Series
of Investor Certificates and (ii) a reissued Exchangeable Seller's Certificate
(any such tender a "Seller Exchange"). In addition, to the extent permitted for
any Series of Investor Certificates as specified in the related Supplement, the
Investor Certificateholders of such Series may tender their Investor
Certificates and the Seller may tender the Exchangeable Seller's Certificate to
the Trustee pursuant to the terms and conditions set forth in such Supplement in
exchange for (i) one or more newly issued Series of Investor Certificates and
(ii) a reissued Exchangeable Seller's Certificate (an "Investor Exchange"). The
Seller Exchange and Investor Exchange are referred to collectively herein as an
"Exchange." The Seller may perform an Exchange by notifying the Trustee, in
writing at least three days in advance (an "Exchange Notice") of the date upon
which the Exchange is to occur (an "Exchange Date"). Any Exchange Notice shall
state the designation of any Series to be issued on the Exchange Date and, with
respect to each such Series: (a) its Initial Invested
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Amount (or the method for calculating such Initial Invested Amount), if any,
which, in the aggregate, at any time, may not be greater than the current
principal amount of the Exchangeable Seller's Certificate, if any, at such time
(or in the case of an Investor Exchange, the sum of the Invested Amount of the
Series of Investor Certificates to be exchanged plus the current principal
amount of the Exchangeable Seller's Certificate), and (b) its Certificate Rate
(or the method for allocating interest payments or other cash flow to such
Series), if any. On the Exchange Date, the Trustee shall only authenticate and
deliver any such Series upon delivery to it of the following: (a) a Supplement
in form satisfactory to the Trustee executed by the Seller and specifying the
Principal Terms of such Series, (b) the applicable Enhancement, if any, (c) an
Opinion of Counsel to the effect that, unless otherwise stated in the related
Supplement, the newly issued Series of Investor Certificates will be treated as
debt for Federal income tax purposes and that the issuance of the newly issued
Series of Investor Certificates will not adversely affect the Federal income tax
characterization of the Holder of any outstanding Series of Investor
Certificates or any Certificate Owner, (d) an agreement, if any, pursuant to
which the Enhancement Provider agrees to provide Enhancement, (e) written
confirmation from each Rating Agency that the Exchange will not result in the
Rating Agency's reducing or withdrawing its rating on any then outstanding
Series rated by it and (f) the existing Exchangeable Seller's Certificate or
applicable Investor Certificates, as the case may be. Upon satisfaction of such
conditions, the Trustee shall cancel the existing Exchangeable Seller's
Certificate or applicable Investor Certificates, as the case may be and issue,
as provided above, such Series of Investor Certificates and a new Exchangeable
Seller's Certificate, dated the Exchange Date.
(c) In conjunction with an Exchange, the parties hereto
shall execute a Supplement, which shall specify the relevant terms with respect
to any Series of Investor Certificates, which may include, without limitation:
(i) its name or designation, (ii) an initial Invested Amount or the method of
calculating the Initial Invested Amount, (iii) a Certificate Rate (or formula
for the determination thereof), (iv) the rights of the Holder of the
Exchangeable Seller's Certificate that have been transferred to the Holders of
such Series pursuant to such Exchange (including any rights to allocations of
Collections of Finance Charge Receivables and Principal Receivables), (v) the
interest payment date or dates and the date or dates from which interest shall
accrue, (vi) the method of allocating Collections with respect to Principal
Receivables for such Series and, if applicable, with respect to other Series and
the method by which the principal amount of Investor Certificates of such Series
shall amortize or accrete and the method for allocating Collections with respect
to Finance Charge Receivables and Receivables in Defaulted Accounts, (vii) the
names of any accounts to be used by such Series and the terms governing the
operation of any such account, (viii) the Servicing Fee Percentage, (ix) the
Minimum Seller Interest Percentage, (x) Minimum Aggregate Principal Receivables,
(xi) the Series Termination Date, (xii) the terms of any Enhancement, (xiii) the
Enhancement Provider, (xiv) the Base Rate, (xv) the Repurchase Terms or the
terms on which the Certificates of such Series may be remarketed to other
investors, (xvi) any deposit into any account provided for such Series, (xvii)
the number of Classes of such Series, and if more than one Class, the rights and
priorities of each such Class, (xviii) the extent to which the Investor
Certificates will be issuable in temporary or permanent global form, and in such
case, the depository for such global
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certificate or certificates, the terms and conditions, if any, upon
which such global certificate may be exchanged in whole or in part for
Definitive Certificates, and the manner in which any interest payable on a
temporary or global certificate will be paid, (xix) whether the Certificates may
be issued in bearer form and any limitations imposed thereon, (xx) whether
interchange will be included in the funds available to be paid for such Series,
(xxi) the priority of any Series with respect to any other Series, and (xxii)
any other relevant terms of such Series (all such terms, the "Principal Terms"
of such Series). If on the date of the issuance of such Series there is issued
and outstanding no Series of Investor Certificates which is currently rated by a
Rating Agency, then as a condition to such Exchange a nationally recognized
investment banking firm or commercial bank shall also deliver to the Trustee an
officer's certificate stating, in substance, that the Exchange will not have an
adverse effect on the timing or distribution of payments to such other Series
of Investor Certificates then issued and outstanding.
Section 6.10 Global Certificate; Euro-Certificate Exchange
---------------------------------------------
Date.
- ----
(a) If specified in the related Supplement for any Series,
the Investor Certificates may be initially issued in the form of a single
temporary Global Certificate (the "Global Certificate") in bearer form, without
interest coupons, in the denomination of the Initial Invested Amount and
substantially in the form attached to the applicable Supplement. Unless
otherwise specified in the applicable Supplement, the provisions of this Section
6.10 shall apply to such Global Certificate. The Global Certificate will be
authenticated by the Trustee upon the same conditions, in substantially the same
manner and with the same effect as the Definitive Certificates. The Global
Certificate may be exchanged as described below for Bearer and/or Registered
Certificates in definitive form (the "Definitive Euro-Certificates").
Notwithstanding the foregoing, no Certificates shall be issued in bearer form
unless the terms and procedures governing issuance and transfer of such
Certificates result in favorable treatment to Investor Certificateholders under
the Bearer Rules.
(b) The Manager shall, upon its determination of the date
of completion of the distribution of the Certificates, so advise the Trustee,
the Seller, the Common Depositary, and each Foreign Clearing Agency in writing
forthwith. Without unnecessary delay, but in any event not later than the 30th
day prior to the Euro-Certificate Exchange Date, the Seller will execute and
deliver to the Trustee at its office or designated agent outside the United
States definitive Bearer Certificates in an aggregate principal amount equal to
the Initial Invested Amount. All Bearer Certificates so issued and delivered
will have Coupons attached. The Global Certificate may be exchanged for an equal
aggregate principal amount of Definitive Euro-Certificates only on or after the
Euro-Certificate Exchange Date. Notwithstanding the preceding sentence, a United
States institutional investor may at any time exchange the portion of the Global
Certificate beneficially owned by it for an equal aggregate principal amount of
Registered Certificates bearing the applicable legend set forth in the related
Supplement and having a minimum denomination of $500,000, which may be in
temporary form if the Seller so elects. A United States institutional investor
will be required to deliver to the Seller, the Trustee and the Manager at the
time of its purchase of Registered Certificates a signed certificate
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substantially in the form attached to the Supplement for the related
Series. Upon any demand for exchange for Definitive Certificates in accordance
with this paragraph, the Seller shall cause the Trustee to authenticate and
deliver the Definitive Certificates to the Holder (x) outside the United States,
in the case of Bearer Certificates, and (y) according to the instructions of the
Holder, in the case of Registered Certificates, but only upon presentation to
the Trustee of a written statement substantially in the form attached to the
Supplement for the related Series with respect to the Global Certificate or
portion thereof being exchanged signed by a Foreign Clearing Agency, to the
effect that it has received in writing or by tested telex a certification
substantially in the form of (i) in the case of beneficial ownership of the
Global Certificate or a portion thereof being exchanged by a United States
institutional investor pursuant to the second preceding sentence, the
certificate attached to the Supplement for the related Series signed by the
Manager (which sold the relevant Certificates) or (ii) in all other cases, the
alternative certificate attached to the Supplement for the related Series, the
alternative certificate referred to in this clause (ii) being dated no earlier
than 15 days prior to the Euro-Certificate Exchange Date and signed by or on
behalf of the person appearing in the records of a Foreign Clearing Agency as
the beneficial owner of the Global Certificate or portion thereof being
exchanged. Upon receipt of such certification the Trustee shall cause the Global
Certificate to be endorsed in accordance with paragraph (d) below. Any exchange
as provided in this subsection 6.10(b) shall be made free of charge to the
holders and the beneficial owners of the Global Certificate and to the
beneficial owners of the Definitive Euro-Certificates issued in exchange, except
that a person receiving Definitive Euro-Certificates must bear the cost of
insurance, postage, transportation and the like in the event that such person
does not receive such Definitive Euro-Certificates in person at the offices of a
Foreign Clearing Agency.
(c) The delivery to the Trustee by a Foreign Clearing
Agency of any written statement referred to above may be relied upon by the
Seller and the Trustee as conclusive evidence that a corresponding certification
or certifications has or have been delivered to such Foreign Clearing Agency,
pursuant to the terms of this Agreement.
(d) Upon any such exchange of all or a portion of the
Global Certificate for a Definitive Euro-Certificate or certificates, such
Global Certificate shall be endorsed by or on behalf of the Trustee to reflect
the reduction of its principal amount by an amount equal to the aggregate
principal amount of such Definitive Euro-Certificate or Certificates. Until so
exchanged in full, such Global Certificate shall in all respects be entitled to
the same benefits under this Agreement as Definitive Euro-Certificates
authenticated and delivered hereunder except that the beneficial owners of such
Global Certificate shall not be entitled to receive payments of interest on the
Certificates until they have exchanged their beneficial interests in such Global
Certificate for Definitive Euro-Certificates.
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Section 6.11 Book-Entry Certificates. Unless otherwise provided in
-----------------------
any related Supplement, the Investor Certificates, upon original issuance, will
be issued in the form of the requisite number of typewritten Certificates
representing the Book-Entry Certificates, to be delivered to The Depository
Trust Company, the initial Clearing Agency, by, or on behalf of, the Seller. The
Investor Certificates shall initially be registered on the Certificate Register
in the name of CEDE & Co., the nominee of the Clearing Agency, and no
Certificate Owner will receive a definitive certificate representing such
Certificate Owner's interest in the Investor Certificates, except as provided in
Section 6.13 of the Agreement. Unless and until definitive, fully registered
Investor Certificates (the "Definitive Certificates") have been issued to
Certificate Owners pursuant to Section 6.13 of the Agreement:
(i) the provision of this Section 6.11 shall be in
full force and effect;
(ii) the Seller, the Servicer, the Paying Agent, the
Transfer Agent and Registrar and the Trustee may deal with the Clearing
Agency and the Clearing Agency Participants for all purposes (including the
making of distributions on the Investor Certificates) as the authorized
representatives of the Certificate Owners;
(iii) to the extent that the provisions of this
Section 6.11 conflict with any other provisions of this Agreement, the
provisions of this Section 6.11 shall control;
(iv) the rights of Certificate Owners shall be
exercised only through the Clearing Agency and the Clearing Agency
Participants and shall be limited to those established by law and
agreements between such Certificate Owners and the Clearing Agency and/or
the Clearing Agency Participants. Pursuant to the Depository Agreement,
unless and until Definitive Certificates are issued pursuant to Section
6.13 of the Agreement, the initial Clearing Agency will make book-entry
transfers among the Clearing Agency Participants and receive and transmit
distributions of principal and interest on the Investor Certificates to
such Clearing Agency Participants; and
(v) whenever this Agreement requires or permits
actions to be taken based upon instructions or directions of a specified
percentage of the Invested Amount of any or all Series of Certificates
outstanding, the Clearing Agency shall be deemed to represent such
percentage only to the extent that it has received instructions to such
effect from Certificate Owners and/or Clearing Agency Participants owning
or representing, respectively, such required percentage of the beneficial
interest in Investor Certificates.
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Section 6.12 Notices to Clearing Agency. Whenever notice or other
--------------------------
communication to the Investor Certificateholders is required under this
Agreement, unless and until Definitive Certificates shall have been issued to
Certificate Owners pursuant to Section 6.13 of the Agreement, the Trustee, the
Servicer and the Paying Agent shall give all such notices and communications
specified herein to be given to Holders of the Investor Certificates to the
Clearing Agency or Agencies.
Section 6.13 Definitive Certificates. If Book-Entry Certificates
-----------------------
have been issued pursuant to Section 6.11 and if (i)(A) the Seller advises the
Trustee in writing that the Clearing Agency is no longer willing or able to
discharge properly its responsibilities under the Depository Agreement, and (B)
the Trustee or the Seller is unable to locate a qualified successor, (ii) the
Seller at its option, advises the Trustee in writing that it elects to terminate
the book-entry system through the Clearing Agency or (iii) after the occurrence
of a Servicer Default, Certificate Owners representing beneficial interests
aggregating not less than 50% of the Aggregate Invested Amount advise the
Trustee and the Clearing Agency through the Clearing Agency Participants in
writing that the continuation of a book-entry system through the Clearing Agency
is no longer in the best interests of the Certificate Owners, the Trustee shall
notify all Certificate Owners, through each applicable Clearing Agency, of the
occurrence of any such event and of the availability of Definitive Certificates
to Certificate Owners requesting the same. Upon surrender to the Trustee of the
Investor Certificates by the Clearing Agency, accompanied by registration
instructions from the Clearing Agency for registration, the Trustee shall issue
the Definitive Certificates. Neither the Seller, the Transfer Agent and
Registrar nor the Trustee shall be liable for any delay in delivery of such
instructions and may conclusively rely on, and shall be protected in relying on,
such instructions. Upon the issuance of Definitive Certificates all references
herein to obligations imposed upon or to be performed by the Clearing Agency
shall be deemed to be imposed upon and performed by the Trustee, to the extent
applicable with respect to such Definitive Certificates and the Trustee shall
recognize the Holders of the Definitive Certificates as Certificateholders
hereunder.
Section 6.14 Meetings of Certificateholders.
------------------------------
(a) Unless not permitted by the Supplement for any Series
issued in whole or in part in Bearer Certificates, the Servicer or the Trustee
may at any time call a meeting of the Certificateholders of such Series, to be
held at such time and at such place as the Servicer or the Trustee, as the case
may be, shall determine, for the purpose of approving a modification of or
amendment to, or obtaining a waiver of, any covenant or condition set forth in
this Agreement with respect to such Series or in the Certificates of such
Series, subject to Section 13.01 of the Agreement. References in this Section to
Certificateholders shall be deemed to refer to the Exchangeable Seller's
Certificate and only those Series of Investor Certificates for which the
specification referred to in the preceding sentence is made in the Supplement.
Notice of any meeting of Certificateholders, setting forth the time and place of
such meeting and in general terms the action proposed to be taken at such
meeting, shall be given in accordance with Section 13.05 of the Agreement and
at least once in an Authorized Newspaper in the City of New
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York and, so long as the Certificates are listed on the Luxembourg Stock
Exchange or other stock exchange and such exchange so requires, in Luxembourg or
the location required by such other stock exchange, the first publication to be
not less than 20 nor more than 180 days prior to the date fixed for the meeting.
To be entitled to vote at any meeting of Certificateholders, a person shall be
(i) a Holder of one or more Certificates or (ii) a person appointed by an
instrument in writing as proxy by the Holder of one or more Certificates. The
only Persons who shall be entitled to be present or to speak to any meeting of
Certificateholders shall be the Persons entitled to vote at such meeting and
their counsel and any representatives of the Seller, the Servicer and the
Trustee and their respective counsels.
(b) At a meeting of the Certificateholders of a Series,
Holders of Investor Certificates evidencing Undivided Interests aggregating a
majority of the Invested Amount of such Series and entitled to vote shall
constitute a quorum. No business shall be transacted in the absence of a quorum,
unless a quorum is present when the meeting is called to order. In the absence
of a quorum at any such meeting, the meeting may be adjourned for a period of
not less than 10 days; in the absence of a quorum at any such adjourned meeting,
such adjourned meeting may be further adjourned for a period of not less than 10
days; at the reconvening of any meeting further adjourned for lack of a quorum,
the Persons entitled to vote 25% in Undivided Interest of all of the
Certificates of such Series at the time outstanding and entitled to vote shall
constitute a quorum for the taking of any action set forth in the notice of the
original meeting. Subject to the provisions of Section 13.01 of the Agreement,
at a meeting or an adjourned meeting duly convened and at which a quorum is
present as aforesaid, any resolution to modify or amend, or to waive compliance
with, any of the covenants or conditions referred to above shall be effectively
passed and decided if passed and decided by the Persons entitled to vote 66 2/3%
in Undivided Interest of the Certificates of such Series represented and voting
at the Meeting. Notice of the reconvening of any adjourned meeting shall be
given as provided above except that such notice must be given not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of an adjourned meeting shall state expressly the
percentage of the aggregate principal amount of the outstanding Certificates of
such Series which shall constitute a quorum.
(c) Any Certificateholder who has executed an instrument in
writing appointing a person as proxy shall be deemed to be present for the
purposes of determining a quorum and be deemed to have voted; provided that such
Certificateholder shall be considered as present or voting only with respect to
the matters covered by such instrument in writing. Subject to the provisions of
Section 13.01 of the Agreement, any resolution passed or decision taken at any
meeting of Certificateholders duly held in accordance with this Section 6.14
shall be binding on all the Certificateholders of such Series whether or not
present or represented at the meeting.
(d) The holding of Bearer Certificates shall be proved by
the production of such Bearer Certificates or by a certificate, satisfactory to
the Servicer and the Trustee, executed by any bank, trust company or recognized
securities dealer, wherever situated, satisfactory to the Servicer and the
Trustee. Each such certificate shall be dated and shall state
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that on the date thereof a Bearer Certificate bearing a specified
serial number was deposited with or exhibited to such bank, trust company or
recognized securities dealer by the person named in such certificate. Any such
certificate may be issued in respect of one or more Bearer Certificates
specified therein. The holding by the person named in any such certificate of
any Bearer Certificate specified therein shall be presumed to continue for a
period of one year from the date of such certificate unless at the time of any
determination of such holding (i) another certificate bearing a later date
issued in respect of the same Bearer Certificate shall be produced, (ii) the
Bearer Certificate specified in such certificate shall be produced by some other
person or (iii) the Bearer Certificate specified in such certificate shall have
ceased to be outstanding. The appointment of any proxy shall be proved by having
the signature of the person executing the proxy guaranteed by any bank, trust
company or recognized securities dealer satisfactory to the Trustee. The holding
of Registered Certificates shall be proved by the Certificate Register or by a
certificate or certificates of the Transfer Agent and Registrar.
(e) The Trustee shall appoint a temporary chairman of the
meeting. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the holders of a majority in Undivided Interest of the
Certificates of such Series represented at the meeting. No vote shall be cast or
counted at any meeting in respect of any Certificate challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote except as a
Certificateholder or proxy. Any meeting of Certificateholders duly called at
which a quorum is present may be adjourned from time to time, and the meeting
may be held as so adjourned without further notice.
(f) The vote upon any resolution submitted to any meeting
of Certificateholders shall be by written ballot on which shall be subscribed
the signatures of the Certificateholders or proxies and on which shall be
inscribed the serial number or numbers of the Certificates held or represented
by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in duplicate of all votes cast at the meeting. A record
in duplicate of the proceedings of each meeting of Certificateholders shall be
prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
facts setting forth a copy of the notice of the meeting and showing that said
notice was published as provided above. The record shall be signed and verified
by the permanent chairman and secretary of the meeting and one of the duplicates
shall be delivered to the Servicer and the other to the Trustee to be preserved
by the Trustee, the latter to have attached thereto the ballots voted at the
meeting. Any record so signed and verified shall be conclusive evidence of the
matters therein stated.
[END OF ARTICLE VI]
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ARTICLE VII
OTHER MATTERS RELATING TO THE SELLER
Section 7.01 Liability of the Seller. The Seller shall be liable for
-----------------------
each obligation, covenant, representation and warranty of the Seller, arising
under or related to this Agreement or any Supplement. Except as provided in the
preceding sentence, the Seller shall be liable only to the extent of the
obligations specifically undertaken by the Seller in its capacity as Seller
hereunder.
Section 7.02 Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, the Seller.
- --------------------------
(a) The Seller shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets substantially
as an entirety to any Person unless:
(i) the corporation formed by such consolidation or
into which the Seller is merged or the Person which acquires by conveyance
or transfer the properties and assets of the Seller Substantially as an
entirety shall be, if the Seller 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 and loan association, national
association, a bank or other entity which is not subject to the bankruptcy
laws of the United States of America and, if the Seller is not the
surviving entity, shall expressly assume, by an agreement supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, the performance of every covenant and obligation of the Seller
hereunder; and
(ii) the Seller has delivered to the Trustee an
officers' certificate signed by a Vice President (or any more senior
officer) of the Seller and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental
agreement comply with this Section 7.02 and that all conditions precedent
herein provided for relating to such transaction have been complied with;
and
(iii) the Seller has delivered notice to each Rating
Agency of such consolidation, merger, conveyance or transfer.
(b) The obligations of the Seller hereunder shall not be
assignable nor shall any Person succeed to the obligations of the Seller
hereunder except in each case in accordance with the provisions of the foregoing
paragraph.
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Section 7.03 Limitation on Liability of the Seller. Subject to
-------------------------------------
Sections 7.01 and 7.04 of the Agreement, neither the Seller nor any of its
directors or officers or employees or agents in its capacity as Seller shall be
under any liability to the Trust, the Trustee, the Certificateholders or any
other Person for any action taken or for refraining from the taking of any
action in the capacity as Seller pursuant to this Agreement whether arising from
express or implied duties under this Agreement or any Supplement; provided,
--------
however, that this provision shall not protect the Seller or any such person
- -------
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 Seller and
any director or officer or employee or agent of the Seller may rely in good
faith on any document of any kind prima facie properly executed and submitted by
----- -----
any Person respecting any matters arising hereunder.
Section 7.04 Liabilities. Notwithstanding Sections 7.01 and 7.03 of
-----------
the Agreement, by entering into this Agreement, the Seller agrees to be liable,
directly to the injured party, for the entire amount of any losses, claims,
damages or liabilities (other than those incurred by a Certificateholder in the
capacity of an investor in the Investor Certificates of any Series) arising out
of or based on the arrangement created by this Agreement or any Supplement and
the actions of the Servicer taken pursuant hereto as though the Agreement and
any Supplement created a partnership under the Uniform Partnership Act. The
Seller agrees to pay, indemnify and hold harmless each investor
Certificateholder of any Series against and from any and all such losses,
claims, damages and liabilities except to the extent that they arise from any
action by such Investor Certificateholder causing such losses, claims, damages
or liabilities. In the event of a Service Transfer, the Successor Servicer will
indemnify and hold harmless the Seller for any losses, claims, damages and
liabilities of the Seller arising under this Section 7.04 from the actions or
omissions of such Successor Servicer.
Section 7.05 Transfer or Conveyance of Accounts.
----------------------------------
(a) The Seller may sell, transfer, pledge or otherwise
convey its interest in Accounts, including the Receivables in such Accounts
(which Accounts, if less than all of the Accounts shall be selected by the
Seller in a manner that would not result in a material adverse effect on the
Investor Certificateholders or, as applicable, any Enhancement Provider) to any
Person, in whole or in part, upon satisfaction of the conditions set forth in
subsection 7.05(b) of the Agreement (such a transaction is referred to in this
Section 7.05 as a "Conveyance"). In conjunction with any Conveyance, the Seller
shall execute and the Trustee shall authenticate and deliver or cause to be
authenticated and delivered to the transferee a certificate substantially in the
form of the Exchangeable Seller's Certificate (the "Transferee Certificate")
which represents the transferred interest in such Accounts and a pro rata
portion of the Exchangeable Seller's Certificate, and, if applicable, the
Receivables in such Accounts, upon surrender to the Trustee of the Exchangeable
Seller's Certificate. The consummation of any Conveyance, and the issuance of
the Transferee Certificate in conjunction therewith, shall not require the
consent of the Holders of the Investor Certificates of any Series except as
provided in this Section 7.05.
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(b) No Conveyance may be effected unless and until the
following conditions precedent are satisfied:
(i) the Person that acquires by Conveyance a
Transferee's Certificate shall (A) be organized and existing under the laws
of the United States of America or any state or the District of Columbia
thereof, and shall be a savings and loan association, a national
association, a bank or other entity that is not subject to the bankruptcy
laws of the United States of America and (B) expressly assume, by an
agreement supplemental hereto in form satisfactory to the Trustee, executed
and delivered to the Trustee, the performance of every covenant and
obligation of the Seller hereunder with respect to such Accounts;
(ii) the Seller shall deliver to the Trustee and
each Enhancement Provider an Officer's Certificate stating that such
Conveyance and such supplemental agreement comply with this Section 7.05
and that all conditions precedent provided by this subsection 7.05(b) have
been complied with and an Opinion of Counsel stating that all conditions
precedent provided by this subsection 7.05(b) have been complied with, and
the Trustee may conclusively rely on such Officer's Certificate, shall have
no duty to make inquiries with regard to the matters set forth therein and
shall incur no liability in so relying;
(iii) the Seller shall deliver to the Trustee and
each Enhancement Provider a letter from each Rating Agency rating the
Investor Certificates, confirming that the rating of such Certificates,
after giving effect to such Conveyance, will not be lowered or withdrawn;
(iv) the Seller shall deliver to the Trustee and
each Enhancement Provider an Opinion of Counsel to the effect that (a) such
transfer will not adversely affect the treatment of the Certificates after
such transfer as debt for Federal and applicable state income tax purposes
and (b) such transfer will not have any material adverse effect on the
Federal income taxation of an Investor Certificateholder or any Certificate
owner;
(v) all filings and other actions necessary to
continue the perfection of the interest of the Trust in the Receivables and
the other property conveyed hereunder shall have been taken or made; and
(vi) the Seller shall obtain the consent to the
Conveyance of each Enhancement Provider, to the extent required in any
Supplement or in any related Enhancement Agreement, and the Holders of
Investor Certificates with respect to each Series evidencing Undivided
Interests aggregating more than 51% of the Invested Amount for such Series.
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(c) The holder of the Transferee Certificate shall be
entitled to such rights and benefits of the Seller hereunder as are specified in
a written notice from the Seller to the Trustee delivered prior to the effective
date of the Conveyance.
[END OF ARTICLE VII]
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ARTICLE VIII
OTHER MATTERS RELATING TO THE SERVICER
Section 8.01 Liability of the Servicer. The Servicer shall be liable
-------------------------
under this Agreement only to the extent of the obligations specifically
undertaken by the Servicer in its capacity as Servicer.
Section 8.02 Merger or Consolidation of, or Assumption of the
------------------------------------------------
Obligations of, the Servicer.
- ----------------------------
(a) The Servicer shall not consolidate with or merge into
any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
(i) the corporation formed by such consolidation or
into which the Servicer is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Servicer
substantially as an entirety shall be a corporation organized and existing
under the laws of the United States of America or any State or the District
of Columbia, and shall be a savings and loan association, a national
association, a bank or other entity which is not subject to the bankruptcy
laws of the United States of America and, if the Servicer is not the
surviving entity, such corporation shall expressly assume, by an agreement
supplemental hereto executed and delivered to the Trustee in a form
satisfactory to the Trustee, the performance of every covenant and
obligation of the Servicer hereunder; and
(ii) the Servicer has delivered to the Trustee an
officer's certificate signed by a Vice President (or more senior officer)
of the Servicer and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer comply with this Section 8.02
and that all conditions precedent herein provided for relating to such
transaction have been complied with; and
(iii) the Servicer has delivered notice to each
Rating Agency of such consolidation, merger, conveyance or transfer.
Section 8.03 Limitation on Liability of the Servicer and Others.
--------------------------------------------------
Except as provided in Section 8.04 of the Agreement with respect to the Trust
and the Trustee, neither the Servicer nor any of the directors or officers or
employees or agents of the Servicer shall be under any liability to the Trust,
the Trustee, the Certificateholders or any other person for any action taken or
for refraining from the taking of any action in its capacity as Servicer
pursuant to this Agreement or any Supplement; provided, however, that this
-------- -------
provision shall not protect the Servicer or any such person 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
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<PAGE>
reckless disregard of obligations and duties hereunder. The Servicer
and any director or officer or 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 respecting any matters arising hereunder. The Servicer
shall not be under any obligation to appear in, prosecute or defend any legal
action which is not incidental to its duties to service the Receivables in
accordance with this Agreement or any Supplement which in its reasonable opinion
may involve it in any expense or liability.
Section 8.04 Servicer Indemnification of the Trust and the Trustee.
-----------------------------------------------------
The Servicer shall indemnify and hold harmless the Trust, for the benefit of the
Certificateholders, and the Trustee, from and against any loss, liability,
expense, damage or injury suffered or sustained by reason of any acts, omissions
or alleged acts or omissions arising out of activities of the Trust or the
Trustee pursuant to this Agreement or any Supplement, including those arising
from acts or omissions of the Servicer pursuant to this Agreement or any
Supplement, 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 Trust or the
- -------- -------
Trustee if such acts, omissions or alleged acts or omissions constitute fraud,
negligence or willful misconduct by the Trustee; and provided further, that the
-------- -------
Servicer shall not indemnify the Trust, the Trustee or the Investor
Certificateholders for any liability, cost or expense of the Trust or the
Trustee with respect to any action taken by the Trustee at the request of the
Investor Certificateholders nor with respect to any Federal, state or local
income or franchise taxes (or any interest or penalties with respect thereto)
required to be paid by the Trust or the Investor Certificateholders in
connection herewith to any taxing authority. Subject to Sections 7.01 and 7.04
and subsection 10.02(b) of the Agreement, any indemnification pursuant to this
Section shall only be from the assets of the Servicer. The provisions of this
indemnity shall run directly to and be enforceable by an injured party subject
to the limitations hereof.
Section 8.05 The Servicer Not to Resign. The Servicer shall not
--------------------------
resign from the obligations and duties hereby imposed on it except upon
determination that (i) the performance of its duties hereunder is no longer
permissible under applicable law and (ii) there is no reasonable action which
the Servicer could take to make the performance of its duties hereunder
permissible under applicable law. Any such determination permitting the
resignation of the Servicer shall be evidenced as to clause (i) above by an
Opinion of Counsel to such effect delivered to the Trustee. No such resignation
shall become effective until the Trustee or a Successor Servicer shall have
assumed the responsibilities and obligations of the Servicer in accordance with
Section 10.02 of the Agreement.
Section 8.06 Access to Certain Documentation and Information
-----------------------------------------------
Regarding the Receivables. The Servicer shall provide to the Trustee reasonable
- -------------------------
access to the documentation regarding the Accounts and the Receivables in such
cases where the Trustee is required in connection with the performance of its
obligation under this Agreement or any Supplement, the enforcement of the rights
of the Investor Certificateholders, or by applicable statutes or regulations to
review such documentation, such access being afforded without charge but only
(i) upon
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reasonable request, (ii) during normal business hours, (iii) subject to the
Servicer's normal security and confidentiality procedures and (iv) at offices
designated by the Servicer. Nothing in this Section 8.06 shall derogate from the
obligation of the Seller, the Trustee or the Servicer to observe any applicable
law prohibiting disclosure of information regarding the Obligors and the failure
of the Servicer to provide access as provided in this Section 8.06 as a result
of such obligation shall not constitute a breach of this Section 8.06.
Section 8.07 Delegation of Duties. In the ordinary course of
--------------------
business, the Servicer may at any time delegate any duties hereunder to any
Person who agrees to conduct such duties in accordance with the Credit Card
Guidelines and this Agreement; however, if such delegation is to a Person other
than [First Data Resources, Inc.] and is not in the ordinary course of the
Servicer's business, written notice shall be given to the Trustee and each
Rating Agency of such delegation. Any 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 8.05 of the Agreement.
Section 8.08 Examination of Records. The Seller and Servicer shall
----------------------
indicate clearly and unambiguously in its computer files or other records that
the Receivables arising in the Accounts have been conveyed to the Trust pursuant
to this Agreement for the benefit of the Certificateholders. The Seller and
Servicer shall, prior to the sale or transfer to a third party of any receivable
held in its custody, examine its computer and other records to determine that
such receivable is not a Receivable.
[END OF ARTICLE VIII]
76
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ARTICLE IX
LIQUIDATION EVENTS
Section 9.01 Liquidation Events. Unless modified with respect to any
------------------
Series of Investor Certificates by any related Supplement, if any one of the
following events shall occur:
(a) the Seller shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Seller or of or relating to all or substantially all of its property, or a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Seller; or the Seller shall admit
in writing its inability to pay its debts generally as they become due, file a
petition to take advantage of any applicable insolvency or reorganization
statute, make an assignment for the benefit of its creditors or voluntarily
suspend payment of its obligations; or the Seller shall become unable for any
reason to transfer Receivables to the Trust in accordance with the provisions of
this Agreement; or
(b) the Trust shall become an "investment company" within
the meaning of the Investment Company Act of 1940, as Amended; then a
Liquidation Event with respect to all Series of Certificates shall occur without
any notice or other action on the part of the Trustee or Investor
Certificateholders.
Section 9.02 Additional Rights Upon the Occurrence of Certain
------------------------------------------------
Events.
- ------
(a) If the Seller voluntarily goes into liquidation or
either the FDIC or any other Person shall be appointed as a receiver or
conservator of the Seller, the Seller shall on the day of such appointment (the
"Appointment Date") immediately cease to transfer Principal Receivables to the
Trust and shall promptly give notice to the Trustee of such appointment.
Notwithstanding any cessation of the transfer to the Trust of additional
Principal Receivables, Principal Receivables transferred to the Trust prior to
the occurrence of such voluntary or involuntary liquidation event and
Collections in respect of such Principal Receivables shall continue to be a
part of the Trust. Within 15 days of the Appointment Date, the Trustee shall
(i) publish a notice in an Authorized Newspaper in the City of New York, in the
City of Chicago and, in the case of Bearer Certificates, in the location or
locations specified in Section 13.05 of the Agreement that a receiver or
conservator, as the case may be, of the Seller has been appointed and that the
Trustee intends to sell, dispose of or otherwise liquidate the Receivables on
commercially reasonable terms and in a commercially reasonable manner and (ii)
send written notice to the Investor Certificateholders (other than Bearer
Certificateholders) and any other Persons entitled thereto describing the
provisions of this Section 9.02 and requesting instructions from such Hold-
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ers. Unless within 60 days from the day notice pursuant to clause (i) above is
first published, the Trustee shall have received written instructions of Holders
of Investor Certificates representing Undivided Interests aggregating more than
50% of the Invested Amount of any Series issued prior to April 19, 1995 to the
effect that such Certificateholders disapprove of the liquidation of all of the
Receivables and wish to receive distributions in accordance with this Agreement,
the Trustee shall proceed to sell, dispose of, or otherwise liquidate the
Receivables in a commercially reasonable manner and on commercially reasonable
terms, which shall include the solicitation of competitive bids. In addition,
with respect to Series issued on or after April 19, 1995, unless within 60 days
from the day notice pursuant to clause (i) above is first published, the Trustee
shall have received written instructions of (A) the Holders of Investor
Certificates representing Undivided Interests aggregating more than 50% of the
Invested Amount of any Series issued prior to April 19, 1995, (B) the Holders of
Investor Certificates representing Undivided Interests aggregating more than 50%
of each Class of each Series issued on and after April 19, 1995 (including a
majority in interest (as determined under federal income tax principles) in each
collateral interest or similar interest), (C) each holder of an interest in the
Seller Interest and (D) any other Person specified in any Supplement to the
effect that such Persons disapprove of the liquidation of the Receivables, the
Trustee shall proceed to sell, dispose of, or otherwise liquidate the portion of
the Receivables then in existence (but not any Receivables created thereafter)
allocable to all Series other than Series issued prior to April 19, 1995 in a
commercially reasonable manner, on commercially reasonable terms, which shall
include the solicitation of competitive bids, and in a manner which constitutes
a disposition of ownership of such portion of the Receivables to the purchaser
thereof for federal income tax purposes. The Trustee may obtain a prior
determination from such conservator or receiver that the terms and manner of any
proposed sale, disposition or liquidation are commercially reasonable. The
provisions of Section 9.01 of the Agreement and this Section 9.02 shall not be
deemed to be mutually exclusive.
(b) The proceeds from the sale, disposition or liquidation
of the Receivables pursuant to subsection (a) above shall be treated as
Collections on the Receivables and shall be allocated in accordance with the
provisions of Article IV; provided that the Trustee shall determine conclusively
the amount of such proceeds which are allocable to Finance Charge Receivables
and the amount of such proceeds which are allocable to Principal Receivables;
provided, however, that any amounts payable to the Holder of the Exchangeable
- -------- -------
Seller's Certificate shall be payable to the Trustee to the extent of the
reasonable costs, fees and expenses incurred by the Trustee in connection with
such sale, liquidation or other disposition. On the day following the
Distribution Date on which such proceeds are distributed to the Investor
Certificateholders, the Trust shall terminate.
[END OF ARTICLE IX]
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ARTICLE X
SERVICER DEFAULTS
Section 10.01 Servicer Defaults. If any one of the following events
-----------------
(a "Servicer Default") shall occur and be continuing:
(a) failure by the Servicer or, if First USA is the
Servicer, the Seller, to make any payment, transfer or deposit or to give
instructions or to give notice to the Trustee to make such payment, transfer or
deposit or to give notice to the Trustee as to any required drawing or payment
under any Enhancement on or before the date occurring five days after the date
such payment, transfer or deposit or such instruction or notice is required to
be made or given, as the case may be, under the terms of this Agreement or any
Supplement;
(b) failure on the part of the Servicer or, if First USA is
the Servicer, the Seller, duly to observe or perform any other covenants or
agreements of the Servicer or, if First USA is the Servicer, of the Seller, set
forth in this Agreement or any Supplement which has a material adverse effect on
the Certificateholders, 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 or the Seller, as the case may
be, by the Trustee, or to the Servicer or the Seller, as the case may be, and
the Trustee by the Holders of Investor Certificates evidencing Undivided
Interests in the Trust aggregating not less than 50% of the Invested Amount of
any Series adversely affected thereby; or the Servicer shall assign its duties
under this Agreement, except as permitted by subsection 3.01(b)(v) of the
Agreement and Section 8.07 of the Agreement;
(c) any representation, warranty or certification made by
the Servicer in this Agreement, any Supplement or in any certificate delivered
pursuant to this Agreement or any Supplement shall prove to have been incorrect
when made, which has a material adverse effect on the rights of the
Certificateholders and which material adverse effect continues for
Certificateholders 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 Trustee, or to the Servicer and the Trustee by the Holders of
Investor Certificates evidencing Undivided Interests in the Trust aggregating
not less than 50% of the Invested Amount of any Series adversely affected
thereby;
(d) the Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment of debt,
marshaling of assets and liabilities or similar proceedings of or relating to
the Servicer or of or relating to all or substantially all of its property; or a
decree or order of a court or agency or supervisory authority having
jurisdiction in the premises for the appointment of a conservator or receiver or
liquidator in any insolvency, readjustment of debt, marshaling of assets and
liabilities or similar proceedings, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such
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decree or order shall have remained in force undischarged or unstayed; or the
Servicer shall admit in writing its inability to pay its debts generally as they
become due, file a petition to take advantage of any applicable insolvency or
reorganization statute, make any assignment for the benefit of its creditors or
voluntarily suspend payment of its obligations;
then, in the event of any Servicer Default, so long as the Servicer Default
shall not have been remedied, either the Trustee, or the Holders of Investor
Certificates evidencing Undivided Interests aggregating more than 50% of the
Aggregate Invested Amount, by notice then given in writing to the Servicer (and
to the Trustee if given by the Investor Certificateholders) (a "Termination
Notice"), may terminate all but not less than all of the rights and obligations
of the Servicer as Servicer under this Agreement and in and to the Receivables
and the proceeds thereof (other than its rights and interests as the Seller and
as a holder of the Exchangeable Seller's Certificate evidencing the Seller
Interest under this Agreement); provided, however, if within 60 days of receipt
-------- -------
of a Termination Notice the Trustee does not receive any bids from Eligible
Servicers in accordance with subsection 10.02(c) of the Agreement to act as a
Successor Servicer and receives an Officers' 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, then the Trustee shall grant a right of
first refusal to the Servicer (for so long as the Seller is the Servicer) which
would permit the Servicer at its option to purchase the interest of all Investor
Certificateholders on the Distribution Date in the next calendar month. The
purchase price for such interest with respect to each Series of Investor
Certificates shall be equal to the higher of (i) the Invested Amount for such
Series on the Distribution Date of such purchase plus accrued and unpaid
interest thereon at the applicable Certificate Rate through the end of the
Interest Accrual Period preceding such Distribution Date and (ii) a price
equivalent to the average of bids quoted on the Record Date or, if not a
Business Day, on the next succeeding Business Day by at least two recognized
dealers selected by the Trustee (which may be selected from the list attached as
Schedule 4), for the purchase by such dealers of a security similar to the
Investor Certificates of such Series and rated in the highest category by each
Rating Agency with a remaining maturity approximately equal to the remaining
maturity of the Investor Certificates of such Series. The Servicer shall notify
the Trustee in writing prior to the Record Date for the Distribution Date of the
purchase, if it is exercising such right of first refusal. If it exercises the
right of first refusal, the Servicer shall deliver to the Trustee an Opinion of
Counsel (which must be an independent outside counsel) to the effect that the
purchase would not be considered a fraudulent conveyance and deposit the
purchase price into the Collection Account on the Transfer Date preceding such
Distribution Date in immediately available funds. If the Servicer does not
exercise such right of first refusal, the Trustee shall not offer the interest
of the Investor Certificateholders to any other Person. Notwithstanding anything
to the contrary in this Agreement, the entire amount of the applicable purchase
price shall be distributed to the Investor Certificateholders of each Series on
the Distribution Date following deposit pursuant to Section 12.03 of the
Agreement, and in the case of clause (ii) above such deposit shall be allocated
on the basis of the prices quoted for each such Series. Except in the event of
manifest error, the allocation of the Trustee shall be final and binding upon
all Investor Certificateholders and, by acceptance of its Certificate, any
Investor Certificateholder agrees that the Trustee shall not be liable therefor.
After receipt by the Servicer
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of a Termination Notice, and on the date that a Successor Servicer shall have
been appointed by the Trustee pursuant to Section 10.02 of the Agreement, all
authority and power of the Servicer under this Agreement shall pass to and be
vested in a Successor Servicer (a "Service Transfer"); and, without limitation,
the Trustee is hereby authorized and empowered (upon the failure of the Servicer
to cooperate) to execute and deliver, on behalf of the Servicer, as attorney-in-
fact or otherwise, all documents and other instruments upon the failure of the
Servicer to execute or deliver such documents or instruments, and to do and
accomplish all other acts or things necessary or appropriate to effect the
purposes of such Service Transfer. The Servicer agrees to cooperate with the
Trustee and such Successor Servicer in effecting the termination of the
responsibilities and rights of the Servicer to conduct servicing hereunder,
including, without limitation, the transfer to such Successor Servicer of all
authority of the Servicer to service the Receivables provided for under this
Agreement, including, without limitation, all authority over all Collections
which shall on the date of transfer be held by the Servicer for deposit, or
which have been deposited by the Servicer, in the Collection Account, or which
shall thereafter be received with respect to the Receivables, and in assisting
the Successor Servicer. The Servicer shall promptly transfer its electronic
records relating to the Receivables to the Successor Servicer in such electronic
form as the Successor Servicer may reasonably request and shall promptly
transfer to the Successor Servicer all other records, correspondence and
documents necessary for the continued servicing of the Receivables in the manner
and at such times as the Successor Servicer shall reasonably request. To the
extent that compliance with this Section 10.01 shall require the Servicer to
disclose to the Successor Servicer information of any kind which the Servicer
reasonably deems to be confidential, the Successor Servicer shall be required to
enter into such customary licensing and confidentiality agreements as the
Servicer shall deem necessary to protect its interest.
Notwithstanding the foregoing, a delay in or failure of performance
under subsection 10.01(a) of the Agreement for a period of 10 Business Days or
under subsection 10.01(b) or (c) of the Agreement for a period of 60 Business
Days, shall not constitute a Servicer Default, if such delay or failure could
not be prevented by the exercise of reasonable diligence by the Servicer and
such delay or failure was caused by an Act of God or the public enemy, acts of
declared or undeclared war, public disorder, rebellion or sabotage, epidemics,
landslides, lightning, fire, hurricanes, earthquakes, floods or similar causes.
The preceding sentence shall not relieve the Servicer from using its best
efforts to perform its respective obligations in a timely manner in accordance
with the terms of this Agreement and the Servicer shall provide the Trustee, any
Enhancement Provider, the Seller and the Investor Certificateholders with an
Officers' Certificate giving prompt notice of such failure or delay by it,
together with a description of its efforts to so perform its obligations. The
Servicer shall immediately notify the Trustee in writing of any Servicer
Default.
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Section 10.02 Trustee to Act; Appointment of Successor.
----------------------------------------
(a) On and after the receipt by the Servicer of a
Termination Notice pursuant to Section 10.01, the Servicer shall continue to
perform all servicing functions under this Agreement until the date specified in
the Termination Notice or otherwise specified by the Trustee in writing or, if
no such date is specified in such Termination Notice, or otherwise specified by
the Trustee, until a date mutually agreed upon by the Servicer and Trustee. The
Trustee shall as promptly as possible after the giving of a Termination Notice,
and with the consent of any Enhancement Provider (unless the applicable
Supplement specifies otherwise), which consent shall not be unreasonably
withheld, 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 Trustee. 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 Trustee without
further action shall automatically be appointed the Successor Servicer. The
Trustee may delegate any of its servicing obligations to an affiliate or agent
in accordance with subsection 3.01(b) of the Agreement. Notwithstanding the
above, the Trustee shall, if it is legally unable so to act, petition a court of
competent jurisdiction to appoint any established institution having a net worth
of not less than $100,000,000 and whose regular business includes the servicing
of "Classic VISA," "Standard MasterCard," "VISA Gold," "Gold MasterCard,"
"Platinum VISA" and "Platinum MasterCard" (or any successor credit card account
designation) credit card receivables as the Successor Servicer hereunder. The
Servicer shall immediately give notice to each Rating Agency 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 except for the references in Sections
8.04 and 11.05 of the Agreement which shall continue to refer to First USA;
provided, however, that (i) First USA shall not indemnify the Trust or the
- -------- -------
Trustee if the acts, omissions or alleged acts or omissions upon which a claim
for indemnification arises pursuant to Section 8.04 of the Agreement constitute
fraud, negligence, breach of fiduciary duty or misconduct by a Successor
Servicer (which obligation shall be assumed by the Successor Servicer) and (ii)
First USA shall not pay or reimburse the Trustee pursuant to Section 11.05 of
the Agreement for any expense, disbursement or advance of the Trustee related
to or arising as a result of the negligence or bad faith of the Successor
Servicer (which obligation shall be assumed by the Successor Servicer). The
Successor Servicer shall expressly be authorized, subject to Section 8.07 of the
Agreement, to delegate any of its duties hereunder to First USA on and after the
date of any Servicer Transfer pursuant to this Article X. Any Successor
Servicer, by its acceptance of its appointment, will automatically agree to be
bound by the terms and provisions of any agreement under which an Enhancement
Provider agrees to provide Enhancement for a Series.
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(c) In connection with any Termination Notice, the Trustee
will review any bids which it obtains from Eligible Servicers and shall be
permitted to appoint any Eligible Servicer submitting such a bid as a Successor
Servicer for servicing compensation not in excess of the Servicing Fee provided,
--------
however, that First USA shall be responsible for payment of the portion of the
- -------
Servicing Fee allocable to the Holder of the Exchangeable Seller's Certificate
as determined pursuant to Section 3.02 of the Agreement, and that no such
monthly compensation paid out of Collections shall be in excess of the Monthly
Servicing Fee permitted to the Servicer pursuant to Section 3.02 of the
Agreement.
(d) All authority and power granted to the Successor
Servicer under this Agreement shall automatically cease and terminate upon
termination of the Trust pursuant to Section 12.01 of the Agreement, and shall
pass to and be vested in the Seller and, without limitation, the Seller is
hereby authorized and empowered to execute and deliver, on behalf of the
Successor Servicer, as attorney-in-fact or otherwise, all documents and other
instruments, and to do and accomplish all other acts or things necessary or
appropriate to effect the purposes of such transfer of servicing rights. The
Successor Servicer agrees to cooperate with the Seller in effecting the
termination of the responsibilities and rights of the Successor Servicer to
conduct servicing on the Receivables. The Successor Servicer shall transfer its
electronic records relating to the Receivables to the Seller in such electronic
form as the Seller may reasonably request and shall transfer all other records,
correspondence and documents to the Seller in the manner and at such times as
the Seller shall reasonably request. To the extent that compliance with this
Section 10.02 shall require the Successor Servicer to disclose to the Seller
information of any kind which the Successor Servicer deems to be confidential,
the Seller shall be required to enter into such customary licensing and
confidentiality agreements as the Successor Servicer shall deem necessary to
protect its interests.
Section 10.03 Notification to Certificateholders. Upon the occurrence
----------------------------------
of any Servicer Default, the Servicer shall give prompt written notice thereof
to the Trustee and each Rating Agency and the Trustee shall give notice to the
Investor Certificateholders (other than Holders of Bearer Certificates) at their
respective addresses appearing in the Certificate Register. Upon any termination
or appointment of a Successor Servicer pursuant to this Article X, the Trustee
shall give prompt written notice thereof to each Rating Agency and to Investor
Certificateholders (other than Holders of Bearer Certificates) at their
respective addresses appearing in the Certificate Register. Notice to Holders of
Bearer Certificates shall be given by publication in the manner described in
Section 13.05 of the Agreement.
Section 10.04 Waiver of Past Defaults. The Holders of Investor
-----------------------
Certificates evidencing Undivided Interests aggregating more than 66-2/3% of the
Invested Amount of any Series affected by any default by the Servicer may, on
behalf of all Certificateholders, 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 with respect to any Series of Certificates. 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
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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]
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ARTICLE XI
THE TRUSTEE
Section 11.01 Duties of Trustee.
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(a) The Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Agreement, and no implied
covenants or obligations shall be read into this Agreement. If a Servicer
Default to the actual knowledge of a Responsible Officer of the Trustee has
occurred (which has not been cured or waived), the Trustee shall exercise such
of the rights and powers vested in it by this Agreement or any Supplement, as
the case may be, and use the same degree of care and skill in their exercise, as
a prudent man would exercise or use under the circumstances in the conduct of
his own affairs.
(b) The Trustee, upon receipt of all resolutions,
certificates, statements, opinions, reports, documents, orders or other
instruments furnished to the Trustee which are specifically required to be
furnished pursuant to any provision of this Agreement or any Supplement, shall
examine them to determine whether they substantially conform to the requirements
of this Agreement or any Supplement. The Trustee shall give prompt written
notice to the Certificateholders (or, in the case of Holders of Bearer
Certificates, notice by publication in the manner described in Section 13.05 of
the Agreement) of any material lack of conformity of any such instrument to the
applicable requirements of this Agreement or any Supplement discovered by the
Trustee which would entitle a specified percentage of the Certificateholders to
take any action pursuant to this Agreement or any Supplement.
(c) Subject to subsection 11.01(a) of the Agreement, no
provision of this Agreement or any Supplement shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act or its own willful misconduct; provided, however, that:
-------- -------
(i) The Trustee shall not be liable for an error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(ii) The Trustee shall not be liable with respect to
any action taken, suffered or omitted to be taken by it in good faith in
accordance with the direction of the Holders of Investor Certificates
evidencing Undivided Interests in the Trust aggregating more than 50% of
the Invested Amount of any Series pursuant to Section 11.14; and
(iii) The Trustee shall not be charged with knowledge
of any failure by the Servicer to comply with any of its obligations,
including the obligations of the Servicer referred to in clauses (a), (b)
and (c) of Section 10.01 of the Agreement,
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unless a Responsible Officer of the Trustee obtains actual knowledge of
such failure or the Trustee receives written notice of such failure from
the Servicer or any Holders of Investor Certificates evidencing Undivided
Interests aggregating not less than 10% of the Invested Amount of any
Series adversely affected thereby.
(d) The Trustee shall not be required, to expend or risk
its own funds or otherwise incur financial liability in the performance of any
of its duties hereunder, or in the exercise of any of its rights or powers, if
there is reasonable ground for believing that the repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it, and none of the provisions contained in this Agreement or any Supplement
shall in any event require the Trustee to perform, or be responsible for the
manner of performance of, any obligations of the Servicer under this Agreement
or any Supplement except during such time, if any, as the Trustee shall be the
successor to, and be vested with the rights, duties, powers and privileges of,
the Servicer in accordance with the terms of this Agreement or any Supplement.
(e) Except for actions expressly authorized by this
Agreement or any Supplement, the Trustee shall take no action reasonably likely
to impair the interests of the Trust in any Receivable now existing or hereafter
created or to impair the value of any Receivable now existing or hereafter
created.
(f) Except as specifically provided in this Agreement, the
Trustee shall have no power to vary the corpus of the Trust.
(g) In the event that the Paying Agent or the Transfer
Agent and Registrar shall fail to perform any obligation, duty or agreement in
the manner or on the day required to be performed by the Paying Agent or the
Transfer Agent and Registrar, as the case may be, under this Agreement, the
Trustee shall be obligated as soon as possible upon actual knowledge of a
Responsible Officer thereof and receipt of appropriate records, if any, to
perform such obligation, duty or agreement in the manner so required.
(h) If the Seller has agreed to transfer any of its credit
card receivables (other than the Receivables) to another Person, upon the
written request of the Seller, the Trustee will enter into such intercreditor
agreements with the transferee of such receivables as are customary and
necessary to identify separately the rights of the Trust and such other Person
in the Seller's credit card receivables; provided that the Trustee shall not be
--------
required to enter into any intercreditor agreement which could adversely affect
the interests of any Investor Certificateholders or the Trustee and, upon the
request of the Trustee, the Seller will deliver an Opinion of Counsel on any
matters relating to such intercreditor agreement reasonably requested by the
Trustee.
(i) Any action, suit or proceeding brought in respect of
one or more particular Series shall have no effect on the Trustee's rights,
duties and obligations hereunder with respect to any one or more Series not the
subject of such action, suit or proceeding.
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Section 11.02 Rights of the Trustee. Except as otherwise provided in
---------------------
Section 11.01 of the Agreement:
(a) The Trustee may rely on and shall be protected in
acting on, or in refraining from acting in accord with, any resolution,
Officers' Certificate, Opinion of Counsel, certificate of auditors or any other
certificate, statement, instrument, opinion, report, notice, request, consent,
order, appraisal, bond or other paper or document believed by it to be genuine
and to have been signed or presented to it pursuant to this Agreement or any
Supplement by the proper party or parties;
(b) The Trustee may consult with counsel and any Opinion of
Counsel shall be full and complete authorization and protection in respect of
any action taken or suffered or omitted by it hereunder in good faith and in
accordance with such Opinion of Counsel;
(c) The Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement or any Supplement, or
to institute, conduct or defend any litigation hereunder or in relation hereto,
at the request, order or direction of any of the Certificateholders, pursuant to
the provisions of this Agreement or any Supplement, unless such
Certificateholders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which may be incurred
therein or thereby; nothing contained herein shall, however, relieve the Trustee
of the obligations, upon the occurrence of a Servicer Default (which has not
been cured), to exercise such of the rights and powers vested in it by this
Agreement or any Supplement, and to use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs;
(d) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this Agreement or
any Supplement;
(e) The Trustee shall not be bound to make any
investigation into the facts of matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, consent, order,
approval, bond or other paper or document, unless requested in writing so to do
by Holders of Investor Certificates evidencing Undivided Interests aggregating
more than 50% of the Invested Amount of any Series which could be adversely
affected if the Trustee does not perform such acts;
(f) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys or custodians, and the Trustee shall not be responsible for
any misconduct or negligence on the part of any such agent, attorney or
custodian appointed with due care by it hereunder;
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(g) Except as may be required by subsection 11.01(a) of the
Agreement, the Trustee shall not be required to make any initial or periodic
examination of any documents or records related to the Receivables or the
Accounts for the purpose of establishing the presence or absence of defects, the
compliance by the Seller and Servicer with their representations and warranties
or for any other purpose; and
(h) Whether or not therein expressly so provided, every
provision of this Agreement relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section 11.02.
Section 11.03 Trustee Not Liable for Recitals in Certificates. The
-----------------------------------------------
Trustee assumes no responsibility for the correctness of the recitals contained
herein and in the Certificates (other than the certificate of authentication on
the Certificates). Except as set forth in Section 11.15 of the Agreement, the
Trustee makes no representations as to the validity or sufficiency of this
Agreement or any Supplement or of the Certificates (other than the certificate
of authentication on the Certificates) or of any Receivable or related document.
The Trustee shall not be accountable for the use or application by the Seller of
any of the Certificates or of the proceeds of such Certificates, or for the use
or application of any funds paid to the Seller in respect of the Receivables or
deposited in the Collection Account or other Accounts now or hereafter
established to effectuate the transactions contemplated herein and in accordance
with the terms hereof.
Section 11.04 Trustee May Own Certificates. The Trustee in its
----------------------------
individual or any other capacity may become the owner or pledgee of Investor
Certificates with the same rights as it would have if it were not the Trustee.
Section 11.05 The Servicer to Pay Trustee's Fees and Expenses. The
-----------------------------------------------
Servicer covenants and agrees to pay to the Trustee from time to time, and the
Trustee shall be entitled to receive, reasonable compensation (which shall not
be limited by any provision of law in regard to the compensation of a trustee of
an express trust) for all services rendered by it in the execution of the trust
hereby created and in the exercise and performance of any of the powers and
duties hereunder of the Trustee, and, subject to Section 8.04 of the Agreement,
the Servicer will pay or reimburse the Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the Trustee
in accordance with any of the provisions of this Agreement or any Supplement
(including the reasonable fees and expenses of its agents and counsel) except
any such expense, disbursement or advance as may arise from its negligence or
bad faith and except as provided in the following sentence. If the Trustee is
appointed Successor Servicer pursuant to Section 10.02 of the Agreement, the
provision of this Section 11.05 shall not apply to expenses, disbursements and
advances made or incurred by the Trustee in its capacity as Successor Servicer,
which shall be covered out of the Servicing Fee.
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Section 11.06 Eligibility Requirements for Trustee. The Trustee
------------------------------------
hereunder shall at all times be a corporation organized and doing business under
the laws of the United States of America or any state thereof authorized under
such laws to exercise corporate trust powers, having a combined capital and
surplus of at least $10,000,000 and a long-term unsecured debt rating of Baa3 by
Moody's and subject to supervision or examination by Federal or state authority.
The Trustee may not be an Affiliate of the Seller. If such corporation publishes
reports of condition at least annually, pursuant to law or to the requirements
of the aforesaid supervising or examining authority, then for the purpose of
this Section 11.06, the combined capital and surplus of such corporation shall
be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to
be eligible in accordance with the provisions of this Section 11.06, the Trustee
shall resign immediately in the manner and with the effect specified in Section
11.07 of the Agreement.
Section 11.07 Resignation or Removal of Trustee.
---------------------------------
(a) The Trustee may at any time resign and be discharged
from the trust hereby created by giving written notice thereof to the Seller and
the Servicer. Upon receiving such notice of resignation, the Seller shall
promptly appoint a successor trustee by written instrument, in duplicate, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor trustee. If no successor trustee shall have been so
appointed and have accepted appointment within 30 days after the giving of such
notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor trustee.
(b) If at any time the Trustee shall cease to be eligible
in accordance with the provisions of Section 11.06 of the Agreement and shall
fail to resign after written request therefor by the Servicer, or if at any time
the Trustee shall be legally unable to act, or shall be adjudged a bankrupt or
insolvent, or if a receiver of the Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Servicer may remove the Trustee and promptly appoint a
successor trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the
successor trustee.
(c) Any resignation or removal of the Trustee and
appointment of successor trustee pursuant to any of the provisions of this
Section 11.07 shall not become effective until acceptance of appointment by the
successor trustee as provided in Section 11.08 of the Agreement.
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Section 11.08 Successor Trustee.
-----------------
(a) Any successor trustee appointed as provided in Section
11.07 of the Agreement shall execute, acknowledge and deliver to the Seller and
to its predecessor Trustee an instrument accepting such appointment hereunder,
and thereupon the resignation or removal of the predecessor Trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become fully vested with all the rights, powers, duties and
obligations of its predecessor hereunder and under any Supplement with like
effect as if originally named as Trustee herein. The predecessor Trustee shall
deliver to the successor trustee all documents or copies thereof, at the expense
of the Servicer, and statements held by it hereunder; and the Seller and the
predecessor Trustee shall execute and deliver such instruments and do such other
things as may reasonably be required for fully and certainly vesting and
confirming in the successor trustee all such rights, power, duties and
obligations. The Servicer shall immediately give notice to each Rating Agency
upon the appointment of a successor trustee.
(b) No successor trustee shall accept appointment as
provided in this Section 11.08 unless at the time of such acceptance such
successor trustee shall be eligible under the provisions of Section 11.06 of the
Agreement.
(c) Upon acceptance of appointment by a successor trustee
as provided in this Section 11.08, such successor trustee shall mail notice of
such succession hereunder to all Certificateholders (other than Holders of
Bearer Certificates) at their addresses as shown in the Certificate Register.
Notice to Holders of Bearer Certificates shall be given by publication in the
manner described in Section 13.05 of the Agreement.
Section 11.09 Merger or Consolidation of Trustee. Any Person into
----------------------------------
which the Trustee may be merged or converted or with which it may be
consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any Person succeeding to
the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided such corporation shall be eligible under the
provisions of Section 11.06 of the Agreement, without the execution or filing of
any paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding. The Trustee shall deliver notice to each
Rating Agency of any such merger, conversion, consolidation or succession.
Section 11.10 Appointment of Co-Trustee or Separate Trustee.
---------------------------------------------
(a) Notwithstanding any other provisions of this Agreement
or any Supplement, at any time, for the purpose of meeting any legal
requirements of any jurisdiction in which any part of the Trust may at the time
be located, the Trustee shall have the power and may execute and deliver all
instruments to appoint one or more persons to act as a co-trustee or co-
trustees, or separate trustee or separate trustees, of all or any part of the
Trust, and to vest in
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such Person or Persons, in such capacity and for the benefit of the
Certificateholders, such title to the Trust, or any part thereof, and, subject
to the other provisions of this Section 11.10, such powers, duties, obligations,
rights and trusts as the Trustee may consider necessary or desirable. No co-
trustee or separate trustee hereunder shall be required to meet the terms of
eligibility as a successor trustee under Section 11.06 of the Agreement and no
notice to Certificateholders of the appointment of any co-trustee or separate
trustee shall be required under Section 11.08 of the Agreement.
(b) Every separate trustee and co-trustee shall, to the
extent permitted by law, be appointed and act subject to the following
provisions and conditions:
(i) All rights, powers, duties and obligations
conferred or imposed upon the Trustee shall be conferred or imposed upon
and exercised or performed by the Trustee and such separate trustee or co-
trustee jointly (it being understood that such separate trustee or co-
trustee is not authorized to act separately without the Trustee joining in
such act), except to the extent that under any law of any jurisdiction in
which any particular act or acts are to be performed (whether as Trustee
hereunder or as successor to the Servicer hereunder), the Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to
the Trust Assets or any portion thereof in any such jurisdiction) shall be
exercised and performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(ii) No trustee hereunder shall be personally liable
by reason of any act or omission of any other trustee hereunder; and
(iii) The Trustee may at any time accept the
resignation of or remove any separate trustee or co-trustee.
(c) Any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then separate trustees
and co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee or co-trustee shall refer to this Agreement and
the conditions of this Article XI. Each separate trustee and co-trustee, upon
its acceptance of the trusts conferred, shall be vested with the estates or
property specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the provisions
of this Agreement or any Supplement, specifically including every provision of
this Agreement or any Supplement relating to the conduct of, affecting the
liability of, or affording protection to, the Trustee. Every such instrument
shall be filed with the Trustee and a copy thereof given to the Servicer.
(d) Any separate trustee or co-trustee may at any time
constitute the Trustee, its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect to this Agreement or any Supplement on its
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behalf and in its name. If any separate trustee or co-trustee shall die, become
incapable of acting, resign or be removed, all of its estates, properties,
rights, remedies and trusts shall vest in and be exercised by the Trustee, to
the extent permitted by law, without the appointment of a new or successor
trustee.
Section 11.11 Tax Returns. In accordance with Section 3.07 hereof,
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the Trustee shall not file any Federal income tax return for the Trust. In the
event the Trust shall be required to file state tax returns or pursuant to an
audit or administrative proceeding or change in applicable regulations to file
Federal tax returns, the Servicer shall prepare or shall cause to be prepared
any tax returns required to be filed by the Trust and shall remit such returns
to the Trustee for signature at least five days before such returns are due to
be filed; the Trustee shall promptly sign such returns and deliver such returns
after signature to the Servicer and such returns shall be filed by the Servicer.
The Servicer in accordance with subsection 5.02(b) of the Agreement shall also
prepare or shall cause to be prepared all tax information required by law to be
distributed to Investor Certificateholders. The Trustee, upon request, will
furnish the Servicer with all such information known to the Trustee as may be
reason ably required in connection with the preparation of all tax returns of
the Trust, and shall, upon request, execute such returns. In no event shall the
Trustee, the Servicer or the Seller be liable for any liabilities, costs or
expenses of the Trust, the Investor Certificateholders or the Certificate Owners
arising under any tax law, including without limitation Federal, state or local
income or excise taxes or any other tax imposed on or measured by income (or any
interest or penalty with respect thereto or arising from a failure to comply
therewith).
Section 11.12 Trustee May Enforce Claims Without Possession of
------------------------------------------------
Certificates. All rights of action and claims under this Agreement or any
- ------------
Supplement or the Certificates may be prosecuted and enforced by the Trustee
without the possession of any of the Certificates or the production thereof in
any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee. Any recovery of judgment
shall, after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Certificateholders in respect of which such judgment has
been obtained.
Section 11.13 Suits for Enforcement. If a Servicer Default shall
---------------------
occur and be continuing, the Trustee, in its discretion may, subject to the
provisions of Section 10.01 of the Agreement, proceed to protect and enforce its
rights and the rights of the Certificateholders under this Agreement or any
Supplement by suit, action or proceeding in equity or at law or otherwise,
whether for the specific performance of any covenant or agreement contained in
this Agreement or any Supplement or in aid of the execution of any power granted
in this Agreement or any Supplement or for the enforcement of any other legal,
equitable or other remedy as the Trustee, being advised by counsel, shall deem
most effectual to protect and enforce any of the rights of the Trustee or the
Certificateholders. Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Certificateholder any plan of reorganization, arrangement, adjustment or
composition affecting the Certificates or the rights
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of any Holder thereof, or authorize the Trustee to vote in respect of the claim
of any Certificateholder in any such proceeding.
Section 11.14 Rights of Certificateholders to Direct Trustee. Holders
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of Investor Certificates evidencing Undivided Interests aggregating more than
50% of the Invested Amount of any Series affected by the conduct of any
proceeding or the exercise of any right conferred on the Trustee shall have the
right to direct the time, method, and place of conducting such proceeding for
any remedy available to the Trustee, or exercising any such trust or power;
provided, however, that, subject to Section 11.01 of the Agreement, the Trustee
- -------- -------
shall have the right to decline to follow any such direction if the Trustee
being advised by counsel determines that the action so directed may not lawfully
be taken, or if the Trustee in good faith shall, by a Responsible Officer or
Responsible Officers of the Trustee, determine that the proceedings so directed
would be illegal or involve it in personal liability or be unduly prejudicial to
the rights of Certificateholders not parties to such direction; and provided
--------
further that nothing in this Agreement or any Supplement shall impair the right
of the Trustee to take any action deemed proper by the Trustee and which is not
inconsistent with such direction of the Certificateholders.
Section 11.15 Representations and Warranties of Trustee. The Trustee
-----------------------------------------
represents and warrants that:
(i) The Trustee is a banking association organized,
existing and in good standing under the laws of the United States of
America;
(ii) The Trustee has full power, authority and right
to execute, deliver and perform this Agreement and any Supplement, and has
taken all necessary action to authorize the execution, delivery and
performance by it of this Agreement or any Supplement; and
(iii) This Agreement or any Supplement has been duly
executed and delivered by the Trustee.
Section 11.16 Maintenance of Office or Agency. The Trustee will
-------------------------------
maintain at its expense in the Borough of Manhattan, The City of New York, an
office or offices or agency or agencies where notices and demands to or upon the
Trustee in respect of the Certificates and this Agreement may be served. The
Trustee initially appoints the Norwest Trust Company, New York at its office for
such purposes in New York. The Trustee will give prompt written notice (or in
the case of Holders of Bearer Certificates, notice by publication in the manner
described in Section 13.05 of the Agreement) to the Servicer and to
Certificateholders of any change in the location of the Certificate Register or
any such office or agency.
[END OF ARTICLE XI]
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ARTICLE XII
TERMINATION
Section 12.01 Termination of Trust.
--------------------
(a) The respective obligations and responsibilities of the
Seller, the Servicer and the Trustee created hereby (other than the obligation
of the Trustee to make payments to Certificateholders as hereafter set forth)
shall terminate, except with respect to the duties described in subsection
12.03(b) of the Agreement, upon the earlier of (i) the day after the day on
which funds shall have been deposited in the Collection Account sufficient to
pay the Aggregate Invested Amount plus interest accrued at the applicable
Certificate Rates through the end of the applicable Interest Accrual Period in
full on all Series of Investor Certificates and (ii) a day which is 110 years
from the date hereof (the "Final Trust Termination Date").
(b) If on the Transfer Date in the month immediately
preceding the month in which the Final Trust Termination Date occurs (after
giving effect to all transfers, withdrawals, deposits and drawings to occur on
such date and the payment of principal on any Series of Certificates to be made
on the related Distribution Date pursuant to Article IV) the Invested Amount of
any Series would be greater than zero, the Servicer shall sell within 30 days of
such Transfer Date all of the Receivables. The proceeds of such sale shall be
treated as Collections on the Receivables and shall be allocated in accordance
with Article IV; provided, however, that the Trustee shall determine
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conclusively the amount of such proceeds which are allocable to Finance Charge
Receivables and the amount of such proceeds which are allocable to Principal
Receivables. During such 30-day period, the Servicer shall continue to collect
Collections on the Receivables and allocate such payments in accordance with the
provisions of Article IV.
Section 12.02 Optional Purchase and Final Termination Date of
-----------------------------------------------
Investor Certificates of any Series.
- -----------------------------------
(a) If provided in any Supplement on a Distribution Date
the Seller may, but shall not be obligated to, purchase any such Series of
Investor Certificates by depositing into the Collection Account, on the
preceding Transfer Date, an amount equal to the Invested Amount thereof plus
interest accrued and unpaid thereon at the applicable Certificate Rate through
the Interest Accrual Period related to such Distribution Date on which the
purchase will be made; provided, however that if the short-term deposits or
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long-term unsecured debt obligations of the Seller (or, if neither such deposits
nor such obligations of the Seller are rated by Moody's, then the short-term
deposits or long-term unsecured debt obligations of the holding company of the
Seller so long as such holding company is BANK ONE) are not rated at the time of
such purchase of any Series of Investor Certificates at least P-3 or Baa3,
respectively, by Moody's, no such purchase of any Series of Investor
Certificates shall occur unless the Seller
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shall deliver an Opinion of Counsel reasonably acceptable to the Trustee that
such purchase of any Series of Investor Certificates would not constitute a
fraudulent conveyance of the Seller.
(b) The amount deposited pursuant to subsection 12.02(a) of
the Agreement shall be paid to the Investor Certificateholders of the related
Series pursuant to Article IV on the Distribution Date following the date of
such deposit. All Certificates of a Series which are purchased by the Seller
pursuant to subsection 12.02(a) of the Agreement shall be delivered by the
Seller upon such purchase to, and be cancelled by, the Transfer Agent and
Registrar and be disposed of in a manner satisfactory to the Trustee and the
Seller.
(c) All principal or interest with respect to any Series of
Investor Certificates shall be due and payable no later than the Series
Termination Date with respect to such Series. Unless otherwise provided in a
Supplement, in the event that the Invested Amount of any Series of Certificates
is greater than zero on its Series Termination Date (after giving effect to all
transfers, withdrawals, deposits and drawings to occur on such date and the
payment of principal to be made on such Series on such date), the Trustee will
sell or cause to be sold, and pay the proceeds to all Certificateholders of such
Series pro rata in final payment of all principal of and accrued interest on
such Series of Certificates, an amount of Receivables or interests in
Receivables up to 110% of the Invested Amount of such Series at the close of
business on such date (but not more than an amount of Receivables equal to the
sum of (1) the product of (A) the current Seller's Percentage, (B) Aggregate
Principal Receivables and (C) a fraction the numerator of which is the related
Invested Percentage of Finance Charge Receivables and the denominator of which
is the sum of all Invested Percentages with respect to Finance Charge
Receivables of all Series outstanding and (2) the Invested Amount of such
Series). Any proceeds of such sale in excess of such principal and interest paid
shall be paid to the Holder of the Exchangeable Seller's Certificate. Upon such
Series Termination Date with respect to the applicable Series of Certificates,
final payment of all amounts allocable to any Investor Certificates of such
Series shall be made in the manner provided in Section 12.03 of the Agreement.
Section 12.03 Final Payment with Respect to any Series.
----------------------------------------
(a) Written notice of any termination, specifying the
Distribution Date upon which the Investor Certificateholders of any Series may
surrender their Certificates for payment of the final distribution with respect
to such Series and cancellation, shall be given (subject to at least two days'
prior notice from the Servicer to the Trustee) by the Trustee to Investor
Certificateholders of such Series mailed not later than the fifth day of the
month of such final distribution (or in the case of the Holders of Bearer
Certificates by the publication by the Trustee of a notice at least once in an
Authorized Newspaper in Luxembourg and, so long as the Investor Certificates are
listed on the Luxembourg Stock Exchange or other stock exchange and such
exchange so requires, in Luxembourg or the location required by such other stock
exchange) specifying (a) the Distribution Date (which shall be the Distribution
Date in the month in which the deposit is made pursuant to Section 2.07 or
subsection 12.02(a) of the Agreement) upon which final payment of such Investor
Certificates will be made upon presentation and
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surrender of such Investor Certificates at the office or offices therein
designated, (which, in the case of Bearer Certificates, shall be outside the
United States), (b) the amount of any such final payment and (c) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Investor Certificates at
the office or offices therein specified. The Servicer's notice to the Trustee in
accordance with the preceding sentence shall be accompanied by an Officers'
Certificate setting forth the information specified in subsection 5.02(a) of the
Agreement covering the period during the then current calendar year through the
date of such notice and setting forth the date of such final distribution. The
Trustee shall give such notice to the Transfer Agent and Registrar and the
Paying Agent at the time such notice is given to such Investor
Certificateholders.
(b) Notwithstanding the termination of the Trust pursuant
to subsection 12.01(a) of the Agreement or the occurrence of the Series
Termination Date with respect to any Series pursuant to Section 12.02 of the
Agreement, all funds then on deposit in the Collection Account shall continue
to be held in trust for the benefit of the Certificateholders and the Paying
Agent or the Trustee shall pay such funds to the Certificateholders upon
surrender of their Certificates (which surrenders and payments, in the case of
Bearer Certificates, shall be made only outside the United States). In the
event that all of the Investor Certificateholders of such Series shall not
surrender their Certificates for cancellation within six months after the date
specified in the above-mentioned notice, the Trustee shall give a second
written notice (or in the case of Bearer Certificates, publication notice) to
the remaining Investor Certificateholders of such Series upon receipt of the
appropriate records from the Transfer Agent and Registrar to surrender their
Certificates for cancellation and receive the final distribution with respect
thereto. If within one and one-half years after the second notice all the
Investor Certificates of such Series shall not have been surrendered for
cancellation, the Trustee may take appropriate steps, or may appoint an agent
to take appropriate steps, to contact the remaining Investor Certificateholders
of such Series concerning surrender of their Certificates, and the cost thereof
shall be paid out of the funds in the Collection Account held for the benefit
of such Investor Certificateholders.
(c) All Certificates surrendered for payment of the final
distribution with respect to such Certificates and cancellation shall be
cancelled by the Transfer Agent and Registrar and be disposed of in a manner
satisfactory to the Trustee and the Seller.
Section 12.04 Seller's Termination Rights. Upon the termination of
---------------------------
the Trust pursuant to Section 12.01 of the Agreement and the surrender of the
Exchangeable Seller's Certificate, the Trustee shall return to the Seller
(without recourse, representation or warranty) all right, title and interest of
the Trust in the Receivables, whether then existing or thereafter created, all
moneys due or to become due with respect thereto (including all accrued interest
theretofore posted as Finance Charge Receivables), and all proceeds thereof
except for amounts held by the
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Trustee pursuant to subsection 12.03(b) of the Agreement. The Trustee shall
execute and deliver such instruments of transfer and assignment, in each case
without recourse, as shall be reasonably requested by the Seller to vest in the
Seller all right, title and interest which the Trust had in the Receivables.
[END OF ARTICLE XII]
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ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 13.01 Amendment.
---------
(a) This Agreement and any Supplement may be amended from
time to time by the Servicer, the Seller and the Trustee, without the consent of
any of the Certificateholders, to cure any ambiguity, to correct or supplement
any provisions herein which may be inconsistent with any other provisions herein
or to add any other provisions with respect to matters or questions raised under
this Agreement which shall not be inconsistent with the provisions of this
Agreement; provided, however, that such action shall not, as evidenced by an
-------- -------
Opinion of Counsel, adversely affect in any material respect the interests of
any of the Investor Certificateholders. The Trustee shall also have not received
written notice from any Rating Agency that such Rating Agency will reduce or
withdraw its ratings on any outstanding Series as a result of such amendment.
Additionally, this Agreement and any Supplement may be amended from time to time
by the Servicer, the Seller and the Trustee, without the consent of any of the
Certificate holders, to add to or change any of the provisions of this Agreement
to provide that Bearer Certificates may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of (or premium,
if any) or any interest on Bearer Certificates to comply with the Bearer Rules,
to permit Bearer Certificates to be issued in exchange for Registered
Certificates (if then permitted by the Bearer Rules), to permit Bearer
Certificates to be issued in exchange for Bearer Certificates of other
authorized denominations or to permit the issuance of Certificates in
uncertificated form, provided any such action shall not adversely affect the
interests of the Holders of Bearer Certificates of any Series or any related
Coupons in any material respect unless such amendment is necessary to comply
with the Bearer Rules. The Trustee may, but shall not be obligated to, enter
into any such amendment which affects the Trustee's rights, duties or immunities
under this Agreement or otherwise.
(b) This Agreement and any Supplement may also be amended
from time to time by the Servicer, the Seller and the Trustee with the consent
of the Holders of Investor Certificates evidencing Undivided Interests
aggregating not less than 66-2/3% of the Invested Amount of all Series adversely
affected, 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 Investor Certificateholders of any Series then issued
and outstanding; provided, however, that no such amendment under this subsection
-------- -------
shall (i) reduce in any manner the amount of, or delay the timing of,
distributions which are required to be made on any Investor Certificate of such
Series without the consent of the related Investor Certificateholder; (ii)
change the definition of or the manner of calculating the interest of any
Investor Certificateholder of such Series without the consent of the related
Investor Certificateholder or (iii) reduce the aforesaid percentage required to
consent to any such amendment, in each case without the consent of all such
Investor Certificateholders.
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(c) The Servicer shall furnish prior written notification
to each Rating Agency of any proposed amendment hereunder. Promptly after the
execution of any such amendment or consent the Trustee shall furnish written
notification (or in the case of Bearer Certificates, publication notice in the
manner described in Section 13.05 of the Agreement) of the substance of such
amendment to each Investor Certificateholder, and the Servicer shall furnish
written notification of the substance of such amendment to any related
Enhancement Provider and each Rating Agency.
(d) It shall not be necessary for the consent of Investor
Certificateholders under this Section 13.01 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Investor Certificateholders shall
be subject to such reasonable requirements as the Trustee may prescribe.
(e) Any Supplement and any amendments regarding the
addition to or removal of Receivables from the Trust as provided in Sections
2.05 and 2.10, respectively, of the Agreement executed in accordance with the
provisions hereof shall not be considered amendments to this Agreement,
including, without limitation, for the purpose of subsections 13.01(a) and (b)
of the Agreement.
Section 13.02 Protection of Right, Title and Interest to Trust.
------------------------------------------------
(a) The Servicer shall cause this Agreement, any
Supplement, all amendments hereto and/or all financing statements and
continuation statements and any other necessary documents covering the
Certificateholders and the Trustee's right, title and interest to the Trust
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 Trustee hereunder to all property comprising the Trust Assets.
The Servicer shall deliver to the Trustee file-stamped copies of, or filing
receipts for, any document recorded, registered or filed as provided above, as
soon as available following such recording, registration or filing. The Seller
shall cooperate fully with the Servicer in connection with the obligations set
forth above and will execute any and all documents reasonably required to
fulfill the intent of this subsection 13.02(a).
(b) Within 30 days after the Seller makes any change in its
name, identity or corporate structure which would make any financing statement
or continuation statement filed in accordance with paragraph (a) above seriously
misleading within the meaning of Section 9-402(7) of the UCC as in effect in the
State of Delaware, the Seller shall give the Trustee notice of any such change
and shall file such financing statements or amendments as may be necessary to
continue the perfection of the Trust's security interest in the Receivables and
the proceeds thereof.
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(c) The Seller and the Servicer will give the Trustee
prompt written notice of any relocation of any office from which it services
Receivables or keeps records concerning the Receivables or of its principal
executive office and whether, as a result of such relocation, the applicable
provisions of the UCC would require the filing of any amendment of any
previously filed financing or continuation statement or of any new financing
statement and shall file such financing statements or amendments as may be
necessary to perfect or to continue the perfection of the Trust's security
interest in the Receivables and the proceeds thereof. The Seller and the
Servicer will at all times maintain each office from which it services
Receivables and its principal executive office within the United States of
America.
(d) The Servicer will deliver to the Trustee: (i) upon the
execution and delivery of each amendment of Articles I, II, III or IV hereto
(or, with respect to Article IV, as incorporated in the applicable Supplement;
provided, however, that the adoption of a Supplement pursuant to Section 6.09 of
- -------- -------
the Agreement which supplements or modifies Article IV for a particular new
Series shall not be considered an amendment) other than amendments pursuant to
subsection 13.01(a) of the Agreement, and upon each date that any Additional
Accounts are to be included in the Accounts pursuant to Section 2.05 hereof, an
Opinion of Counsel substantially in the form of Exhibit F; and (ii) on or before
April 30 of each year, beginning with April 30, 2000, an Opinion of Counsel,
dated on or after January 1 of such year as of a date during such 90-day period,
stating to the effect that no filing or other action need be taken to maintain
the security interest of Investor Certificateholders in the Trust Assets.
(e) If at any time the Servicer is no longer First USA, the
Seller shall deliver to the Successor Servicer powers-of-attorney such that such
Successor Servicer may perform the obligations set forth in subsections
13.02(a), 13.02(b) and 13.02(c) of the Agreement.
Section 13.03 Limitation on Rights of Certificateholders.
------------------------------------------
(a) The death or incapacity of any Certificateholder shall
not operate to terminate this Agreement or the Trust, nor shall such death or
incapacity entitle such Certificateholders' legal representatives or heirs to
claim an accounting or to take any action or commence any proceeding in any
court for a partition or winding up of the Trust, nor otherwise affect the
rights, obligations and liabilities of the parties hereto or any of them.
(b) No Certificateholder shall have any right to vote
(except as specifically provided in this Agreement) or in any manner otherwise
control the operation and management of the Trust, or the obligations of the
parties hereto, nor shall any Certificateholder be under any liability to any
third person by reason of any action taken by the parties to this Agreement
pursuant to any provision hereof.
(c) No Certificateholder shall have any right by virtue of
any provisions of this Agreement to institute any suit, action or proceeding in
equity or at law upon or
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under or with respect to this Agreement, unless such Certificateholder
previously shall have given to the Trustee, and unless the Holders of Investor
Certificates evidencing Undivided Interests in the Trust aggregating more than
50% of the Invested Amount of any Series which may be adversely affected but for
the institution of such suit, action or proceeding shall have made, written
request upon the Trustee to institute such action, suit or proceeding in its own
name as Trustee hereunder and shall have offered to the Trustee such reasonable
indemnity as it may require against the costs, expenses and liabilities to be
incurred therein or thereby, and the Trustee, for 60 days after its receipt of
such notice, request and offer of indemnity, shall have neglected or refused to
institute any such action, suit or proceeding; it being understood and intended,
and being expressly covenanted by each Certificateholder with every other
Certificateholder and the Trustee, that no one or more Certificateholders shall
have any right in any manner whatever by virtue or by availing itself or
themselves of any provisions of this Agreement to affect, disturb or prejudice
the rights of the Investor Certificateholders of any other of the Investor
Certificates, or to obtain or seek to obtain priority over or preference to any
other such Certificateholder, or to enforce any right under this Agreement,
except in the manner herein provided and for the equal, ratable and common
benefit of all Certificateholders. For the protection and enforcement of the
provisions of this Section 13.03, each and every Certificateholder and the
Trustee shall be entitled to such relief as can be given either at law or in
equity.
Section 13.04 Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REFERENCE TO ITS
CONFLICT OF LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE
PARTIES HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
Section 13.05 Notices. All demands, notices and communications
-------
hereunder shall be in writing and shall be deemed to have been duly given if
personally delivered at or mailed by registered mail, return receipt requested,
to (a) in the case of First USA to Peter Rogers, 201 North Walnut, Wilmington,
Delaware 19801 and Gavra Flood, 1601 Elm Street, 46th Floor, Dallas, Texas
75201, with a copy to BANK ONE CORPORATION, One First National Plaza, Suite IL1-
0460 Chicago, Illinois 60670, Attention: Treasurer; and (b) in the case of the
Trustee, to the Corporate Trust Office; or, as to each party, at such other
address as shall be designated by such party in a written notice to each other
party. Any notice required or permitted to be mailed to a Certificateholder
shall be given by first-class mail, postage prepaid, at the address of such
Certificateholder as shown in the Certificate Register. Any notice so mailed
within the time prescribed in this Agreement shall be conclusively presumed to
have been duly given, whether or not the Certificateholder receives such
notice.
Any notice required or permitted to be made to Holders of Bearer
Certificates by publication shall be published in an Authorized Newspaper in the
City of New York and, if the Certificates of such Series are then listed on the
Luxembourg Stock Exchange and such stock exchange shall so require, in
Luxembourg and, if the Certificates of such Series are listed on any
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other stock exchange and such stock exchange shall so require, in any other city
required by such stock exchange outside the United States, or, if not
practicable, elsewhere in Europe.
In case by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Certificates as
provided above, then such notification to Holders of Bearer Certificates as
shall be given with approval of the Trustee shall constitute sufficient notice
to such Holders for every purpose hereunder. Neither the failure to give notice
by publication to Holders of Bearer Certificates as provided above, nor any
defect in any notice so published, shall affect the sufficiency of any notice
mailed to Holders of Registered Certificates as provided above.
Copies of all notices, reports, certificates and amendments delivered
hereunder shall be mailed to the Rating Agency as follows: Fitch IBCA, Inc., One
State Street Plaza, New York, New York 10004, Moody's Investors Service, Inc.,
99 Church Street, New York, NY 10007, Attention: ABS Monitoring Department - 4th
Floor and Standard & Poor's Ratings Services, 55 Water Street, New York, NY
10041, Attention: Structured Finance ABS Surveillance.
Section 13.06 Severability of Provisions. If any one or more of the
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covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Certificates
or rights of the Certificateholders thereof.
Section 13.07 Assignment. Notwithstanding anything to the contrary
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contained herein, except as provided in Section 8.02 of the Agreement, this
Agreement, including any Supplement, may not be assigned by the Servicer without
the prior consent of Holders of Investor Certificates evidencing Undivided
Interests aggregating not less than 66-2/3% of the Invested Amount of the
Investor Certificates of each Series on a Series by Series basis.
Section 13.08 Certificates Nonassessable and Fully Paid. It is the
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intention of the parties to this Agreement that the Certificateholders shall not
be personally liable for obligations of the Trust, that the interests in the
Trust represented by the Certificates shall be nonassessable for any losses or
expenses of the Trust or for any reason whatsoever, and that Certificates upon
authentication thereof by the Trustee pursuant to Sections 2.09 and 6.02 of the
Agreement are and shall be deemed fully paid.
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Section 13.09 Further Assurances. The Seller and the Servicer agree
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to do and perform, from time to time, any and all acts and to execute any and
all further instruments required or reasonably requested by the Trustee more
fully to effect the purposes of this Agreement, including, without limitation,
the execution of any financing statements or continuation statements relating to
the Receivables for filing under the provisions of the UCC of any applicable
jurisdiction.
Section 13.10 No Waiver; Cumulative Remedies. No failure to exercise
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and no delay in exercising, on the part of the Trustee or the Investor
Certificateholders, any right, remedy, power or privilege hereunder, shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any other or further
exercise thereof or the exercise of any other right, remedy, power or privilege.
The rights, remedies, powers and privileges herein provided are cumulative and
not exhaustive of any rights, remedies, powers and privileges provided by law.
Section 13.11 Counterparts. This Agreement and any Supplement may be
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executed in two or more counterparts (and by different parties on separate
counterparts), each of which shall be an original, but all of which together
shall constitute one and the same instrument.
Section 13.12 Third Party Beneficiaries. This Agreement and any
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Supplement will inure to the benefit of and be binding upon the parties hereto,
and, in addition, shall inure to the benefit of the Certificateholders and their
respective successors and permitted assigns. Except as otherwise provided in
this Article XIII or Section 7.04 of the Agreement, no other person will have
any right or obligation hereunder; provided, however, that if so specified in
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the applicable Supplement, an Enhancement Provider may be deemed to be a third
party beneficiary of this Agreement.
Section 13.13 Actions by Certificateholders.
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(a) Wherever in this Agreement or any Supplement, a
provision is made that an action may be taken or a notice, demand or instruction
given by Investor Certificateholders, such action, notice or instruction may be
taken or given by any Investor Certificateholder of any Series, unless such
provision requires a specific percentage of Investor Certificateholders of a
certain Series or all Series.
(b) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind such
Certificateholder and every subsequent holder of such Certificate issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done or omitted to be done by the Trustee or the Servicer
in reliance thereon, whether or not notation of such action is made upon such
Certificate.
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Section 13.14 Amendment and Ratification of Series Supplements.
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(a) All Supplements which are in effect on the Effective
Date shall be amended and modified as follows:
(i) The following definitions of Section 2 of each
of the Supplements shall be amended by deleting the current definition in
Section 2 and substituting in its place the following:
"Floating Allocation Percentage" shall mean, with respect to any
Distribution Date, the percentage equivalent of a fraction the numerator of
which is the sum of the Daily Adjusted Invested Amount for each day of the
related Due Period divided by the number of calendar days in the related Due
Period and the denominator of which is the greater of (a) the sum of the
Floating Allocation Percentage numerators of all outstanding Series for such
Distribution Date and (b) the Average Principal Balance for such Due Period.
"Interchange Amount" shall mean, for any Distribution Date, an amount equal
to the Collections of Principal Receivables for the Due Period related to
such Distribution Date multiplied by 1.6%.
"Servicing Fee Percentage" shall mean 0.25% per annum so long as First USA
or an Affiliate thereof is Servicer and 0.75% if First USA or an Affiliate
thereof is no longer the Servicer.
(ii) The following definition shall be added to Section 2 of each of the
Supplements, except for the Supplement relating to Series 1999-Y.
"Daily Adjusted Invested Amount" shall mean with respect to each day
during a Due Period, the Adjusted Invested Amount as of the end of
the day on the immediately prior Distribution Date.
(iii) The following definition shall be added to Section 2 of the
Supplement relating to Series 1999-Y:
"Daily Adjusted Invested Amount" shall mean with respect to each day
during a Due Period: (a) for calendar days prior to August 10, 1999,
zero, (b) for calendar days from August 10, 1999 through the
September 1999 Distribution Date, the Initial Invested Amount, and
(c) for days thereafter, the Adjusted Invested Amount as of the end
of the day on the immediately prior Distribution Date.
(b) Except as specifically amended hereby, all of the terms
and conditions of each Supplement shall remain in full force and effect. All
references to a Supple-
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ment, from and after the Effective Date, shall mean a Supplement as so amended
and modified by the foregoing.
Section 13.15 Effectiveness of the Agreement. This Agreement shall be
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effective as of the Effective Date; notwithstanding the foregoing, the
provisions of this Agreement with respect to allocations and payments
(including, but not limited to, the revised and restated definitions of
"Floating Allocation Percentage", "Due Period", "Interchange Amount" and
"Servicing Fee Percentage" shall be effective for the October 1999 Distribution
Date, while the provisions of the Original Pooling and Servicing Agreement shall
govern allocations and payments with respect to the September 1999 Distribution
Date. The Servicer shall make any and all reasonable determinations of
allocation and payments in connection with the transition from the Original
Pooling and Servicing Agreement to this Agreement. Any determinations made by
the Servicer in connection with such transition shall be conclusive and binding
on the Trust, the Trustee, the Seller and the Certificateholders absent wilful
default, bad faith or manifest error on the part of the Servicer.
Section 13.16 Merger and Integration. Except as specifically stated
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otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
Section 13.17 Headings. The headings herein are for purposes of
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reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
[END OF ARTICLE XIII]
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IN WITNESS WHEREOF, the Seller, the Servicer and the Trustee have
caused this Agreement to be duly executed by their respective officers as of the
day and year first above written.
FIRST USA BANK, NATIONAL ASSOCIATION
as Seller and Servicer
By /s/ Harry H. Hallowell
---------------------------------
Name: Harry H. Hallowell
Title: Vice President
NORWEST BANK MINNESOTA,
NATIONAL ASSOCIATION
as Trustee
By /s/ S. Dignan
---------------------------------
Name: S. Dignan
Title: Corporate Trust Officer
<PAGE>
Schedule V
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Designated Portfolios
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"Marriott Portfolio" shall mean those consumer revolving credit card
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accounts included as part of the affinity program between the Seller and
Marriott Corporation (and identified as such on the credit cards issued with
respect to such credit card accounts).
"Mileage Plus Portfolio" shall mean those consumer revolving credit
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card accounts included as part of the affinity program between the Seller and
United Air Lines, Inc. (and identified as such on the credit cards issued with
respect to such credit card accounts).
